Employers who wish to hire foreign workers for permanent employment within the United States should be aware that the requirements for obtaining a Department of Labor (DOL) permanent employment certification changed this year. On March 28, 2005, the DOL’s new Program Electronic Review Management System took effect, amending DOL’s regulations covering the labor certification application process.
Employers looking to hire foreign workers should obtain an Application for Permanent Employment Certification from the DOL’s Employment and Training Administration This application asks the employer to describe the duties and requirements of the position that it is looking to fill. It also asks the employer to detail the necessary training and experience that an employee must have to perform the job, and to describe the foreign worker’s qualifications.
Before filling out this application, the employer must ask the State Workforce Agency (SWA) that has jurisdiction over the employment area that the foreign worker is being hired for to provide a determination of the prevailing wage for the job.
An employer who files an Application for Permanent Employment Certification must state that it has engaged in recruitment activities for the position. These recruitment activities must meet the following standards for professional occupations:
- Recruitment steps must be conducted within six months of filing the application
- A job order must be placed for thirty days with the SWA that has jurisdiction
over the employment area
Advertising the job opening on two different Sundays in a local, general circulation newspaper that is likely to bring responses from qualified workers
- However, an employer may advertise in a professional journal in lieu of a newspaper if that is more likely to bring responses from qualified workers
- Any three of the following steps, so long as they take place within 180
days of filing the Application for Permanent Employment Certification:
- Recruitment at job fairs
- Posting the position on the employer's website
- Posting the position on a job search website other than the employer's
- Recruiting on campus
- Recruiting through trade or professional organizations
- Recruiting through private employment firms or placement agencies
- Recruiting through an employee referral program with incentives
- Recruiting through campus placement offices
- Recruiting through local and ethnic newspapers
- Recruiting through radio and television advertisements
The employer must also list its reasons for rejecting U.S. applicants and state the number of U.S. applicants it rejected.
Under the Program Electronic Review Management System, the Application for Permanent Employment Certification may be filed either electronically or by mail. If filed by mail it must be signed by the employer and the prospective foreign employee. If filed electronically it must be also signed by both employer and employee, but only upon receipt of the permanent labor certification issued by the Employment and Training Administration. Employers may expect a decision within 45-60 days.
Employers must retain all documentation supporting the Application for Permanent Employment Certification for at least five years.