The filing of applications is the responsibility of the employer, not the employee. However, the employee can benefit from understanding the program being utilized in his/her behalf. In general, the DOL works to ensure that the admission of foreign workers to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. Once a permanent labor certification application has been approved by the DOL, the employer will need to seek the immigration authorization from USCIS.
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
To improve the operations of the permanent labor certification program (PERM), ETA published a final regulation on December 27, 2004, implementing a new, re-engineered permanent labor certification program, effective March 28, 2005. This new electronic program has improved services to our various stakeholders.
DOL processes Applications for Permanent Employment Certification, ETA Form 9089, filed under 20 CFR § 656.16. The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is certified by DOL, it should be submitted to the appropriate USCIS Service Center with a Form I-140, Immigrant Petition for Alien Worker. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.
- There must be a bona fide, full-time permanent 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 foreign worker’s qualifications. In addition, the employer shall document that the job opportunity is 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.
foreign labor certification program
The foreign labor certification program is unique and the employer must fulfill the requirements before issuing a labor certification. In general, the employer must complete these basic steps to obtain a labor certification:
- The employer must ensure that the position meets the qualifying criteria for the requested program.
- The employer must complete the ETA form designated for the requested program. This may include the form and any supporting documentation (e.g., job description, resume of the applicant, etc.).
- The employer must ensure that the wage offered equals or exceeds the prevailing wage for the occupation in the area of intended employment.
- The employer must ensure that the compliance issues effected upon receipt of a foreign labor certification are completely understood.
- The completed ETA form is submitted to the designated Department of Labor office for the requested program (e.g., SWA, processing center or the national office).
- The employer is notified of the determination of the Department of Labor.
Policies and Regulations
The Department of Labor through the Employment and Training Administration, Office of Foreign Labor Certification’s national office and two processing centers, in cooperation with the State Workforce Agencies (SWAs), administer various Foreign Labor Certification programs. Administration of the programs is mandated by the Immigration and Nationality Act (INA) and delineated by regulations in each program published in the Code of Federal Regulations (CFRs). The regulations provide guidance on the processing of applications, periods of validity, and employer responsibilities, etc. The Office of Foreign Labor Certification also provides further guidance through various directives and advisories such as Training and Employment Guidance Letters, General Administration Letters, and others. The applicable regulations and advisories are outlined below.
The INA directs the Secretary of Labor to certify that there are not sufficient workers who are able, willing, qualified and available and the employment of an alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. The regulations of the Department of Labor delineate the specific rules to be followed, which requires labor certification from the Secretary of Labor.
These regulations explain the labor certification process for permanent employment of aliens in the United States. These regulations were completely replaced on March 25, 2005.
Policy Directives and Advisories
The Office of Foreign Labor Certification occasionally issues policy directives to help employees of the Department of Labor and SWAs, and also Employers who wish to employ alien labor, understand the procedures for filing and adjudicating applications for labor certification when the regulations are not definitive. These directives are issued by the Department and are updated periodically. The links below will take you to the most current policy directive for each program.
Process for Filing
- Prevailing wage. Prior to filing ETA Form 9089, the employer must request and obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC). The employer is required to include on the ETA Form 9089 the NPWC provided information: the prevailing wage, the prevailing wage tracking number, the SOC (O*NET /OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
- Job Order. The employer is required to place a job order with the SWA serving the area of intended employment. The required 30 day job order timeframe end at least 30 days prior to filing. Two advertisements (two Sundays) are also required in the largest circulation newspaper serving the area.
- Pre-Filing Recruitment Steps. All employers filing the ETA Form must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
- Application. The employer must complete an Application for Permanent Employment Certification, ETA Form 9089. A completed application will describe in detail the job duties, educational requirements, training, experience, and other special skills the employee must possess to perform the work, and outline the foreign worker’s qualifications.
- Signature requirement. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, foreign worker, and preparer, if applicable, in order to be valid.
- Audits/requests for information. Supporting documentation may not be filed with the ETA Form 9089, 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 copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the NPWC 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.
- Approvals. The ETA Form 9089 is signed by the Certifying Officer and returned to the employer/employer representative who submitted the application. Within 180 days of the date an application is certified, the employer must file an Immigrant Petition for an Alien Worker, Form I-140, with the USCIS. The employer must attach the certified ETA Form 9089 to the completed USCIS Form I-140, along with other USCIS specified documentation and applicable fees, and submit the package to the appropriate USCIS Service Center.
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