Job Orders Ask if Position is Associated with Labor Certification

From: USADNEWS Volume VII, Issue 2 March 2013

When posting a job order, some State Workforce Agencies (SWA) require employers to identify if the position is associated with an application for labor certification. Pennsylvania asks, “Is this position associated with an application for a Permanent Labor Certification (PERM)?” The site requires you to answer Yes or No. States like Florida and Maryland ask if the job falls “within any of the following special categories,” and they list Foreign Labor Certification as an option. The SWAs recommend selecting the labor certification category because it indicates to the workforce representatives that the job order should be left open and untouched for 30 days. These questions are used only for internal classification, and are not displayed to job seekers.

The regulations for H-2B positions, on the other hand, do require job orders to clearly state that the job order is being placed in connection with an H-2B application. Most SWAs now include a separate question about the H-2B or H-2A status. Massachusetts displays this information to job seekers.

Recently USADWEB was made aware of a denial that the Department of Labor (DOL) issued, stating that identifying the job order as connected with a Permanent Labor Certification is a “violation of the regulations that the job opportunity is clearly open to any U.S. worker” and that “U.S. workers are less likely to apply if they know the job offer is for a foreign labor certification.” However, in this case, the employer had submitted to the DOL the internal employer view as proof of the job order. This internal view shows many questions required by the SWA for processing and approving the job posting that are not necessarily displayed to job seekers. The posting as it was viewable to job seekers would not have displayed the labor certification classification.