Q: My employer wants to file a Labor Certification “PERM” based green card application for me. What are the regulations regarding advertising the position?
MR: A labor certification application is commonly referred to as “PERM” application and is submitted electronically to the U.S. Department of Labor after the U.S. employer [sponsor] performs a good faith test of the U.S. labor market. The PERM based green card process consists of three Stages:
Stage 1: Labor certification application, ie, PERM – to Department of Labor.
Stage 2: I-140 Petition for Immigrant Worker – to the Immigration Service (US CIS).
Stage 3: Clearance for US lawful permanent residence, ie, the green card, through “adjustment of status” performed on US soil or “immigrant visa processing” performed at a US consulate abroad.
The employer must test the U.S. labor market for the position offered to the foreign national, to see if there is a U.S. worker – instead of the foreign national – qualified and available for the job. After testing the market, if there is no such worker, then the foreign national proceeds with the stages of the process. If a qualified and available U.S. worker is found, the green card process stops. Yet, the employer is not required to hire the U.S. worker who might turn up during recruitment. It just signals that the market contains qualified US workers who should be offered the job first. It does not prevent trying for the green card again.
Actual Job Requirement is KEY. It is important to note the qualifications of the applicant, for example, a Master’s degree, represents only half the equation in determining the EB-2 or EB-3 category. The other half is the employer’s minimum requirements for the position. For example, an applicant may have a US master’s degree, but the position only requires a bachelor’s degree. Such a case would not qualify under the EB-2 category. In other words, the applicant has the EB-2 advanced degree, but the job does not require such a high level of education/experience. Therefore, it is an EB-3 case.
Recruitment: The employer must describe to DOL, and later prove if asked, its recruitment efforts to demonstrate that a qualified, willing, and able US worker is not available to fill the position. All of the following recruitment efforts must be completed within a 180 day period before the PERM application filing date; with no more than one non-mandatory recruitment action occurring within the 30 days prior to filing the application.
MANDATORY RECRUITMENT STEPS
(1) JOB ORDER WITH SWA. A “Job Order” must be placed with the State Workforce Agency for at least 30 calendar days.
(2) NEWSPAPER ADVERTISEMENT. Two Sunday-edition print advertisements must be placed in a major paper serving the geographical area of intended employment
(3) INTERNAL POSTING. A notice of the employment opportunity must be physically posted for 10 consecutive business days in a conspicuous place at the place of employment. Further, the internal posting notice must be published in any and all in-house media, in accordance with the normal recruitment procedures used for similar positions in the your organization. This would include a job board, Intranet site, newsletters, etc
PLUS 1-of-3 ADDITIONAL RECRUITMENT STEPS
(4) JOB FAIR participation
(5) EMPLOYER’s EXTERNAL Website Posting
(6) JOB SEARCH WEBSITE Postings (ie, Monster.com). Web-based postings of the job opportunity made in conjunction with placement of the newspaper advertisement are considered additional recruitment
(7) EMPLOYEE REFERRAL PROGRAMS
(8) LOCAL/ETHINC NEWSPAPER Advertisements
(9) ON CAMPUS RECRUITING
(10) TRADE or PROFESSIONAL ORGANIZATION Media
(11) PRIVATE EMPLOYMENT FIRM Listings
(12) RADIO or TV Advertisements
Recruitment Report and Post Recruitment: The employer must sign and maintain a detailed report describing the recruitment steps and the results achieved. If a qualified, willing, and able US applicant is found to be available for the position offered in the PERM application, the employer is not required to hire the applicant, but may not file the PERM application with the DOL.
Review of the Labor Certification application may lead to a DOL “audit.” The DOL may randomly, or for specific cause, audit applications. If an application is selected for audit, the employer will generally have 30 days to submit the required documentation. Requested documentation could include evidence of recruitment activities, resumes of applicants, prevailing wage determinations, or business justification for position requirements, etc.