B
O
C
Prevailing Wages
Overview – Generally, the changes and clarifications related to
the employer’s obligation to pay prevailing wage and the manner
for challenging a prevailing wage determination apply equally to
H-1Bs and to Labor Certifications.
Payment of 100% of the Prevailing Wage
The final rule clarifies that the changes to prevailing wages in
the Consolidated Appropriations Act of 2005, signed on
December 8, 2004, related to the filing of H-1B applications
applies equally to the labor certification program. The prevailing
wage required to be paid is 100% of the prevailing wage; the 5%
variance is no longer allowed.
Use of Four Skill Levels
Governmental surveys such as the OES shall provide for 4
levels of wages commensurate with experience, education, and
the level of supervision. If only two levels are currently provided,
two new levels can be created by dividing by 3 the difference
between the two levels offered, adding the quotient obtained to
the first level, and subtracting that quotient from the second
level. Guidance to the State Workforce Agencies on how to
apply the new four levels will be forthcoming.
Use of Alternate Surveys
Employers may continue to use private surveys as alternative
sources for determining the prevailing wage as long as the
survey complies with 656.40(g)(1)-(5) and the provisions set
forth in section J of GAL 2-98 which set forth such factors as
adequacy of survey methodology, geographic scope, and age of
the survey. SWAs are encouraged to maintain records of
approved surveys and to keep review of previously accepted
surveys to a minimum.
Inclusion of Discretionary Bonuses, Commissions, Cost-of-Living
Allowances
These items are included in the OES wage data. Under current
policy, they can be included in determining the wage offered by
the employer as long as such payments are guaranteed by the
employer, and are thus not discretionary.
However, the final rule does not change the attestation
provisions under the General Instruction at section 656.10 (c)(2)
that if the wages are based on commissions, bonuses or other
incentives, an employer must guarantee a prevailing wage paid
on a weekly, bi-weekly, or monthly basis that equals or exceeds
the prevailing wage.
NOTE, there still remains the conflict that the OES survey
measures the average rate of wages paid in the survey year’s
sample but the employer must guesstimate what are typically
variable and discretionary pay factors on a guaranteed basis
and must pay them on a periodic versus annual basis.
Timing of Payment of the Prevailing Wage
The final rule continues to reaffirm the current regulation that
the prevailing wage must be paid either from the time permanent
residency is granted or from the time the alien is admitted to
take up the certified employment. Note that when “an alien is
admitted to take up the certified employment” also refers to
admission as a permanent resident.
Offered Wage Not Required in Recruitment Except for
Internal Posting
Contrary to the proposed regulations, the final regulations do
not require that the offered wage be included in the recruitment
efforts; however, it does have to be included in the internal
posting but a range is permitted as long as the bottom is 100%
of the prevailing wage, and the range must include the “offered
wage,” i.e. the wage offered to the alien at the time the labor
certification is filed.
Schedule A Occupations Require a PWD and Posting
A PWD is required for Schedule A occupations and an internal
posting listing the prevailing wage is required.
Prevailing Wage Determination Response Time
The SWAs are expected to respond expeditiously to request for
wage determinations but
no specific timeframes were imposed.
Validity of Prevailing Wage Determinations
The validity will be no less than 90 days and no more than one
year from the date of the determination.
Validity Period Related to Commencement of Recruitment
and Filing
Employers must file their applications or commence the
recruitment within the validity period specified by the SWA.
Review of Prevailing Wage Determination
If the employer disagrees with the PWD, it may file supplemental
information, or file a new PWD request, or appeal under section
656.41.
Filing Supplemental Information
Employers may only submit supplemental information one time.
An employer may choose to file an alternate survey with the
PWD but if it submits it after an adverse determination, the
submission of the alternate survey does not count as the one
time submission of supplemental information under section
656.40(h). Supplemental information may be supplied to the
SWA related to the choice of skill level, or erroneous selection of
occupational category, or issues related to the rejection of the
employerprovided wage survey.
File a New PWD
Filing a new PWD may be done at any time. The filing of a
second alternative survey will be considered as a new request
and a new review period will be initiated.
Prefiling Recruitment Steps
Posted Notice
The employer must post notice of the job opportunity for at least
ten consecutive business days. The notice period must be
between 180 and 30 days before filing. The notice must contain
the salary, but may contain a wage range, so long as the lower
level of the range meets or exceeds the prevailing wage. The
comments clarify that the primary purpose of the posted notice is
to give employees an opportunity to comment on the application
and that the posted notice is not another way to recruit US
workers. As required by IMMACT 90, the notice must say that
any person may provide documentary evidence bearing on the
application to the CO. This is similar to the current regulation.
Use of Other In-House Media
In addition to printed posted notice, the employer must use any
and all in-house media, whether electronic or printed, in
accordance with normal procedures used for recruitment for
similar positions in the organization. This appears to allow
employers to avoid listing executive-level positions in in-house
media if it is not normal practice to do so. The new ETA 9089
form, which replaces Form ETA 750 for most types of cases,
does not specifically require the employer to attest that he or
she has advertised the job through inhouse media. Duration of
the in-house media notification, per the comment, may be as
long as other comparable positions are posted.
Job Order
The employer must place a job order with the SWA for a period
of 30 days. Form ETA 9089 requires the employer to list the
start and end date of the job order. These dates serve as
documentation of the job order.
Conversion of Pending Cases
The regulation allows the withdrawing and re-filing of cases prior
to the placement of a job order by the SWA under section 656.21
(f)(1) of the current regulation. An employer who successfully
withdraws and re-files a pending application will preserve the
original filing date. This will be a key objective given the
retrogression of the Third Preference anticipated on January 1,
2005. In addition, PERM applications will be processed in the
order of receipt. However, all re-filed cases must comply with all
the requirements of the new PERM final rules, including
recruitment, minimum requirements, SVP, business necessity,
audit procedures and prevailing wage.
Continued Processing of Pending Applications Without
Conversion
Pending applications which are not withdrawn after PERM’s
effective date will continue to be processed under the current
rules in backlog reduction centers and regional offices.
Processing times for these applications should continue to be
posted on the DOL website.
Withdrawal and Re-filing of Pending Applications Under
PERM Limited to
Identical Job Opportunity
ONLY applications which are withdrawn prior to the placement of
a job order by the SWA may be re-filed under PERM’s new
procedures within 210 days of the request for withdrawal so long
as the re-filed application is for the “identical job opportunity.”
The final rule defines this term as applications which have the
SAME employer, alien, job title, job location, job description and
minimum requirements, including changes made in response to
an assessment notice from the SWA prior to PERM’s effective
date. However, there is a conflict with the final rule as published
and its Supplementary Comments, since the need for identical
minimum requirements is not included in the Comments but is
contained in the final rule.
Analysis of Issues Arising From the Identical Job
Requirement
The limits imposed by the need for identical applications present
a variety of problems, which will require DOL interpretation and
resolution prior to advising a client to withdraw and re-file. If the
applications are not found to be “identical,” then the re-filed
application will be processed under the new filing date and the
original application will be withdrawn and the filing date on the
withdrawn application will be lost and cannot be used on another
application. Given the need to also preserve filing dates for
seventh and subsequent H-1B extensions, as well as keeping
section 245(i) on the radar screen, the conversion process has
important tactical significance.
Applications Which Cannot Be Successfully Re-Filed Are
Treated As New
Applications Under PERM Rules
If the application cannot be successfully re-filed, it will be treated
as a new application. No preference of any type is given to
pending applications that are withdrawn and not successfully re-
filed.
The application will be assigned a filing date as of the date of
the request and then will be processed in-turn. This is risky
business since the re-filed application will have been prepared
using new PERM recruitment based on the old data from the
prior application.
If there is any question with respect to the acceptability of the re-
filed application, it may be a better strategy to restart the entire
process anew.
It is clear that additional guidance and interpretation must be
issued by DOL before we can know how rigidly the “identical”
concept will be applied in practice, since it is unduly restrictive as
drafted in the final rule.
Audit Procedures
The CO of the PERM Processing Center can request an audit of
any permanent labor certification either for cause or randomly. If
selected for audit, the Employer will receive an audit letter
specifically stating the additional documentation to be submitted,
set a date 30 days from the date of the audit letter for
submission and advise that the application will be denied if the
information is not received by the deadline.
If the employer does not respond as required, this will be
considered a refusal to exhaust administrative remedies and no
review is available either administratively or judicially. At the
discretion of the CO, the Employer may also be required to
conduct supervised recruitment for any future labor certification
filings for up to 2 years. The CO may grant one extension up to
30 days from the initial 30 period in which to respond to the audit
letter.
After receipt of the response from the Employer, the CO may
also request additional information and/or documentation or
require that the Employer conduct supervised recruitment.
Revocation of Approved Labor Certification
The CO, in consultation with the Chief, Division of Foreign Labor
Certification, may revoke an approved labor certification if
he/she finds that the certification was not justified.
The CO must send the Employer a Notice of Intent to Revoke
containing a detailed statement of the grounds for revocation
and the time period allowed for the Employer's rebuttal.
The Employer has 30 days within which to submit a response. If
the Employer fails to submit a rebuttal, the Notice of Intent to
Revoke becomes final. If the Employer files rebuttal evidence
and the CO determines the certification should be revoked, the
Employer may file an appeal under Sec. 656.26.
The CO must inform the Employer within 30 days of receiving
any rebuttal evidence whether or not the labor certification will
be revoked.
If the labor certification is revoked, the CO will send a copy of
the notification regarding the revocation to the DHS and the
DOS.
Overview – Generally, the changes and clarifications related to
the employer’s obligation to pay prevailing wage and the manner
for challenging a prevailing wage determination apply equally to
H-1Bs and to Labor Certifications.
Payment of 100% of the Prevailing Wage
The final rule clarifies that the changes to prevailing wages in
the Consolidated Appropriations Act of 2005, signed on
December 8, 2004, related to the filing of H-1B applications
applies equally to the labor certification program. The prevailing
wage required to be paid is 100% of the prevailing wage; the 5%
variance is no longer allowed.
Use of Four Skill Levels
Governmental surveys such as the OES shall provide for 4
levels of wages commensurate with experience, education, and
the level of supervision. If only two levels are currently provided,
two new levels can be created by dividing by 3 the difference
between the two levels offered, adding the quotient obtained to
the first level, and subtracting that quotient from the second
level. Guidance to the State Workforce Agencies on how to
apply the new four levels will be forthcoming.
Use of Alternate Surveys
Employers may continue to use private surveys as alternative
sources for determining the prevailing wage as long as the
survey complies with 656.40(g)(1)-(5) and the provisions set
forth in section J of GAL 2-98 which set forth such factors as
adequacy of survey methodology, geographic scope, and age of
the survey. SWAs are encouraged to maintain records of
approved surveys and to keep review of previously accepted
surveys to a minimum.
Inclusion of Discretionary Bonuses, Commissions, Cost-of-Living
Allowances
These items are included in the OES wage data. Under current
policy, they can be included in determining the wage offered by
the employer as long as such payments are guaranteed by the
employer, and are thus not discretionary.
However, the final rule does not change the attestation
provisions under the General Instruction at section 656.10 (c)(2)
that if the wages are based on commissions, bonuses or other
incentives, an employer must guarantee a prevailing wage paid
on a weekly, bi-weekly, or monthly basis that equals or exceeds
the prevailing wage.
NOTE, there still remains the conflict that the OES survey
measures the average rate of wages paid in the survey year’s
sample but the employer must guesstimate what are typically
variable and discretionary pay factors on a guaranteed basis
and must pay them on a periodic versus annual basis.
Timing of Payment of the Prevailing Wage
The final rule continues to reaffirm the current regulation that
the prevailing wage must be paid either from the time permanent
residency is granted or from the time the alien is admitted to
take up the certified employment. Note that when “an alien is
admitted to take up the certified employment” also refers to
admission as a permanent resident.
Offered Wage Not Required in Recruitment Except for
Internal Posting
Contrary to the proposed regulations, the final regulations do
not require that the offered wage be included in the recruitment
efforts; however, it does have to be included in the internal
posting but a range is permitted as long as the bottom is 100%
of the prevailing wage, and the range must include the “offered
wage,” i.e. the wage offered to the alien at the time the labor
certification is filed.
Schedule A Occupations Require a PWD and Posting
A PWD is required for Schedule A occupations and an internal
posting listing the prevailing wage is required.
Prevailing Wage Determination Response Time
The SWAs are expected to respond expeditiously to request for
wage determinations but
no specific timeframes were imposed.
Validity of Prevailing Wage Determinations
The validity will be no less than 90 days and no more than one
year from the date of the determination.
Validity Period Related to Commencement of Recruitment
and Filing
Employers must file their applications or commence the
recruitment within the validity period specified by the SWA.
Review of Prevailing Wage Determination
If the employer disagrees with the PWD, it may file supplemental
information, or file a new PWD request, or appeal under section
656.41.
Filing Supplemental Information
Employers may only submit supplemental information one time.
An employer may choose to file an alternate survey with the
PWD but if it submits it after an adverse determination, the
submission of the alternate survey does not count as the one
time submission of supplemental information under section
656.40(h). Supplemental information may be supplied to the
SWA related to the choice of skill level, or erroneous selection of
occupational category, or issues related to the rejection of the
employerprovided wage survey.
File a New PWD
Filing a new PWD may be done at any time. The filing of a
second alternative survey will be considered as a new request
and a new review period will be initiated.
Prefiling Recruitment Steps
Posted Notice
The employer must post notice of the job opportunity for at least
ten consecutive business days. The notice period must be
between 180 and 30 days before filing. The notice must contain
the salary, but may contain a wage range, so long as the lower
level of the range meets or exceeds the prevailing wage. The
comments clarify that the primary purpose of the posted notice is
to give employees an opportunity to comment on the application
and that the posted notice is not another way to recruit US
workers. As required by IMMACT 90, the notice must say that
any person may provide documentary evidence bearing on the
application to the CO. This is similar to the current regulation.
Use of Other In-House Media
In addition to printed posted notice, the employer must use any
and all in-house media, whether electronic or printed, in
accordance with normal procedures used for recruitment for
similar positions in the organization. This appears to allow
employers to avoid listing executive-level positions in in-house
media if it is not normal practice to do so. The new ETA 9089
form, which replaces Form ETA 750 for most types of cases,
does not specifically require the employer to attest that he or
she has advertised the job through inhouse media. Duration of
the in-house media notification, per the comment, may be as
long as other comparable positions are posted.
Job Order
The employer must place a job order with the SWA for a period
of 30 days. Form ETA 9089 requires the employer to list the
start and end date of the job order. These dates serve as
documentation of the job order.
Conversion of Pending Cases
The regulation allows the withdrawing and re-filing of cases prior
to the placement of a job order by the SWA under section 656.21
(f)(1) of the current regulation. An employer who successfully
withdraws and re-files a pending application will preserve the
original filing date. This will be a key objective given the
retrogression of the Third Preference anticipated on January 1,
2005. In addition, PERM applications will be processed in the
order of receipt. However, all re-filed cases must comply with all
the requirements of the new PERM final rules, including
recruitment, minimum requirements, SVP, business necessity,
audit procedures and prevailing wage.
Continued Processing of Pending Applications Without
Conversion
Pending applications which are not withdrawn after PERM’s
effective date will continue to be processed under the current
rules in backlog reduction centers and regional offices.
Processing times for these applications should continue to be
posted on the DOL website.
Withdrawal and Re-filing of Pending Applications Under
PERM Limited to
Identical Job Opportunity
ONLY applications which are withdrawn prior to the placement of
a job order by the SWA may be re-filed under PERM’s new
procedures within 210 days of the request for withdrawal so long
as the re-filed application is for the “identical job opportunity.”
The final rule defines this term as applications which have the
SAME employer, alien, job title, job location, job description and
minimum requirements, including changes made in response to
an assessment notice from the SWA prior to PERM’s effective
date. However, there is a conflict with the final rule as published
and its Supplementary Comments, since the need for identical
minimum requirements is not included in the Comments but is
contained in the final rule.
Analysis of Issues Arising From the Identical Job
Requirement
The limits imposed by the need for identical applications present
a variety of problems, which will require DOL interpretation and
resolution prior to advising a client to withdraw and re-file. If the
applications are not found to be “identical,” then the re-filed
application will be processed under the new filing date and the
original application will be withdrawn and the filing date on the
withdrawn application will be lost and cannot be used on another
application. Given the need to also preserve filing dates for
seventh and subsequent H-1B extensions, as well as keeping
section 245(i) on the radar screen, the conversion process has
important tactical significance.
Applications Which Cannot Be Successfully Re-Filed Are
Treated As New
Applications Under PERM Rules
If the application cannot be successfully re-filed, it will be treated
as a new application. No preference of any type is given to
pending applications that are withdrawn and not successfully re-
filed.
The application will be assigned a filing date as of the date of
the request and then will be processed in-turn. This is risky
business since the re-filed application will have been prepared
using new PERM recruitment based on the old data from the
prior application.
If there is any question with respect to the acceptability of the re-
filed application, it may be a better strategy to restart the entire
process anew.
It is clear that additional guidance and interpretation must be
issued by DOL before we can know how rigidly the “identical”
concept will be applied in practice, since it is unduly restrictive as
drafted in the final rule.
Audit Procedures
The CO of the PERM Processing Center can request an audit of
any permanent labor certification either for cause or randomly. If
selected for audit, the Employer will receive an audit letter
specifically stating the additional documentation to be submitted,
set a date 30 days from the date of the audit letter for
submission and advise that the application will be denied if the
information is not received by the deadline.
If the employer does not respond as required, this will be
considered a refusal to exhaust administrative remedies and no
review is available either administratively or judicially. At the
discretion of the CO, the Employer may also be required to
conduct supervised recruitment for any future labor certification
filings for up to 2 years. The CO may grant one extension up to
30 days from the initial 30 period in which to respond to the audit
letter.
After receipt of the response from the Employer, the CO may
also request additional information and/or documentation or
require that the Employer conduct supervised recruitment.
Revocation of Approved Labor Certification
The CO, in consultation with the Chief, Division of Foreign Labor
Certification, may revoke an approved labor certification if
he/she finds that the certification was not justified.
The CO must send the Employer a Notice of Intent to Revoke
containing a detailed statement of the grounds for revocation
and the time period allowed for the Employer's rebuttal.
The Employer has 30 days within which to submit a response. If
the Employer fails to submit a rebuttal, the Notice of Intent to
Revoke becomes final. If the Employer files rebuttal evidence
and the CO determines the certification should be revoked, the
Employer may file an appeal under Sec. 656.26.
The CO must inform the Employer within 30 days of receiving
any rebuttal evidence whether or not the labor certification will
be revoked.
If the labor certification is revoked, the CO will send a copy of
the notification regarding the revocation to the DHS and the
DOS.
BOGLE
OKOYE
CHANG
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BOGLE & CHANG, LLC
Copyright © 2010 Bogle & Chang, LLC. All Rights Reserved.
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Labor Certification: Overview
Advertisements
The employer must place two advertisements on two
different Sundays in the newspaper of general circulation
in the area of intended employment. Both ads must be
placed more than 30, but not more than 180 days before
filing.
The ads may be placed on consecutive Sundays. If the
job is located in a rural area with no Sunday edition, the
employer may use the edition with the widest circulation.
However, the use of a suburban newspaper on a day
other than Sunday is not allowed.
Placement of the ad under an inappropriate heading or
keyword would be considered a failure to make good-faith
efforts to recruit U.S. workers. The ad must list the name
of the employer, the geographic area of employment (only
if the job site is unclear, e.g., if applicants respond to a
location other than the job site or if the employer has
multiple job sites), and a description of the vacancy
specific enough to apprise US workers of the job
opportunity.
The employer may include minimum education and
experience requirements or specific job duties in the ad
as long as those requirements also appear on Form
9089. The ad must direct applicants to send resumes or
report to the employer, as appropriate.
The employer’s physical address is not required. A
central office or post office box may be designated for
receipt of resumes. The ad need not include the salary or
a detailed listing of the job description and requirements.
However, if the ad does include the salary, the salary
stated must meet or exceed the prevailing wage.
Documentation of the ad can be supplied by a copy of the
newspaper page or proof of publication supplied by the
newspaper. Form ETA 9089 requires the employer to list
the name of the newspaper and date of publication for
each ad. If the job requires experience and an advanced
degree, the employer may use a professional journal in
lieu of one of the Sunday ads. The proposed regulations
had required use of a professional journal for such jobs,
but DOL made this requirement optional in light of
comments submitted.
Three Additional Recruitment Steps for Professional
Jobs
The PERM regulation retains the requirement in the
proposed regulations that applications for professional
jobs must have additional recruitment. The list of
permitted additional recruitment steps in the final PERM
regulation include: 1) job fairs; (2) employer’s web site;
(3) job search web site other than employer’s; (4) on-
campus recruiting; (5) trade or professional organizations;
or (6) private employment firms. (7) an employee referral
program, if it includes identifiable incentives; (8) a notice
of the job opening at a campus placement office, if the job
requires a degree but no experience; (9) local and ethnic
newspapers, to the extent they are appropriate for the job
opportunity; and (10) radio and television advertisements.
Further, a web page generated in conjunction with a print
ad now counts as a website other than the employer’s.
The additional recruitment steps must take place no more
than 180 days before filing. The employer is not required
to take different steps each month. Only one of the
additional recruitment steps may take place within 30
days of filing. Form ETA 9089 requires the employers to
specify the dates of each additional recruitment step. The
final rule specifies how each type of additional recruitment
activity can be documented. Alternative recruitment steps
only require employers to advertise for the occupation
involved in the application rather than for the job
opportunity as is required for the newspaper ads.
Distinguishing between Professional and Non-
Professional Jobs
A professional job is a job for which the attainment of a
bachelor's or higher degree is a usual education
requirement. DOL published a list of professional
occupations in Appendix A to the PERM rule. If the
occupation is listed on Appendix A, the employer must
follow the recruitment regimen for professional
occupations. However, the employer may also use the
additional recruitment steps for other occupations. It may
be a good idea to do so to bolster a claim that a non-
listed occupation is also professional in nature.
Recruitment Report
Contents of Recruitment Report
The employer must prepare a recruitment report that
describes the recruitment steps taken and the results.
The recruitment report must include the number of hires
and the number of US workers rejected, categorized by
the lawful job-related reasons for rejection. The CO may,
after reviewing the employer’s recruitment report, request
copies of the US workers’ resumes, sorted by the reasons
for rejection. The employer must sign the recruitment
report. In response to numerous comments from
employers who receive a large volume of unsolicited
resumes, the final rule does not require the employer to
identify the individual U.S. workers who applied for the job
opportunity.
Failure to Meet the Minimum Requirements
An applicant's failure to meet the employer's stated
minimum requirements is a lawful reason for rejection;
however, if a worker lacks a skill that may be acquired
during a reasonable period of on-the-job training, the lack
of that skill is not a lawful basis for rejecting an otherwise
qualified worker. This final rule does not specify what
constitutes a reasonable period because the training
period may vary by occupation, industry, and job
opportunity.
Retention of Documentation
Supporting documents must be retained for five years
from date of filing.
How and Where to File—Basic Process
Using a new form, Application for Permanent Employment
Certification (ETA 9089), employers can file either
electronically or by mail to the appropriate ETA
processing center. Faxing will not be allowed.
Electronic filing
Employers will go to the ETA website located at http://www.
plc.doleta.gov. (currently not on display) to complete and
file the form. The site will allow frequent users to set up a
file with basic, repeat information, much like the LCA
system (employer name, address, etc.). Passwords or
identifiers also might be assigned to individuals (not
businesses) for fraud prevention purposes. No G-28 is
required.
The employer signs the form declaring the attorney to be
the legal representative. Once the ETA is certified, the
employer must sign the form upon receipt from ETA. A
copy must be maintained in the employer’s files; the
original, signed ETA must accompany the I-140 when it is
filed with CIS. A priority date will be assigned as of the
date the electronic submission is accepted for filing.
Incomplete applications will not be processed, but simply
denied.
Filing by mail
Applications can be mailed directly to the appropriate
centralized processing center. The addresses of the
processing centers will be listed at http://www.
workforcesecurity.doleta.gov/foreign/. Applications filed by
mail must bear the original signature. A priority date will
be assigned as of the date of receipt, provided the form is
accepted for filing.
Supporting documentation
Whether filed electronically or by mail, no supporting
documentation will be filed with the ETA 9089. Instead,
the employer must maintain supporting documentation in
the event an audit is required or the Certifying Officer
otherwise requests certain documents.
Such documentation, along with a copy of the ETA form,
must be retained for five years from the date of filing ETA
9089.
Prevailing wage determination as a pre-requisite to
filing
Employers must file with the SWA and receive a prevailing
wage determination prior to filing the ETA 9089.
Employers will use the state-designated prevailing wage
request form. Information from the prevailing wage
determination will then be incorporated into the ETA
9089. The actual prevailing wage determination form
should be retained as a supporting document, to be
furnished to ETA in the event of an audit.
Inclusion of Attorneys’ Fees
Attorney fees are discussed in reference to the
beneficiary’s financial involvement. If the beneficiary is
“required” to pay attorney fees, it is possible the position
will be challenged as to whether or not the job is open to
U.S. workers. See 20 CFR § 656.10(c)(8). This issue is
discussed briefly in the preamble but not addressed in the
regulation.
Filing Fees
There is no filing fee, as was suggested in the proposed
rule. Until Congress enacts legislation authorizing a fee,
labor certification filing fees are not permitted.
Live-In Domestic Workers – Special Rules
The basic filing procedures will still apply to live-in
domestic workers. However, the documentation
requirements are weightier. Supporting documents should
not be filed with the ETA, but should be retained in the
employer’s files in the event of an audit upon request by
the Certifying Officer.
The following three documents must be maintained:
Supervised Recruitment
When supervised recruitment is requested by the CO,
either after receipt of an audit response or as part of the
mandated supervised recruitment when an Employer has
previously failed to respond to an audit letter, the
requirements are similar to supervised recruitment under
the old basic procedure.
The Employer is advised to place an ad in a newspaper of
general circulation for three days including a Sunday or
for one edition of a professional, trade or ethic
publication. The Employer must submit a draft of the
proposed ad to the CO for approval within 30 days of the
notification that supervised recruitment is required. The
CO will approve the ad and direct the timing of the
advertisement. The Employer shall notify the CO when
the ad will appear.
The approved ad must advise applicants to send resumes
or applications to the Certifying Officer including an
identification number and address as designated by the
Certifying Officer.
The ad must describe the job opportunity including a
wage rate that meets or exceeds the prevailing wage rate
and summarizes the minimum job requirements as
contained in the application form and offer training if the
job would normally require the Employer to provide
training.
The wages, terms and conditions of employment must be
as least as favorable as those offered to the alien. The
CO may also require other specific recruitment efforts
containing the same information.
The recruitment report must be submitted within 30 days
of the CO’s request for the report. The Employer must
submit a detailed written report signed by the Employer
and contain the following specific information:
If the Employer does not respond within the 30 days, the
CO shall deny the application. The CO has discretion to
grant one extension to the Employer.
The employer must place two advertisements on two
different Sundays in the newspaper of general circulation
in the area of intended employment. Both ads must be
placed more than 30, but not more than 180 days before
filing.
The ads may be placed on consecutive Sundays. If the
job is located in a rural area with no Sunday edition, the
employer may use the edition with the widest circulation.
However, the use of a suburban newspaper on a day
other than Sunday is not allowed.
Placement of the ad under an inappropriate heading or
keyword would be considered a failure to make good-faith
efforts to recruit U.S. workers. The ad must list the name
of the employer, the geographic area of employment (only
if the job site is unclear, e.g., if applicants respond to a
location other than the job site or if the employer has
multiple job sites), and a description of the vacancy
specific enough to apprise US workers of the job
opportunity.
The employer may include minimum education and
experience requirements or specific job duties in the ad
as long as those requirements also appear on Form
9089. The ad must direct applicants to send resumes or
report to the employer, as appropriate.
The employer’s physical address is not required. A
central office or post office box may be designated for
receipt of resumes. The ad need not include the salary or
a detailed listing of the job description and requirements.
However, if the ad does include the salary, the salary
stated must meet or exceed the prevailing wage.
Documentation of the ad can be supplied by a copy of the
newspaper page or proof of publication supplied by the
newspaper. Form ETA 9089 requires the employer to list
the name of the newspaper and date of publication for
each ad. If the job requires experience and an advanced
degree, the employer may use a professional journal in
lieu of one of the Sunday ads. The proposed regulations
had required use of a professional journal for such jobs,
but DOL made this requirement optional in light of
comments submitted.
Three Additional Recruitment Steps for Professional
Jobs
The PERM regulation retains the requirement in the
proposed regulations that applications for professional
jobs must have additional recruitment. The list of
permitted additional recruitment steps in the final PERM
regulation include: 1) job fairs; (2) employer’s web site;
(3) job search web site other than employer’s; (4) on-
campus recruiting; (5) trade or professional organizations;
or (6) private employment firms. (7) an employee referral
program, if it includes identifiable incentives; (8) a notice
of the job opening at a campus placement office, if the job
requires a degree but no experience; (9) local and ethnic
newspapers, to the extent they are appropriate for the job
opportunity; and (10) radio and television advertisements.
Further, a web page generated in conjunction with a print
ad now counts as a website other than the employer’s.
The additional recruitment steps must take place no more
than 180 days before filing. The employer is not required
to take different steps each month. Only one of the
additional recruitment steps may take place within 30
days of filing. Form ETA 9089 requires the employers to
specify the dates of each additional recruitment step. The
final rule specifies how each type of additional recruitment
activity can be documented. Alternative recruitment steps
only require employers to advertise for the occupation
involved in the application rather than for the job
opportunity as is required for the newspaper ads.
Distinguishing between Professional and Non-
Professional Jobs
A professional job is a job for which the attainment of a
bachelor's or higher degree is a usual education
requirement. DOL published a list of professional
occupations in Appendix A to the PERM rule. If the
occupation is listed on Appendix A, the employer must
follow the recruitment regimen for professional
occupations. However, the employer may also use the
additional recruitment steps for other occupations. It may
be a good idea to do so to bolster a claim that a non-
listed occupation is also professional in nature.
Recruitment Report
Contents of Recruitment Report
The employer must prepare a recruitment report that
describes the recruitment steps taken and the results.
The recruitment report must include the number of hires
and the number of US workers rejected, categorized by
the lawful job-related reasons for rejection. The CO may,
after reviewing the employer’s recruitment report, request
copies of the US workers’ resumes, sorted by the reasons
for rejection. The employer must sign the recruitment
report. In response to numerous comments from
employers who receive a large volume of unsolicited
resumes, the final rule does not require the employer to
identify the individual U.S. workers who applied for the job
opportunity.
Failure to Meet the Minimum Requirements
An applicant's failure to meet the employer's stated
minimum requirements is a lawful reason for rejection;
however, if a worker lacks a skill that may be acquired
during a reasonable period of on-the-job training, the lack
of that skill is not a lawful basis for rejecting an otherwise
qualified worker. This final rule does not specify what
constitutes a reasonable period because the training
period may vary by occupation, industry, and job
opportunity.
Retention of Documentation
Supporting documents must be retained for five years
from date of filing.
How and Where to File—Basic Process
Using a new form, Application for Permanent Employment
Certification (ETA 9089), employers can file either
electronically or by mail to the appropriate ETA
processing center. Faxing will not be allowed.
Electronic filing
Employers will go to the ETA website located at http://www.
plc.doleta.gov. (currently not on display) to complete and
file the form. The site will allow frequent users to set up a
file with basic, repeat information, much like the LCA
system (employer name, address, etc.). Passwords or
identifiers also might be assigned to individuals (not
businesses) for fraud prevention purposes. No G-28 is
required.
The employer signs the form declaring the attorney to be
the legal representative. Once the ETA is certified, the
employer must sign the form upon receipt from ETA. A
copy must be maintained in the employer’s files; the
original, signed ETA must accompany the I-140 when it is
filed with CIS. A priority date will be assigned as of the
date the electronic submission is accepted for filing.
Incomplete applications will not be processed, but simply
denied.
Filing by mail
Applications can be mailed directly to the appropriate
centralized processing center. The addresses of the
processing centers will be listed at http://www.
workforcesecurity.doleta.gov/foreign/. Applications filed by
mail must bear the original signature. A priority date will
be assigned as of the date of receipt, provided the form is
accepted for filing.
Supporting documentation
Whether filed electronically or by mail, no supporting
documentation will be filed with the ETA 9089. Instead,
the employer must maintain supporting documentation in
the event an audit is required or the Certifying Officer
otherwise requests certain documents.
Such documentation, along with a copy of the ETA form,
must be retained for five years from the date of filing ETA
9089.
Prevailing wage determination as a pre-requisite to
filing
Employers must file with the SWA and receive a prevailing
wage determination prior to filing the ETA 9089.
Employers will use the state-designated prevailing wage
request form. Information from the prevailing wage
determination will then be incorporated into the ETA
9089. The actual prevailing wage determination form
should be retained as a supporting document, to be
furnished to ETA in the event of an audit.
Inclusion of Attorneys’ Fees
Attorney fees are discussed in reference to the
beneficiary’s financial involvement. If the beneficiary is
“required” to pay attorney fees, it is possible the position
will be challenged as to whether or not the job is open to
U.S. workers. See 20 CFR § 656.10(c)(8). This issue is
discussed briefly in the preamble but not addressed in the
regulation.
Filing Fees
There is no filing fee, as was suggested in the proposed
rule. Until Congress enacts legislation authorizing a fee,
labor certification filing fees are not permitted.
Live-In Domestic Workers – Special Rules
The basic filing procedures will still apply to live-in
domestic workers. However, the documentation
requirements are weightier. Supporting documents should
not be filed with the ETA, but should be retained in the
employer’s files in the event of an audit upon request by
the Certifying Officer.
The following three documents must be maintained:
- A statement describing the worker’s living
accommodations, including whether the residence
is a house or apartment, number of rooms, number
of adults and children in household, and free board
and a private room is provided.
- Two copies of the employment contract. Contract
must include hourly/weekly wage, daily and weekly
hours to be worked, worker’s freedom to leave
premises during offhours (except that overtime pay
will be provided), worker will reside on employer’s
premises, total amount of money to be advanced to
the worker, worker not required to give more than
two weeks’ notice, employer must give worker at
least two weeks notice of intent to terminate
employment, a copy of the contract has been given
to the worker, private room and board provided,
any other agreement or condition not specified on
the ETA form.
- Documentation of worker’s paid experience
amounting to at least one year of full-time
employment.
Supervised Recruitment
When supervised recruitment is requested by the CO,
either after receipt of an audit response or as part of the
mandated supervised recruitment when an Employer has
previously failed to respond to an audit letter, the
requirements are similar to supervised recruitment under
the old basic procedure.
The Employer is advised to place an ad in a newspaper of
general circulation for three days including a Sunday or
for one edition of a professional, trade or ethic
publication. The Employer must submit a draft of the
proposed ad to the CO for approval within 30 days of the
notification that supervised recruitment is required. The
CO will approve the ad and direct the timing of the
advertisement. The Employer shall notify the CO when
the ad will appear.
The approved ad must advise applicants to send resumes
or applications to the Certifying Officer including an
identification number and address as designated by the
Certifying Officer.
The ad must describe the job opportunity including a
wage rate that meets or exceeds the prevailing wage rate
and summarizes the minimum job requirements as
contained in the application form and offer training if the
job would normally require the Employer to provide
training.
The wages, terms and conditions of employment must be
as least as favorable as those offered to the alien. The
CO may also require other specific recruitment efforts
containing the same information.
The recruitment report must be submitted within 30 days
of the CO’s request for the report. The Employer must
submit a detailed written report signed by the Employer
and contain the following specific information:
- Identify each recruitment source by name and
document contact by letters to sources such as
unions, trade associations and colleges and
universities with responses if any.
- Ads should be documented with tearsheets,
publication affidavits or dates copies from web
pages.
- Also include the number of U.S. workers that
responded with names, addresses and resumes
except for those who sent resumes to the CO and
specify number of interviews and job title of person
who conducted the interview.
- Specific lawful job-related reasons for not hiring
each U.S. workers must be provided. If an applicant
is rejected because of lack of skills to perform the
job duties, additional documentation must be
provided that the applicant could not acquire the
skills during a reasonable period of on-the-job
training.
If the Employer does not respond within the 30 days, the
CO shall deny the application. The CO has discretion to
grant one extension to the Employer.
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