Labor Certification is the first step in the EB-2 and EB-3 preference filing process. Labor Certification is not required for the EB-1 preference group, and labor certification can be waived for the EB-2 preference category if a National Interest Waiver is approved.
Under the labor certification process, the employer acts as the petitioner and the alien employee is the beneficiary. The labor certification application is filed with the Department of Labor. The Department of Labor must certify to the US Citizenship and Immigration Services that there are no qualified US workers able, available, willing and qualified to accept the employment opportunity. Additionally, the Department of Labor must find that employment of the alien will not adversely affect the wages and working conditions of US workers similarly employed.
There are several steps to the Labor Certification Process. First, the employer must request a prevailing wage determination from the State Workforce Agency for the employment position. Second, the employer must take part in pre-filing recruitment. The employer must advertise the position and retain any and all resumes and/or employment applications. The employer must prepare a recruitment report, which details the reasons for denying other applicants. Third, the employer must complete and file the ETA Form 9089. The supporting documentation is not filed with the ETA 9089; however, the employer must retain the documents in case of an audit. The filing can be done either by mail or online. After filing, the employer will either receive an approval or an audit request. If an audit is ordered, the supporting documentation must be provided to the Department of Labor within 30 days.
After the labor certification process is complete, the employer must file an I-140 visa petition on behalf of the alien worker. Additionally, the employer must file an I-485 adjustment application to adjust the worker's status to permanent resident.