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Foreign Labor Certification Permanent Labor Certification
Notice of Proposed Rulemaking
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A Permanent Labor Certification for the Department of Labor (DOL) is one of the avenues which allows
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
U.S. Citizenship and Immigration Services (CIS),
the employer must obtain an approved labor certification request (Form ETA 750) from the DOL's Employment
and Training Administration (ETA). The DOL must certify to the CIS that there are no qualified
U.S. workers available and willing to accept the job at the prevailing wage for that occupation in the area
of intended employment.
The DOL, in concert with the local State Workforce Agency
(SWA), processes applications for Alien Employment Certification (Form
ETA 750). The date the labor certification application is filed with the
SWA is known as the priority date. After the labor certification application is
approved by the DOL, it should be submitted to the CIS service center with an
I-140, Immigrant Petition for Alien Worker.
You may access the State Department Visa Bulletin
to learn which priority dates are currently being processed.
Qualifying Criteria
- The employer must hire the foreign worker as a
full-time employee;
- There must be a bona fide job opening;
- Job requirements must adhere to what is customarily
required for the occupation in the U.S. and may not be tailored to the
worker's qualifications. In addition, the employer shall document that the job
opportunity has been and is being described without unduly restrictive job
requirements, unless adequately documented as arising from business necessity.
- The employer must pay at least the prevailing wage for the occupation in
the area of intended employment.
Process for Filing
DOL/SWA Processing
Normal Processing
- The employer must complete an application for Alien Employment Certification
(Form ETA 750).
The application describes
in detail the job duties, educational requirements, training, experience, and other
special capabilities the applicant must possess to do the work, and a statement of
the prospective immigrant's qualifications.
- The employer must then submit the application to the SWA responsible
for the specific job location. The SWA date stamps the application when it
is received (priority date) and completes a preliminary review of the application.
The SWA also notifies the employer of potential problems, including if the
minimum requirements for the position are reasonable and job-related, and determines
that the wage offered meets minimum prevailing wage standards.
- The SWA will
then work with the employer to develop a job advertisement for placement in either
a journal or newspaper of general circulation in the area of intended employment (depending
on the nature of the job). The ad must contain
a complete description of the vacancy including job responsibilities,
duties, salary, and minimum qualifications (education, training, and experience). The employer must interview
all candidates who apply and meet the position requirements.
- The employer will evaluate job candidates against the job
criteria (as established in Form ETA 750), and must submit a recruitment report to
the SWA after applications have been received and qualified applicants interviewed.
The recruitment report is a summarization of the applicants received and the
candidates interviewed, including any decisions made to hire or not hire the
candidates.
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If any qualified U.S. workers are identified, the
SWA will inform the employer that the application will likely be denied by the
Certifying Officer in the regional office.
- The information gathered by the SWA will be collated and forwarded to the
regional office for review and a decision. Generally, the SWA will notify the
employer when the application and all associated documents have been forwarded to
the certifying officer in the regional office.
- Once the certifying officer has reviewed the recruitment report and accompanying
documentation, the certifying officer will issue a final determination granting or
denying the application. The DOL may require additional information, interviews or
advertisement if it feels the employer has not met all conditions for certification.
The DOL may issue a Notice of Findings (NOF) indicating the certifying officer's
intent to deny the application and identifying all reasons for the intended denial.
The NOF will also offer the employer an opportunity to rebut the NOF within 35 days.
The letter will also provide guidance to the employer regarding their right to appeal
the final decision.
This process can sometimes take several years depending on the state in which the job is
being offered. States that are popular sites for immigrant hiring, such as
New York, Texas, or California, may take much longer than states with less such
activity. Click here for Processing Times.
Reduction in Recruitment (RIR)
The "normal process" can be expedited by the use of RIR procedures. The employer
must request RIR when submitting the Form ETA 750 to the SWA.
- The employer must document that it has engaged in, within the
last six months, a pattern of recruitment in an effort to hire U.S. workers for the
position, but has been unsuccessful in identifying qualified and available U.S.
workers. The pattern of recruitment may vary depending on the nature of the
occupation being requested and the labor market at the time of the job search.
However, the minimum is one print advertisement and evidence of other actions
taken to search the labor market. These other actions may include use of Internet,
use of job markets on the Internet, participation in job fairs, use of union halls
(where appropriate), participation in college job fairs, and other similar
activities.
- The employer must submit evidence of the pattern of recruitment to the SWA. In
addition, a recruitment report must be provided of the active recruitment effort to
hire U.S. workers at the prevailing wage at a minimum showing the number of U.S.
workers who applied, and the reasons they were not accepted. If the certifying
officer feels the pattern of recruitment is appropriate to the occupation and the
labor market, the application will be approved with no
need for the state to do an additional supervised recruitment process. Since
supervised recruitment is the most time-consuming aspect of the permanent process,
use of RIR can significantly reduce the time required in the DOL process. It is
possible that the DOL phase of employment-based visas can be accomplished in under
one year using the RIR process.
In either the case of normal processing or RIR, if a Form ETA 750 has been submitted but no
response has been received, you may determine the status by contacting the SWA to whom the application
was filed. If the SWA has informed the employer/agent that the application has been forwarded to the
ETA regional office, you may find the status by contacting the appropriate regional office. Each
regional office has a phone information retrieval system that allows interested parties to receive
an automated response to the status of a case by using either the case
number or the employer telephone number.
If the appropriate regional office approves the application, the Form ETA 750
is “certified” (stamped) by the certifying officer and returned to the
employer/agent who submitted the application.
The CIS Petition
After approval of the labor certification, the employer must file an
"Immigrant Petition for an Alien Worker" with the U.S. Citizenship and Immigration Services (CIS),
Form I-140.
The employer then attaches the certified Form ETA 750
to a completed CIS Form I-140, along with the appropriate fees, and submits the
package to the appropriate CIS Service Center. The petition is filed by the employer
on behalf of the foreign worker and must include the approved labor certification
and other CIS specified documentation.
Schedule A Occupations
Schedule A is a list of occupations, set forth at Section 656.10 ,
for which the Department has determined there are not sufficient U.S. workers who are able, willing,
qualified and available. In addition, Schedule A establishes that 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:
- 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
- Professional Nurses - who have (i) passed the
Commission on Graduates in Foreign Nursing Schools
(CGFNS) Examination; or (ii) who hold a full and
unrestricted license to practice professional nursing in the state of intended
employment.
An employer shall apply for a labor certification for a Schedule A occupation by
filing an Application for Alien Employment Certification Form ETA 750, in duplicate
with the appropriate CIS Center,
NOT with the Department of Labor or a SWA.
Forms & Instructions
Form ETA 750
Instructions for Form ETA 750
Program Regulations & FAQs
20 CFR 656
FAQs
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