How does the State Workforce Agency (SWA) Prevailing Wage Determination Process Work?
To evidence that the hiring of a foreign worker through a PERM Labor Certification Application will not have an adverse effect on the wages of U.S. workers, an employer who wishes to submit a PERM Labor Certification must first get a Prevailing Wage Determination from the state workforce agency (SWA) having jurisdiction over the area in which the foreign employee will work.
A foreign worker who is the beneficiary of the PERM application must be paid at least the rate of pay determined by the SWA to be the prevailing wage. The wage is determined for the prospective position at the appropriate skill level and for the geographical area in which the foreign worker will be employed.
A prevailing wage determination is valid for no less than 90 days and no longer than one year and must be valid at the time the PERM application is submitted OR when the employer begins PERM recruitment.
What is the PERM Labor Certification Recruitment Process?
For professional positions, PERM Labor Certification recruitment consists of:
- A job order placed with the State Workforce Agency Job Databank for at least 30 days.
- Two print advertisements placed on two different Sundays in a “newspaper of general circulation” in the area of intended employment. For professional positions, a professional journal advertisement may replace one of the two Sunday newspaper ads if the job requires experience and an advanced degree.
- An employer is required to provide notice to the bargaining representative, where applicable, of the employer’s employees. If there is no bargaining representative, an employer is required to publish a notice for ten consecutive days in a conspicuous location where employees can easily see the notice (such as an employee break room, etc.) and in all printed and electronic in-house media that the employer normally uses for in-house recruitment.
- Three of the following ten additional recruitment steps:
- Job fairs
- Employer’s website
- Job search website other than the employer’s
- On-campus recruitment
- Trade or professional organizations
- Private employment firms
- Employee referral programs with incentives
- Campus placement offices
- Local and ethnic newspapers
- Radio and television advertisements
Please note that not all of these ten additional recruitment steps are appropriate for each position and employers seeking to submit a PERM Labor Certification Application on behalf of a prospective foreign employee should discuss this issue with their immigration lawyer.
For non-professional positions, steps 1, 2 and 3 above apply, but employers are not required to select three of the additional ten recruitment efforts.
What is the Timing of PERM Recruitment?
All recruitment efforts (with one exception) must take place at least 30 days, and no more than 180 days prior to the PERM Labor Certification Application being electronically submitted. The only exception being that in cases of professional occupations, one of the three additional steps may take place in the 30 days prior to submitting the application. An approved PERM Labor Certification is only valid for six months from the date of certification, in which a Form I-140, Immigrant Petition for Alien Worker must be submitted.
How does an Employer show “Good Faith” PERM Recruitment?
Educational, employment and other requirements cannot be used in connection with PERM recruitment if they are not normal for the occupation unless they are justified by a legitimate business necessity. A job that is the basis of a PERM Labor Certification may not be “tailored” to the prospective foreign workers qualifications in order to exclude otherwise qualified U.S. workers. Any job requirement that is not ordinarily required for an occupation will likely be deemed by the Department of Labor to be unduly restrictive, unless the employer can demonstrate such a requirement is a business necessity. Foreign language requirements are commonly considered to be unduly restrictive, except where an employer can demonstrate that the nature of the job duties make requiring a foreign language a practical necessity.
Also, an employer could not have hired workers for the position with less education, training or experience for substantially similar positions. Experience the foreign worker has gained while employed with the employer submitting the PERM Labor Certification Application cannot generally be used as qualifying experience for the position, as required in the PERM recruitment, unless the foreign worker gained such experience with the employer in a position that is not substantially comparable to the position that is the subject of the PERM Application.