Labor Certification

According to the Labor Department:

No, the employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.

According to the Labor Department:

When entering the years of experience, education, or training on ETA Form 9089, the questions asking for this type of information specify the answer be provided in the number of months necessary. Therefore, if the employer requires 1 year experience in the job offered in ETA Form 9089, the number 12 (for 12 months) would be entered for the answer to Question H-6A.

However, if the employer would accept a range of experience in the job offered (such as 1 to 3 years), the employer must identify the actual minimum years/months of experience required to perform the job (please see 656.17(i) for additional information on Actual Minimum Requirements). The number that represents the Actual Minimum Requirement for the number of years/months experience would be the number entered in Question H-6A. If a range is indeed the Actual Minimum Requirement, the employer should use the low end of the range as the answer, since that represents the minimum level of requirement.

According to the Labor Department:

If a labor certification is denied or revoked, the employer may make a request for review to the Board of Alien Labor Certification Appeals (BALCA) by submitting, in writing and within 30 days of the date of the determination, a request to the Certifying Officer who denied or revoked the application.

What is meant by the "employer's being able to place the alien on the payroll" under § 656.10(c)(4)? How does it differ from having funds available to pay the alien's wage or salary in § 656.10(c)(3)?

According to the Labor Department:

The employer may be required, depending on the circumstances, to establish that the position offered is actually available at the time of the alien's proposed entrance into the United States. For example, the employer may be asked to provide evidence that a plant or restaurant, which is in the planning stage or under construction at the time the application is filed, will be completed at the time of the alien's proposed entrance into the United States. While the employer may be fiscally able to pay the alien, other circumstances, such as non-viability of the business itself, may preclude the employer from placing the alien on the payroll.

Will placing an advertisement on America's Job Bank (AJB) satisfy the "web site other than the employer's" additional step requirement for professional occupations?

According to the Labor Department:

Yes, but only if the placement is not being used to satisfy the job order requirement. Where the State Workforce Agency job order placement procedure consists of placement of the job order on AJB, then that job order placement can not be counted as one of the additional recruiting steps.

According to the Labor Department:

The State Workforce Agency will make a determination on the acceptability of the employer-provided survey based on the provisions in §§ 656.40(g)(2) and (3).

According to the Labor Department:

If the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing, must be sent to the National Processing Center to which the application was originally submitted.

According to the Labor Department:

For purposes of the actual minimum requirements provision, the term "contract employee" is intended to include all persons contracted to work for the employer. The broad use of the term under the actual minimum requirements provision is intended to ensure the provision applies to experience gained working for the employer by the alien, whatever the alien's employment status.

Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?

According to the Labor Department:

No, the wage offered must equal or exceed the prevailing wage. The wage must be at least 100% of the prevailing wage. The 5% deviation, permitted under the former regulation, is no longer acceptable.

Should the employer seek the information required regarding the placement of job orders from the State Workforce Agency (SWA) in the area of intended employment?

According to the Labor Department:

Yes, the employer should seek any information required regarding job orders from the SWA. If an employer is not clear on how to place a job order, the employer should check with the SWA responsible for the area of intended employment. Placement of job orders with a SWA must be in accordance with each SWA's rules and regulations. In other words, SWAs place labor certification job orders the same way they place any other job order.

In the event an employer wanted to refile a reduction-in-recruitment (RIR) conversion application, what date would be considered the original filing date (priority date), i.e., is the filing date of the original application the date the traditional recruitment application was filed with the State Workforce Agency (SWA) or the date the application was accepted as a RIR conversion application?

According to the Labor Department:

The original filing date (priority date) is the date the original application was initially accepted for processing by the SWA under the basic labor certification process; it is not the date the application was accepted as a RIR conversion application.

Should I use the procedure described here if I have already heard from the BEC that my case was closed, or have another question about a case?

According to the Labor Department:

No. This process is only for cases about which the employer or their attorney has not heard from the BEC about the case at all. If you believe your case was closed in error due to non-receipt or non-response to a 45-day letter, you should send your request to the BEC where the closed cased was pending, the Dallas BEC at reopenrequest@dal.dflc.us or the Philadelphia BEC at reopenrequest@phi.dflc.us.

If you have another question about a case, it should go to the general information box at info@dal.dflc.us for the Dallas BEC or at info@phi.dflc.us for the Philadelphia BEC.

According to the Labor Department:

The employer must provide the address of the appropriate Certifying Officer for the area of intended employment. Addresses for the National Processing Centers and Certifying Officers, including a chart of the states and territories within their jurisdiction, can be found under the section, How to File, above.

If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?

According to the Labor Department:

Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.

According to the Labor Department:

If the employer disagrees with the skill level assigned to its job opportunity, or if the SWA informs the employer its survey is not acceptable, or if there are other legitimate bases for such a review, the employer is afforded one opportunity to provide supplemental information to the SWA. Additionally, the employer may choose to file a new request for a wage determination or request review by the Certifying Officer.

According to the Labor Department:

What additional documentation may the employer provide to the Certifying Officer when requesting a review of the prevailing wage?

The single opportunity to submit supplemental information to the State Workforce Agency represents the employer's only opportunity beyond the initial filing to include materials in the record that will be before the Certifying Officer in the event of an employer request for review under § 656.41. The appeal stage of the process is not intended to serve as an avenue for the employer to submit new materials relating to a prevailing wage determination.

Is it true that the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination is not acceptable as a means of obtaining a labor certification for professional nurses under Schedule A?

According to the Labor Department:

Yes, the passage of the examination alone is not acceptable; the alien is required to have a CGFNS Certificate. A CGFNS Certificate documents that, in addition to having passed the nursing skills examination, the alien has demonstrated English language proficiency and CGFNS has made a favorable evaluation of the individual's nursing credentials.

How can the employer ensure that no unauthorized use of the employer's personal identification number (PIN) and/or usernames and passwords exists?

According to the Labor Department:

The employer is able to view all applications filed under the employer's account, to include all applications filed under the employer's sub-accounts, and we recommend employers implement a mechanism by which to identify any unauthorized use of the employer's PIN and/or usernames and passwords. We also recommend employers require those persons to whom sub-accounts have been assigned to carefully monitor the accounts for unauthorized activity. If the employer uncovers unauthorized use of the PIN and/or usernames and passwords, the employer must immediately contact the Department of Labor at PLC.HELP@DOL.gov.

NOTE: The employer is advised to set up a sub-account for the attorney or agent. Thereafter, the attorney or agent, using the sub-account's username and password, will be able to access the sub-account and be able to do what is required and/or needed to file labor certification applications on behalf of the employer, depending on the level of access granted by the employer. In filing applications for an employer, the attorney or agent must use the employer's PIN, which is provided to the attorney or agent upon creation of the sub-account along with the sub-account's own username and password. The employer is cautioned that ultimate responsibility for the representations of its attorney and/or agent rests with the employer.

Must the employer request a prevailing wage from a State Workforce Agency (SWA) if a Collective Bargaining Agreement exists or the employer is choosing to use a Davis-Bacon Act or McNamara-O'Hara Service Contract Act wage?

According to the Labor Department:

Yes, the employer must always request a prevailing wage from the SWA having jurisdiction over the proposed area of intended employment. The SWA is responsible for evaluating whether the wage source chosen by the employer is applicable and/or acceptable.

According to the Labor Department:

All cases filed between 1/1/05 and postmarked before 3/28/05 will be processed by the Backlog Processing Centers.