PERM Labor Certification News Flash

New Equal Pay Transparency Laws and Their Effect on PERM Labor Certification

November 10, 2022

Equal Pay Transparency (EPT) laws have been passed in several states and localities, potentially impacting the PERM Labor Certification process for employers conducting labor market testing efforts within those states. EPT laws requiring job advertisement disclosures are already in effect in Colorado, Connecticut, Maryland, Nevada, New Jersey, New York City, and Ohio; and will take effect in California, Rhode Island, and Washington in 2023. EPT rules are not uniform and differ by locality, with some not requiring that salary information be part of the published job posting but rather be provided upon request at the time an offer of employment is made.

 

The requirements to publish pay in job postings will impact employers’ PERM Labor Certification programs. Department of Labor (DOL) regulations require that if a wage is listed in recruitment, it cannot be lower than the Prevailing Wage rate as determined by the DOL and cannot be lower than the wage offered to the foreign national employee. DOL regulations only require that the wage be listed on the Notice of Filing, and other forms of recruitment do not require that a salary be listed. However, EPT laws may mandate that a salary be listed in all forms of recruitment.

EPT laws do not change the PERM regulations. Despite what PERM regulations require, if applicable EPT laws require disclosure of salary information, even if the PERM regulations do not require it, an employer must comply with both. In locations where EPT laws are in effect, affected employers must list a reasonable salary range in most job advertisements or postings, with minor variations in content from jurisdiction to jurisdiction. Therefore, employers testing the labor market in localities affected by EPT laws will have to incorporate them into their PERM Labor Certification processes.

Make sure to keep an eye on this page for all the latest updates impacting PERM Labor Certification. And for more information on Green Cards as well as the process to obtain them, make sure to check out our Green Card General Information page and Green Card Process Overview page.

Please contact us here at Savitz Law Offices with any questions or for assistance.

Department of Labor Provides Important Updates Regarding the Impact of Worksites, Telecommuting/Remote Working, and Traveling on PERM Labor Certification Applications

September 29, 2022

Given the changing nature of the workplace, the actual location where an individual works is becoming more irrelevant. The Department of Labor’s Office of Foreign Labor Certification (OFLC) emphasized that the definition of a U.S. employer includes the employer having a physical location in the U.S. to which U.S. workers can be referred.

 

Whenever there is a situation involving telecommuting, teleworking, and traveling, OFLC still follows and old policy memo stating that employers should use the headquarters as the filing address, as well as the address for the worksite, recruitment, and the prevailing wage. Where employees work from home, OFLC indicated their home address should not be listed as their worksite. Instead, employers should continue to use the headquarters address for this location. OFLC confirmed that a P.O. Box or a private mailbox (such as a UPS mailbox), is not acceptable. OFLC recognizes that there may not always be a “headquarters” in the traditional sense. Whenever an employer registers in the United States as a business and is issued a Federal Employer Identification Number, the employer must provide an address that is traditionally the same as the headquarters address. OFLC has indicated that employers should use that headquarters address as the worksite address.

 

If there is a situation where an individual is not “stuck at a desk” all day long, then the employer should try to provide additional details to help OFLC understand the nature of the position. A generic statement of “unanticipated job sites” is not helpful. One should consider any of the following: Is there telecommuting/remote working? Does the person have to relocate? Is there traveling involved? Details addressing these questions can be included as part of the job description and special skills. Where there is actual travel, the employer should provide details. Additionally, it must be disclosed if an individual is splitting time between worksites. The employer must pick one of the locations as the “headquarters” and be consistent. OFLC has indicated that they cannot give guidance on which one an employer should choose. That said, OFLC has indicated that an employer should be able to document and defend the choice.

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, signed, and dated in the appropriate sections by the:

  • Foreign worker;

  • Preparer (if applicable);

  • and Employer.

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 plc.atlanta@dol.gov 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. 

 

Check out our PERM Labor Certification Overview page for more information on this online system and its role in the Labor Certification process.

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, contact us to discuss your options and determine the best strategy.