Labor Certification

Obtaining a Labor Certification is usually the first step which a U.S. employer undertakes to “sponsor” a foreign worker for Legal Permanent Residence.  The Labor Certification process involves conducting a test of the labor market to show that there is no able, willing, qualified U.S. worker who would accept the position at the prevailing wage for the occupation in the area of intended employment.  Furthermore, the U.S. employer must demonstrate that offering the position to the alien worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

By filing the Form ETA 9089, the employer certifies to the USDOL the following information, among other things:

1. The educational, experience and/or training requirements provided in the ETA 9089 reflect the actual minimum requirements and are not unlawfully tailored to the qualifications of the foreign worker;
2. The foreign worker met the minimum requirements prior to joining the employer and does not qualify for the position through experience or skills gained on the job (otherwise, the employer must demonstrate in a USDOL audit that it is unfeasible to train a U.S. worker);
3. The employer has conducted the mandatory recruitment steps to make the position available to U.S. workers;
4. All job applicants have been given a fair opportunity to be considered for the position and there are no minimally qualified U.S. workers under the actual job requirements.

Currently, the Labor Certification Application (Form ETA 9089) is filed with the Employment and Training Administration of the US Department of Labor (DOL) through an online system called “Program Electronic Review Management” (PERM).  Once a DOL analyst has reviewed the PERM application, he or she will:

1. Certify the application;
2. Select the application for a random audit;
3. Audit the application because the information entered raises a red flag; or
4. Deny the application without an audit based on major non-compliance in the recruitment steps.

After the USDOL certifies the ETA 9089, the employer may proceed with the Second Step of the Employment-Based Immigration Process by filing an Immigrant Petition (I-140) with the USCIS in one of the employment based green card categories on behalf of the foreign worker.

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Frequently Asked Questions by Employers:

• What should we do to initiate the Labor Certification Application Process?
  
  Consult an experienced business immigration attorney and establish the actual minimum requirements for the position.  In most cases, the named beneficiary of the Form ETA 9089, i.e. the foreign national, must also meet the minimum requirements through education, experience and training acquired prior to joining the company.


• Why is it so important to define the minimum requirements?
  
  The employer must define what the minimum requirements are for the job in very specific terms.  In conducting the test of the labor market and in completing the Form ETA 9089, Employers are often required to expound on the following issues:
  
  
  1. Whether a foreign degree is acceptable for the position;
  2. Could a three-year foreign undergraduate degree in combination with work experience be considered equivalent to a four-year U.S. Bachelor’s Degree;
  3. What kind of alternative experience requirements are reasonably acceptable for the position if the foreign national does not possess the primary experience generally required for the occupation?
  
  There are many minefields in drafting the minimum educational, experience and training requirements at the Labor Certification application stage.  If an employer fails to adequately describe the minimum requirements in detail, the employment-based immigration process could become very problematic.  The employer could very well receive an approved labor certification from the US Department of Labor, only to see the case get denied by the USCIS at the I-140 immigration petition stage.  In that case, the employer would have to start the labor certification process all over again and the employee loses the priority date.  An experienced immigration attorney could help employers overcome the many pitfalls in this process.


• What if we make the requirements so unique that no one but the foreign national could qualify for the position?
  
  The minimum requirements must conform to what the US Department of Labor considers to be normal for the occupation and may not be overly-tailored to the foreign national’s qualifications.  They must reflect the actual minimum requirements that the employer would have set to fill this position.  Furthermore, PERM recruiting differs significantly from the normal hiring practices of most employers.  In the PERM recruitment process, employers must strictly adhere to the minimum requirements set forth in the advertisements and cannot reject U.S. workers because the foreign worker is more qualified for the position.


• What do we need to do to fulfill the good faith recruitment requirements, i.e. complete the test of the labor market?
  
  During the six-month period prior to the filing of the ETA 9089, the employer is required to make the position available to the U.S. workers through the following steps:
   
  1. Place a job order with the State Labor Department for 30 days;
  2. Place advertisements on two issues of Sunday newspapers of general circulation in the area of intended employment;
  3. Post mandatory internal Notice of Filing Labor Certification Application for the proffered position at the worksite for ten (10) business days;
  4. Complete at least three (3) additional types of recruitment if the job opportunity is a professional position, through job fairs, headhunters, on-campus recruitment, internet posting, employee referral program, job search website, etc.



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• What do we need to do if there is a U.S. candidate who appears to be qualified for the position?
  
  The job advertisements and postings will direct U.S. workers to forward their resumes and applications to the employer.  If the employer considers a candidate facially qualified for the position through reviewing his or her resume, the employer must contact him or her within ten days after receiving the application.  Therefore, it is very important that the employer reviews the job applications as soon as they are received.
  
  The employer must interview the U.S. worker if he or she appears to be qualified for the position.  All communication through the interview process must be carefully documented.  The employer must also “go the extra mile” to ensure that the candidate(s) have been given a fair opportunity to be considered.  Employers are therefore advised to consult an experience business immigration attorney to ensure that they have adequately carried out the interview process in compliance with the PERM regulations.


• What is the next step if there are qualified U.S. worker who meet the minimum requirements?
  
  If the employer is satisfied that there are no able, willing and qualified U.S. workers who would accept the position at the offered salary, then the employer must prepare and sign a recruitment report.  The recruitment report provides details of all steps of the good faith recruitment process and lists the lawful job-related reasons for rejecting U.S. applicants, if any.
  
  The employer must file the Labor Certification Application with the US Department of Labor within 180 days after the initiation of the first recruitment step, but no earlier than 30 days after all recruitment step are completed (in some cases, one additional recruitment step required for professional positions may be completed within the last 30 days of the filing).  The filing date of the labor certification is known as the “priority date” for the foreign national.  This date is important as it will determine when the foreign worker will be able to take the last step of the Green Card process by filing the Form I-485 for himself and family.


• What happens after the Form ETA 9089 has been certified/approved by the U.S. Department of Labor?
  
  Once the US Department of Labor certifies the PERM labor certification application, the employer has up to 180 days (6 months) to file an Immigrant Petition (I-140) with the USCIS on behalf of the foreign worker.

I-140 PETITION

The Second Step of the Employment-Based Immigration Process is to file an I-140 Immigrant Worker Petition with the USCIS within 180 days of the PERM approval.  This application is signed by the employer and includes two major components:

1. Ability to Pay: Proof that the employer has the "ability to pay" the salary for the position.  This evidence may include US tax returns, audited financial statements, W-2 forms, payroll records, and/or other documents.

2. Beneficiary Qualified for the Position: Proof that the foreign worker meets the minimum requirements for the position.  This may include copies of diplomas and transcripts, as well as letters from previous employers certifying that the foreign worker has the required skills or knowledge and experience in specific fields.

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