Since 1965 when national quotas were eliminated, employment-based immigration has been one of the core principles of U.S. immigration law. However, since that time and for nearly a century before, protecting U.S. jobs from foreign competition has also been a prevailing precept. The system created by Congress to manage these competing interests is referred to as Labor Certification.
Before an Immigrant Petition for Alien Worker (I-140) can be filed for most intending immigrants in the Employment-based Second Preference (EB-2) or the Employment-based Third Preference (EB-3), an employer must first secure a Certification from the Secretary of Labor which confirms that, after a good faith effort to recruit U.S. workers, it has been unable to find a qualified and available U.S. worker to fill a position. Once “certified” by the U.S. Department of Labor (DOL), the Labor Certification (sometimes referred to by its form number – 9089, or by its acronym – PERM)
The testing of the labor market to determine the availability of U.S. workers is at the heart of the Labor Certification process. However, the rules for recruiting U.S. worker have not kept up with changing times. When the regulations were written, it was assumed that employers had identifiable, fixed offices and that employees worked in those offices. Today’s reality is very different, with “work from home”, “work from anywhere”, hybrid workplaces, roving workplaces and employers with no fixed office or headquarters becoming so common as to be the norm in many industries.
In fact, the regulations require employers to determine the prevailing wage for a position and to recruit based on the “place of employment.” When the “place of employment” is not fixed, or cannot be predicted, DOL policy permits employers to recruit based on the employer’s headquarters office location. But what if the employer does not have a headquarters office and the entire workforce is remote? These are just one of the challenges confronting employers who are sponsoring foreign workers for permanent residence.
The regulations relating to recruitment are a throwback to the days when an employer could be easily identified by its office address. In general, before an Application for Permanent Labor Certification can be filed with DOL, an employer must engage in good faith recruitment designed to reach qualified U.S. workers. The ads, notices and postings associated with that recruitment must sufficiently inform an interested U.S. worker of the relevant characteristics of the job. An employer must be prepared to contact and interview any interested applicants who meet the requirements for a particular position.
With some few exceptions, before a Labor Certification can be filed with DOL, employer must test the labor market in the area of intended employment, including the following mandated steps:
- Notice of Filing: Not strictly a form of recruitment, the Notice of Filing is intended to provide notice to the workforce of its intent to sponsor a foreign worker. The Notice of Filing must be posted at the actual work site for 10 business days and must include relevant details about the job including job title, job duties, job requirements, place of employment, contact information for applicants and an address where individuals wishing to comment on the process can contact the DOL. The notice can be a physical paper notice, or it can be distributed by electronic means.
- State Job Order: Employers must also post a 30-day job order with the State Workforce Agency (SWA) in the area where the job is located. The SWA will typically have its own requirements for job order submissions, so employers must comply with these as well.
- Newspaper Advertising: Truly a vestige of the past, DOL regulations require employers to post an advertisement for the job for two consecutive Sundays in the newspaper of general circulation serving the area of intended employment. Impacting this requirement is the fact that, in many parts of the U.S. there are no Sunday newspapers and the tremendous expense arising from struggling newspapers thirst for ad revenue.
- Supplemental Recruitment: Regulations require three additional recruitment steps, taken from a menu which includes third-party websites, company websites, job fairs, local newspapers, employee referral programs, radio/television, campus career centers, trade journals and other media likely to reach qualified workers.
Recruitment and advertising are vital steps in the labor certification process for hiring foreign workers. The purpose of the recruitment is not to facilitate the hiring and sponsorship of foreign workers; the purpose is to protect U.S. workers. It is therefore important to closely adhere to the DOL’s requirements. However, for jobs that are in high-demand, for those that have more specific and particularized requirements, and in times of low unemployment, the process commonly leads to the issuance of a Labor Certification, so that the process of employer-sponsored permanent residence can proceed. For additional information on employer-sponsored permanent residence, contact us.