The Department of Labor (DOL) offers permanent labor certifications to employers seeking to hire an alien worker to a permanent position in the United States.  The idea behind a permanent labor certification is to protect the interests of American workers, and this is reflected in the standards that the DOL uses to determine whether or not to approve an employer’s application.

There are three main factors that the DOL takes into consideration when evaluating an application for permanent labor certification.  The first factor is whether or not there are able bodied, willing, and qualified citizens of the United States who could fill the position.  In other words, the DOL wants to know whether the alien will be taking a position that would otherwise be filled by an American worker.  If it is determined that the position can be reasonably filled by an American, the application will be denied.

The second question is whether the employment of the alien will have an adverse effect on the wages and working conditions of similarly employed United States workers.  If the position to be filled by the alien worker is significantly below the established wage and condition standards of similarly situated American workers, then the employer will not be able to hire the alien worker.

In addition to protecting the availability and quality of jobs for American workers, the employer needs to meet the procedural requirements, which includes the filing of ETA Form 9089. 

Requirements of ETA Form 9089

The applicant employer has to explain how the prospective alien worker came to get the job.  In essence, the applicant employer must explain the entire recruitment process.  The applicant employer must also explain the duties that the job entails as well as the prerequisites – including education, training, and experience required.  This is to be accompanied by the alien’s relevant education and experience.  Documentation of this information is not required, but must be produced upon request, which typically occurs only if the DOL decides to audit the application.

The required recruitment process depends on the nature of the job.  Employers of Schedule A occupations must attest to having conducted recruitment according to the standards for professional occupations outlined in 20 CFR 656.17(e)(1).  All other occupations not normally requiring a bachelor’s degree or higher have less restrictive standards which are laid out in 20 CFR 656.17(e)(2).

The application also requires certain signatures.  Those submitted by mail must contain the original signature of the alien, the employer, and whoever prepared the application prior to mailing.  For those applications filed electronically, the same people must immediately sign after receiving the labor certification from the DOJ. 

Prior to filing ETA Form 9089, the employer must receive a prevailing wage determination from the State Workforce Agency that has jurisdiction over the area of employment.  This determination, to be included with ETA Form 9089, provides the prevailing wage, the occupation title, the requisite skill level, the wage source, the determination date, and the expiration date.  This information should back up the assertions made by the employer regarding the position to be filled and the potential employee.

ETA Form 9089 may be filed either online or through the mail.  Applications may be submitted online here.  For applicants who choose to file through the mail, the completed and signed Form 9089 (instructions and a link to download the form may be found here) must be mailed to:

US Department of Labor

Employment and Training

National Processing Center

Harris Tower

233 Peachtree Street, Suite 410

Atlanta, Georgia 30303