Who Needs a Labor Certification?

As just noted, the labor certification ground for exclusion applies only to aliens seeking permanent residence in the second or third employment-based preferences. The second employment-based preference covers aliens with exceptional ability in the sciences, arts, or business, and aliens with advanced degrees in the professional fields; under limited circumstances, a small group of the aliens may be exempted from the labor certification requirement, as discussed below. The third employment-based preference covers aliens with bachelor's degrees in their fields, skilled workers, and unskilled workers. One exception to the second employment-based preference is national interest waiver (NIW), who does not need a Labor Certificate because s/he shows to the INS that a waiver of such requirement would be indeed in the interest of the United States.

[ Go back to top of page ]

What is the filing process?

The DOL published the final Program Electronic Review Management (PERM) regulation on December 27, 2004, and the regulation went into effect on March 28, 2005. Under PERM, The employer would go through the following process:

1. Application. The employer must complete an Application for Permanent Employment Certification (ETA Form 9089). In the application, the employer must outline the recruitment undertaken as well as describe, in detail, the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work. In addition, the foreign worker's relevant education and work experience, if any, must be provided.

2. Signature requirement. Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable. Applications filed electronically must, upon receipt of the labor certification issued by DOL's Employment and Training Administration (ETA), be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

3. 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 areas of intended employment. They employer is required to include the ETA Form 9089 the SWA provided information: the prevailing wage, the SOC/O*NET code, the occupation title, the skill level, etc. The wage offered by the employer must be equal or higher than the prevailing wage.

4. 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 more than 30 days and less than 180 days prior to filing the application. Recruitment provisions are divided into professional and nonprofessional occupations and additional recruitment steps are required for professional occupations.

5. Audit. Supporting documentation need not to be filed with the ETA Form 9089. However, the employer must prepare such documentation before filing. When the employer is selected for audit, it has to response within 30 days. The Certifying Officer (CO) may grant one extension, for good cause, of up to 30 days in order to provide the documentation. A substantial failure to provide the required documentation may result in a denial of the labor certification, and the requirement to conduct supervised recruitment in future labor certification filings for up to two years.

6. Retention of Records. The employer is required to retain all supporting documentations for five years from the date of filing the ETA Form 9089. For example, the SWA prevailing wage determination is not submitted with the ETA Form 9089, but must be retained for five years from the date of filing the ETA Form 9089.

7. Bona Fide Job Opportunity. Because the employer must affirm that it is willing to hire a qualified and available U.S. worker, there must be a bona fide job opening available to U.S. workers in order for a labor certification to be approved. Conducting a test of the U.S. labor market that fails to locate qualified U.S. workers does not meet DOL requirements for certification if the agency determines that there is in fact no job available for which the employer is willing to hire a U.S. worker. The "bona fide job opening" requirement in practice means that an employer who states that it is unwilling to hire anyone other than the alien for the job cannot have a labor certification approved under DOL rules. It also means that when the alien is an investor in, or owner of, the business, or has significant control over such business decisions as hiring, the DOL will conclude in most cases that a bona fide job opening is not available to U.S. workers. Finally, it also means that when a position is newly created and the employer has not hired persons before for the same position, the employer must prove to the DOL that a real position exists.

8. Appeal of Denials. A denial of an application for labor certification may be reviewed by the Board of Alien Labor Certification Appeals (BALCA). BALCA may affirm the labor certification denial, direct the CO to approve the labor certification or remand the case to the CO for reconsideration in a manner consistent with its instructions.

9. Approval. If the National Processing Center approved the application, the ETA Form 9089 is certified (stamped) by the CO and returned to the employer who submitted the application.

[ Go back to top of page ]

What are the 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 more than 30 days and less than 180 days prior to filing the application.

Recruitment Requirements for Professionals (the occupation normally requires a bachelor's degree or higher):

1. Employer must place a job order with the SWA for a period of 30 days, and two print advertisements must be place on two different Sundays in a paper of general circulation. If the job offer requires experience and an advanced degree, a professional journal would normally be used to advertise the job opportunity; the employer may place an advertisement in the professional journal in lieu of one of the Sunday advertisement.

2. The employer must use 3 additional recruitment steps from a list of 10 alternatives provided by the PERM regulations. The 10 alternatives include: Job Fairs, Employer's website, Job search website other than the employer's website; On-campus recruiting; Trade or professional organizations/publications; Private employment firms; Employee referral programs with incentives; Campus placement offices; Local and ethnic newspapers; Radio and television advertisements.

3. An employer must post a Notice of Job Opportunity in conjunction with the outside recruitment for the position. The notice must be posted for a period of ten business days, and the notice period may be no more than 180 days before filing and no less than 30 days before filing. The Notice is posted at a location such as an employee notification bulletin board in an area accessible to all of the employer's employees.

Recruitment Requirements for Nonprofessional Careers (the occupation does not normally require a bachelor's degree or higher):

At a minimum, the employer must:

1. Place a job order with the local SWA serving the area of intended employment for a period of 30 days;

2. Place two Sunday newspaper advertisements;

3. An employer must post a Notice of Job Opportunity in conjunction with the outside recruitment for the position. The notice must be posted for a period of ten business days, and the notice period may be no more than 180 days before filing and no less than 30 days before filing. The Notice is posted at a location such as an employee notification bulletin board in an area accessible to all of the employer's employees.

[ Go back to top of page ]

Schedule A Occupations

Schedule A is a list of occupations 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: Professional Nurses, Physical Therapists, and Alien with exceptional Ability in Science or Arts, except for Aliens in the Performing Arts.

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 DOL or SWA.

[ Go back to top of page ]

Contact us