Labor Logic

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Department of Labor issues new
rules on foreign labor certifications

John D. Finerty, Jr.

Immigration law has taken center stage in the last few years. Employers have turned recently to foreign national employees to fill positions that range from unskilled assembly to skilled building trades to degreed engineering jobs. At the same time, the federal government has tightened security and attempted to further restrict the number and type of foreign workers. One recent change in the law, however, is meant to make it easier for employers to navigate the certification system for foreign national employees.

New PERM Regulations

On Dec. 28, 2004, the United States Department of Labor issued new regulations that control the process by which employers obtain certifications for foreign national employees. The new regulations are called PERM, that stands for Program Electronic Review Management (obviously, the government came up with the acronym first and then named the program). Certifications are a type of permission to work in the U.S. while a foreign national applies for permanent residency.

Employers, with the help of an immigration attorney or agent, usually apply for certification for the foreign employee.

The purpose of the new regulations is two-fold: first, to reduce processing times from months to less than 60 days; second, to establish new recruitment and filing procedures that protect local domestic workers and make the PERM system a better indicator of local labor markets. That is, employers are required to recruit local labor before seeking certification on foreign nationals. This mechanism allows the Labor Department to track labor or skills shortages. The PERM regulations also put in place new safeguards against foreign labor wage competition.

Certification Steps

There are a number of steps to take before employers may file certifications. Employers must first attempt to recruit local candidates for the job opening before turning to foreign nationals. The PERM regulations require employers to place at least two Sunday newspaper ads and place a job order with the state workforce development agency. For professional positions, such as those that require a bachelor’s degree or more, the employer must perform three additional recruitment activities.

Possible recruitment activities include job fairs, advertising on the employer’s Web site, posting job openings internally and on job placement web-sites, college campus recruiting, contacting trade or professional associations, placing orders with private employment firms, advertising the position in local or ethnic newspapers or on radio or television. Depending on the position, not every recruitment activity will be required or even appropriate. The Labor Department will police recruitment activities with periodic audits, so employers should be sure to document recruitment efforts.

State Agencies Play a New Role

Under the old system, employers could file certifications with some state agencies. Not any longer under PERM. Employers will need to contact state work force development agencies, however, to obtain a Prevailing Wage Determination. This determination identifies the prevailing wage for various employment categories.

This step of the certification process is meant to ensure that the employer’s job opening is not simply the result of offering too low of a wage. Employers must obtain the prevailing wage determination before filing the certification with the Labor Department.

Additional Details

	Related Links Michael Best & Friedrich LLP U.S. Department of Labor

The new regulations take effect on March 28, 2005. At that time, all certifications will be processed through the federal processing center only. Certifications may be filed via the internet or by mail. The certification must contain the state agency’s prevailing wage determination and have the signatures of an employer’s representative, the employer’s attorney or agent and the foreign national employee. A signed copy of the certification application must be mailed to the Department in cases where the Department certified the application electronically.

Employers that have certifications pending may re-file under the PERM rules. The re-filing must be for the same job opportunity. To convert to PERM and maintain the priority date of the previous application, the application must be re-submitted in compliance with PERM, including signatures, the state prevailing wage determination and post-recruitment attempts.

For more information on these issues or for assistance in resolving immigration issues, contact John D. Finerty, Jr. at Michael Best & Friedrich at (414) 225-8269 or by email.