Employers wishing to sponsor foreign national workers for permanent residency, commonly referred to as a green card, must generally follow the permanent labor certification process (PERM). This process requires employers to test the job market for any U.S. workers who are able, willing, qualified, and available to fill the offered job opportunity. In order to do this, employers must take specific recruitment steps designed to ensure that U.S. workers are not adversely affected. U.S. Citizenship and Immigration Services (USCIS) recently confirmed certain filing procedures regarding the green card process through PERM.
Green Card Sponsorship through Labor Certification
The green card process through labor certification entails three main steps:
- Permanent Labor Certification: Employers must first obtain a prevailing wage determination from the U.S. Department of Labor (DOL) after describing the position duties and requirements on the request Form ETA-9141. This ensures that the offered wage meets or exceeds the minimum standards for the position in the area of employment. Following this, employers are required to conduct a recruitment campaign to test the labor market for qualified U.S. workers. This includes advertising the position and documenting the results. If the recruitment does not result in locating a qualified U.S. worker, employers can then submit the labor certification application to the DOL, using the online Form ETA-9089.
- Filing the I-140 Petition: Once DOL certifies the ETA-9089, the employer must file an I-140 Petition with USCIS. This petition must include proof of the labor certification, along with evidence that the sponsored worker's qualifications meet the position requirements and that the employer has the ability to pay the offered wage.
- Adjustment of Status or Immigrant Visa Process: The final step involves either filing Form I-485 for adjustment of status with USCIS or going through the consular immigrant visa process, which is managed by the U.S. Department of State. This step marks the employee's actual green card application.
The entire process can take years due to the lengthy nature of each step. The first step, which includes the prevailing wage determination, recruitment campaigns, and the adjudication of the Form ETA-9089, can take 18 months to two years. The I-140 petition stage can take between 15 days to over a year, depending on whether the case is submitted through the government's Premium Processing Service by paying an extra fee to USCIS. The final stage, whether through adjustment of status or the immigrant visa process, can take anywhere from a few months to many years, depending on the worker's country of birth and the demand under the specific employment-based category (EB-2 or EB-3).
Recent Changes to the ETA-9089 Submission Process
In June 2023, the DOL transitioned from the legacy Permanent Online System to the Foreign Labor Application Gateway (FLAG) system for ETA-9089 submissions. This change is part of the DOL's technology modernization initiative aimed at improving customer service and streamlining the administration of foreign labor certification programs. It currently takes about 13 to 14 months for the ETA-9089 to be reviewed by the DOL and employers are already beginning to receive certifications for ETA-9089 submissions through the FLAG system.
When the DOL certifies the new version of the Form ETA-9089, it issues two critical documents:
- Certified Form ETA-9089: This document includes all the information submitted in the labor certification application, along with the certification date and expiration date.
- Final Determination Document: This two-page
document is labeled “PERMANENT EMPLOYMENT CERTIFICATION
APPROVAL” and is crucial for the I-140 petition. It consists
of several sections:
- Section A: Completed by the DOL, containing the DOL case number, petitioner's name, beneficiary's name, job title, SOC code, filing date, determination date, and expiration date for the Form ETA-9089, along with the DOL's certification signature.
- Section B: The foreign national beneficiary's declaration, which must be signed.
- Section C: The attorney's or representative's declaration, which must be completed and signed.
- Section D: The employer's declaration, which must also be completed and signed.
Notably, the new version of the Form ETA-9089 does not include sections describing the job opportunity and its requirements. As it stands, the necessary details regarding the position description and requirements are captured only in the prevailing wage determination and the recruitment materials.
Clarification from USCIS Regarding I-140 Submission Requirements
Because the new ETA-9089 form lacks details relating to the job opportunity, the American Immigration Lawyers Association (AILA) recently sought clarification from USCIS regarding what employers should include with I-140 Petitions related to the new version of the ETA-9089 form. USCIS has confirmed that when submitting PERM-based I-140 Petitions, employers must include the following documents related to the new ETA-9090 version: “If the immigrant visa classification requires a labor certification which is certified by the DOL (e.g. EB-2 and EB-3), the petitioner must submit, along with the Form I-140, the two-page Final Determination document which is certified and issued to the petitioner by the DOL. As noted above, the document must be signed by each of the parties involved in the petition (i.e., the petitioner, the beneficiary, and the attorney or representative). The petitioner is not required to submit any other portions of the Form ETA-9089, or the Prevailing Wage Determination (also referred to as the ETA-9141 form). The data contained on these documents will be transmitted by the DOL to USCIS and USCIS will be able to review the data in its systems.”
USCIS also provided clarification on what should be included when filing I-140 petitions for Schedule A and National Interest Waiver cases, which are not discussed in this article.
Even though the new ETA-9089 Form and the Prevailing Wage Determination do not have to be submitted to USCIS with PERM-based I-140 petitions, Petitioners must ensure that these documents and the information submitted to USCIS are consistent in order to avoid potential challenges from USCIS should there be a discrepancy. For example, the Form I-140 and the Letter in Support from the employer should contain the same job opportunity details listed on the Prevailing Wage Determination. Likewise, the employee's credentials and qualifications for the position should be fully documented in order to match the information provided on the ETA-9089 Form Appendices related to the sponsored foreign national.
Conclusion
The labor certification process is rigorous and lengthy, involving multiple moving parts. The recent changes to the ETA-9089 form and the transition to the FLAG system have streamlined the process, resulting in successful certifications despite initial challenges. Given the complexities involved, employers are encouraged to contact experienced immigration counsel for assistance with the labor certification process, including all three steps. Our Immigration Practice Group is available to assist with the process and answer any questions related to the new Form ETA-9089 and its inclusion with I-140 Petitions.
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