Employment Based Immigration
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Permanent Labor Certification
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 an approved labor certification request from the DOL's
Employment and Training Administration (ETA). The DOL must certify to
the USCIS that there are no qualified U.S. workers able, willing,
qualified and available to accept the job at the prevailing wage for
that occupation 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,
ETA published a final regulation on December 27, 2004, which required
the implementation of a new re-engineered permanent labor certification
program by March 28, 2005. This new electronic program has improved
services to our various stakeholders.
The DOL processes Applications for Permanent Employment Certification,
ETA Form 9089. The date the labor certification application is accepted
for processing is known as the filing date and is referred to by USCIS
and the Department of State as the priority date. After the labor
certification application is approved by the DOL, it should be
submitted to the appropriate USCIS service center with a From I-140,
Immigrant Petition for Alien Worker. You may access the State
Department Visa Bulletin to learn which priority dates are
currently being processed.
Applications filed on or after March 28, 2005, must file using the new
PERM process and adhere to the new PERM
Regulations.
The job opportunity must be for a full time, permanent position.
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 foreign worker's
qualifications.
The employer must pay at least the prevailing wage for the occupation
in the area of intended employment.
PROCESS FOR FILING
- 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.
- 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 National Processing Center (NPC). 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 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 prepare a recruitment report in which it categorizes
the lawful job-related reasons for rejection of U.S. applicants and
provides 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 all types of occupations read the FAQs HERE.
- Audits/requests for information:
Supporting documentation need 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 all supporting documentation for five
years from the date of filing the ETA Form 9089. For example, the SWA
prevailing wage determination documentation is not submitted with the
application, but must be retained for a period of five years from the
date of filing the application by the employer.
- 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. Additionally,
when completing the ETA Form 9089 online, the preparer is provided
prompts to assist in ensuring accurate data entry.
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.
- Update your profile information online.
- Track newly submitted labor certification applications.
- 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. A
completed and signed paper copy of the ETA Form 9089 must be submitted
to the PERM National Processing Center in Atlanta:
US Department of Labor
Employment and Training Administration
Foreign Labor Certification
National Processing Center
Harris Tower
233 Peachtree Street –Suite 410
Atlanta, Georgia 30303
- Approvals. If the National
Processing Center approves the application, the ETA Form 9089 is
"certified" (stamped) by the Certifying Officer and returned to the
employer/employer representative who submitted the application.
For more information and details regarding the filing of PERM
applications, 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:
Group I
- 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.
Source: http://www.foreignlaborcert.doleta.gov/perm.cfm
| Last accessed: February 7, 2009.
Information on this website is provided for information purposes only, and its presentation herein neither creates an attorney-client privilege nor constitutes legal advice.
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