A Labor Certification is a requirement for U.S. employers seeking to employ certain persons whose immigration to the United States is based on job skills or nonimmigrant temporary workers coming to perform services for which qualified authorized workers are unavailable in the United States. Labor certification is issued by the Secretary of Labor and contains attestations by U.S. employers as to the numbers of U.S. workers available to undertake the employment sought by an applicant, and the effect of the alien's employment on the wages and working conditions of U.S. workers similarly employed. Determination of labor availability in the United States is made at the time of a visa application and at the location where the applicant wishes to work.
Individual Labor Certification
Since March of 2005, the labor certification application process is done under the electronic labor certification system, PERM (Program Electronic Review Management). The PERM process was designed to significantly reduce process times at the labor certification stage to under 60 days. Once recruitment has been placed and the employer can attest not having been able to locate a qualified U.S. worker willing and able to perform the duties of the job offered, the employer must file Form ETA-9089 electronically with the Department of Labor (DOL). The application will contain details about the recruitement conducted, the description and minimum requirements of the position, the salary offere and prevailing wage determination for the position, as well as information about the foreign employee's educational and experience qualifications. After electronic submission, the employer will receive a series of email notifications from the Department of Labor including 4 questions relating to the filing of the labor certification that the employer must respond in order for adjudication to proceed. The DOL will notify the employer of its decision via mail.
How We Serve Our Clients
In many cases where a U.S. employer desires to sponsor a foreign national for lawful permanent residence, the employer must demonstrate that it conducted an exhaustive search for qualified U.S. to fulfill the position. To that end, our attorneys will provide guidance and advice on the legal requirements set forth by the U.S. Department of Labor in conducting recruitment efforts to test the U.S. labor market for any potentially qualified American candidate for the position opening. Our attorneys work closely with both the employer and beneficiary to ensure that the required documents are rendered and all legal issues addressed. We relieve human resources personnel of the burdensome paperwork requirements by preparing all required forms and supporting documents for submission to the appropriate government departments and agencies.
Applications filed on or after March 28, 2005, must file using the new PERM process and adhere to the new PERM Regulations;
The employer must hire the foreign worker as a full-time employee;
There must be a bona fide job opening available to U.S. workers;
Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
Application. The employer must complete an Application for Permanent Employment Certification (ETA Form 9089). The application describes in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications.
Signature requirement. Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
Prevailing wage. Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.
The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.
For more information and specifics regarding pre-filing recruitment requirements for al types of occupations read the FAQs HERE.
Audits/requests for information: Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
Retention of records. The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification. For example, the SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
Refiling. If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all requirements of the new PERM regulation.
Online filing. The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.
The employer can access a customer-friendly web site (www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.
Registration. To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System. By completing an Employer Profile, you will be able to:
Save time by pre-populating your general information
View the status of your labor certification applications online
Email saved labor certification applications to others within the company
Add new users to your account
Withdraw labor certification applications no longer needed
Filing by mail. National Processing Centers have been established in Atlanta and Chicago. Employers submit paper applications to the processing center with responsibility for the state or territory where the job opportunity is located.
The address and contact information for each National Processing Center and the states and the territories within their jurisdictions are provided on our Contact Information page.
Approvals. If the appropriate National Processing Center approves the application, the ETA Form 9089 is "certified" (stamped) by the Certifying Officer and returned to the employer/agent who submitted the application.
We have added FAQs concerning the Permanent regulation that went into effect on March 28, 2005. For more information and details regarding filing read the FAQs HERE.
After approval of the labor certification, the employer must file an "Immigrant Petition for an Alien Worker" with the U.S. Citizenship and Immigration Services (USCIS), Form I-140. The employer then attaches the certified ETA Form 9089 to a completed USCIS Form I-140, along with the appropriate fees, and submits the package to the appropriate USCIS Service Center. The petition is filed by the employer on behalf of the foreign worker and must include the approved labor certification and other USCIS specified documentation.
Schedule A is a list of occupations, set forth at 20 CFR 656.15, for which the Department has determined there are not sufficient U.S. workers who are able, willing, qualified and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.
The occupations listed under Schedule A include:
Physical Therapists - who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
Professional Nurses - the alien (i) has a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or (iii) the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.
Sciences or arts (except performing arts) - Aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term "science or art" means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation.
Performing arts - Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.
An employer shall apply for a labor certification for a Schedule A occupation by filing an ETA Form 9089, in duplicate with the appropriate USCIS Center, NOT with the Department of Labor or a SWA.
