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Before an Employer can file for an employment based permanent residency for an employee, the employer must file an application for Permanent Employment Certification with the US Department of Labor seeking permission to employ the alien and by demonstrating to the Department of Labor that there are no qualified US workers. The application will describe in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the proposed employee's qualifications.

Pre-filing Steps:

Please note that the US Department of Labor recommends that the Permanent Employment Certification application be filed electronically, and the employer is required to register their organization with the USDOL through their website. This is not only an essential pre-requisite, it allows an Attorney firm authorized by the employer to log in separately, prepare and submit the form electronically. It also allows the employer to track the progress of labor certification application after it is filed or to withdraw labor certification applications no longer needed.

The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) and 20CFR 656.17(e)(2) for nonprofessional occupations at 20 CFR 656.17(e)(2). The position for which the labor certification is being sought should be advertised on 2 consecutive Sundays for non-professional positions with additional recruitment efforts for professional positions. A valid prevailing wage determination from the State Workforce Agency having jurisdiction over the proposed area of intended employment must be obtained prior to filing the application. The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

Audits and requests for information:

Audits are conducted randomly on PERM based Labor Certification applications by the US DOL and while supporting documentation need not be filed with the ETA Form 9089, it is the employer's responsibility to provide the required pre-filing and supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it. It is common place for Attorneys to maintain a copy of the supporting documentation for their clients and assist their clients in responding to enquiries.

Retention of records:

The employer is required to retain all supporting documentation for five years from the date of filing Form ETA9089.

Approvals:

When the Department of Labor approves the application, the ETA Form 9089 is "certified" (stamped) by the Certifying Officer and returned to the employer/employer representative who submitted the application, which is to be signed immediately by the employer and employee.