| 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.
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.
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.
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