PERM Labor Certification News Flash
OFLC Announces Permanent Issuance of Electronic PERM Labor Certifications
September 25, 2020
The Office of Foreign Labor Certification (OFLC) announced that it is permanently adopting the electronic issuance of PERM labor certifications to employers (and their authorized attorneys or agents).
On March 24, 2020, OFLC announced that—due to the impact of the COVID-19 pandemic—that it would electronically issue PERM labor certifications to employers (and their authorized attorneys or agents) through June 30, 2020. On June 16, 2020, OFLC announced that it was extending the period during which it would electronically issue PERM labor certifications through September 30, 2020.
On July 30, 2020, the Department of Labor (Department) signed a memorandum of agreement (MOA) with the Department of Homeland Security (DHS). Among other things, the MOA provides DHS access to all applications for permanent labor certification submitted to OFLC through the PERM online system, including the ability to verify that a PERM application has been certified. The enhanced information sharing and collaboration under the MOA also eliminates the need for duplicate certification requests and increases the integrity of the PERM program by supporting efforts to combat instances of fraud and abuse in connection with labor certification and employment- based immigrant and non-immigrant programs.
DHS regulations require that—in order to file a USCIS Form I-140, Immigrant Petition for Alien Workers (Form I-140), with U.S. Citizenship and Immigration Services (USCIS)—employers must concurrently submit an original labor certification issued by the Department, unless the original labor certification was already provided to USCIS in support of a different petition.
When a permanent labor certification was granted in the past, OFLC would send the original certified ETA Form 9089, Application for Permanent Employment Certification, and a Final Determination letter on "security paper" to the employer (or their authorized attorney/agent). To be valid, a certified ETA Form 9089 must contain the following completed sections:
Section O - Signed and dated by the OFLC Certifying Officer;
Section L - Signed and dated by the foreign worker;
Section M - Signed and dated by the form preparer, if applicable; and
Section N - Signed and dated by the employer; and
Footer on each page identifying the validity period of the certification.
The employer (or their authorized attorney/agent) then would submit the original signed paper ETA Form 9089, along with the USCIS Form I-140 and all other supporting documentation and appropriate fees, to USCIS.
As of March 24, 2020, employers (or their authorized attorney/agent) who file a PERM application and are granted a permanent labor certification by OFLC have received the certified ETA Form 9089 and Final Determination letter by email. In circumstances where employers (or their authorized attorneys or agents) submit the application for permanent labor certification by mail and are not able to receive the certified ETA Form 9089 documents by email, OFLC has and will continue to send the original security paper ETA Form 9089 and Final Determination letter by mail. At this time, OFLC expects to continue using UPS regular delivery to send the documents (i.e., approximately 2 to 8 days depending on delivery location).
Before filing a Form I-140 with USCIS, the electronic copy of the certified ETA Form 9089 that is provided by OFLC via email, must be printed, and signed and dated in the appropriate sections by the:
Preparer (if applicable);
Important Reminder: To ensure receipt of electronic permanent labor certification documents and all other correspondence from the Atlanta National Processing Center, OFLC reminds stakeholders to add to their address book or "safe list" within email system(s) to avoid being filtered as spam.
Department of Labor Regulations Overhauls Labor Certification System!
March 28, 2005
On March 28, 2005, the Department of Labor (DOL) overhauled the regulations concerning the Labor Certification system (required to obtain an employment-based "Green Card").
The most significant changes concern the requirements for the Labor Certification recruitment process. While in the past there were two options (Supervised Recruitment or Reduction in Recruitment), there is now only one system by which a Labor Certification can be obtained. This system is called Program Electronic Review Management ("PERM").
Under PERM, the employer is required to conduct recruitment using multiple sources (newspaper, Internet, etc.) that includes the company name and a specific job description; and post an internal notice announcing the filing (including the salary) at the worksite and in any in-house media. The employer then must file an extensive, application with the DOL attesting to not only the recruitment, but also attesting to having complied with numerous other requirements prior to the filing. A computer system then checks the application to screen for any "red flags." Those applications that raise red flags are audited.
Changes have also been made to the positions and beneficiaries that are eligible for Labor Certification. Labor Certification applications that are no longer eligible under PERM include those which: pay less than 100% of a Prevailing Wage that is assigned by the DOL prior to filing; and include an employee who has had influence over the position he or she holds (e.g. a high level manager).
In order to evaluate the best way to proceed with a PERM Labor Certification application, please contact us to discuss your options and determine the best strategy.