Local recruitment (labor market test)

In plain terms: local recruitment is the required process of advertising the job locally to find out whether U.S. workers are able, willing, qualified and available to do it, before the employer can sponsor foreign workers for the same position.

It happens after the prevailing wage determination is issued and before the PERM application is filed. The required steps include the state workforce agency job order, two Sunday newspaper ads and the internal notice of filing, all offering at least the prevailing wage. The job order and newspaper ads take place at least 30 days but no more than 180 days before the PERM application is filed. Every U.S. worker who applies is considered for the job. Under the regulation, a U.S. worker counts as qualified if they can learn the job’s skills during a reasonable period of on-the-job training.

What it means for you: most employers sponsoring EB-3 workers have many openings for the same position, and local recruitment decides how many of those openings can go to foreign workers. Each qualified U.S. worker who applies fills one opening, and the remaining openings can be filled through EB-3 sponsorship. Example: an employer with 20 openings for the same job runs local recruitment, and two U.S. workers apply. The two U.S. workers fill two openings, and the employer can petition for 18 foreign workers through the EB-3 visa.

State workforce agency (SWA) job order

In plain terms: a state workforce agency job order is a job posting placed with the public employment service (the state job bank) of the state where the job is located. For PERM, it stays open for 30 days.

Every state runs a workforce agency that helps job seekers find work, so posting the job there makes it visible to local job seekers. The job order describes the same job being sponsored and offers at least the prevailing wage, and any U.S. worker who applies through it is considered in good faith.

Two Sunday newspaper ads

In plain terms: the two Sunday newspaper ads are a required part of local recruitment: the employer advertises the job on two different Sundays in a local newspaper, so U.S. workers in the area can see it and apply.

For EB-3 Other Workers jobs, which are non-professional positions, the required recruitment steps are the state workforce agency job order and the two Sunday newspaper ads, along with the internal notice of filing. Professional positions that require a bachelor’s degree have three additional recruitment steps, which don’t apply to non-professional jobs.

How the newspaper is chosen: the ads run in a newspaper of general circulation in the area of intended employment that is most appropriate to the occupation and to the workers likely to apply for the job. If the worksite is in a rural area with no newspaper that publishes a Sunday edition, the employer uses the edition with the widest circulation in that area instead.

Timing: the two ads run on two different Sundays, and both ads and the job order take place at least 30 days but no more than 180 days before the PERM application is filed.

What each ad must include:

• The employer’s name.
• Instructions for applicants to report to the employer or send their resume to the employer.
• A description of the job specific enough to tell U.S. workers what the position is.
• The geographic area of employment, specific enough to show any travel requirements and where applicants would need to live to do the job.

What each ad can’t include:

• A wage lower than the prevailing wage.
• Any job requirements or duties beyond those listed on the PERM application (Form ETA-9089).
• Wages or terms and conditions less favorable than those offered to the foreign worker.

Proof of the ads: the employer or the employer’s attorney keeps copies of the newspaper pages where the ads appeared, or proof of publication from the newspaper. These records are kept for 5 years from the PERM filing date, and DOL can request them in a request for information (RFI).

Notice of filing

In plain terms: a notice of filing is an internal job notice that tells the employer’s current employees it’s filing a PERM application for the position.

It’s posted for 10 consecutive business days in a place where employees at the worksite can easily see it, such as the break room, and in any in-house media the employer normally uses to advertise jobs. The notice describes the job and the wage and explains that anyone can send information about the application to DOL. It must be posted between 30 and 180 days before the PERM application is filed, and the employer or the employer’s attorney keeps a copy with the dates and location it was posted.

Area of intended employment

In plain terms: the area of intended employment is the area within normal commuting distance of the job’s worksite.

DOL uses it to decide which local wage data sets the prevailing wage. It also defines where recruitment happens: the two Sunday newspaper ads run in a newspaper of general circulation in this area. If the job is at a different location than the company’s headquarters, the job’s worksite is what counts. Any location within the same metropolitan statistical area (MSA) as the worksite is treated as within normal commuting distance.

Recruitment report

In plain terms: a recruitment report is the employer’s signed summary of the recruitment it did for a PERM case and what happened with the U.S. workers who applied.

It lists each recruitment step and the number of U.S. applicants, and for anyone who wasn’t hired, it gives the lawful, job-related reason, such as not meeting the job’s minimum requirements. The report isn’t sent with the PERM application; the employer or the employer’s attorney keeps it on file with copies of the ads and applicants’ resumes, and DOL can request it in a request for information (RFI). The employer or the employer’s attorney keeps the PERM application and all supporting documents for 5 years from the filing date.