Immigration for Workers Obtaining Permanent Employment in the United States Immigration for Workers Obtaining Permanent Employment in the United States
Sections 203 and 212(a)(5)(A) of the Immigration and Nationality Act
(8 USC Â§1101 et seq; 20 CFR Part 656 (PDF))
Who is Covered
Section 212(a)(5)(A) of the Immigration and Nationality Act (INA) applies to employers seeking to hire foreign workers immigrating to the United States for the purpose of permanent employment.
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 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 from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no 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 alien 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. Under the provisions of the new rule, an employer must file with ETA an Application for Permanent Employment Certification (ETA Form 9089). 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) 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, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having 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, published in Appendix A to the preamble of the final regulation, for which 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).
All appropriate protections under U.S labor laws apply to workers using a permanent labor certification from DOL.
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 ETA's Web site. Copies of the regulation and application forms are available on the Foreign Labor Certification page of the ETA Web site. Employers should submit their applications for permanent labor certification (ETA Form 9089) using the Permanent Online System.
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. 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.
Relation to State, Local, and Other Federal Laws
Various other laws, such as workers' compensation, tax (unemployment insurance, local, state, and federal), the Fair Labor Standards Act, and the Family Medical and Leave Act, may apply to the employment of workers with a permanent labor certification.