B
O
C
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.
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.
The EB3 employment based green card is for professionals who hold a
US baccalaureate degree or foreign equivalent degree that is normally
required for the profession. Education and experience may not be
substituted for the degree. Members of the professions include, but are not
limited to architects, engineers, lawyers, physicians, surgeons, and
teachers in elementary or secondary schools, colleges, academies, or
seminaries. It also includes any occupation for which a US baccalaureate
degree (or foreign equivalent) is the minimum requirement for entry into
the occupation.
The EB3 employment based green card is also for "skilled workers"
defined as a person, who at the time of petitioning, is capable of
performing skilled labor, requiring at least 2 years training or experience,
not of a temporary or seasonal nature, and for which there are no qualified
workers available in the United States. Relevant post-secondary education
may be considered as training for the purposes of this provision.
The EB3 employment based green card is also for " other workers"
defined as a person who is to perform unskilled labor, requiring less than
two years training, not of a temporary or seasonal nature, for which
qualified workers are not available in the United States.
In order to obtain permanent residency through the EB3 category, the
applicant must have an employer willing to sponsor him or her through
labor certification or PERM. The applicant does not have to be employed
when labor certification/PERM is filed. A job offer is sufficient. Labor
certification/PERM is the process whereby, the US government determines
whether qualified US workers can fill the open position. Once the labor
certification is approved, the employer may sponsor the applicant for
permanent residency.
The EB3 process is as follows:
STEP 1: The Labor Certification Application
What is a labor certification?
A labor certification is an official government finding that
(1) no U.S. workers can be found, at the time of filing the application and in
the geographic area where the job exists, who are available, willing, and
able to fill the position; and
(2) the individual’s employment will not "adversely affect" the wages and
working conditions of similarly situated U.S. workers.
How does a company get a labor certification?
The company files a labor certification application (Form ETA 750) with the
state employment security agency (SESA) of the state in which the job is
located. The state agency completes preliminary processing of the
application, and then forwards it to the appropriate regional office of DOL.
The DOL regional office issues the labor certification.
What goes into a labor certification application?
The application form, Form ETA 750, has two parts. The first part (750 Part
A) is a formal offer of employment. The offer of employment contains
specific information about the job, including a description of the duties and
responsibilities and the minimum qualifications a person must have in
order to adequately perform the job.
The second part of the application (750 Part B) is a statement of the
qualifications of the candidate whom the company has selected for the job.
This candidate may be in the United States already (for example, on an H-
1B visa), or the candidate may be outside the U.S. The candidate must
possess at least the minimum qualifications for the job as set forth in Part
A of the application. The statement includes details about the candidate’s
educational and work-related background. Copies of the candidate’s
educational degrees and transcripts and letters from previous employers
verifying the candidate’s experience accompany Part B.
How does the government know whether there are U.S. workers to fill
the job?
A test of the labor market must show that there are insufficient U.S.
workers available who are interested in and willing to take the job. There
are two ways to conduct the test: (1) the employer can conduct its own test
by providing evidence of recruitment in the past six months; or (2) the
employer can let the government conduct the test through government
supervised recruitment. The first way leads to what is known as “reduction
in recruitment” (RIR) or “fast-track” processing.
How does RIR or fast-track labor certification application processing
work?
RIR labor certification applications are given top priority by DOL and
constitute the preferred approach whenever and wherever possible. Fast
track depends on an employer’s ongoing pattern of recruiting rather than
performance of an individual test of the labor market. In other words, rather
than placing individual advertisements for each application, a fast-track
application is filed with a documentation package containing evidence of
the company’s pattern of recruitment.
What is the advantage of RIR processing?
By far the best reason to take advantage of RIR processing is to cut time
out of the process. The success of a fast-track application depends on the
company’s recruiting efforts and the extensiveness of these efforts’
documentation. The fast-track approach significantly decreases the
processing time from filing to approval and varies from jurisdiction to
jurisdiction.
What if the application cannot qualify for RIR processing?
Some applications will not qualify for fast-track processing because 1)
there is insufficient recruitment for the position; or 2) the occupation does
not have a shortage of U.S. workers. In such a case, the employer must
pursue labor certification by conducting recruitment that is supervised by
the state agency. These cases are given a lower priority and result in
slower processing times. For example, in California, New Jersey, or New
York, a non-RIR case filed this month might take three years or more* to
process; in Illinois, it could take slightly less time.
The labor certification application process can take so long, even for
fast track. Is there any way around it?
Most employees will need to go through the labor certification application
process, but some will not. For example, high-level employees who are
transferred to the U.S. from company offices abroad may be eligible to
immigrate without first obtaining a labor certification.
Under the multinational manager/executive classification, an employee
with a Ph.D. in his or her respective field, as well as publications and other
professional distinctions, may be eligible for “outstanding researcher”
immigrant classification, for which labor certification is not necessary.
Also, employees who can demonstrate that they rank at or near the very top
of their field nationally or internationally may be eligible for “extraordinary
ability” classification; labor certification would not be necessary for these
individuals either. Certain jobs and projects have been found to be
especially “in the national interest,” and employees working on such jobs
may be able to bypass the labor certification process.
STEP 2: The Immigrant Petition (I-140)
What is an immigrant petition?
An employer files an immigrant petition on behalf of an employee when the
employer wishes to formally sponsor the employee for U.S. immigration.
The petition is a formal offer of “permanent” employment (that is,
employment of indefinite duration).
What’s the difference between an immigrant petition and a labor
certification application?
A labor certification application is an application to the government
(specifically, to DOL) asking for official certification that a job exists that
cannot be filled by a U.S. worker. An immigrant petition is a petition to the
government (specifically, to INS) asking the government for permission to
hire a specific foreign national to “permanently” fill the job. Most immigrant
petitions must be based on approved labor certification applications,
because for most jobs, the law requires DOL to find that there is a
shortage of U.S. workers for the job.
What goes into an immigrant petition?
The application form, Form I-140, provides information about the company
(the “petitioner”), the candidate (the “beneficiary”), and the job offered. The
employer must also request on the form that the beneficiary be classified
according to a specific preference category.
What is a preference category?
Under U.S. laws, there are five preference categories in which an
employment-based immigrant is eligible for assignment. Statutory quotas
limit the number of people who can immigrate each year depending both
on the preference category in which the person is classified, and the
person’s country of birth. The vast majority of employment-based
immigrants fall into either the second preference (EB2) or the third
preference (EB3) category.
What is the difference between EB2 and EB3?
Generally, EB2 classification is for people who will work in jobs that
require someone with either an advanced degree (for example, a master’s
degree or Ph.D.) or its equivalent (i.e., a bachelor’s degree plus at least
five years of “progressive” experience). EB3 is for people whose jobs don’t
require such education or expertise. Classification is determined not by
what education and experience the person actually has, but by what
education and experience is necessary for the person’s job as set forth in
the labor certification.
What does it matter whether a person is classified as EB2 or EB3?
Every year, quotas allow only a limited number of people to immigrate to
the U.S. The quotas depend both on the preference category and the
country of one’s birth. The laws do not allow more than a certain number of
EB2 and EB3 individuals to immigrate, and each country is limited to a
percentage of the total number of each catetgory.
For people from most countries, it makes no difference whether they are
classified as EB2 or EB3, because both of these categories are “current”
(meaning there is no waiting to immigrate) for most of the world’s
countries. Until recently, persons born in India and the PRC, who fell under
certain employment-based categories, normally had to wait for their priority
dates to become current before filing for AOS.
If an employee has to wait to immigrate, how is the length of the wait
calculated?
The employee must wait until his or her “priority date” is current before he
or she will be allowed to begin the third step of the immigration process.
The priority date is the date the employee’s labor certification application
was originally filed (generally, the date the application was received by the
state employment security agency).
Every month, the U.S. Department of State tracks the number of people
who immigrate from all countries in each preference category. Based on
those numbers, it designates certain priority dates for each category as
current, and people holding these or older priority dates are eligible to
move to the third step of the immigration process.
If an employee has to wait to immigrate, how long might the wait be?
An example can illustrate how the waiting process works. Suppose that a
company filed a labor certification application on behalf of a Chinese
national in a job requiring a master’s degree on May 1, 1997 (the priority
date). The labor certification was approved by DOL on April 1, 1998. The
employer then filed an immigrant petition with INS based on the approved
labor certification on April 15, 1998, which was approved on August 15,
1998. Because the job the employee holds requires a master’s degree,
the employee qualifies for and was given EB2 classification.
When would this employee be eligible to immigrate?
In November 1998, the State Department indicated that current priority date
for Chinese-born EB2 immigrants was May 22, 1996. This meant that
those immigrants whose labor certification applications were filed on or
before May 22, 1996 were eligible to immigrate. The employee described
above, therefore, would have to wait.
If the difference between the current date and an employee’s priority
date is one year, does this mean that the employee’s wait will be one
year?
Not necessarily. Priority dates do not advance at the same rate as the
calendar. In some months, the date may not move at all; in others, the date
might move forward by weeks or even months at a time. Priority dates may
even retrogress.
* All processing times indicated are rough estimates based on current
experience. Individual cases can and do vary in processing times, and the
general periods vary from time to time.
US baccalaureate degree or foreign equivalent degree that is normally
required for the profession. Education and experience may not be
substituted for the degree. Members of the professions include, but are not
limited to architects, engineers, lawyers, physicians, surgeons, and
teachers in elementary or secondary schools, colleges, academies, or
seminaries. It also includes any occupation for which a US baccalaureate
degree (or foreign equivalent) is the minimum requirement for entry into
the occupation.
The EB3 employment based green card is also for "skilled workers"
defined as a person, who at the time of petitioning, is capable of
performing skilled labor, requiring at least 2 years training or experience,
not of a temporary or seasonal nature, and for which there are no qualified
workers available in the United States. Relevant post-secondary education
may be considered as training for the purposes of this provision.
The EB3 employment based green card is also for " other workers"
defined as a person who is to perform unskilled labor, requiring less than
two years training, not of a temporary or seasonal nature, for which
qualified workers are not available in the United States.
In order to obtain permanent residency through the EB3 category, the
applicant must have an employer willing to sponsor him or her through
labor certification or PERM. The applicant does not have to be employed
when labor certification/PERM is filed. A job offer is sufficient. Labor
certification/PERM is the process whereby, the US government determines
whether qualified US workers can fill the open position. Once the labor
certification is approved, the employer may sponsor the applicant for
permanent residency.
The EB3 process is as follows:
- Step 1-Labor Certification Application: The employer must first file
an application for an alien employment certification ("labor
certification") with the U.S. Department of Labor (DOL) on behalf of
the individual;
- Step 2-Immigrant Petition (I-140): Once the labor certification
application is approved, the company files an immigrant petition
with the USCIS; and then
- Step 3-The employee would file an Adjustment of Status
application to adjust your status to that of permanent resident (if in
the U.S.) or consular process for an immigrant visa at a U.S.
consulate (if outside of the U.S.).
STEP 1: The Labor Certification Application
What is a labor certification?
A labor certification is an official government finding that
(1) no U.S. workers can be found, at the time of filing the application and in
the geographic area where the job exists, who are available, willing, and
able to fill the position; and
(2) the individual’s employment will not "adversely affect" the wages and
working conditions of similarly situated U.S. workers.
How does a company get a labor certification?
The company files a labor certification application (Form ETA 750) with the
state employment security agency (SESA) of the state in which the job is
located. The state agency completes preliminary processing of the
application, and then forwards it to the appropriate regional office of DOL.
The DOL regional office issues the labor certification.
What goes into a labor certification application?
The application form, Form ETA 750, has two parts. The first part (750 Part
A) is a formal offer of employment. The offer of employment contains
specific information about the job, including a description of the duties and
responsibilities and the minimum qualifications a person must have in
order to adequately perform the job.
The second part of the application (750 Part B) is a statement of the
qualifications of the candidate whom the company has selected for the job.
This candidate may be in the United States already (for example, on an H-
1B visa), or the candidate may be outside the U.S. The candidate must
possess at least the minimum qualifications for the job as set forth in Part
A of the application. The statement includes details about the candidate’s
educational and work-related background. Copies of the candidate’s
educational degrees and transcripts and letters from previous employers
verifying the candidate’s experience accompany Part B.
How does the government know whether there are U.S. workers to fill
the job?
A test of the labor market must show that there are insufficient U.S.
workers available who are interested in and willing to take the job. There
are two ways to conduct the test: (1) the employer can conduct its own test
by providing evidence of recruitment in the past six months; or (2) the
employer can let the government conduct the test through government
supervised recruitment. The first way leads to what is known as “reduction
in recruitment” (RIR) or “fast-track” processing.
How does RIR or fast-track labor certification application processing
work?
RIR labor certification applications are given top priority by DOL and
constitute the preferred approach whenever and wherever possible. Fast
track depends on an employer’s ongoing pattern of recruiting rather than
performance of an individual test of the labor market. In other words, rather
than placing individual advertisements for each application, a fast-track
application is filed with a documentation package containing evidence of
the company’s pattern of recruitment.
What is the advantage of RIR processing?
By far the best reason to take advantage of RIR processing is to cut time
out of the process. The success of a fast-track application depends on the
company’s recruiting efforts and the extensiveness of these efforts’
documentation. The fast-track approach significantly decreases the
processing time from filing to approval and varies from jurisdiction to
jurisdiction.
What if the application cannot qualify for RIR processing?
Some applications will not qualify for fast-track processing because 1)
there is insufficient recruitment for the position; or 2) the occupation does
not have a shortage of U.S. workers. In such a case, the employer must
pursue labor certification by conducting recruitment that is supervised by
the state agency. These cases are given a lower priority and result in
slower processing times. For example, in California, New Jersey, or New
York, a non-RIR case filed this month might take three years or more* to
process; in Illinois, it could take slightly less time.
The labor certification application process can take so long, even for
fast track. Is there any way around it?
Most employees will need to go through the labor certification application
process, but some will not. For example, high-level employees who are
transferred to the U.S. from company offices abroad may be eligible to
immigrate without first obtaining a labor certification.
Under the multinational manager/executive classification, an employee
with a Ph.D. in his or her respective field, as well as publications and other
professional distinctions, may be eligible for “outstanding researcher”
immigrant classification, for which labor certification is not necessary.
Also, employees who can demonstrate that they rank at or near the very top
of their field nationally or internationally may be eligible for “extraordinary
ability” classification; labor certification would not be necessary for these
individuals either. Certain jobs and projects have been found to be
especially “in the national interest,” and employees working on such jobs
may be able to bypass the labor certification process.
STEP 2: The Immigrant Petition (I-140)
What is an immigrant petition?
An employer files an immigrant petition on behalf of an employee when the
employer wishes to formally sponsor the employee for U.S. immigration.
The petition is a formal offer of “permanent” employment (that is,
employment of indefinite duration).
What’s the difference between an immigrant petition and a labor
certification application?
A labor certification application is an application to the government
(specifically, to DOL) asking for official certification that a job exists that
cannot be filled by a U.S. worker. An immigrant petition is a petition to the
government (specifically, to INS) asking the government for permission to
hire a specific foreign national to “permanently” fill the job. Most immigrant
petitions must be based on approved labor certification applications,
because for most jobs, the law requires DOL to find that there is a
shortage of U.S. workers for the job.
What goes into an immigrant petition?
The application form, Form I-140, provides information about the company
(the “petitioner”), the candidate (the “beneficiary”), and the job offered. The
employer must also request on the form that the beneficiary be classified
according to a specific preference category.
What is a preference category?
Under U.S. laws, there are five preference categories in which an
employment-based immigrant is eligible for assignment. Statutory quotas
limit the number of people who can immigrate each year depending both
on the preference category in which the person is classified, and the
person’s country of birth. The vast majority of employment-based
immigrants fall into either the second preference (EB2) or the third
preference (EB3) category.
What is the difference between EB2 and EB3?
Generally, EB2 classification is for people who will work in jobs that
require someone with either an advanced degree (for example, a master’s
degree or Ph.D.) or its equivalent (i.e., a bachelor’s degree plus at least
five years of “progressive” experience). EB3 is for people whose jobs don’t
require such education or expertise. Classification is determined not by
what education and experience the person actually has, but by what
education and experience is necessary for the person’s job as set forth in
the labor certification.
What does it matter whether a person is classified as EB2 or EB3?
Every year, quotas allow only a limited number of people to immigrate to
the U.S. The quotas depend both on the preference category and the
country of one’s birth. The laws do not allow more than a certain number of
EB2 and EB3 individuals to immigrate, and each country is limited to a
percentage of the total number of each catetgory.
For people from most countries, it makes no difference whether they are
classified as EB2 or EB3, because both of these categories are “current”
(meaning there is no waiting to immigrate) for most of the world’s
countries. Until recently, persons born in India and the PRC, who fell under
certain employment-based categories, normally had to wait for their priority
dates to become current before filing for AOS.
If an employee has to wait to immigrate, how is the length of the wait
calculated?
The employee must wait until his or her “priority date” is current before he
or she will be allowed to begin the third step of the immigration process.
The priority date is the date the employee’s labor certification application
was originally filed (generally, the date the application was received by the
state employment security agency).
Every month, the U.S. Department of State tracks the number of people
who immigrate from all countries in each preference category. Based on
those numbers, it designates certain priority dates for each category as
current, and people holding these or older priority dates are eligible to
move to the third step of the immigration process.
If an employee has to wait to immigrate, how long might the wait be?
An example can illustrate how the waiting process works. Suppose that a
company filed a labor certification application on behalf of a Chinese
national in a job requiring a master’s degree on May 1, 1997 (the priority
date). The labor certification was approved by DOL on April 1, 1998. The
employer then filed an immigrant petition with INS based on the approved
labor certification on April 15, 1998, which was approved on August 15,
1998. Because the job the employee holds requires a master’s degree,
the employee qualifies for and was given EB2 classification.
When would this employee be eligible to immigrate?
In November 1998, the State Department indicated that current priority date
for Chinese-born EB2 immigrants was May 22, 1996. This meant that
those immigrants whose labor certification applications were filed on or
before May 22, 1996 were eligible to immigrate. The employee described
above, therefore, would have to wait.
If the difference between the current date and an employee’s priority
date is one year, does this mean that the employee’s wait will be one
year?
Not necessarily. Priority dates do not advance at the same rate as the
calendar. In some months, the date may not move at all; in others, the date
might move forward by weeks or even months at a time. Priority dates may
even retrogress.
* All processing times indicated are rough estimates based on current
experience. Individual cases can and do vary in processing times, and the
general periods vary from time to time.
BOGLE
OKOYE
CHANG
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BOGLE & CHANG, LLC
Copyright © 2010 Bogle & Chang, LLC. All Rights Reserved.
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EB(3): Professionals, Skilled Workers; Other Workers
| 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. |
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