In the case where a foreign physician wishes to be considered for a green card (permanent residence visa) via permanent employment in the U.S., their prospective employer must first obtain a labor certification approval (LCA) from the Department of Labor (DOL). LCA's are required under two employment-based preference categories for foreign physicians seeking permanent residence: EB-2 and EB-3 (for more information on these categories see the article Employment-based Preference Categories For Green Card Visas). This article discusses the LCA application filing process for these employment-based preference categories.
The filing process is as follows:
- The employer must complete an Application for Permanent Employment Certification, ETA Form 9089. They employer must describe in detail the job duties, educational requirements, training, experience, and other special skills the employee must possess to perform the work, and outline the foreign physician's qualifications.
- Applications submitted by mail must contain the original signature of the employer, foreign physician, and preparer, if applicable, when they are received by the National Processing Center (NPC). Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, foreign worker, and preparer, if applicable, in order to be valid.
- Prior to filing ETA Form 9089, the employer must request and obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC). The employer is required to include on the ETA Form 9089 the NPWC provided information: 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.
- All employers filing the ETA Form 9089 must attest, in addition to a number of other conditions of employment, 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 whichnormally 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 may not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
- The employer is required to retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the ETA Form 9089. 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.
The employer has the option of filing by paper or electronically. DOL strongly encourages electronic filing, both because it is 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 http://www.plc.doleta.gov and register to create an account so as to complete and submit an Application for Permanent Employment Certification, ETA Form 9089.
If the Atlanta NPC approves the application, the ETA Form 9089 is signed by the Certifying Officer and returned to the employer who submitted the application. Once the DOL-approved LCA is received, the employer then files form I-140 (Immigrant Petition for Alien Worker) with the U.S. Citizenship and Immigration Services (USCIS) for the EB-2 or EB-3 applicable to the case.