(1) [5 USC 552(b)(2) and 5 USC 552(b)(7)(E)] 

(2) Job Offers. In most cases, the beneficiary of an I-140 petition must be the recipient of a job offer from an employer in the United States.  As evidence of the job offer, most petitioners who file EB-2 and EB-3 immigrant I-140 petitions must first obtain an individual labor certification from the Department of Labor (DOL).  In other cases where the alien is eligible for Schedule A blanket labor certification, labor certification applications are submitted to USCIS with the I-140 petition.  In relatively few cases (those involving aliens seeking classification under section 203(b)(1)(A), as well as those seeking classification under section 203(b)(2) who qualify for a “national interest waiver”), an individual labor certification from DOL and a job offer are not required (see subchapter 22.2(d) of this field manual).         

 

(3) Labor Certifications.  A significant percentage of employment-based immigrant visa petitions are based on labor certification applications approved by the DOL.  In adjudicating such petitions, please note that DOL does not generally review the alien beneficiary’s qualifications for the position when adjudicating a labor certification application; this authority and responsibility rests with USCIS.  Thus, adjudicators must assess these immigrant petitions to ensure that the position offered is the same or similar position that was certified by the DOL and that the alien beneficiary meets the qualifications for the position.   Below is a detailed description of the labor certification application process. 

(A) Applicability.   Priority workers under section 203(b)(1) are not required to be the beneficiaries of approved labor certifications issued by the DOL; however, aliens seeking immigrant visas pursuant to sections 203(b)(2) or 203(b)(3) generally must be the beneficiaries of approved labor certifications. The DOL regulations regarding permanent labor certifications, 20 CFR 656, are found immediately following section 204 of the Act in your law books. 

(B) Individual Labor Certifications.   In general, U.S. employers filing EB-2 and EB-3 employment-based I-140 petitions must first obtain an approved labor certification application from DOL on behalf of the foreign worker.  An approved labor certification application demonstrates that:  (1) the employer tested labor market in the geographic area where the permanent job offer is located to establish that there are no able, qualified, and available U.S. workers who are willing to accept the permanent job offer; and (2) the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.  (See 212(a)(5)(A) and (D) and 203(b)(3)(C) of the Act.)  DOL has established procedures for obtaining labor certifications under 20 CFR part 656.  20 CFR part 656 was amended by the DOL PERM final rule published on December 27, 2004, which took effect on March 28, 2005 (69 FR 77326).  Labor certification applications are approved and issued by DOL only after the U.S. employer has complied with DOL advertising and recruiting requirements and has established that there are no able, qualified, and available U.S. workers for the position and has rejected any U.S. job applicants for valid job-related reasons.  Approved labor certifications issued by DOL are certified with an official DOL certification stamp and may have a Letter of Labor Certification Determination attached to the front page of the document.  

 (C)  Labor Certifications Filed with DOL Prior to March 28, 2005.  Prior to the effective date of the new PERM regulation (March 28, 2005), U.S. employers filed the Application for Alien Employment Certification, Form ETA-750, in order to obtain an approved labor certification.  The Form ETA-750 has two parts.  Part A focuses on the details of the position being certified and describes the name and address of the U.S. employer, the location of the job opportunity, the proffered wage for the position and the minimum education, training, or experience requirements to successfully perform the duties of the position.  Part B focuses on the alien beneficiary and contains his or her name, date of birth, address, and describes his or her education, training and work history.  A valid, approved Form ETA-750 must be signed by the U.S. employer in Part A and the alien beneficiary in Part B, contain the DOL certification stamp, and be signed and dated by the DOL certifying officer in the endorsements section on the front page on Part A of the form. 

Implementation of PERM Labor Certification System  DOL’s permanent labor certification system (PERM) implemented on March 28, 2005 effectively eliminated the old labor certification system whereby employers had an option of filing labor certification applications under supervised recruitment or reduction in recruitment rules.  The PERM application Form ETA-9089, which can be filed electronically or by mail, replaced the Form ETA-750, and is designed to expedite the labor certification process.  DOL’s National Processing Centers strive to adjudicate electronically filed PERM applications in approximately 30 – 45 days (please note that not all PERM applications are processed within this timeframe, and in certain cases, processing takes substantially longer than the 30 – 45 day period); those applications filed by mail may take significantly longer to process.  At the time of the implementation of the PERM system, DOL had approximately 365,000 pending labor certification applications that were filed under the old paper-based permanent labor certification process, some of which were filed as long ago as April of 2001.   DOL devised the following backlog reduction strategy to address the backlog of Form ETA-750 labor certifications still pending as of March 28, 2005:

• DOL created Backlog Reduction Centers tasked with collecting and processing all of the Form ETA-750 labor certification applications that were pending with the State Workforce Agencies (SWAs) and DOL Regional Offices on or before March 27, 2005.  The applications were shipped to the backlog reduction centers where information from the Form ETA-750 was entered into a national tracking system for labor certifications (a process that is still on-going) in order to process them according to DOL guidelines set forth in 20 CFR 626 prior to March 28, 2005.  To every extent possible, the pending Form ETA-750 labor certification applications are processed on a first-in-first-out principal; however, due to a variety of factors, DOL processes some cases out of turn.    
• U.S. employers who have not already had a job order placed by the SWA for the original application may withdraw the pending Form ETA-750 labor certification application and re-file under the new PERM system.  The PERM filing will retain the priority date of the original filing if DOL determines that all of the elements relating to the job opportunity and the alien beneficiary on the newly filed Form ETA-9089 labor certification application are identical to the elements specified on the Form ETA-750 (with the exception of the prevailing wage determination.)  If the new PERM application is not “identical” to the original filing, the PERM application will be assigned a new priority date.  

(D) Labor Certifications filed with DOL on or after March 28, 2005.  Pursuant to 20 CFR 656.17, the Application for Permanent Employment Certification (Form ETA-9089) replaced the Application for Alien Employment Certification (Form ETA-750) on March 28, 2005.   Form ETA-9089 contains all of the pertinent information detailing the specifics of the job offer and the alien beneficiary that were contained in the ETA-750 Part A and Part B.   The ETA-9089 may be filed with DOL through the mail or it may be filed electronically.  To be valid, the Form ETA-9089 must be signed by the U.S. employer in Section N, the alien beneficiary in Section L, and the form Preparer, if any, in Section M; contain the DOL certification stamp; and be signed and dated by the DOL certifying officer in Section “O.” of the form. 

Exception: Employers filing applications on behalf of aliens to be employed as professional athletes on professional team sports will continue to use special procedures that were put in to place prior to the implementation of the PERM regulations.  They will continue to file their applications using the Form ETA-750 and must file the applications at DOL-ETA’s national office in Washington, DC.  The Form ETA-750 is still available on the DOL-ETA website. 

U.S. employers commonly, and mistakenly, believe that an approved labor certification means that DOL has also certified that the alien beneficiary named on the labor certification qualifies for the position.  This is not accurate, as the authority to determine qualifications for nonimmigrant and immigrant classifications rests with USCIS.  An approved labor certification means that the petitioning employer made a good faith effort to test the labor market and demonstrated to DOL that there were no qualified, able, and available U.S. workers for the position.  DOL requires a statement of qualifications of the alien and supporting documentation to:  

• Help ensure that the procedure for seeking labor certification is actually based on a need for the services of a specific individual, thereby eliminating the possibility that petitioners or agents will apply for "blanket type" certifications in advance for unknown individuals, just in case an actual need for someone arises, and 
• Help guarantee that the proposed job description on the offer of employment submitted by the petitioner is not tailored to the specific skills, education, or experience of the alien beneficiary, thereby calling into question whether a bona fide job opportunity actually exists.  

You must determine whether the beneficiary has met the minimum education, training, and experience requirements of the labor certification at the time the application for labor certification was filed with DOL.  You cannot approve a petition for a preference classification if the beneficiary was not fully qualified for the preference by the priority date of the labor certification (See Matter of Katigbak, 14 I. & N. Dec. 45 (R.C. 1971) and Matter of Wing's Tea House, 16 I. & N. Dec. 158 (Acting R.C. 1977).