Labor Certification

Some of the employment-based immigrant visa categories enumerated above require the prospective U.S. employer to first obtain an approved labor certification from the Department of Labor (DOL). A labor certification allows an employer to work permanently in the United States. By approving the labor certification, the DOL certifies to the U.S. Citizenship & Immigration Services (USCIS) that there not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that the hiring of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The application for labor certification is made on ETA Form 9089. Prior to filing ETA Form 9089, the petitioner must obtain a prevailing wage determination from the National Prevailing Wage Center. The employer must also comply with the pre-filing recruitment steps. When the occupation involved is a professional occupation, which normally requires a bachelor’s or higher degree, the employer must comply with the recruitment steps prescribed under 20 CFR §656.17(e)(1). The employer must advertise the job opportunity with the State job bank for at least 30 days and in a newspaper of general circulation for at least two Sundays. Additionally, the employer must conduct at least three of 10 supplemental advertising forms specified in the regulations. For all other occupations not normally requiring a bachelor’s or higher degree, the employer may but need not conduct three supplemental advertising forms. However, under 20 CFR §656.17(e)(1), the employer must still conduct the State job bank and two Sundays newspaper advertising.

EB-1, EB-4 and EB-5 categories do not require labor certification. Petitions under EB-2, except those seeking national interest waiver, and EB-3 categories must be accompanied by duly approved labor certification. National interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national.

The DOL processes all labor certification applications, with the exception of Schedule A and sheepherder applications filed under 20 CFR §656.16. The date the labor certification application is received by the DOL is used by the USCIS as the priority date. After approval, the labor certification must be submitted to the USCIS with a Form I-140, Immigrant Petition for Alien Worker, within 180 days from date of certification.

For Schedule A and sheepherder applications, the ETA Form 9089 is filed, in duplicate, with the appropriate USCIS service center. Schedule A is comprised of the following occupations, which the DOL has determined there are not sufficient U.S. workers who are able, willing, qualified and available and 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

1. 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

2. 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.

Group II

1. 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.

2. 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.