The basic premise of the labor certification process remains the same. DOL must certify that there are not sufficient US workers who are able, willing, qualified and available; and that the employment will not adversely affect wages or working conditions of similarly situated US workers. The mechanism by which employers will do that however has radically changed Beginning March 28, employers have only one option for filing a labor certification application. It is a two-step process: first, filing a prevailing wage request with the local State Workforce Agency (SWA) and then filing a labor certification application, after performing and documenting the appropriate recruitment steps (which are all outlined in the new regulation).

A. Prevailing wages for H-1B - Labor Condition Applications and Labor Certification Applications

The PERM regulations provide for three acceptable prevailing wage sources for both the H-1B labor condition application process as well as the labor certification application process:

1>The most preferable of these sources is the prevailing wage determination given by the State Workforce Agency or SWA;

2>Independent authoritative surveys; and

3>Other legitimate sources of wage information that meet regulatory requirements.

The SWA determination will be valid for 90 days to up to one year, at the discretion of the SWA and, if used, will provide a safe harbor in the event of a wage and hour enforcement action brought by the DOL. 

A SWA wage determination is arrived at by looking to the arithmetic mean for the workers similarly employed in the area of intended employment. Instead of the current two levels, PERM provides that there need to be four different wage levels for each area of employment.  Employers are now required to pay 100% of the prevailing wage as opposed to 95% of that wage.

For employees at institutions of higher education, the prevailing wage level takes into account only wage levels of employees at such institutions and organization in the area of intended employment.

B. Recruitment:

For all professional positions, a job order must be placed with the SWA, and two print ads must be placed in a Sunday paper of general circulation (In Maryland, the Washington Post). An ad in a professional journal (for jobs requiring an advanced degree and experience) may substitute for one Sunday ad.

In addition to the above, and the internal posting, three other recruitment steps must be utilized from the steps listed in the regulations (employer’s web-site, job search web-site other than employers, on-campus recruitment, trade or professional organizations (newsletters/journals), private employment firms, employee referral program, campus placement office, local and ethnic newspapers, radio and television. 

For non-professional jobs, newspaper ads and placing the job order will be sufficient.

The ads in the newspaper must not only name the employer but must also provide a description of the vacancy specific enough to appraise the U.S. workers of the job opportunity. DOL will still require recruitment reports (which must list the number of people who applied, who were hired, and why each person who was denied, was rejected (by category). Requirements exceeding the SVP level for the position can continue to be justified as arising under a business necessity.

The other ads need only announce that the candidates are being sought for the position.

All applicants must be contacted via certified mail, and, if necessary via phone or even a second letter.  Each applicant should be interviewed (live or via telephone).  After the interview, if all the candidates can be excluded for legitimate, objective reasons, then the process can continue.  Samples of legitimate objective reasons are:  lacks required degree or experience, lacks familiarity with certain processes, software, etc., criminal background, bad references, lack of drivers license (if required for position), etc.

The employer must also post a notice to its own workers as before but must also post “any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer’s organization.”

C.  Submission to the DOL

All the above information (proof of advertising, results of recruitment, resumes, etc.) are placed in the employees file. After the prevailing wage has been obtained and recruitment is undertaken, the application (new form ETA-9089) is filed with the appropriate DOL processing center. The applications can be submitted via the internet (preferred method) or paper.  In order to submit the application via the internet, the Employer must set up the account with the DOL on their computer (although we, as the attorney can and will help).  Then a sub-account can be set up for the attorney, who can enter all the information and submit the application.

Applications will be screened and will then be certified, denied, or selected for audit (either for selection criteria or at random). A priority date shall continue to be established when “filed” (date stamped or electronically transmitted).

If an application is selected for audit as the result of Certifying Officer (“CO”) review or random selection, the CO will issue an audit letter. A substantial failure by the employer to provide the required documentation will result in denial and could lead to a determination by the CO which will require the employer to conduct supervised recruitment in future filings for up to 2 years.