Labor Certification

The message on my Corrections List states, "The Employer's name/address is not the same on Form ETA 750 Part A and Part B." What do I need to do?

According to the Labor Department:

Please refer to item 6 on Form ETA 750 Part A and item 8 on Form ETA 750 Part B. These items must match exactly on your application. Initial and date any corrections you make on your application and return it to the appropriate Backlog Processing Center.

In view of the past practice of allowing the filing of multiple applications by the same employer for the same alien if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same alien actively in process at any given time?

According to the Labor Department:

We have removed the response to this question posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future.

What is meant by "expiration date" in question 8 of Section F, Prevailing Wage Information, on the Application for Permanent Employment Certification, ETA Form 9089?

According to the Labor Department:

The expiration date is the end date of the prevailing wage validity period as provided by the State Workforce Agency, which will range from no less than 90 days to no more than one year from the determination date.

According to the Labor Department:

If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

For purposes of determining whether the alien gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?

According to the Labor Department:

For purposes of determining whether the alien gained experience with the employer, an employer is "an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at § 656.3."

What are the procedures to be followed in filing applications on behalf of aliens of exceptional ability in the performing arts formerly processed under the special handling procedures in the former regulations?

According to the Labor Department:

Aliens of exceptional ability in the performing arts are now included in § 656.5, Schedule A, under Group II. Accordingly, such applications must be filed in duplicate with the appropriate office of the Department of Homeland Security. The documentation that must be filed in support of such applications is listed in § 656.15, Applications for labor certification for Schedule A occupations.

According to the Labor Department:

The Selection of Continuation Option Letter may be signed and submitted by either the employer or the employer's attorney/agent of record. We request, however, that employers and attorneys coordinate to determine who will submit the Selection of Continuation Option Letter to ensure that the appropriate Backlog Processing Center does not receive conflicting or duplicate responses. In the instance of conflicting responses, we will default to the employer's response.

According to the Labor Department:

Beyond the standard "no greater than 180 days and no less than 30 days prior to filing" there are no further timeframe requirements. The only sequencing requirement is that the two Sunday advertisements must be placed on two different Sundays which may be consecutive.

NOTE: There is one exception to the standard 30 – 180 days prior to filing timeframe: One of the additional steps required for recruitment for professional occupations may be conducted within 30 days prior to filing. However, no steps may have taken place more than 180 days prior to filing.

Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?

According to the Labor Department:

Yes, the employer must provide a notice of filing which must include the advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

According to the Labor Department:

There are several possible reasons an employer or their attorney might not have heard anything from the BEC about the case. Some examples include, but are not limited to: 1) the State or Regional office may have disposed of the case prior to shipping and the applicant did not receive notification; 2) The State or Regional office may have inadvertently not shipped the case to the BEC; 3) the BEC may have attempted to contact the applicant but the contact information was incorrect; or 4) the BEC inadvertently omitted the case during data entry.

Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?

According to the Labor Department:

No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process.

According to the Labor Department:

Under § 656.31(a), Department of Labor processing of an application, including audit procedures, may be suspended in certain circumstances. Specifically; "If possible fraud or willful misrepresentation involving a labor certification is discovered before a final labor certification determination; the Certifying Officer will refer the matter to the Department of Homeland Security (DHS) for investigation, and must send a copy of the referral to the Department of Labor's Office of Inspector General (DOL OIG). If 90 days pass without the filing of a criminal indictment or information, or receipt of a notification from DHS, DOL OIG, or other appropriate authority that an investigation is being conducted, the Certifying Officer may continue to process the application."

Is there a date by which an employer's original application must have been filed in order to be eligible for conversion from TR to RIR?

According to the Labor Department:

Yes, applications must have been postmarked on or before March 28, 2005. This is an extension from the prior deadline and essentially includes all open TR cases in the backlog for which a job order has not been initiated.

Standards/ Major Differences

If I send in the required information about my case, will I have to respond to a Center Receipt Notification Letter (CRNL) indicating that I want to continue?

According to the Labor Department:

If the information you provide is sufficient to reconstruct the case, you will not have to respond to a CRNL as the request about the case will be taken as proof of a desire to continue. However, if information is missing that is required to continue processing, you may receive a CRNL with a corrections list of information required to continue processing. You should respond to this letter within the 45-day timeframe.

As of October 27, 2006, the Labor Department (DOL) is still accepting conversions of traditional Labor Certification cases (non-PERM) to Reduction in Recruitment (RIR), PROVIDED that the job order has NOT yet been placed for the traditional case. If an RIR conversion is received by DOL with a postmark or express courier shipping date that is prior the date DOL places the job order, DOL will accpet the RIR conversion and cancel the job order.

Of course, petitioners may wish to consider converting the case to PERM instead.

According to the Labor Department:

The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification, ETA Form 9089.

According to the Labor Department:

If the employer normally recruits for similar positions in the employer's organization through in-house media, then the employer must publish the notice of filing in its in-house media in accordance with the employer's normal procedures for recruitment of similar positions or for 10 consecutive business days, whichever is of longer duration.

According to the Labor Department:

Employers need to apprise applicants of the job opportunity. The regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer’s application, the employer will meet the requirement of apprising applicants of the job opportunity. An advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity.

NOTE: While employers will have the option to place broadly written advertisements with few details regarding job duties and requirements, they must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

According to the Labor Department:

No, the employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.