Employment Law Guide

Work Authorization for Non-U.S. Citizens: Workers Seeking Permanent Employment in the United States

Updated: December 2016

Sections 203 and 212(a)(5)(A) of the Immigration and Nationality Act of 1952, (INA)(http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act)
(8 USC §1101 et seq(http://www4.law.cornell.edu/uscode/8/1101.html); 20 CFR Part 656 (https://www.dol.gov/agencies/eta/foreign-laborpdf/PERM_Final_Rule_12-27-04_FR.pdf))

Who is Covered

Section 212(a)(5)(A) of the Immigration and Nationality Act (INA) is administered by the Office of Foreign Labor Certification (OFLC) of the Employment and Training Administration (ETA). This Section applies to employers seeking to hire foreign workers immigrating to the United States for the purpose of permanent employment.

Basic Provisions/Requirements

A permanent labor certification issued by the Department of Labor (DOL) is most often the first step in allowing an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit a petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) seeking to hire a foreign worker as an immigrant, the employer must obtain an approved labor certification from the ETA.  The Department of Labor must certify to USCIS that there are no U.S. workers able, willing, qualified, and available to accept the job and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

An employer must file with ETA an Application for Permanent Employment Certification (ETA Form 9089(https://www.dol.gov/agencies/eta/foreign-laborpdf/9089form.pdf)). 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.

Prior to filing ETA Form 9089 with ETA, the employer must request a prevailing wage determination from the State Workforce Agency (SWA)(https://www.dol.gov/agencies/eta/foreign-laborcontacts.cfm) having jurisdiction over the proposed area of intended employment. In addition, the employer (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process) must have conducted certain recruitment activities to find U.S. workers prior to filing the application.

The employer must recruit under the standards for professional occupations set forth in 20 CFR Part 656.17(e)(1) if the occupation involved is on the list of occupations. This list is published in Appendix A to the preamble of the final regulation(https://www.dol.gov/agencies/eta/foreign-laborpdf/PERM_Final_Rule_12-27-04_FR.pdf#Page=53), and 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 recruit under the requirements for nonprofessional occupations at 20 CFR Part 656.17(e)(2).

Employee Rights

All appropriate protections under U.S labor laws apply to workers who received their permanent residency based on a permanent labor certification from the Department of Labor.

Recordkeeping, Reporting, Notices and Posters

Notices and Posters

There is no poster requirement. However, employers must provide notice of the filing of the application and be able to document that notice was provided, if requested.  Notice must be provided between 30 and 180 days before an application is filed.

Notice must be given to:

• The bargaining representative, if any, of the employer’s employees in the occupational classification for which the certification is being sought in the employer’s location of intended employment;
• Employees at the facility or location of employment, if there is no bargaining representative; and
• Household employees, only if one or more U.S. worker is employed.

The notice must be posted for 10 consecutive business days and must be visible and in a conspicuous place. Employers must also publish the notice in any and all in-house media, electronic and printed, in accordance with the normal procedures used for recruitment for similar positions in the organization.

The notice must include the statement that an application has been filed under the program; address of the appropriate DOL officer to whom the application sent; and information in the job advertisements including wage rate and job description.

Recordkeeping

Labor certification process. The Department of Labor processes applications for Alien Employment Certification (ETA Form 9089). The date the labor certification application is filed is known as the filing date and is used by USCIS and the U.S. Department of State as the priority date for visa issuance. After the labor certification application is approved by the Department of Labor, it should be submitted to the USCIS service center with an I-140, Immigrant Petition for Alien Worker. You may access the State Department Visa Bulletin(http://travel.state.gov/visa/bulletin/bulletin_1360.html) to learn which priority dates are currently being processed.

Records. The employer is required to retain documentation supporting the application for five years from the date of filing the Application for Permanent Employment Certification. This documentation varies depending on the type of application filed (for a professional, a non-professional position, or for a college or university professor engaged from a competitive recruitment process) but generally includes recruitment documentation, including information regarding the number of potential U.S. applicants and the reasons for rejection of these workers. The SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for five years from the date the employer files the application.

Reporting

There are no reporting requirements.

Penalties/Sanctions

If possible fraud or willful misrepresentation involving a labor certification is discovered before a final labor certification determination, ETA will refer the matter to the Department of Homeland Security (DHS) for investigation. In addition, ETA can take steps to revoke an approved labor certification if ETA finds the certification was not justified, including if fraud or willful misrepresentation is discovered, and the employer, attorney, and/or agent can be barred from filing applications for up to three years. Additionally, DHS or the Department of State may invalidate a labor certification if the agency determines there has been fraud or willful misrepresentation involving the labor certification. Finally, if the Department learns that an employer, attorney, or agent is involved in possible fraud or willful misrepresentation in connection with the permanent labor certification program, the Department will refer the matter to the Department of Justice, Department of Homeland Security, or other government entity, as appropriate, for investigation, and send a copy of the referral to the Department of Labor’s Office of Inspector General.

Relation to State, Local, and Other Federal Laws

Various Federal state and local labor standards, such as the Fair Labor Standards Act (FLSA), will apply to foreign workers employed in the U.S.

Compliance Assistance Available

Employers may obtain information on how to apply for a permanent labor certification, including application forms and regulatory and procedural requirements from the ETA Office of Foreign Labor Certifications Permanent Labor Certification Web site(https://www.dol.gov/agencies/eta/foreign-laborperm.cfm). Employers can submit their applications for permanent labor certification (ETA Form 9089) using the Permanent Online System(http://www.plc.doleta.gov/).

DOL Contacts

Employment and Training Administration, Office of Foreign Labor Certification(https://www.dol.gov/agencies/eta/foreign-labor)
Contact the Office of Foreign Labor Certification
Tel: 1-877-US-2JOBS (1-877-872-5627) or 1-202-693-3010; TTY

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