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Labor Certification For EB-2 and EB-3 Employment-based Preference Categories

Posted by Ann Badmus | Apr 08, 2013 | 0 Comments

In order for a foreign physician to be considered for a Green Card, their prospective employer must first obtain a labor certification approval (LCA) from the Department of Labor (DOL). LCAs are required under the EB-2 and EB-3 employment-based preference categories.

The process for seeking labor certification approval is as follows:

The Application

The employer must complete an Application for Permanent Employment Certification (ETA Form 9089), describing in detail the duties of the position, educational requirements, training, experience, and other special skills required by the employee to fulfill the job requirements. The foreign physician's qualifications must also be outlined.

Prevailing Wage Determination

Prior to filing the application, the employer must request and obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC) detailing the prevailing wage, the prevailing wage tracking number, the SOC (O*NET /OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.

Recruitment Attestation

In addition to a number of other conditions of employment, employers must attest to having conducted recruitment prior to filing the application. (When filing under the Basic Labor Certification Process, the employer must recruit using the standards for professional occupations (occupations which normally require a bachelor's or higher degree). Employers are not prohibited from conducting more recruitment than is required by the regulations.

The employer must prepare a recruitment report categorizing the lawful job-related reasons for rejection of U.S. applicants and providing the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity. However, the employer must submit the resumes if requested by the Certifying Officer.

Supporting Documentation

The employer must provide required supporting documentation if the application is selected for audit or if the Certifying Officer requests it. Otherwise, employers may not file supporting documentation with the application.

Retaining Records

The employer must retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing application. For example, the NPWC prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.

Although the application can be filed by paper, DOL strongly encourages electronic filing. This is due to the fact that it is both faster and it ensures that all required information has been provided (an electronic application cannot be submitted until all required fields are completed). Employers can go to and register to create an account so as to complete and submit an Application for Permanent Employment Certification (ETA Form 9089).

About the Author

Ann Badmus

Principal and Managing Attorney


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