Pursuant to 20 CFR 656.17 the Application for Permanent Employment Certification Form ETA-9098 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 information that were contained in the ETA-750 Part A and Part B.

Form ETA -9089 has been designed to be completed in a web-based environment and submitted electronically or to be completed by hand and submitted by mail. The majority of the items on the application form consist of questions that require the employer to check Yes, No, or NA (not applicable) as a response. The application form also requires the employer to describe the job and specific skills or other requirements.
The standards used in adjudicating applications are based on:

Whether the employer has met the procedural requirements of the regulations;

Whether there are insufficient U.S. workers who are able, willing, qualified and available; and whether the employment of the alien will have an adverse effect on the wages and working conditions of U.S. workers similarly employed.

Employers are required to obtain a Prevailing Wage Determination from the State Workforce Agency (SWA). The SWA upon receiving such request will, evaluate the particulars of the employer's job offer, such as the job duties and requirements for the position and the geographic area in which the job is located, to arrive at a Prevailing Wage Determination. The prevailing wage must be the prevailing wage at the time the recruitment was conducted for the application for which the employer is seeking certification, not the prevailing wage when the alien beneficiary was initially hired. An employer must pay 100% of the prevailing wage or more but not less.

Employers are required to conduct recruitment before filing their applications; this is called pre filing recruitment the recruitment requirement varies depending on whether the application is for a professional occupation or non professional occupation.
Basically Employers are required to place a job order and two Sunday newspaper advertisements. If the application is for a professional occupation, the employer is required to conduct three additional recruitment steps that the employer chooses from a list of alternative recruitment steps published in the regulation.

Before filing the application, the employer is required to have provided notice of the filing to the bargaining representative or, if there is no bargaining representative, to employees employed at the facility through posting in conspicuous places. The purpose of this notice requirement is to provide any person with the opportunity of submitting documentary evidence bearing on the application for certification (such as information on available workers, information on wages and working conditions, and information on the employer's failure to meet the terms and conditions with respect to the employment of alien workers and co-workers). The posting must be published in any and all in-house media in accordance with the normal procedures used for the recruitment of other similar positions.

Where an employer during the recruitment process hires a U.S. worker for the job opening, the process stops at that point, unless the employer has more than one opening, in which case the application may continue to be processed.

An employer is not required to submit any documentation with its application, but will be expected to maintain the supporting documentation specified in the regulations. The employer will be required to provide the supporting documentation in the event its application is selected for audit and as otherwise requested by a Certifying Officer. The essence of requesting and submitting such documentation is to verify and support its answers, attestations and other Information provided on the form.

However, on any application, the Certifying Officer has the authority to request additional information before making a final determination. The Certifying Officer may also order supervised recruitment for the employer's job opportunity, such as where questions arise regarding the adequacy of the employer's test of the labor market. If a job opportunity is not open to U.S. workers, it is not eligible for labor certification. The job requirements, unless adequately arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation assigned to the occupation as shown in the O*Net Job Zones .

If the Secretary of Labor, through the Employment and Training Administration (ETA), determines there are no able, willing, qualified, and available U.S. workers and employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers, DOL so certifies to the Department of Homeland Security and to the Department of State by issuing a permanent alien labor certification.

If DOL cannot make both of the above findings, the application for permanent alien employment certification will be denied. At that point the process cannot move forward.

If an application has satisfied the necessary requirements, the application will be certified and returned to the employer. A certified labor certification is valid for 180 days. The employer is required to immediately sign the certified application and then submit it to USCIS in support of an employment-based I-140 petition within the validity period.                                                                                                                Back to Top

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.

The beneficiary must have met the minimum education, training, and experience requirements of the labor certification at the time the application for labor certification was filed with DOL. A petition for a preference classification will not be approved if the beneficiary was not fully qualified for the preference classification by the priority date of the labor certification

Accordingly, 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, USCIS 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.

Exception: