Employment Law Guide
Chapter: Immigration for Workers Obtaining Permanent Employment in the United
Updated: September 2005
Sections 203 and
212(a)(5)(A) of the Immigration and Nationality Act
USC §1101 et seq;
20 CFR Part 656 (PDF))
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
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.
The Employment Law Guide is offered as a public resource. It
does not create new legal obligations and it is not a substitute for the U.S.
Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information
provided is complete and accurate as of the time of publication, and this will
continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our Toll-Free
Help Line at 1-866-4-USA-DOL (1-866-487-2365).