What is a Priority Date?
A priority date is a person's place in line for becoming a permanent resident of the United States. Most green cards are numerically limited, depending on your country of birth, and the family or employment category by which you are obtaining permanent residence. Therefore, it is important for individuals seeking to become a permanent resident to obtain a priority date as early as possible.

How do I establish a priority date?
For the family-based categories, a priority date is established when your relative submits a visa petition (form I-130) on your behalf.
For the employment based categories, a priority date can be established in one of the following two ways:

*When your employer submits an application for an alien labor certification on your behalf; or

*For those categories where no labor certification is required, when you or your employer submits a visa petition (Form I-140) to the USCIS on your behalf.

If a person's status changes from one preference category to another, what happens to their priority date? For instance, if your parents filed an I-130 on your behalf when you were under 21 and unmarried but now you are over 21 and married.
If your dad or mom was a citizen when he or she filed the initial petition on your behalf, your priority date does not change. However, the preference category under which you qualify for the immigrant visa changes. For instance if you turned 21 and are unmarried, you are no longer considered an "immediate relative" but are now an unmarried son or daughter under the first preference category. When you get married, you become a married son or daughter under the 3rd preference category. Throughout all of these category changes, your priority date remains the day that your parent first filed a petition.

If your mom or dad was a permanent resident when he or she initially filed the I-130 petition on your behalf, the situation is very different. The filing of an I-130 petition as an unmarried child of a permanent resident places you in the Family 2A preference category. When you get married, this visa petition is automatically terminated since permanent resident parents are not allowed to petition for married sons or daughters. However, if your parent naturalized prior to your marriage, your petition remains valid, and upon your marriage, you are classified in the family 3rd category.

My EB3 (Employment-Based 3) Priority Date is May 2003. I filed I-485 last year. My priority date is currently unavailable. Is Consular Processing still an option for me?
You cannot adjust status or consular process until your priority date is current.

My Employer filed for my labor certification (LC) through the RIR (Reduction-in-Recruitment) process last year. Can we now file the LC through PERM and maintain the original priority date?
According to the U.S. Department of Labor, if a job order has not been placed for a pending, non-PERM labor certification application, the application may be re-filed under PERM without loss of the priority date if the new PERM labor certification is identical to the previously filed RIR labor certification. In order to re-file and maintain the priority date, the PERM application must be submitted pursuant to all PERM requirements and it must contain an identical job opportunity.

Is there a document or receipt which tells me that I have a priority date?
When the USCIS approves an employment-based or family based visa petition it sends both the petitioner and the lawyer a Notice of Approval (Form I-797). This document shows your priority date.

The total number of visas used from the "bank" may not exceed 50,000.

*The DOL takes the position that only OES prevailing wage determinations dated March 8, 2005 or thereafter can be used when filing the PERM labor certification with the DOL. In those cases where employers have utilized OES wage determinations dated prior to March 8, 2005, cases have automatically been denied.

*The State Workforce Agency (SWA) job orders must have been placed for at least 30 days. Where work orders were placed for less than 30 days, those cases were denied. Many employers had placed work orders in the month of February which was a 28 day month. Therefore, if a work order was placed from 02/21/2005 to 03/21/2005 that job order would have only been posted for 28 days. Therefore, employers must be very careful in calculating the number of days for which each job order has been placed.

*The DOL has denied a number of applications that were submitted prior to the 30 day period after the end of the recruitment period. As per DOL guidelines, in addition to the aforementioned SWA work order, the employer must also run two Sunday advertisements in a newspaper of general circulation most appropriate to the occupation in the area of intended employment. If the job opportunity is located in a rural (not suburban) area that does not have a Sunday newspaper, the employer may use the edition with the widest circulation in the area of intended employment. If the job application requires experience and an advanced degree, the employer may substitute one Sunday ad for a professional journal ad, if the job would normally be advertised in a journal. If an employer is hiring someone for a DOL-designated professional occupation, the employer must also complete at least 3 of the following10 recruitment efforts:

1.recruitment at job fairs;
2.recruitment on the employer's website;
3.job search website other than the employer's site;
4.on-campus recruiting;
5.use of trade or professional organizations for recruitment;
6.use of private employment firms;
7.employee referral program with incentives;
8.use of campus placement offices;
9.use of local and ethnic newspapers;
10.or use of radio and television advertisements.

These recruitment steps must be completed at least 30 days prior to filing the labor certification, but no more than 180 days prior to filing the labor certification. In many cases where PERM based labor certifications have been denied, the employers have filed the case with the DOL before this 30 day period has run.

*PERM guidelines specifically state that only employers can register to use the online PERM system. Once the employer registers, they can create a sub account for their attorneys. The registration must be submitted by an individual with actual hiring authority. The DOL has indicated that it has the ability to track the source of registrations and PERM cases may be denied if they can trace an employer registration to an attorney or agent's computer.

*Finally, another common reason for denials has been where an employer has stated that they did not offer the job to the foreign national who is listed as the beneficiary on the application.

Another issue that many employers are facing with the new PERM system is that it is taking them weeks to get their PIN from DOL once they register on to the PERM system. The reason for this is that the DOL verifies the existence of every employer that attempts to register on to the system. Initially, employers received their PIN number within a matter of hours. However, now that more and more employers are attempting to register, it is taking employers an average of two to three weeks to receive any feedback on their registration. Due to the length of the time it is taking DOL to provide feedback, many employers have sent in multiple registration requests which are making this problem even worse. The Department of Labor has requested that employers only register once on the PERM system.

Below is a summary of some of the key points that emerged.

For a job order to be valid, you must have gone through the SWA. A direct posting to America's Job Bank is not sufficient; however, if you went through the SWA's on-line job order placement system (which may, in turn, have put the job onto America's Job Bank), that should meet the regulatory requirement.

Backlog Reduction Centers (BRCs):

DOL hopes to complete the transfers of the existing cases to the BRCs by the end of the fiscal year (9/30/05). Its goal to complete processing of the backlog is 24 to 30 months.

Conversions:

To convert a previously-filed labor certification application to PERM under the re-filing provisions, the two applications must be "identical". Yet, due to variations from region to region and state to state, some contents of previously-filed applications cannot be transferred to the new ETA Form 9089 in identical form. DOL is looking at this problem. But, in the meantime, one possible strategy is to amend the previously-filed application in response to the 45-day letter from the BRC.

Registration:

A major difference between the LCA system and the PERM electronic filing system is that PERM requires registration (registration is optional under LCA).

Only the employer can register -- not the attorney. The employer may set up sub-accounts for the attorney(s) handling its immigration work, once the employer is registered, but the employer is considered responsible for the labor certification. One corporation can have multiple registrations.

Each attorney will need to have a sub-account in his or her own name. The system will not provide the ability for attorneys to share documents with one another.

The E Treaty Trader and Treaty Investor

U.S. immigration officers often refer to the E status as a favored classification for international entrepreneurs. The treaty trader and treaty investor categories are the most ideally suited nonimmigrant visa category for international entrepreneurs. Pursuant to the Immigration and Nationality Act (INA) a treaty trader is an investor or business persons who is entitled to enter the United States under a treaty of commerce and navigation between the United States and the foreign state of which he is a national. Individuals entering the United States under this category are allowed to carry on international trade (via an E-1 visa) or to develop and direct a business in which they have invested a substantial amount of capital (via an E-2 visa). Admission under either E subcategory allows the entrepreneur to work at, direct, and manage an enterprise in the United States.

For entrepreneurs who want to take advantage of the E-2 treaty investor category by investing in a U.S. business venture, the U.S. enterprise must meet three basic criteria to support the admission as an E-2 investor. First, the enterprise must be owned and controlled by nationals of countries that have agreements or treaties of commerce and navigation with the United States. Second, the enterprise must prove that it has the present or future capacity to generate more than enough income to provide a "minimal living" for the treaty investor. Finally, the treaty national(s) must have made a substantial investment in the U.S. business relative to the amount normally needed to buy and successfully operate similar businesses.

The E status has several distinct advantages over other nonimmigrant visa categories. First, the E status is open-ended and may be extended in two-year increments indefinitely. Second, entrepreneurs with established businesses outside the United States may seek the transfer of managers and essential employees to the United States. Third, the spouse of an E-1 treaty trader or E-2 treaty investor may work with the permission of U.S. Citizenship and Immigration Services (USCIS). Finally, an entrepreneur may apply for the E visa at a U.S. consulate without the necessity of prior USCIS approval.

One limitation of the E category is admission on this status is restricted to citizens of countries that hold treaties of commerce and navigation with the United States. There are currently eighty countries that have such treaties and agreements with the United States. Some agreements support admission by both traders and investors while others are limited to only traders or only investors. Moreover, entrepreneur status is tied directly to the business. This could pose a potential problem. A merger, acquisition, sale, or failure of the business may lead to immediate status problems for the entrepreneur, employees in E status, and their families. Therefore, prior to any critical business restructuring is necessary to protect an E nonimmigrant from losing status.

For entrepreneurs who qualify, the E status offers an attractive option. It allows potentially long term stays in the United States, allows for the transfer of existing managers and essential employees, and provides for spousal employment authorization.
The following countries have trade and investment treaties with the United States and citizens of these countries are eligible for both E-1 and E-2 status:
Argentina, Australia, Austria, Belgium, Bolivia, Bosnia, Canada, Chile, Colombia, Costa Rica, Croatia, Estonia, Ethiopia, Finland, France, Germany, Honduras, Iran (with restrictions), Ireland, Italy, Japan , Jordan, South Korea , Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Singapore, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Taiwan, Togo, Turkey, United Kingdom, and Yugoslavia.
The following countries have trade treaties with the United States which allow for conferral of E-1 (treaty-trader status) to the nationals of said countries:
Brunei, Denmark, Greece, and Israel.
The following countries have investment treaties with the United States which allow for conferral of E-2 (treaty-investor status) to the nationals of said country:
Albania, Armenia, Azerbaijan, Bahrain, Bangladesh, Bulgaria, Cameroon, Congo, Czech Republic, Ecuador, Egypt, Estonia, Grenada, Georgia, Jamaica, Kazakhstan, Kyrgyzstan, Lithuania, Moldova, Mongolia, Morocco, Panama, Poland, Romania, Senegal, Slovakia, Sri Lanka, Trinidad & Tobago, Tunisia, Ukraine

The H-1B Temporary Professional Worker

For those entrepreneurs who are not nationals of a "treaty" country or whose investment does not meet the substantiality requirements of the E visa, the H-1B visa may be an option. The regulations governing H-1B visas provide that a U.S. employer or agent with an IRS tax identification number that employs at least one worker and has an employee-employer relationship with that worker may petition for an H-1B professional. By limiting petitioners to U.S. employers or agents, the H-1B visa classification prohibits self-sponsorship. Therefore, the entrepreneur would need to set up a U.S. based venture to act as an employer in order to utilize the H-1B visa option.

Once the entrepreneur organizes a U.S. based business venture in order to file an H-1B petition on their behalf, several requirements must be met. Where the petitioning company is new or has few employees, the USCIS will require the entity to provide significant documentation proving the bona fide nature of the petitioner's job offer. The petitioning entity may be requested to submit its organizational documentation, records regarding its financial health, including capitalization, and records that establish compliance with claimed employment practices. Moreover, the petitioner will need to prove to the USCIS that it has sufficient business to ensure that the H-1B worker (beneficiary) will work for the entity in H-1B capacity as noted on the petition. A comprehensive business plan and evidence of capitalization may satisfy the government's concerns with respect to this issue.

The H-1B status presents a viable immigration option for entrepreneurs. First, it is available without restriction as to nationality. Second, unlike the E classification, a merger or acquisition may, but will not necessarily, require a change of status. The entrepreneur may buy or sell his or her business and stay in status so long as the new entity assumes the immigration obligation of the petitioner, and the H-1B status holder continues to render services.

However, the H-1B may present some drawbacks to an entrepreneur. First, admission to the United States as an H-1B visa holder is generally limited to a period of six years unless an immigrant petition or labor certification application is filed on behalf of the entrepreneur prior to the end of the fifth year. Second, the classification is principally limited to workers rendering services in a specialty occupation. This means that the services to be rendered by the entrepreneur must be professional in nature. Third, most entrepreneurs will be subject to the annual 65,000 H-1B visa cap, thereby creating the risk of delayed admission. Finally, spouses of the H-1B entrepreneurs will not be entitled to work in the United States unless they secure an employment authorized status of their own. Despite of these issues, the H-1B visa is a viable immigration option for entrepreneurs who will be rendering services of a professional nature.

The L Intra-company Transferee

For entrepreneurs who own and manage an existing business abroad, the L classification provides an important avenue for making and managing investments in the United States. The L classification allows the foreign corporation to transfer managers, executives, and specialized knowledge employees to its sister corporation(s) in the United States. The L visa classification thereby makes it possible for the transfer of an employee/owner of the foreign business to the United States. In order to qualify for the L classification certain basic requirements must be met. First, the relationship between the U.S. petitioner and entity abroad must be established. Second, the beneficiary of the L-1 visa must have been employed by the entity abroad for one year prior to filing the petition. Third, the beneficiary's role abroad must have been in an executive, managerial, or specialized knowledge capacity. Finally, the U.S. petitioner must prove that it is already or will be conducting business in the United States and abroad through a related qualifying organization.

The L-1 category allows an ownership interest in the petitioning entity by an applicant seeking admission as an L-l visa holder. However, where the beneficiary is an "owner or major stockholder of the company," the petition must include some evidence that the petitioner's need for the beneficiary is temporary and that the beneficiary will be transferred abroad upon completion of his or her temporary services. Once admitted to the United States in L status, the entrepreneur is authorized only to render services to the L petitioner. However, the L visa holder may receive remuneration from the petitioner or a related foreign enterprise. Typically, admission as an L-1A manager or executive is limited to seven years and admission as an L-1B specialized knowledge worker is limited to five years. Similar to spouses of E visa holders, the spouses of L visa holders may obtain employment authorization.

Conclusion

The E visa, H1B and L1 visas all offer entrepreneurs numerous advantages when considering non-immigrant and immigrant opportunities. The benefits and disadvantages of each of these options have been briefly explained, so that an educated decision can be made when determining how to move forward with your immigration matters. To fully understand which option would be most beneficial to you and your business, it is important to speak to an immigration professional that can completely assess your situation and provide legal guidance.

The final PERM regulation was published in the Federal Register on Monday, December 27, 2004. The rule became effective on March 28, 2005, 90 days after its publication. This means that all labor certifications filed from now on will be processed under PERM regulation. Below you will find an initial analysis of the new PERM process. In the coming weeks and months, we will provide more details and analysis on the various aspects of PERM.

Role of SWAs under PERM
As of March 28, 2005, the State Workforce Agencies (SWAs) have stopped receiving permanent labor certification applications. The SWAs will, however, continue to play an important, but very limited, role in the new PERM based labor certification process. Before a PERM labor certification can be filed with the federal processing center, the employer must obtain a prevailing wage determination (PWD) from the SWA.

Each SWA will have its own form for the PWD submission. Each SWA will also indicate its validity period for the PWD. This validity period can be no less than 90 days and no more than 1 year. Employers may continue to use alternative wage surveys, but if the employer submits an alternative wage survey in dispute over a SWA's PWD, it will be considered a new PWD request, rather than supplemental information in support of the original PWD request. A priority date is NOT assigned at the PWD determination phase. An employer may request that the SWA send the PWD to a Certifying Officer (CO) for review and appeal it to the Board of Alien Labor Certification Appeals (BALCA) if not satisfied with the CO's determination. The employer may also submit a new PWD request. At this time, the employer must pay 100% of the prevailing wage. The DOL acknowledged that the new 4-level wage surveys must be addressed, but did not do so in this regulation.

SWAs will also take job orders for most occupations, which will be in effect for at least 30 days.

Filing a Labor Certification Under PERM
An employer wishing to sponsor a foreign national for an employment-based green card through the PERM labor certification process must submit an ETA Form 9089. This form can be filed electronically or by mail. If it is submitted electronically, the form is the ONLY DOCUMENT that will be submitted with the initial application. The PWD information will be placed onto the form by the employer based on the information the SWA has provided to the employer. Once the CO has electronically certified the application, the employer must sign it immediately in order for it to be valid. Applications submitted by mail must contain the original signature of the employer, the foreign national, and the attorney (and/or agent) when they are received by the application processing center. The USCIS will not process I-140 petitions unless they are supported by an original certified ETA Form 9089 that has been signed by the employer, foreign national, attorney, and/or agent.

The Department of Labor (DOL) requires registration. Only the employer can register -- not the attorney. The employer may set up sub-accounts for the attorney(s) handling its immigration work, once the employer is registered, but the employer is considered responsible for the labor certification. One corporation can have multiple registrations. Each attorney will need to have a sub-account in his or her own name. The system will not provide the ability for attorneys to share documents with one another.

Non-electronically filed applications accepted for processing will be date-stamped. Electronically filed applications will be considered filed when submitted. These dates will be the priority dates for the labor certification applications.

Re-Filing a Non-PERM Case Under PERM
If a job order has not been placed for a pending, non-PERM labor certification application, the application may be re-filed under PERM without loss of the priority date under certain conditions. In order to re-file and maintain the priority date, the PERM application must be submitted pursuant to all PERM requirements and it must contain an identical job opportunity.

Withdrawal of Prior Case
In order to re-file under PERM and preserve a priority date from an earlier case that has not been assigned a job order; the original labor certification application must also be withdrawn. One potential significant issue with this is that filing an application and stating the employer's desire to use the original filing date will be deemed to be a withdrawal of the original application. This deemed withdrawal occurs even if the request to use the original filing date is denied.

If a non-PERM labor certification is withdrawn prior to filing a PERM application, preservation of the existing priority date requires that the PERM application must be submitted within 210 days of the withdrawal of the original application. The employer should be prepared to send a copy of the original application, including amendments, to the CO, if requested.

A job opportunity is identical if the employer, foreign national, job title, job location, job requirements, and job description are exactly the same as those in the original application. The original application includes all accepted amendments up to the time that the application was withdrawn.

Schedule A Applications
Schedule A, Applications, which are pre-certified due to recognized shortages of registered nurses and physical therapists, will continue to be filed directly with the USCIS, using form I-140. These applications must include a completed ETA Form 9089, including a PWD and evidence that notice was given to the bargaining representative or that the notice was posted, as described below. Physical therapists must also provide a letter or statement, signed by an authorized state physical therapy licensing official in the state of intended employment, stating that the foreign national is qualified to take that state's written licensing exam for physical therapists. Nurses must provide documentation that the foreign national has received a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); a full and unrestricted permanent license to practice nursing in the state of intended employment; or that the foreign national has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN). If the USCIS approves the application, the USCIS must notify the Chief, Division of Foreign Labor Certification. Schedule A Group II applicants will be addressed in a separate article on another date.

Employer Attestations
The employer must certify the conditions of employment under penalty of perjury. The conditions to be certified include matters pertaining to the prevailing wage. These certifications include: that the offered wage equals or exceeds the prevailing wage; that the wage the employer will pay to the foreign national will equal or exceed the prevailing wage that is applicable at the time that the foreign national begins work or is admitted to take up the certified employment; that the wage offered is not based on non-guaranteed commissions, bonuses, or other incentives; that the employer has sufficient funds to pay the offered wage; and that the employer will be able to place the foreign national on the payroll on or before the foreign national's proposed entry to the U.S.

Other certifications include: that the job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship; that the employer's job opportunity is not vacant because of a strike or labor dispute work stoppage or at issue in a labor dispute involving a work stoppage; that the job opportunity's terms, conditions, and occupational environment are not contrary to Federal, state, or local law; that the job opportunity has been and is clearly open to any U.S. worker; that the U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons; and that the job opportunity is for full-time, permanent employment.

Notice
Employers filing a labor certification must provide notice to the bargaining representative of those employees of the employer who are in the occupational classification and area of intended employment for which the labor certification is sought. This notice must be provided within 30 to 180 days before filing the labor certification application. If there is not a bargaining representative, the employer must post a notice at the facility or location of the proposed employment in a clearly visible and unobstructed location for at least 10 consecutive BUSINESS days. In addition, the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer's organization. The notice must explain that it is being provided because the employer is filing a labor certification. The notice must further state that any person may provide documentary evidence regarding the application to the CO of the DOL. Therefore, the notice must also state the address of the CO at the DOL. Most notices must also contain the information required for advertisements and must state the rate of pay.

Recruitment Efforts
Recruitment for labor certifications that do not include special handling, Schedule A occupations, or sheepherders must submit a job order to the SWA in the area of intended employment for 30 days. Special handling, Schedule A occupations, and sheepherders will be addressed in a separate article on at a later date. The employer must also run two Sunday advertisements in a newspaper of general circulation most appropriate to the occupation in the area of intended employment. If the job opportunity is located in a rural (not suburban) area that does not have a Sunday newspaper, the employer may use the edition with the widest circulation in the area of intended employment. If the job application requires experience and an advanced degree, the employer may substitute one Sunday ad for a professional journal ad, if the job would normally be advertised in a journal. These two steps must be completed at least 30 days prior to filing the labor certification, but no more than 180 days prior to filing the labor certification.

Content of the Ads
PERM sets out specifics for the content of the advertisements (ads). The ads must include the name of the employer and they must direct applicants to report or send resumes, as appropriate, to the employer. It is necessary for the ads to provide a description of the vacancy specific enough so the U.S. worker will understand the nature of the job opportunity. The ads must indicate the geographic area of employment with enough specificity to let the U.S. worker know of any travel requirements or potential relocation. The ads must not contain: a wage rate lower than the prevailing wage; any job duties that exceed those listed on the ETA Form 9089; and/or any wages or terms and conditions of employment that are less favorable than those offered to the foreign national.

Recruitment for Professional Positions
If an employer is hiring someone for a DOL-designated professional occupation, the employer must also complete at least 3 of the following 10 recruitment efforts:

1. recruitment at job fairs;
2. recruitment on the employer's website;
3. job search website other than the employer's site;
4. on-campus recruiting;
5. use of trade or professional organizations for recruitment;
6. use of private employment firms;
7. employee referral program with incentives;
8. use of campus placement offices;
9. use of local and ethnic newspapers;
10. or use of radio and television advertisements.

Only one of the aforementioned efforts may be conducted solely within 30 days of filing the labor certification application. None may take place more than 180 days prior to filing the application. The DOL is maintaining a list of professional occupations, which were not included in the regulation. Professional occupations are those that typically require a bachelor's degree. Even if the employer is not requiring a bachelor's degree for the position, the professional recruitment must occur if the occupation is on the list. Examples of occupations on the current professional occupations list include: computer and information scientists, research; computer and information systems managers; accountants; computer programmers; computers software engineers; computer systems analysts; database administrators; network and computer system administrators; computer security specialists; network systems and data communication analysts; biomedical engineers; computer hardware engineers; electrical engineers; occupational therapists; sales engineers; and lawyers.

As with the non-PERM process, the foreign national and any attorney representing the employer or attorney is not permitted to conduct the interviewing or participate in the consideration process for U.S. workers applying for the offered position. The employer's representative who interviews or considers U.S. workers must be the person who normally interviews or considers applicants for the same or similar job opportunities with the employer for all positions, rather than solely for positions that are the subject of a labor certification. If the foreign national owns a part of the employer's business, is related to the employer, or if the employer is one of a small number of employees, the employer must be able to document that there is a bona fide job opportunity available to all U.S. workers.

A U.S. worker is considered able and qualified for the job if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. Such period is not defined, as the DOL feels that the period will vary by occupation and other factors.

Layoffs
If the employer has laid off employees in the geographic area of intended employment within 6 months of filing an application in the occupation of the layoffs, the employer must document that it has notified and considered all potentially qualified laid off U.S. workers. A layoff is any involuntary separation of one or more employees without cause or prejudice.

Recruitment Report
The employer must prepare and sign a recruitment report, which describes the recruitment steps undertaken and the results achieved. It must set forth the number of persons hired, the number of U.S. workers rejected, and the lawful job related reasons for such rejections. Though the names of the U.S. workers are not required to be included on the recruitment report, the CO may request the resumes of the rejected workers, sorted by the reasons that the workers were rejected.

Supervised Recruitment
Prior to approving the labor certification, the CO may require supervised recruitment for any position. The employer will place an ad in a newspaper of general circulation or in a professional, trade, or ethnic publication, and take any other measures required by the CO. If placed in a newspaper of general circulation, the advertisement must be published for 3 consecutive days, one of which must be a Sunday. If placed in a different publication, the ad must be published in the next available edition. The ad must be approved by the CO before it is published, and the CO will direct where and when to place the ad.

Within 30 days of being notified that supervised recruitment is required, the employer must draft the advertisement and submit it to the CO for review. The ad must direct applicants to send resumes or applications for the job to the CO for referral to the employer. The ad must also: include an identification number and address designated by the CO; describe the job opportunity; contain a wage rate at or above the prevailing wage rate; summarize the employer's minimum job requirements (which cannot exceed any of the requirements on the labor certification application form); offer training if it is standard company procedure; and offer wages, terms, and conditions of employment that are no less favorable than those offered to the foreign national.

The employer must provide the CO with a signed recruitment report within 30 days of the CO's request for such a report. The report must identify each recruitment source by name and document that each recruitment source named was contacted. It must state the number of U.S. workers who responded to the employer's recruitment; state the names, addresses, and provide resumes of the U.S. workers who applied for the job opportunity, set out the number of workers interviewed, and the job title of the person who interviewed the workers; and explain the lawful, job-related reason(s) for not hiring each U.S. worker who applied.

Job Duties
It is still possible to use business necessity to justify certain job requirements. However, generally, job requirements should be those normally required for the occupation and must not exceed the Specific Vocational Preparation (SVP) level assigned to the occupation, as shown in the O*Net Job Zones. A foreign language requirement may only be included if the person is in an occupation such as a translator or if the need to communicate with a large majority of the employer's customers, contractors, or employees who cannot communicate effectively in English.

Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity. If the beneficiary is already employed by the employer and only qualifies for the employment based on alternative experience requirements, the certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable. Experience with the employer generally cannot be included, unless it is experience in a position not substantially comparable to the position for which labor certification is being sought or the employer can demonstrate that it is no longer feasible to train the worker for the position. The DOL will not consider any education or training paid by the employer unless the employer offers similar training to U.S. workers.

For purposes of PERM, an employer is an entity with the same Federal Employer Identification Number (FEIN). A substantially comparable job is one that requires the performance of the same job duties more than 50 percent of the time.

Documentation Must Be Kept For 5 Years
Although employers are only required to submit the ETA Form 9089 if they file electronically, they must keep all records related to each labor certification application for five years. This documentation includes all documents related to the PWD, internal notices, documentation of recruitment efforts, and the recruitment report. If the CO chooses to audit the application, failure to provide the requested documents will result in a denial of the application and may result in up to 2 years of supervised recruitment.

BALCA
The Board of Alien Labor Certification Appeals (BALCA) can review denials and revocations if a request for review is sent to the CO within 30 days of the date of the determination; identifies the particular labor certification determination for which review is sought; sets forth the particular grounds for the request; and includes the final determination. The review request cannot include any additional evidence. BALCA may affirm the denial or revocation of the labor certification, or the PWD; direct the CO to grant the certification, overrule the revocation of the certification, or overrule the affirmation of the PWD; or direct that a hearing on the case be held.