LABOR CERTIFICATION APPLICATION (LCA)

There are different types of "immigrant visa (green card)" applications, depending on an applicant's qualifications (degree or accomplishments, etc.).
Some applications require the Labor Certification Application (LCA) to be certified/approved by the Department of Labor (DOL).
For employment-based immigrant visa "green card" applications, there are generally three steps:

(1) ETA-750 LCA (Labor Certification Application):  filing and obtaining a certified LCA from the DOL,
(2) I-140 (Immigrant Visa Application):  filing and obtaining approval of an immigrant preference petition with the US CIS, and,
(3) I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).

Note: The LCA-requiring "green card" process is time consuming because the LCA step can take a substantial amount of time.  (Therefore, it is always advisable to consider if a "green card" application can be filed under a preference category that does not require the LCA.)
i8Details (Different Site/Section): Immigrant Visa "Green Card" (Employment) - CHART

Until March 27, 2005, there are two types of LCA programs:  "Standard/Traditional" and "RIR" (Reduction in Recruitment).
After March 28, 2005, there will be a new LCA program:  "PERM (Program Electronic Review Management) System/Program."

Important: Once PERM is implemented, current Standard/Traditional and RIR applications will not be accepted.  Therefore, after publication but before implementation, applicants may need to file a LCA application under Standard/Traditional or RIR, depending on the situation/case/application.  Each program has different procedural/substantive requirements, and some applicants may find the currently existing two programs more advantageous compared to PERM.  (Even after the implementation of PERM, applications previously filed under Standard/Traditional or RIR will be adjudicated according to each program's guidelines.)
i8Details: Conversion

 

UPDATE:  February 2005 Labor Certification Application:  Backlog Reduction & PERM The ETA-750 Labor Certification Application (LCA) is the first step for many employment-based immigrant visa "green card" applications, where a US Petitioner/Employer proves that there are no qualified, able, willing and available US workers (U.S. Citizens or Legal Permanent Residents) who can meet the minimum requirements of a job offer (requirements of the job offer include minimum education, experience, specialized knowledge, etc., necessary for the job, and a salary that is considered at "prevailing wage" for the position). The required recruitment campaign (advertisement, etc.) is conducted by the U.S. Petitioner/Employer, and if no U.S. workers are located and if the foreign national (beneficiary/employee) meets the requirements, the LCA may be certified by the Department of Labor (DOL).  After the LCA is certified/approved, the I-140 Immigrant Preference Application is filed with the US CIS, and finally, the I-485 "adjustment of status" (U.S.) or "consular processing" for issuance of the actual "green card" status can be made.  (Currently, the I-140 & I-485 "adjustment of status" can be concurrently "filed," and in some regions, also concurrently "processed.") However, the LCA program has historically operated under the burden of a very large backlog of cases.  With local, state, and regional offices of the DOL handling various stages of the LCA program with differing rules, policies, guidelines, processing times, etc., the current size of the national backlog approximates 300,000 applications. To address this concern, the DOL has and is developing a two-pronged approach:  4Backlog Reduction, and4LCA: PERM Program. 8LCA:  "Standard/Traditional" & "RIR" 8LCA:  PERM Program

8OVERVIEW of Immigrant "Green Card" Application Process

8LCA:  Key Considerations for ALL LCA Programs (Standard/Traditional, RIR, and PERM)

4No U.S. Workers Available For the Offered Job
4Workers Available?  The Recruitment Campaign
4Prevailing Wage?
........1)  Duties of the position
........2)  Reference materials that indicate the "level" of the position
........3)  Actual minimum qualification required for the position

8LCA:  "Standard/Traditional" & "RIR"

4LCA: Standard/Traditional, RIR & PERM Procedural Differences (Chart)
4LCA: Standard/Traditional, RIR & PERM Substantive Differences (Chart)
4LCA:  "Schedule B Occupations"
4LCA: "RIR" Recent Developments

8LCA:  PERM Program (March 28, 2005)

8PERM:  GENERAL

4LCA:  THREE PROGRAMS

8PERM PROGRAM DETAILS

4TERMINOLOGY
4PROCEDURE

41)  OBTAIN PREVAILING WAGE DETERMINATION (PWD)

4SWA & PWD

42)  JOB OFFER (MINIMUM REQUIREMENTS)

4MINIMUM REQUIREMENTS

4Foreign Language
4Experience Gained on the Job (Not Substantially Same, Infeasibility to Train, Different "Employer")
4Combination of Duties
4Alternative "Experience" Requirements
4Degree Equivalency?

43)  RECRUITMENT CAMPAIGN

4RECRUITMENT CAMPAIGN

4Prefiling Recruitment Steps
4Newspaper Advertisement (2 Sundays)
4Three Additional Recruitment for "Professional" Jobs (30 - 180 days within Filing)
4Contact "Layoff" U.S. Workers
4Rejection of U.S. Workers

44)  AUTOMATED FILING

45)  DOL AUDIT & REVIEW

8LCA Charts

4LCA: Procedural Differences (Standard/Traditional, RIR & PERM)
4LCA: Substantive Differences (Standard/Traditional, RIR & PERM)
4Minimum Requirement (Job/Position) Reference Materials (Standard/Traditional, RIR & PERM)
4SVP, Job Zone and E&TC Codes (Standard/Traditional, RIR & PERM)

8History, Backlog & Future of the LCA (National Office)

The Labor Certification Application (LCA) is filed with the local/regional offices of the Department of Labor (DOL).
(Note that this LCA is different from the labor CONDITION application filed with the DOL for the purposes of the H-1B nonimmigrant visa.)
In general, Step (1) ETA-750 LCA is the most time consuming, and requires a petitioner/employer with a "bona fide job offer," and that there are no qualified U.S. workers available to fill the position (demonstrated by a "recruitment campaign" job offer advertisement).

(1) ETA-750 LCA (Labor Certification Application):  filing and obtaining a certified LCA from the DOL,
(2) I-140 (Immigrant Visa Application):  filing and obtaining approval of an immigrant preference petition with the US CIS, and,
(3) I-485 ("Adjustment of Status") to "green card" status (within the U.S.) -- or -- Consular Processing to "green card" status (overseas).

The LCA requires that an petitioner/employer make an "offer of employment" and demonstrate that there are no qualified and available U.S. workers (U.S. citizens or "green card" holders) for the offered position.  This is done through a "recruitment campaign" overseen by the DOL, and typically requires an advertisement to be published, and to conduct interviews with any possibly qualified U.S. worker candidates.  Only after a showing is made that there are no qualified U.S. workers who are available, will the DOL certify and approve this application.

(1) ETA-750 LCA (Labor Certification Application):  filing and obtaining a certified LCA from the DOL

The petitioner/employer applies to the Department of Labor (DOL) for alien employment certification that there are no qualified U.S. workers for the particular position offered to the beneficiary/employee.  This process entails providing detailed information in regard to the position offered, as well as the beneficiary/employee's qualifications for the job.  A "recruitment campaign" is required, to determine if there are no qualified U.S. workers (including advertisements and interviews of potential U.S. workers).

"Standard/Traditional" Process:  File application, first, wait for DOL to draft advertisement and conduct the recruitment campaign.
"RIR (Reduction in Recruitment)" Process:  Conduct advertisement and recruitment campaign, then file the application and results with the DOL.

Note:  The LCA is filed by a U.S. "petitioner (employer)."  However, the rules do not require a current/existing employment relationship with the foreign national "beneficiary."  This is because the LCA is based on a "bona fide job offer."  (However, the LCA is commonly filed by a U.S. "petitioner/employer)" who is employing the foreign national "beneficiary/employee).")
i8Details: LCA:  KEY CONSIDERATIONS

(2) I-140 (Immigrant Visa Application):  filing and obtaining approval of an immigrant preference petition with the US CIS

With the certification (approval) from the DOL that there are no qualified U.S. workers available for the offered position, the petitioner/employer applies to the US CIS to qualify the beneficiary/employee for immigrant visa "green card," by filing an I-140 immigrant visa preference petition.
(Documents such as petitioner/employer's tax returns, employee's qualifications, bona fide job offer and ability to pay the prevailing wage, etc., will be verified.)

Note: I-140 Immigrant Preference Petition can be transferred ("ported") to another petitioner/employer after it is approved.
i8Details (Different Site/Section): "I-140 'Portability' Rule"

(3) I-485 Adjustment of Status (within the U.S.) -- or -- Consular Processing (overseas)

With approval from the US CIS of the I-140 immigrant visa application, the beneficiary/employee can apply for Legal Permanent Resident "Green Card" status, by filing an I-485 Adjustment of Status application (in the United States), or by Consular Processing (overseas U.S. Embassy).

Note: "Concurrent Filing" of the I-140 & I-485 is allowed.  (No "concurrent" filing for I-140 & Consular Processing, however.).
i8Details (Different Site/Section): "I-140 & I-485 Concurrent Filing"

No U.S. Workers Available For the Offered Job

The Labor Certification Application (LCA) is submitted by the U.S. petitioner/employer. The LCA is intended to assure that a petitioner/employer is NOT seeking to employ the foreign national for a particular job when qualified U.S. workers (U.S. citizens or Legal Permanent Residents "Green Card" holders) are able, qualified, available, and willing to fill such a position.

If the LCA procedure locates any U.S. workers who meet the minimum requirements (education, experience, training) for the offered position, the petitioner/employer will NOT be permitted to obtain certification/approval of the LCA (that is required for the foreign national/beneficiary to seek Legal Permanent Resident "Green Card" status).  In this respect, the petitioner/employer must carefully define the job title, explain the responsibilities, and specify the minimum requirements for the position.  The minimum requirements will entail education, experience, training, and/or special skills that are needed (unnecessary requirements are not allowed).  If the foreign national meets the minimum requirements and there are no qualified U.S. workers who are able, qualified, available, and willing to fill such a position (or are rejected for "lawful" and "job related" reasons), then the LCA may be certified/approved.

The offered position will be scrutinized by the state labor department.  Most often, the labor department will question the job title, description (duties/responsibilities), and the minimum requirements necessary to fulfill the job.  Requirements which are restrictive and/or that cater to the foreign national (i.e., foreign language requirement when the job does not actually need the use of such), require experience gained at the petitioner/employer, or for a new position may result in the application to be amended.

The petitioner/employer must also engage in a recruitment campaign to test the labor market to locate any able, qualified, available, an willing U.S. workers.  Normally, a placement of an advertisement in a publication (i.e., newspaper) and posting of the job offer is required.  The advertisement will include the job offer:  job title, description (duties/responsibilities), and the minimum requirements necessary to fulfill the job.
Potentially qualified job seekers are required to be interviewed by the petitioner/employer, and U.S. workers who apply can only be rejected for lawful reasons.
If there are no qualified U.S. workers (or rejected U.S. workers), a detailed recruitment report is forwarded to the labor department.

Important: The job offer advertisement used in the recruitment campaign includes the job title, description, and minimum requirements.  The "RIR (Reduction in Recruitment)" program requires for the recruitment campaign to take place before filing the LCA application.  This means that the first time the DOL will review the job offer is after the completion of the recruitment campaign.  If the DOL determines that the actual job offer (details of the job, including minimum requirements) described in the advertisement is unacceptable, then the recruitment campaign (i.e., advertisement), based on such a job offer, will also be considered unacceptable.  In this case, the petitioner/employer may be required to conduct a subsequent recruitment campaign.

For the LCA, whether "Standard/Traditional," "RIR," or "PERM (in the future)," much like the H-1B, a job offer must meet the "prevailing wage" that is normal to the specific position.  For any position, currently, there are only low and high salaries available for use.  The difference could be significant, and relationship to the "real world" salary, tenuous.  In determining whether Level 1 or Level 2, the DOL will examine three main factors:

1)  Duties of the position
2)  Reference materials that indicate the "level" of the position
3)  Actual minimum qualification required for the position
`PDF4Download: DOL Prevailing Wage/Level Memo (08/2002) (US DOL)
`PDF4Download: (blank document) ANM 0603030603

1)  DUTIES OF THE POSITION

LEVEL 1
Duties:
- beginning level employees who have a basic understanding of the occupation through education or experience; perform routine or moderately complex tasks that require limited exercise of judgment and provide experience and familiarization with the employer's methods, practice, and programs; work under close supervision and receive specific instruction on tasks and results expected
- includes "entry level" jobs, but may also include some supervised activities, which exceed those normally, considered as entry level
Requirements:
- the position can require education and/or experience, but it does not require an advanced level of understanding to perform the job duties

LEVEL 2
Duties:
- fully competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and independent evaluation, selection, modification, and application of standard procedures and techniques; use advanced skills and diversified knowledge to solve unusual and complex problems; may supervise or provide direction to staff performing tasks requiring skills equivalent to a Level 1.

2)  REFERENCE MATERIALS THAT INDICATE THE "LEVEL" OF THE POSITION

The DOL uses a variety of reference sources that classify a position (with Level 1 and Level 2 salaries).  For example, an "Art Director" or "Illustrator."  The OES/SOC, O*NET, DOT, and OOH are some reference materials, and the title/position itself, seem to indicate Level 1 or 2.  However, the DOL has stated:
- Level 1 or 2 is not determined solely by the OES/SOC code
- Level 1 or 2 is not determined solely by the DOT (and should be "crosswalked" to the relevant OES/SOC code).
The reason is that all titles have Level 1 and 2 salaries, and that "any job/position may be performed at either level of skill, depending on the level of supervision provided, the relative complexity of the job duties, the level of judgment required, and application of the other factors that distinguish between Levels 1 and 2."  Additionally, because these reference materials do not fully describe the "complexity," "level of judgment," "nature of supervision," and "level of understanding" required to perform the duties, these should be described in the application.
Important:  If the job description includes the tasks normally performed by a fully competent employee in the occupation, and the job description does not specifically point to the general factors associated with a Level I position, then it will likely be designated a Level 2 position.
Important:  A hierarchy chart of the company, indicating the "level" of the position among employees, may be helpful.
Important:  The level of responsibility and the minimum requirements to fulfill a position, can be analyzed in the reference materials above, indicated by the SVP (Specific Vocational Preparation) of the DOT (Dictionary of Occupational Titles), or Job Zone code (because the O*Net's Job Zone code system's new, the DOL states that the if there is a discrepancy, then the DOT's SVP code should be used).
 

DOT (Dictionary of Occupational Titles) & SVP (Specific Vocational Preparation): The SVP indicates an occupation's normal minimum "years" of education, training or experience required for the position.  Requirements exceeding the SVP (such as specialized skill, supervisory level or responsibility, foreign language ability, etc.) will be considered unduly restrictive.  Unduly restrictive requirements can be considered as a minimum requirement for a position -- if the petitioner/employer can demonstrate "business necessity" (the potentially restrictive requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform, in a reasonable manner, the job duties as described by the employer). The May 16, 1994 Field Memorandum provided the following guideline: a general associate's degree is equivalent to 0 years SVP a specific associate's degree is equivalent to 2 years SVP;  a bachelor's degree is equivalent to 2 years SVP;  a master's degree is equivalent to 4 years SVP (2+2), and  a doctorate is 7 years SVP (2+2+3).  i8Chart: SVP, Job Zone and E&TC Codes

3)  ACTUAL MINIMUM QUALIFICATION REQUIRED FOR THE POSITION

Jobs that require substantial experience will likely be considered as Level 2 positions, but experience requirement alone, does not determine that it is Level 2.  [However, experience that exceeds SVP/job zone, will likely make the position a Level 2.
If a baccalaureate degree is normally required for entry into the occupation, the wage rate for a job offer that requires an advanced degree (Master's or Ph.D.) shall be at Level 2. (There are instances when the petitioner/employer can present sufficient evidence that the job does not require independent performance of all of the duties encompassed by the occupation and, therefore, is a Level 1 in that particular instance.)
Some positions requiring a Master's degree can be Level 1, if entry into the occupation requires the basic knowledge gained through graduate level education.  Under GAL 2-98, if an advanced degree is the minimum entry requirement into the occupation, the wage rate shall be Level 1, unless there are other requirements contained in the job offer or components thereof which require skills that are at a Level 2.  With that in mind, the job description should address the Level 1 factors such as whether the employee will perform no more than moderately complex tasks relative to the occupation; whether the employee is closely supervised; and whether the employee is limited in exercise of independent judgment.
What degree that a position normally require as a minimum requirement?
The SVP code for the occupation is relevant, but not necessarily determinative.  This is because the SVP can include experience, formal education, and any combination of experience and education. Thus, the SVP alone is not a guide as to whether the occupation requires a Bachelor's or Master's degree.
Important:  In determining the degree for a position, the DOL suggests the OOH as a guide.  Other relevant sources about industry standards may include expert opinions written by knowledgeable individuals, supported by evidence and persuasive reasoning.

Specific examples:

Medical Residents -- As a general rule, first year residents would be Level 1 because they are closely supervised.  Other residents might be classified as Level 2 because of the nature of the residency.  The nature of the job duties might deem a particular position Level 2, if the job description indicates the resident will operate with little supervision, perform advanced medical procedures, and exercise great latitude of independent judgment.

Managerial Positions -- All managerial jobs are not per se Level 2.  There must be entry-level managers for there to be experienced managers.  Many managers are entry-level and later progress to more complex and more responsible duties.  Entry-level managers might supervise other workers, but their work is closely supervised by a senior manager or another superior.  Look to the job description to assess the nature of the duties, supervision, exercise of judgment, and other factors.

Licensed Positions -- Although the starting point in the analysis is that if an occupation requires a license, then the position is Level 2, some positions that require licensing are not necessarily Level 2.  The petitioner/employer has the option to produce evidence that the position does not involve the independent performance of all of the duties of the occupation.  In particular, the SWA should look to the petitioner/employer's job description and stated requirements to evaluate, along with other factors, whether the position is closely supervised, involves only moderately complex duties, and allows limited exercise of independent judgment.   If this is the case, then the position could be classified as Level 1, even though a license is required to perform the job.  An example is a psychologist in a group practice.  A license is required.  But a first year psychologist may be assigned to work alongside a senior psychologist, or be closely supervised by a more senior psychologist.  Under these circumstances, the position could be considered Level 1.

Currently, there are two programs/methods for filing the Labor Certification Application (LCA) to the Department of Labor (DOL):

"Standard/Traditional" Process:  File application, first, wait for DOL to draft advertisement and conduct the recruitment campaign.
"RIR (Reduction in Recruitment)" Process:  Conduct advertisement and recruitment campaign, thereafter*, file the application and results with the DOL.

*Important: The job offer advertisement used in the recruitment campaign includes the job title, description, and minimum requirements.  The "RIR (Reduction in Recruitment)" program requires for the recruitment campaign to take place before filing the LCA application.  This means that the first time the DOL will review the job offer is after the completion of the recruitment campaign.  If the DOL determines that the actual job offer (details of the job, including minimum requirements) described in the advertisement is unacceptable, then the recruitment campaign (i.e., advertisement), based on such a job offer, will also be considered unacceptable.  In this case, the petitioner/employer may be required to conduct a subsequent recruitment campaign.

The DOL has indicated its preference for "RIR" filing.  The "RIR" is similar to the "Standard/Traditional" process -- the difference is that the advertisement/recruitment campaign must be conducted prior to filing the actual application.  (The RIR is traditionally for those occupations that have a "labor workforce shortage," allowing applications for such occupations to be processed expeditiously.)

Note: Filed "Standard/Traditional" applications can be converted to "RIR" applications under certain circumstances.

i8Chart: LCA: Procedural Differences (Standard/Traditional, RIR & PERM)
i8Chart: LCA: Substantive Differences (Standard/Traditional, RIR & PERM)
i8Chart: Minimum Requirement (Job/Position) Reference Materials (Standard/Traditional, RIR & PERM)
i8Chart: SVP, Job Zone and E&TC Codes (Standard/Traditional, RIR & PERM)

Requires labor certification, unless waiver, because there are no shortage of workers.  (Also, regulations at § 656.21(i) preclude the use of the RIR process for Schedule B occupations. The occupations on Schedule B are defined in the regulations at § 656.11. If the job opportunity being requested is in an occupation that is found in that section, then the job requested is on Schedule B and is not eligible for RIR processing.)

Schedule B occupations include:  assemblers, bartenders, caretakers, chauffeurs, cleaners, clerks, groundskeepers, janitors, housekeepers, receptionists, sales clerks, telephone operators, yard workers, etc.

I. Overview

"Schedule B" lists jobs for which the Department of Labor has determined that a nationwide surplus of United States workers exists and that the employment of foreign nationals in these positions would adversely affect the wages and working conditions of U.S. workers employed in similar occupations. (20 CFR § 656.23.)

These jobs generally fall into two classes. First are jobs that require little or no education, experience or skill and workers can generally be trained quickly to perform satisfactorily. Then there are jobs characterized by relatively low wages, long and irregular working hours, and poor working conditions. Neither class of occupations will be certified unless waiver or removal from Schedule B is obtained.  (See 20 CFR § 656.11 for a listing and description of Schedule B occupations.)

Schedule B occupations include:  assemblers, bartenders, caretakers, chauffeurs, cleaners, clerks, groundskeepers, janitors, housekeepers, receptionists, sales clerks, telephone operators, yard workers, etc.

II. The regulation: § 656.23(d)

A. Waiver required for certification under Schedule B

In order for a foreign national to be certified for a Schedule B position, an employer must obtain a waiver.  The employer petitions the Regional Certifying Officer for waiver when the labor certification paperwork is initially filed with the local Job Service office. (20 CFR § 656.23(d).)

If waiver is granted, the CO will issue a labor certification. If waiver is not granted, the CO will follow the labor certification denial procedures set forth at § 656.25(c)-(g).

B. Documentation requirements

The regulations at § 656.23(d)(2) require that the petition include the following:

1. A written request for a Schedule B waiver.
2. A completed Application for Alien Employment Certification form.
3. The documentation required by  § 656.20(b), (c), (e) and (f) which set forth the general filing instructions for the labor certification process.
4. The documentation required by § 656.21 which specifies the requirements for the basic labor certification process.
5. Documentary verification, which the employer has obtained from the local job service office which contains the job opportunity in its administrative area, that the employer has had a job order for the same job on file with the same local office for a period of 30 calendar days and that the local office and the employer, using the job order, were not able to obtain a qualified U.S. worker.

C. Strict construction of the regulation

The regulations at § 656.23(d) are to be strictly construed. See Vermont Hotel, 89-INA-361 (Mar. 5, 1991), strictly construing the requirement at § 656.23(d) that a Schedule B order remain open for 30 calendar days.

D. Household domestic service workers (avoidance of Schedule B denial)

III. Grounds for denial of waiver

A. Ground similar to denials under the basic certification process

Denial of a Schedule B waiver may be based on grounds similarly found under the basic labor certification process, such as:

1.  Experience gained while working for the employer, in violation of § 656.21(b)(6), Super Seal Manufacturing Co., 88-INA-417 (Apr. 12, 1989);
2.  Unlawful rejection of a U.S. applicant, in violation of § 656.21(b)(7), Listrani's Restaurant, 88-INA-380 (June 8, 1989); A.V. Restaurant, 88-INA-330 (Nov. 22, 1988);
3.  Failure to document sufficient testing of the labor market. Bill Ellis & Sons, 90-INA-226 (Sept. 20, 1991).

B. Error by local employment service

There is no entitlement to a waiver from Schedule B based upon the failure by the local employment service to refer all of the applicants for the job offered. Bob's Exxon, 89-INA-259 (May 2, 1991) (adequate test of the labor market was not achieved).

C. Failure to state ground for denial

A CO's failure to state the grounds for a denial of a Schedule B waiver will be found to be arbitrary and capricious. William and Daneen Miller, 89-INA-30 (June 12, 1990).

IV. Household domestic service workers

A. Definition

"Household Domestic Service" encompasses a variety of tasks in private households, including cleaning, dusting, washing, ironing, making beds, mending clothes, cooking, serving food and caring for children. (See § 656.11(b)(26).)

Two rules should be noted:

1. Job duties not title are determinative

A job's duties, not its title, determine if the job constitutes household domestic service.
(Yu Hsia Liu-Hee, 90-INA-381 (Jan. 6, 1992).  "Children's Tutor" held to fall within the category of household domestic service worker where the job duties involved preparing meals, bathing children, washing and ironing clothing, and assisting children with their homework).

2. Exclusion of health/instructional service workers

Household workers who primarily provide health/instructional services are not considered household domestic service workers. § 656.11(b)(26).
(Mr./Mrs. William Gillman, 88-INA-406 (Feb. 27, 1990).  Experience as a nurse's aide does not meet the definition of a domestic household worker pursuant to § 656.11(b)(26)).

B. Avoidance of Schedule B denial

An employer may avoid a Schedule B denial for a household domestic service worker in either of two ways, waiver or removal.

1. Waiver

If it cannot be established that the foreign national has at least 1 (one) year of paid experience as a domestic household worker, an employer seeking labor certification may petition for a waiver pursuant to § 656.23(d). (William and Daneen Miller, 89-INA-30 (June 12, 1990).)

2. Removal

By negative inference, § 656.11(b)(26) implies that if the foreign national e

 
(d) The Technical Assistance Guide identifies the following categories of occupations that fall under the designation of household domestic worker: day worker; ironer; laundry worker; domestic housekeeper, home; cook; houseworker, general; child monitor; butler; companion; butler, second; and personal attendant. (TAG I § 656.11.)

c. Requirement that experience be obtained in "arms-length" employment relationship

The one year of paid experience as a household domestic must be gained within a non-familial, bona fide "arms-length" employer-employee relationship. William and Daneen Miller, 89-INA-30 (June 12, 1990); Roger and Denny Phelps, 88-INA-214 (May 31, 1989) (en banc) (foreign national's employment with her former employer only qualified as paid experience for six months, up to the day she married the employer's son; the dissent disagreed).

d. Experience gained with applying employer

The experience cannot be gained through employment with the applying employer. Roger and Denny Phelps, 88-INA-214 (May 31, 1989) (en banc).

e. Experience gained in self-employment

Experience can be gained working in a self-employed capacity for multiple employers. William and Daneen Miller, 89-INA-30 (June 12, 1990).

f. No need to document experience where live-in requirement is deleted

An employer is not required to document that the foreign national possesses one year of paid experience as a live-in domestic where it deletes the live-in requirement on rebuttal. Karenann Pousard, 90-INA-172 (June 24, 1991).

---

`PDF4Download (inaccessible): MNA "RIR Conversion/Preclusion of Schedule B" GAL 2-02(11/01)
`PDF4Download (inaccessible): MNA "Waiver Household Worker/Schedule B" (02/04)

Due to economic turndowns, the "RIR (Reduction in Recruitment)" filing method for the Labor Certification Application (LCA)  is under increased scrutiny.  The Department of Labor's (DOL) concern focuses on the "no-U.S. worker availability" that is based on a pre-filing recruitment campaign (job offer advertisement, and the results that are based on an unsupervised recruitment effort).  The recruitment campaign for an "RIR" filing is undertaken, normally, 6 months before filing the LCA application, and is conducted by the petitioner/employer (with no DOL involvement).  Because the LCA and the recruitment campaign results are reviewed by the DOL, sometimes, more than one year after such a recruitment campaign takes place, the DOL's concern is whether or not the "no-U.S. worker availability" is accurate and/or current.  The DOL has therefore began to assess the accuracy of the no-U.S. worker results of a "RIR" application, by incorporating the following:

i)  Examine the labor market conditions AT THE TIME of the filing of the application
ii)  Examine the labor market conditions within 6 months of the actual REVIEW of the application (could be more than 1 year after the actual filing).
iii)  Examine whether or not the petitioner/employer had laid off workers 6 months PRIOR to the filing of the application.
iv)  Examine whether or not the petitioner/employer had laid off workers 6 months PRIOR to the review of the application.
v)  For (iii) and (iv), examine also the labor market conditions (hire/fire), and not just the petitioner/employer's specific situation.
`PDF4Download: Dale Ziegler "RIR Processing" Memo (05/2002) (US DOL)

Inconsistencies in this "additional" review/scrutiny of "RIR" applications have resulted in the different DOL regions.
In November of 2003, the DOL has published a national policy memorandum in regard to further review of "RIR" applications.

While the DOL is able to request additional recruitment (see above) in regard to "RIR" program applications, it has announced the following review procedures:

1)  Initial Review Provision
2)  Further Review for Retesting Provision
3)  Retest Provision ("Look Back Provision" and "Application Modification Provision")

1)  Initial Review Provision
Completeness of the application, demonstration of a pattern of recruitment, compliance with regulations such as absence of restrictive requirements, layoffs by the petitioner/employer, etc., is reviewed.

i)  If insufficient, then a Notice of Findings (NOF) will be issued, or

ii)  If sufficient, Further Review for Retest Provision.

2)  Further Review for Retesting Provision

i)  Applications with positions requiring Bachelor's and three (3) or more years of experience -- or -- a Maser's Degree and six (6) months of experience, should be certified, or

ii)  Applications with other position/requirements , if the details of the level of recruitment and recruitment report* are sufficient to the Certifying Officer, should be certified, or

iii)  Retest Provision**

* It appears that submission of resumes is preferable.  Providing only "1-print ad" is not preferable.
** It appears that RIRs filed in New York & Boston will receive greater scrutiny because the Certifying Officer in these regions may rely on more readily available labor market information/data.

3)  Retest Provision ("Look Back Provision" and "Application Modification Provision")
For those applications that cannot be certified based on (1) or (2) above, then the petitioner/employer will be provided by the following options from the DOL:

i)  withdraw the application, or

ii)  withdraw the "RIR" filing method to be converted to "Standard/Traditional" keeping the initial submission/priority date (or requesting the remand date), or

iii)  conduct a one-day "retest"* of the labor market with supervision from the DOL (additional recruitment campaign, using "RIR" advertisement guidelines, but with greater details provided in the recruitment report); response period is limited to sixty (60) days, or

iv) instead of conducting a one-day "retest," use the "Look Back" Provision, that allows for submission of a recruitment report based on a "retest" of the labor market that has occurred within sixty (60) days of the receipt of the letter from the DOL.  Copy of the advertisement and details are required in the recruitment report.

* It appears that a Sunday advertisement is preferable and the advertisement reflect a combination of RIR- and supervised-type description of job duties.

A petitioner/employer who chooses (iii) or (iv) is allowed to use the "Application Modification Provision."  This allows modifications to the application that do NOT change the occupational classification, but may include different requirements and/or additional duties.  (However, addition of work experience will be scrutinized -- preferable that such additional experience is also not gained on the job and such requirements not restrictive, etc.)

`PDF4Download: William Carlson "RIR Re-Testing" Memo (11/2003) (US DOL)
`PDF4Download: Additional "RIR Re-Testing" Information (02/2004)

4LCA:  THREE PROGRAMS

4TERMINOLOGY
4PROCEDURE

41)  OBTAIN PREVAILING WAGE DETERMINATION (PWD)

4SWA & PWD

42)  JOB OFFER (MINIMUM REQUIREMENTS)

4MINIMUM REQUIREMENTS

4Foreign Language
4Experience Gained on the Job (Not Substantially Same, Infeasibility to Train, Different "Employer")
4Combination of Duties
4Alternative "Experience" Requirements
4Degree Equivalency?

43)  RECRUITMENT CAMPAIGN

4RECRUITMENT CAMPAIGN

4Prefiling Recruitment Steps
4Newspaper Advertisement (2 Sundays)
4Three Additional Recruitment for "Professional" Jobs (30 - 180 days within Filing)
4Contact "Layoff" U.S. Workers
4Rejection of U.S. Workers

44)  AUTOMATED FILING

45)  DOL AUDIT & REVIEW

46)  CONVERSION

The new LCA (labor certification application) program called "PERM (Program Electronic Review Management) System/Program" is an on-line electronic type of filing the LCA.  PERM is an attestation and audit system where a petitioner/employer seeking permanent labor certification conduct advertising and recruitment prior to filing the LCA.  PERM LCAs are expected to take 45 to 60 days to adjudicate (in contrast to the multi-year process for the Standard/Traditional- and RIR-type LCAs).  Some applications will be selected for auditing by the DOL (Department of Labor), either randomly or because responses to certain questions on the application trigger a need for additional information.  When an application is selected for a DOL audit, additional and supervised recruitment may become necessary.

Standard/Traditional (Filing ends on March 27, 2005)

This program requires the petitioner/employer to:

1) file application ETA-750 with the local DOL (SWA),
2) conduct a SWA-supervised* recruitment campaign (45 days),
3) file the recruitment report to the SWA,
4) if the SWA certifies the application, it will forward to the DOL for final certification.

*The DOL/SWA will review the terms of the job offer, including salary and minimum requirements.

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i8Chart: LCA: Procedural Differences (Standard/Traditional, RIR & PERM)
i8Chart: LCA: Substantive Differences (Standard/Traditional, RIR & PERM)

RIR (Reduction in Recruitment) (Filing ends on March 27, 2005)

This program requires the petitioner/employer to:

1) conduct an un-supervised* recruitment campaign (6 months),
2) file the recruitment report and ETA-750 application to the SWA,
3) if the SWA certifies, it will forward to the DOL for final certification.

*While the DOL/SWA will not supervise the recruitment campaign, the offered position that the recruitment is based on, must be a bona fide job offer with appropriate salary and minimum requirements.

Due to economic turndowns, the RIR application is under increased scrutiny.
i8Details: "RIR" Recent Developments

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i8Chart: LCA: Procedural Differences (Standard/Traditional, RIR & PERM)
i8Chart: LCA: Substantive Differences (Standard/Traditional, RIR & PERM)

PERM (Program Electronic Review Management) System/Program) (March 28, 2005)

This program will eliminate the current LCA programs, and is somewhat similar to the RIR program, requiring the petitioner/employer to:

1) first obtain a PWD (prevailing wage determination) from the SWA (state workforce agency) for the job offer,
2) conduct a recruitment campaign,
3) file the LCA ETA-9089 Form (information about the results of the recruitment through "attestations") via electronic format (on-line) directly to the DOL,
4) the DOL certifies within 45-60 days or will request an "audit" of the recruitment efforts (that can also result in additional supervised recruitment).

(See below for PERM PROGRAM details.)

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i8Chart: LCA: Procedural Differences (Standard/Traditional, RIR & PERM)
i8Chart: LCA: Substantive Differences (Standard/Traditional, RIR & PERM)

TERMINOLOGY:

SWA - State Workforce Agency, replacing SESA (State Employment Security Agency)
PERM - the new automated LCA program using Application for Permanent Labor Certification (ETA-9089)
PWD - prevailing wage determination which decided by the SWA, using Prevailing Wage Determination Request Form
RCO - Regional Certifying Office

1.  Obtain a PWD (prevailing wage determination) from the SWA (state workforce agency) in the state where the beneficiary/employee would be employed.
Note:  PWD is valid for 90 days to 1 year, depending on the SWA (but note below when recruitment must take place).
Note:  The job offer's occupation's minimum requirements (education, experience, training, etc.) will impact the PWD as well as the advertisement/recruitment.

2.  Conduct "unsupervised" advertisement/recruitment using PWD information.
Note:  Recruitment must begin within the validity of the PWD (some types of recruitment must take place at least 30 days but not more than 180 days of the filing of the LCA, but there are exceptions).  Depending on "professional (bachelor's or higher)" or non-professional job offer, the advertisement/recruitment will differ.

3.  File the ETA-9089 LCA Form (that includes information of the results of the recruitment through "attestations") via electronic format (on-line) to the DOL.
Note:  Documentation of the recruitment is not submitted, but must be kept for at least 5 years.

... 4.  Review by the DOL, which will certify the application, or request an "audit" of the records and information relating to the recruitment campaign.
Note:  The DOL expects to take 45-60 days to certify the application or request an "audit."  Auditing by the DOL is either random or because responses to certain questions on the LCA will trigger a need for additional information or supervised recruitment. ...

The SWA will evaluate the job offer, duties, requirements and geographic area and provide a PWD (prevailing wage determination).

SWA & PWD

1.  The PWD is requested from the SWA before filing the labor certification application, based on the job offer, including duties, requirements and geographic area and determine the prevailing wage.
2.  The 95% rule for prevailing wages is abolished, and 100% will be required (after March 8, 2005; similar to the H-1B prevailing wage rule).
3.  For governmental wage surveys, four wage levels (see below) will be used instead of the current two wage levels (wage levels will be based on experience, education and the level of supervision).

Note:  Petitioner/employer can submit alternate wage survey if the data meets guidelines, and the Davis-Bacon Act or Service Contract Act wages for jobs covered by those Acts will be accepted without question.

Note:  The PWD reflects the job duties and the minimum requirements (SVP level shown in the O*Net Job Zones) for a position, including normally required experience, education, and the level of supervision.

4.  The PWD will be valid from 90 days to 1 year, and at least one recruitment step must take place during the validity period (note that recruitment must take place at least 30 days but not more than 180 days of the filing of the actual LCA, also).
 

Use of Four Wage (Skill) Levels: Governmental surveys such as the OES will provide for four levels of wages commensurate with experience, education, and the level of supervision. If only two levels are currently provided, two new levels can be created by dividing by 3 the difference between the levels offered, adding the quotient obtained to the first level, and subtracting that quotient from the second level.  Example (OES wage for an engineer):  Current (Two Wage/Skill Level) OES 1 = $60,000. OES 2 = $90,000. $90,000 - $60,000 = $30,000 1/3 of $30,000= $10,000 (Quotient) New (Four Wage/Skill Level) OES 1 = $60,000. OES 2 = $70,000 ($60,000 + $10,000) OES 3 = $80,000 ($90,000 - $10,000) OES 4 = $90,000.

`PDF4Download: PERM Prevailing Wage (12/04) (DOL)

The job offer is the job title, duties of the occupation, and the minimum requirements for the specific occupation.  If the recruitment locates any U.S. workers who meet the minimum requirements (education, experience, training) for the offered position, the petitioner/employer will not be permitted to obtain certification/approval of the LCA.  In this respect, the petitioner/employer must carefully define the job title, explain the responsibilities, and specify the minimum requirements for the position.  The minimum requirements will entail education, experience, training, and/or special skills that are needed.

MINIMUM REQUIREMENTS

1.  The minimum requirement for an offered position must be consistent with those normally required for similar jobs in the U.S. in terms of education, training and experience.
2.  As of March 28, 2005, the Department of Labor will transition from the DOT (Dictionary of Occupational Titles) to the O*NET (Occupational Information Network).  O*NET's "job zones" will be used to set the normal training, education, and experience requirements for an occupation.  The O*NET/SOC categorizes jobs according to five (5) Job Zones and each Job Zone contains a range of SVP levels.  The SVP (Specific Vocational Preparation) is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job.  Such training may be acquired in a school, work, military, instructional or vocational environment.
3.  Where the job requirements exceed O*NET's Job Zones/SVP Level of education, training and experience deemed normal for the position, the requirements (such as specialized skill, supervisory level or responsibility, foreign language ability, etc.) will be considered unduly restrictive.
4.  Unduly restrictive requirements can be a minimum requirement if the petitioner/employer can demonstrate "business necessity" (the potentially restrictive requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform, in a reasonable manner, the job duties as described by the employer).
 

SVP (Specific Vocational Preparation): The DOL will utilize the May 16, 1994 Field Memorandum that states: a general associate's degree is equivalent to 0 years SVP a specific associate's degree is equivalent to 2 years SVP;  a bachelor's degree is equivalent to 2 years SVP;  a master's degree is equivalent to 4 years SVP (2+2), and  a doctorate is 7 years SVP (2+2+3).  The DOL has also clarified that it will use the O*NET to determine whether training and experience requirements are normal. i8Chart: SVP, Job Zone and E&TC Codes

FOREIGN LANGUAGE

If there is business necessity for a foreign language, it is allowed to be included as a minimum requirement.  Business necessity may be demonstrated based on:

(1) nature of the occupation (translator, interpreter, etc.), or
(2) need to communicate with a large majority of the employer's customers, contractors, etc., or
(3) employees, co-workers, and subordinates who cannot communicate effectively in English.

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`PDF4Download: PERM "Foreign Language" (12/04) (DOL)

EXPERIENCE GAINED ON THE JOB

Not Substantially Comparable
Experience gained on the job (for the petitioner/employer) may be included as a minimum requirement if the petitioner/employer can demonstrate that the job is not "substantially comparable" to the LCA job offer.

A "substantially comparable" job or position is defined as one where the same job duties are performed more than 50 percent of the time (documented by providing position descriptions, the percentage of time spent on various duties, organizational charts, and payroll records).

Infeasibility to Train
Petitioner/employers can also include in the minimum requirements, experience gained by the beneficiary/employee, if the petitioner/employer can demonstrate that it no longer feasible to train a worker to qualify for the position.

Same Employer?
The DOL intended to expand the definition of "employer" to disallow experience gained with predecessor organizations (such as entities that were acquired, successors-in-interest, a parent, branch or subsidiary, or affiliate (wherever located).  The DOL agreed that this was too broad and set forth a new definition.

Section 656 17(i)(5)(i) states:

“The term ‘employer’ means an entity with the same Federal Identification Number (FEIN), provided it meets the definition of an employer at section 656.3."

This allows employers to use experience gained at foreign entities (because they do not have federal FEINs), experience gained while employed with acquired companies, and subsidiaries and branches of the same employer (as long as the FEINs are distinct).

Note/Important: Although the minimum requirement for a job offer may include experience gained for petitioner/employer, a petitioner/employer may not use any educational or training requirements that it paid for (educational or training courses, including certificates acquired through such). 

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`PDF4Download: PERM "Experience Gained" (12/04) (DOL)
`PDF4Download: PERM "Business Necessity" (12/04) (DOL)

COMBINATION OF DUTIES

A job offer that includes "combinations of occupations" is acceptable in certain situations.  A petitioner/employer may justify such combinations if it can demonstrate at least one of the following:

(1) it has normally employed workers in the combination of occupations set forth in the labor certification, and/or
(2) workers customarily perform the combination of occupations in the area of intended employment, and/or
(3) the combination job opportunity is based on a business necessity.

If the DOL determines that a job offer unreasonably combines duties from two distinct job classifications, then the petitioner/employer may be required to justify the business necessity of the proposed duties.

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`PDF4Download: PERM "Business Necessity" (12/04) (DOL)

ALTERNATIVE "EXPERIENCE" REQUIREMENTS

The petitioner/employer can specify alternative requirements (such as experience in a "related occupation") as long as "alternative requirements and primary requirements are substantially equivalent to the primary job requirements with respect to whether the applicant can perform the job duties in a reasonable manner" (Matter of Francis Kellogg, 94-INA-465 (February 2, 1998) (en banc)).

In situations where the petitioner/employer already employs the beneficiary/employee, the final rule imposes restrictions on the petitioner/employer's ability to accept alternative requirements.  If the foreign national does not meet the primary requirements for the job, and only "potentially qualifies" for the position based on the alternative requirements, the LCA will be denied as improperly tailored to the foreign national -- unless the LCA specifies that applicants "with ANY suitable combination of  education, training or experience are acceptable."
Note/Important: If one checks item H10 of ETA 9089 that experience in an alternate occupation is acceptable and item J20 that the beneficiary/employee has the experience in the alternate occupation, one should note on the LCA (item H14) or in the recruitment report that the petitioner/employer considered applicants with any suitable combination of education, training or experience for the job.

DEGREE EQUIVALENCY?

The minimum requirement for an offered position must be consistent with those normally required for similar jobs in the U.S. in terms of education, training and experience.  As of March 28, 2005, the Department of Labor will transition from the DOT (Dictionary of Occupational Titles) to the O*NET (Occupational Information Network).  O*NET's "job zones" will be used to set the normal training, education, and experience requirements for an occupation.  The O*NET/SOC categorizes jobs according to five (5) Job Zones and each Job Zone contains a range of SVP levels.  The SVP (Specific Vocational Preparation) is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job.  Such training may be acquired in a school, work, military, instructional or vocational environment.
If a job offer's minimum requirement includes andalso requires a degree, then equivalent education and experience (degree equivalency document) can not be used.  The PERM rules states  "With respect to the definition of professional occupation suggested by AILA, we do not have any standards or information that would allow us to make the equivalency determination called for under the definition suggested by AILA.  We have never determined in administering the permanent labor certification program what work experience or combination of work experience and education is equivalent to a bachelor's or higher degree."
Note/Important: In Standard/Traditional and "RIR" LCA programs, it is possible to use degree equivalency in certain situations (not taking into account the I-140 immigrant preference petition).  However, with PERM, there is a delineation between "professional (occupations requiring a degree)" and non-professional occupations.
`PDF4Download: PERM "No Degree Equivalency" (12/04) (DOL)

Mandatory and alternative recruiting steps depending on "professional (degree requiring occupations)" or non-professional occupation, and all recruitment documents (including a recruitment report) must be kept for five (5) years.

RECRUITMENT CAMPAIGN

4Prefiling Recruitment Steps

1. On-Site/In-House Posted Notice (10 days)
The petitioner/employer must conduct and in-house/on-site notice of the job offer for at least ten consecutive business days. The notice period must be between 180 and 30 days before filing. The notice must contain the salary (obtained from the SWA in the PWD), but may contain a wage range so long as the lower level of the range meets or exceeds the prevailing wage (the notice must state that any person may provide documentary evidence bearing on the LCA to the CO).

2.  SWA Job Order (30 days)
The petitioner/employer must place a job order with the SWA for a period of 30 days. (Form ETA-9089 requires the employer to list the start and end date of the job order.)

3.  Other In-House Media
In addition to the in-house/on-site posted notice, the petitioner/employer must use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar jobs in the organization. The new LCA Form ETA-9089 form does not specifically require the employer to attest that he or she has advertised the job through in-house media.  Duration of the in-house media use is not stated.

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`PDF4Download: PERM "Advertisement/Recruitment" (12/04) (DOL)

4Newspaper Advertisement (2 Sundays)

1.  The petitioner/employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment.  Ads may be placed on consecutive Sundays.  If the job is located in a rural area with no Sunday edition, the employer may use the edition with the widest circulation. Placement of the ad under an inappropriate heading/keyword is considered a failure to make good-faith efforts to recruit U.S. workers.

2.  Ads must be placed more than 30, but not more than 180 days before filing the LCA.

The ad must list:

a) name of the petitioner/employer,
b) state the geographic area of employment (only if the job site is unclear),
c) contain a description of the vacancy specific enough to apprise US workers of the job opportunity,
d) may include minimum education and experience requirements or specific job duties as long as those requirements also appear on LCA Form ETA-9089 (requirements or duties exceeding requirements on the LCA are not allowed),
e) direct applicants to send resumes and contact the petitioner/employer (the petitioner/employer's  physical address is not required -- a central office or post office box may be designated).

Important:  No need to include salary or detailed job description and requirements.

Important: A web page generated in conjunction with a print ad now counts as a website advertisement, other than the petitioner/employer's.

Note/Professional Journal:  If the job requires experience and an advanced degree, the petitioner/employer may use a professional journal in lieu of one of the Sunday ads.

Record-Keeping:  Documentation of the ad can be supplied by a copy of the page or proof of publication supplied by the newspaper/journal (LCA Form ETA-9089 requires the petitioner/employer to list the name of the newspaper and date of publication for each ad). 

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`PDF4Download: PERM "Advertisement/Recruitment" (12/04) (DOL)

4Three Additional Recruitment for "Professional" Jobs (30* - 180 days within Filing)

1.  A professional job is a job for which the attainment of a bachelor's or higher degree is a usual education requirement.  The DOL published a list of professional occupations in Appendix A to the PERM rule and if the occupation is listed on Appendix A, the petitioner/employer must follow the recruitment regimen for professional occupations (see below). Note:  However, the employer may also use the additional recruitment steps for other occupations to bolster a claim that a non-listed occupation is also professional in nature.
`PDF4Download: PERM "Professional (Degree)" Occupations (12/04) (DOL)

2.  The additional recruitment steps must take place no more than 180 days before filing. *Only one of the additional recruitment steps may take place within 30 days of filing.

3.  The petitioner/employer is not required to take different steps each month.

4.  The list of permitted additional recruitment steps include:

(1) petitioner/employer's web site,
(2) job search web site other than employer's (a web page generated in conjunction with a print ad now counts as a website [see newspaper advertisement, above]).
(3) local and ethnic newspapers, to the extent they are appropriate for the job opportunity,
(4) job fairs,
(5) on-campus recruiting,
(6) trade or professional organizations,
(7) private employment firms,
(8) an employee referral program, if it includes identifiable incentives,
(9) a notice of the job opening at a campus placement office, if the job requires a degree but no experience,
(10) radio and television advertisements.

Record-Keeping:  LCA Form ETA-9089 requires the petitioner/employer to specify the dates of each additional recruitment step (the final rule specifies how each type of additional recruitment activity can be documented).

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`PDF4Download: PERM "Advertisement/Recruitment" (12/04) (DOL)

4Contact "Layoff" U.S. Workers

If there was a layoff by the petitioner/employer in the area of intended employment in the six months immediately prior to filing the LCA application, either in the occupation for which certification is sought or in a related occupation, the petitioner/employer must document that it has notified and considered all potentially qualified laid-off U.S. workers of the job offer in the LCA.  The petitioner/employer must document that they offered the position to those laid-off workers who are able, willing and qualified for the job, and document the results of their consideration of such workers.

Note: A “layoff” is an involuntary separation of one or more workers without cause or prejudice. The definition includes, but is not limited to, personnel actions characterized by an employer as
reductions-in-force, restructuring, or downsizing.

4Rejection of U.S. Workers

1. A U.S. worker is considered to be qualified for the job being offered when the worker is “able, willing, qualified, and available for and at the place of the job opportunity."  The LCA requires that an petitioner/employer make a "bona fide offer of employment" and demonstrate that there are no qualified and available U.S. workers (U.S. citizens or "green card" holders) for the offered position.  Only after a showing is made that there are no qualified U.S. workers who are available, and that the beneficiary/employee is qualified for the job offer, will the DOL certify and approve this application.

2.  The U.S. worker must be able to perform the job in a normally accepted manner and as customarily performed by other U.S. workers similarly employed.  A petitioner/employer may reject a U.S. applicant who lacks one or more of the minimum requirements (in terms of education, training and experience) for the advertised position.  However, the petitioner/employer can not reject a U.S. worker if the rejection is based on a U.S. worker lacking "skills" that could be acquired during a "reasonable period of on-the-job training."

Record-Keeping:  The LCA Form ETA-9089 will require attestations that there are no qualified U.S. workers and also document the results of a recruitment campaign.  Additionally, the petitioner/employer or representative must sign a report describing the recruitment steps, the results achieved, number of hires, and if applicable, the number of U.S. workers rejected, characterized by the lawful job related reasons for such rejections.  Resumes and other documentation must also be maintained (in the event of an audit, the Certifying Officer may request the U.S. workers' resumes or applications, sorted by reasons the workers were rejected).

The PERM is an automated electronic application process.  The complete application process will consist of one form, the "Application for Permanent Employment Certification" (Form ETA-9089).  It can be submitted via the DOL's PERM website (http://www.workforcesecurity.doleta.gov/foreign) or may be submitted by mail to one of two national processing centers.

1.  Form ETA-9089 contains attestations requiring a "Yes," "No," or "Not Applicable" response.  Other questions will require information to be placed in blocks.

Note: Petitioner/employers will be required to maintain documentation of their recruitment efforts, including advertisements, resumes, etc.  A recruitment campaign report should include details of the efforts, reasons for rejections of the U.S. workers, etc.  The documentation must be kept for five years, but it is not submitted with the ETA-9089 (if the application is selected for auditing by the DOL, submission will be required).

2.  Form ETA-9089 can be submitted electronically and certified electronically in 45 to 60 days (unless designated for a DOL audit).  Once the DOL certifies a case, the petitioner/employer must print out the application and sign it.  (The petitioner/employer must maintain a copy of the signed form in its files and submit the original signed form to the U.S.  Citizenship and Immigration Services (US CIS) along with Form I-140, the Immigrant Petition for Alien Worker).

3.  Labor certification audits will be based on specific compliance criteria, as well as random audits for quality control purposes (note that applications may be flagged for audit on the basis of certain factors, including certain answers on Form ETA-9089).  The audit process may include a request for additional documentation, after which the Certifying Officer can certify or deny the application or call for supervised recruitment.

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`PDF4Download: PERM Form ETA-9089 (12/04) (DOL)

If a PERM LCA is selected for a DOL audit, the petitioner/employer will be notified and required to submit, within 30 days, documentation to verify the information stated in, or attested to, on the LCA application.

Note:  The petitioner/employer must respond within 30 days, even though the DOL has indicated that the response does not need to be received within 30 days (postmark or other evidence of mailing is sufficient).  Further, Certifying Officers will have the discretion to grant extensions up to an additional 30 days.  If the petitioner/employer does not respond within 30 days, the LCA will be denied.

1.  If DOL determines that the documentation is complete and consistent with responses on Form ETA-9089, it will certify the application, or
2.  If the DOL determines that the documentation is deficient, it will deny the application, or
3.  The DOL can request additional documentation and/or supervised recruitment.

Note:  Supervised recruitment will require:

1)  Additional advertisement pubication, and
2)  Additional 30-day job order, and
3)  Additional recruitment report.

The ad will be placed in newspaper of general circulation for three days including a Sunday or for one edition of a professional, trade or ethic publication.  The petitioner/employer must submit a draft of the proposed ad to the Certifying Officer (CO) for approval within 30 days of the notification that supervised recruitment is required; the CO will approve the ad and direct the timing of the advertisement. The approved ad will direct applicants to send resumes to the CO. The ad must describe the job opportunity including a wage rate that meets or exceeds the prevailing wage rate and summarizes the minimum job requirements as contained in the LCA and offer training if the job would normally require the petitioner/employer to provide training.  At the completion of supervised recruitment, the petitioner/employer will have 30 days to document in a recruitment report the outcome of the effort, and the lawful job-related reasons for not hiring U.S. workers.

Note:  If an LCA is considered to be fraudulent, the Certifying Officer will have the discretion to require petitioners/employers to undertake supervised recruiting for up to two years for future LCAs.

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`PDF4Download: PERM "Audit & Supervised Recruitment" (12/04) (DOL)

Note:  If the LCA is denied, it will detail the reasons and deficiencies, and the petitioner/employer will be able to seek an appeal of the denial with the Board of Alien Certification Appeals (BALCA) within 30 days of the denial decision.

Until March 27, 2005, there are two types of LCA programs:  "Standard/Traditional" and "RIR" (Reduction in Recruitment).
After March 28, 2005, there will be a new LCA program:  "PERM (Program Electronic Review Management) System/Program."

Important: Once PERM is implemented, current Standard/Traditional and RIR applications will not be accepted.  Therefore, after publication but before implementation, applicants may need to file a LCA application under Standard/Traditional or RIR, depending on the situation/case/application.  Each program has different procedural/substantive requirements, and some applicants may find the currently existing two programs more advantageous compared to PERM.  (Even after the implementation of PERM, applications previously filed under Standard/Traditional or RIR will be adjudicated according to each program's guidelines.)

Converting is allowed if:

(1) no job order has been placed with the State Workforce Agency (SWA), and
(2) no recruiting has occurred, and
(3) all PERM-related prevailing wage, advertising and recruitment requirements have been met; and
(4) the job opportunity is deemed to be "identical" to the job description described in the original LCA ("Identical" is defined in the regulation as a job opportunity where the employer, foreign national, job title, job location, job requirements, and job description are the same as those stated in the original application), and
(5) petitioner/employer withdraws the original LCA and re-files a new (conversion) PERM LCA within 210 days of withdrawal.

...

LCA: SUBSTANTIVE DIFFERENCES (STANDARD/TRADITIONAL, RIR & PERM)

November 1, 2004

Labor Certification Application & DOL (Department of Labor):

The ETA-750 Labor Certification Application (LCA) is the first step for many employment-based immigrant visa "green card" applications, where a US Petitioner/Employer proves that there are no qualified, able, willing and available US workers (U.S. Citizens or Legal Permanent Residents) who can meet the minimum requirements of a job offer (requirements of the job offer include minimum education, experience, specialized knowledge, etc., necessary for the job, and a salary that is considered at "prevailing wage" for the position).
The required recruitment campaign (advertisement, etc.) is conducted by the U.S. Petitioner/Employer, and if no U.S. workers are located and if the foreign national (beneficiary/employee) meets the requirements, the LCA may be certified by the Department of Labor (DOL).
After the LCA is certified/approved, the I-140 Immigrant Preference Application is filed with the US CIS, and finally, the I-485 "adjustment of status" (U.S.) or "consular processing" for issuance of the actual "green card" status can be made.  (Currently, the I-140 & I-485 "adjustment of status" can be concurrently "filed," and in some regions, also concurrently "processed.")
However, the LCA program has historically operated under the burden of a very large backlog of cases.  With local, state, and regional offices of the DOL handling various stages of the LCA program with differing rules, policies, guidelines, processing times, etc., the current size of the national backlog approximates 300,000 applications.
To address this concern, the DOL has and is developing a two-pronged approach:
4Backlog Reduction, and4PERM.
...
Backlog Reduction:

As of October 1, 2004, the Employment and Training Administration (ETA) has and is implementing an infrastructure that will provide a cost effective facility and organization for the processing of LCAs beginning with receipt to certification/denial of the application.  Consolidation/centralization of filed/pending and future LCA applications is the most significant change.  Currently, LCA applications are filed, processed (and recruitment supervised) by the State Workforce Agency (SWA, ETA/DOL), and thereafter, forwarded to the Regional DOL office for certification.
By March 31, 2005, the SWA and Regional DOL are expected to forward all filed/pending LCA applications to designated DOL centers.  (In effect, the SWA's role in the LCA application will be phased out.)

SWA & LCA Applications
LCA applications completed prior to January 1, 2005 will be sent to Regional DOL offices under current guidelines.
New LCA applications submitted after January 1, 2005 will be accepted by the SWA but will not be "opened."  These new LCA applications will be forwarded to the National LCA Offices:  Atlanta Processing Center, Chicago Processing Center.
By March 31, 2005, SWAs and Regional DOL offices will forward filed/pending LCA applications to appropriate Backlog Reduction Centers (BRC):  Dallas Backlog Center, Philadelphia Backlog Center, Boston/New York Regional Office, San Francisco Regional Office.

National BRC:  Dallas & Philadelphia Backlog Center
The DOL has two national Backlog Reduction Centers (BRC):
- Dallas Backlog Center
- Philadelphia Backlog Center.
New LCA applications filed by January 1, 2005 will be accepted by the  but will not "open" these applications.
By March 31, 2005, SWA and Regional DOL will forward filed/pending LCA applications to these two offices.
The Dallas & Philadelphia BRCs are expected to close by 2007.

Regional BRC:  Boston/New York Regional Office & San Francisco Regional Office
In addition to the two national BRCs, the DOL is designating two regional DOL offices as additional Backlog Reduction Centers (BRC):
- Boston/New York Regional Office
- San Franciso Regional Office.
By March 31, 2005, SWA and Regional DOL will forward filed/pending LCA applications to these two offices.
The Boston/New York Regional Office & San Franciso Regional Office is expected to close by 2006.

National LCA Offices:  Atlanta Processing Center & Chicago Processing Center
The two national processing centers will handle non-backlog LCA applications, including future LCA (PERM), H-2A, and H-2B applications:
- Atlanta Processing Center
- Chicago Processing Center
If PERM is not implemented, it may serve as backlog reduction centers.
The two National LCA Offices are to be operational by the end of 2004.

Atlanta Processing Center's jurisdiction:  Alabama, Connecticut, Delaware, Florida, Georgia, Kentucky, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Vermont, Virgin Islands, Virginia, Washington, DC, West Virginia.

Chicago Processing Center's jurisdiction:  Alaska, Arizona, Arkansas, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wisconsin, Wyoming.

The DOL has stated that it will publish this new procedure in the Federal Register within the next two months to inform the public of this processing change.

`PDF4Download: "New LCA Offices (National & Regional)" (10/04) (DOL)
`PDF4Download: "LCA Transition Guide to SWAs" (10/04) (DOL)
`PDF4Download: LCA Transition (10/04) (MNAILAPP)
`PDF4Download: "LCA Backlog Reduction" Interim Rule ETA (Federal Register, Vol. 69, No. 139, 07/21/04) (07/04)
`PDF4Download: DOL/ETA Future Goals of the LCA (09/2003) (US DOL/ETA)
i8Gov. Site: Federal Register

...
PERM (Program Electronic Management Review)

Two national processing centers will handle non-backlog LCA applications, including future LCA (PERM), H-2A, and H-2B applications.  The two National LCA Offices are to be operational by the end of 2004:  Atlanta Processing Center and Chicago Processing Center.
The two currently available types of LCA filings are "Standard/Traditional" and "Reduction in Recruitment (RIR)."  These types require submission of numerous documents, including recruitment/advertisement evidence, to the DOL, and typically require extensive time and follow-up tasks under the guidance (or supervision) of the DOL.  PERM (Program Electronic Management Review), on the other hand, is an on-line electronic type of filing the LCA.  This program, while similar to the RIR program, allows submission of the application via the internet (similar to on-line filing of H-1B ETA-9035 Labor CONDITION Application).  If the PERM application is favorably reviewed, certification can be expected in several weeks.
Contrary to previous reports, once the final PERM rules are published in the Federal Register, PERM will be implemented in 60 days.
Once PERM is implemented, current Standard/Traditional and RIR applications will not be accepted.  (The SWAs will be instructed to stop accepting applications for Standard/Traditional or RIR LCA applications 61 days after the publication of the regulation.)  Therefore, after publication but before implementation, applicants may need to file a LCA application under Standard/Traditional or RIR, depending on the situation/case/application.  Each program has different procedural/substantive requirements, and some applicants may find the currently existing two programs more advantageous compared to PERM.  (Even after the implementation of PERM, applications previously filed under Standard/Traditional or RIR will be adjudicated according to each program's guidelines.)
This highly anticipated program's initial rules were published in the Federal Register in May 6 of 2002, and the final rules should be published in the Federal Register before the end of 2004.  (Apparently, the DOL is still awaiting clearance by the Office of Management and Budget (OMB).)

`PDF4Download: "New LCA Offices (National & Regional)" (10/04) (DOL)
`PDF4Download: "LCA Transition Guide to SWAs" (10/04) (DOL)
`PDF4Download: LCA Transition (10/04) (MNAILAPP)
i8Details: EMPLOYMENT-BASED IMMIGRANT "GREEN CARD" VISA
i8Details: PERM (LCA) (information based on proposed regulations published in the FR in May of 2002)
i8Details: LABOR CERTIFICATION APPLICATION (LCA)
i8Gov. Site: Federal Register
i8Gov. Site: OMB (Office of Management and Budget)

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July 2004

In July of 2004, the ETA of the DOL has issued an interim final rule to address an existing backlog in pending applications for labor certification for the permanent employment of foreign nationals in the United States.  This amendment to the regulations governing labor certification applications for permanent employment will allow the National Certifying Officer to transfer to a centralized ETA processing center(s) applications now awaiting processing by State Workforce Agencies (SWAs) or ETA Regional Offices.  This interim final rule does not affect the pending proposal to streamline procedures for permanent labor certification under 20 CFR part 656, which was published in the Federal Register of May 6, 2002, and which is expected to be finalized in 2004.  This interim final rule affects only applications filed under existing regulations, while the streamlined certification regulation will govern processing of new applications filed after that regulation takes effect.
`PDF4Download: "LCA Backlog Reduction" Interim Rule ETA (Federal Register, Vol. 69, No. 139, 07/21/04)
`PDF4Download: DOL/ETA Future Goals of the LCA (09/2003) (US DOL/ETA)

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March 2004

Currently, there are two programs/methods for filing the Labor Certification Application (LCA) to the Department of Labor (DOL):

"Standard/Traditional" Process:  File application, first, wait for DOL to draft advertisement and conduct the recruitment campaign.
"RIR (Reduction in Recruitment)" Process:  Conduct advertisement and recruitment campaign, thereafter, file the application and results with the DOL.

The DOL has announced that in Spring of 2004, it will implement "PERM (Program Electronic Review Management) System/Program)," an on-line electronic type of LCA filing.  This program, while similar to the "RIR" program, allows submission of the application via the internet (similar to on-line filing of H-1B ETA-9035 Labor CONDITION Applications).  If the PERM application is favorably reviewed, certification can be expected in several weeks.

However, the Permanent Labor Certification program has historically operated under the burden of a very large backlog of cases.  This backlog has grown through a continuing increase in normal applications and has been exacerbated on several occasions by reinstatement of Section 245(i) of the Immigration and Naturalization Act (INA).  The current size of the national backlog approximates 300,000 applications.

To address this concern, a major restructuring of the certification process will be implemented with the introduction of PERM, but the backlog of applications filed under current regulations must still be processed under the old rules and within the existing system.  The following  problems exist for non-PERM applications:  1) Applications under the 245(i) program are often incomplete and will require additional processing time; 2) The requirements of the program have shaped a process that is directed towards individual applications as opposed to treating or processing applications on a class basis; 3) the application process varies widely by state and region, making it difficult to introduce process improvements; and 3) there is insufficient capacity in the current system to substantially reduce the backlog prior to the implementation of the PERM system.

Therefore, the Department of Labor, Employment and Training Administration (DOL/ETA) is preparing an infrastructure that will provide an efficient, highly productive, and cost effective facility and organization for the processing of Permanent Labor Certification applications beginning with receipt to certification or denial of the application by an on-site federal official.  The type of support anticipated are two fully staffed facilities or application processing centers on a national scale.

8Main INDEX (Immigration)
8M+N-LLP Offices
8M+N-LLP Attorneys

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LEGAL DISCLAIMER:

Backlog Reduction:
As of October 1, 2004, the Employment and Training Administration (ETA) has and is implementing an infrastructure that will provide a cost effective facility and organization for the processing of LCAs beginning with receipt to certification/denial of the application.  Consolidation/centralization of filed/pending and future LCA applications is the most significant change.  Currently, LCA applications are filed, processed (and recruitment supervised) by the State Workforce Agency (SWA, ETA/DOL), and thereafter, forwarded to the Regional DOL office for certification.
By March 31, 2005, the SWA and Regional DOL are expected to forward all filed/pending LCA applications to designated DOL centers.  (In effect, the SWA's role in the LCA application will be phased out.)

SWA & LCA Applications
LCA applications completed prior to January 1, 2005 will be sent to Regional DOL offices under current guidelines.
New LCA applications submitted after January 1, 2005 will be accepted by the SWA but will not be "opened."  These new LCA applications will be forwarded to the National LCA Offices:  Atlanta Processing Center, Chicago Processing Center.
By March 31, 2005, SWAs and Regional DOL offices will forward filed/pending LCA applications to appropriate Backlog Reduction Centers (BRC):  Dallas Backlog Center, Philadelphia Backlog Center, Boston/New York Regional Office, San Francisco Regional Office.

National BRC:  Dallas & Philadelphia Backlog Center
The DOL has two national Backlog Reduction Centers (BRC):
- Dallas Backlog Center
- Philadelphia Backlog Center.
New LCA applications filed by January 1, 2005 will be accepted by the  but will not "open" these applications.
By March 31, 2005, SWA and Regional DOL will forward filed/pending LCA applications to these two offices.
The Dallas & Philadelphia BRCs are expected to close by 2007.

Regional BRC:  Boston/New York Regional Office & San Francisco Regional Office
In addition to the two national BRCs, the DOL is designating two regional DOL offices as additional Backlog Reduction Centers (BRC):
- Boston/New York Regional Office
- San Franciso Regional Office.
By March 31, 2005, SWA and Regional DOL will forward filed/pending LCA applications to these two offices.
The Boston/New York Regional Office & San Franciso Regional Office is expected to close by 2006.

National LCA Offices:  Atlanta Processing Center & Chicago Processing Center
The two national processing centers will handle non-backlog LCA applications, including future LCA (PERM), H-2A, and H-2B applications:
- Atlanta Processing Center
- Chicago Processing Center
If PERM is not implemented, it may serve as backlog reduction centers.
The two National LCA Offices are to be operational by the end of 2004.

Atlanta Processing Center's jurisdiction:  Alabama, Connecticut, Delaware, Florida, Georgia, Kentucky, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Vermont, Virgin Islands, Virginia, Washington, DC, West Virginia.

Chicago Processing Center's jurisdiction:  Alaska, Arizona, Arkansas, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wisconsin, Wyoming.

`PDF4Download: "New LCA Offices (National & Regional)" (10/04) (DOL)
`PDF4Download: "LCA Transition Guide to SWAs" (10/04) (DOL)
`PDF4Download: LCA Transition (10/04) (MNAILAPP)
`PDF4Download: "LCA Backlog Reduction" Interim Rule ETA (Federal Register, Vol. 69, No. 139, 07/21/04) (07/04)
i8Gov. Site: Federal Register

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8LCA:  "Standard/Traditional" & "RIR" DIFFERENCES
8LCA:  PERM Program

`PDF4Download: "New LCA Offices (National & Regional)" (10/04) (DOL)
`PDF4Download: "LCA Transition Guide to SWAs" (10/04) (DOL)
`PDF4Download: LCA Transition (10/04) (MNAILAPP)
i8Gov. Site: Federal Register
i8Gov. Site: OMB (Office of Management and Budget)

---

8LCA:  "Standard/Traditional" & "RIR" DIFFERENCES
8LCA:  PERM Program

 

UPDATES November 2004 PERM: Two national processing centers will handle non-backlog LCA applications, including future LCA (PERM), H-2A, and H-2B applications.  The two National LCA Offices are to be operational by the end of 2004:  Atlanta Processing Center and Chicago Processing Center. The two currently available types of LCA filings are "Standard/Traditional" and "Reduction in Recruitment (RIR)."  These types require submission of numerous documents, including recruitment/advertisement evidence, to the DOL, and typically require extensive time and follow-up tasks under the guidance (or supervision) of the DOL.  PERM (Program Electronic Management Review), on the other hand, is an on-line electronic type of filing the LCA.  This program, while similar to the RIR program, allows submission of the application via the internet (similar to on-line filing of H-1B ETA-9035 Labor CONDITION Application).  If the PERM application is favorably reviewed, certification can be expected in several weeks. Contrary to previous reports, once the final PERM rules are published in the Federal Register, PERM will be implemented in 60 days.  Once PERM is implemented, current Standard/Traditional and RIR applications will not be accepted.  (The SWAs will be instructed to stop accepting applications for Standard/Traditional or RIR LCA applications 61 days after the publication of the regulation.)  Therefore, after publication but before implementation, applicants may need to file a LCA application under Standard/Traditional or RIR, depending on the situation/case/application.  Each program has different procedural/substantive requirements, and some applicants may find the currently existing two programs more advantageous compared to PERM.  (Even after the implementation of PERM, applications previously filed under Standard/Traditional or RIR will be adjudicated according to each program's guidelines.)  This highly anticipated program's initial rules were published in the Federal Register in May 6 of 2002, and the final rules should be published in the Federal Register before the end of 2004.  (Apparently, the DOL is still awaiting clearance by the Office of Management and Budget (OMB).) `PDF4Download: "New LCA Offices (National & Regional)" (10/04) (DOL) `PDF4Download: "LCA Transition Guide to SWAs" (10/04) (DOL) `PDF4Download: LCA Transition (10/04) (MNAILAPP) i8Gov. Site: Federal Register i8Gov. Site: OMB (Office of Management and Budget) July 2004 PERM: The two available types of LCA filings are "Standard (Traditional)" and "Reduction in Recruitment (RIR)."  These types require submission of numerous documents, including recruitment/advertisement evidence, to the DOL, and typically require extensive time and follow-up tasks under the guidance (or supervision) of the DOL. PERM, on the other hand, is an on-line electronic type of filing the LCA.  This program, while similar to the RIR program, allows submission of the application via the internet (similar to on-line filing of H-1B ETA-9035 Labor CONDITION Applications).  If the PERM application is favorably reviewed, certification can be expected in several weeks.  This highly anticipated program's initial rules were published in the Federal Register in May 6 of 2002, and the final rules should be published in the Federal Register in the near future. President Bush signed into law an $820 billion Omnibus Spending Package that includes funding for the Labor Certification Application (LCA) program.  Because the funding for the PERM LCA program has been finalized, the Department of Labor (DOL) can forward the PERM regulations to the OMB (Office of Management and Budget).  The OMB oversees and coordinates the federal government's procurement, financial management, information, and regulatory policies.  Once the OMB has the PERM regulations, it can take 90 days for review.  Thereafter, the final PERM regulations will be published in the Federal Register, a compilation of regulations open for comment and review by the public.  Once published, detailed substantive and procedural rules for PERM will become available.  Even after publication, however, it appears that an additional 120 days will be required for the PERM to be implemented.  The PERM regulation passed the OMB, and publication in the Federal Register is anticipated. IMPORTANT: Once PERM (Program Electronic Review Management) System is implemented, current Standard(Traditional) and RIR (Reduction in Recruitment) applications will not be accepted.  Therefore, after publication but before implementation, applicants may need to file a LCA application under Standard(Traditional) or RIR, depending on the situation/case/application.  The reason is that each program has different procedural/substantive requirements, and some may find the currently existing two programs more advantageous compared to PERM.  (Even after the implementation of PERM, applications previously filed under Standard/Traditional or RIR will be adjudicated according to each program's guidelines.)  Also, another reason that some may choose to file under the currently existing programs before PERM is implemented is because converting a filed Standard/Traditional or RIR application to the new PERM program should be possible (note: assuming that PERM "conversion" requirements are met).  Also, a Standard/Traditional LCA application does not require recruitment (advertisement) prior to filing. June 2004 PERM: President Bush signed into law an $820 billion Omnibus Spending Package that includes funding for the Labor Certification Application (LCA) program.  Because the funding for the PERM LCA program has been finalized, the Department of Labor (DOL) can forward the PERM regulations to the OMB (Office of Management and Budget).  The OMB oversees and coordinates the federal government's procurement, financial management, information, and regulatory policies.  Once the OMB has the PERM regulations, it can take 90 days for review.  Thereafter, the final PERM regulations will be published in the Federal Register, a compilation of regulations open for comment and review by the public.  Once published, detailed substantive and procedural rules for PERM will become available.  Even after publication, however, it appears that an additional 120 days will be required for the PERM to be implemented...The PERM regulation passed the OMB, and publication in the Federal Register is anticipated.  However, there is news that the DHS and OMB is finalizing certain issues/concerns prior to publication that is causing delays... Once PERM (Program Electronic Review Management) System is implemented, current Standard(Traditional) and RIR (Reduction in Recruitment) applications will not be accepted.  Therefore, after publication but before implementation, applicants may need to file a LCA application under Standard(Traditional) or RIR, depending on the situation/case/application.  The reason is that each program has different procedural/substantive requirements, and some may find the currently existing two programs more advantageous compared to PERM.  (Even after the implementation of PERM, applications previously filed under Standard/Traditional or RIR will be adjudicated according to each program's guidelines.)  Also, another reason that some may choose to file under the currently existing programs before PERM is implemented is because converting a filed Standard/Traditional or RIR application to the new PERM program should be possible (note: assuming that PERM "conversion" requirements are met).  Also, a Standard/Traditional LCA application does not require recruitment (advertisement) prior to filing. Background:  The ETA-750 LCA is the first step for many employment-based immigrant visa "green card" applications, where a US Petitioner/Employer proves that there are no qualified, able, willing and available US workers (U.S. Citizens or Legal Permanent Residents) who can meet the minimum requirements of a job offer.  The recruitment campaign (advertisement, etc.) is conducted by the U.S. Petitioner/Employer, and if no U.S. workers are located, and if the foreign national (beneficiary/employee) meets the requirements, the LCA may be certified by the Department of Labor ("DOL").  The requirements of the job offer include minimum education, experience, specialized knowledge, etc., necessary for the job, and a salary that is considered at "prevailing wage" for the position.  After the LCA is certified/approved, the I-140 Immigrant Preference Application is filed with the US CIS, and finally, the I-485 "adjustment of status" (U.S.) or "consular processing" for issuance of the actual "green card" status.  (Currently, the I-140 & I-485 "adjustment of status" can be filed concurrently.) The two available types of LCA filings are "Standard (Traditional)" and "Reduction in Recruitment (RIR)."  These types require submission of numerous documents, including recruitment/advertisement evidence, to the DOL, and typically require extensive time and follow-up tasks under the guidance (or supervision) of the DOL. PERM, on the other hand, is an on-line electronic type of filing the LCA.  This program, while similar to the RIR program, allows submission of the application via the internet (similar to on-line filing of H-1B ETA-9035 Labor CONDITION Applications).  If the PERM application is favorably reviewed, certification can be expected in several weeks.  This highly anticipated program's initial rules were published in the Federal Register in May 6 of 2002, and the final rules should be published in the Federal Register in the near future. February 2004 PERM: President Bush signed into law an $820 billion Omnibus Spending Package that includes funding for the Labor Certification Application (LCA) program.  Because the funding for the PERM LCA program has been finalized, the Department of Labor (DOL) can forward the PERM regulations to the OMB (Office of Management and Budget).  The OMB oversees and coordinates the federal government's procurement, financial management, information, and regulatory policies.  Once the OMB has the PERM regulations, it can take 90 days for review.  Thereafter, the final PERM regulations will be published in the Federal Register, a compilation of regulations open for comment and review by the public.  Once published, detailed substantive and procedural rules for PERM will become available.  Even after publication, however, it appears that an additional 120 days will be required for the PERM to be implemented.  Once PERM (Program Electronic Review Management) System is implemented, current Standard(Traditional) and RIR (Reduction in Recruitment) applications will not be accepted.  Therefore, after publication but before implementation, applicants may need to file a LCA application under Standard(Traditional) or RIR, depending on the situation/case/application.  The reason is that each program has different procedural/substantive requirements, and some may find the currently existing two programs more advantageous compared to PERM.  (Even after the implementation of PERM, applications previously filed under Standard/Traditional or RIR will be adjudicated according to each program's guidelines.)  Also, another reason that some may choose to file under the currently existing programs before PERM is implemented is because converting a filed Standard/Traditional or RIR application to the new PERM program should be possible (note: assuming that PERM "conversion" requirements are met).  Also, a Standard/Traditional LCA application does not require recruitment (advertisement) prior to filing. Background:  The ETA-750 LCA is the first step for many employment-based immigrant visa "green card" applications, where a US Petitioner/Employer proves that there are no qualified, able, willing and available US workers (U.S. Citizens or Legal Permanent Residents) who can meet the minimum requirements of a job offer.  The recruitment campaign (advertisement, etc.) is conducted by the U.S. Petitioner/Employer, and if no U.S. workers are located, and if the foreign national (beneficiary/employee) meets the requirements, the LCA may be certified by the Department of Labor ("DOL").  The requirements of the job offer include minimum education, experience, specialized knowledge, etc., necessary for the job, and a salary that is considered at "prevailing wage" for the position.  After the LCA is certified/approved, the I-140 Immigrant Preference Application is filed with the US CIS, and finally, the I-485 "adjustment of status" (U.S.) or "consular processing" for issuance of the actual "green card" status.  (Currently, the I-140 & I-485 "adjustment of status" can be filed concurrently.) The two available types of LCA filings are "Standard (Traditional)" and "Reduction in Recruitment (RIR)."  These types require submission of numerous documents, including recruitment/advertisement evidence, to the DOL, and typically require extensive time and follow-up tasks under the guidance (or supervision) of the DOL. PERM, on the other hand, is an on-line electronic type of filing the LCA.  This program, while similar to the RIR program, allows submission of the application via the internet (similar to on-line filing of H-1B ETA-9035 Labor CONDITION Applications).  If the PERM application is favorably reviewed, certification can be expected in several weeks.  This highly anticipated program's initial rules were published in the Federal Register in May 6 of 2002, and the final rules should be published in the Federal Register in the near future. Important:  As of February 2004, it appears that PERM should be implemented by Fall/Winter of 2004. i8Gov. Site: Federal Register i8Gov. Site: OMB (Office of Management and Budget)