One of the most common ways that foreign workers obtain U.S. green cards is by finding a U.S. employer to sponsor the worker. Although there are several different types of employment-based green cards, in general U.S. employers must begin by completing a process known as "labor certification" or "PERM" in order to successfully sponsor the foreign worker for a green card.
The PERM process requires the U.S. employer to test the U.S. job market by posting advertisements for the foreign worker’s proposed position. The employer must certify to the U.S. Department of Labor (DOL) that no qualified U.S. workers applied for the job. (The point of the PERM process is to ensure that U.S. employers are not using foreign workers to displace U.S. workers.)
Once the employer finishes the recruitment process, the employer files the ETA Form 9089 electronically with the DOL. This form documents the employer’s recruitment efforts and provides the DOL with information regarding the recruitment process, the job opportunity, the employer, and the foreign worker.
This article provides step-by-step instructions for a U.S. employer to complete and file an ETA Form 9089. (Please note that the ETA Form 9089 is the last part of the PERM strategy and recruitment process. The others steps, such as planning the job requirements and duties, and posting the advertisements, must be finalized and completed prior to submitting the ETA 9089.)
The most important thing for an employer to remember when completing an ETA Form 9089 is that every detail matters. The DOL may deny an ETA Form 9089 for what seem to be insignificant typographical errors, such as a misspelling in the employer’s name or address. It is very unfortunate when the DOL denies an ETA Form 9089 due to a typo that could have been corrected.
Another thing to remember is that employers complete and submit the ETA Form 9089 electronically. As with most websites, the ETA website can experience difficulties, bugs, or defects that affect the application. Employers should always make sure to save the application every few minutes and review every section carefully each time they log on to the website.
Additionally, in order to complete the ETA Form 9089, the employer must create an account. The account will have a special username, password, and PIN. Employers should record this information in a secure location, as it will be needed to complete and submit the application.
The following sections are ones that tend to give employers the most trouble when completing the ETA Form 9089. Please also see our FAQ for answers to common questions about this form.
The employer should make sure to transpose the exact information from the prevailing wage determination onto this section of the form. The prevailing wage tracking number, wage, and dates are critical information, which the DOL looks at when evaluating the ETA Form 9089. Additionally, note that this section of the forms asks for the Occupation Title. This title may be different from the actual JOB title. For example, if the job title is "Programmer Analyst" the occupation title on the prevailing wage determination will most likely be "Computer Systems Analyst." In this section of the form, state "Computer Systems Analyst" as the occupation title (and NOT Programmer Analyst).
The employer must indicate the correct offered wage. Sometimes the offered wage is the same as the prevailing wage, but often the offered wage is higher. For example, let's say the worker is a Cardiologist and the prevailing wage for the position in that area is $180,000 per year. However, the employer values the worker very highly and is going to pay him or her $250,000 per year (remember, the prevailing wage is the basement wage the employer has to pay -- the employer can always pay more). In this section, employer must put $250,000 as the offered wage.
This is typically the most important part of the entire application. As previously explained, the job requirements and duties will already have been determined before the ETA Form 9089 is submitted. These requirements and duties must be put in the form exactly as they appeared in the advertisements.
H8: This particular subsection may be troublesome to employers who have not filed ETA Form 9089s before. It explains alternate job requirements. Some employers may hire workers who possess different qualifications for the same job. For example, let’s say the position is for a Market Research Analyst. The job requirements are a Master’s in Marketing and one year's experience as a Market Research Analyst. Or, the employer would accept a candidate who has a Bachelor’s in Marketing and five years' experience as a Market Research Analyst. The requirements of Bachelor’s Degree plus five years' experience are considered alternate requirements. In this case, the employer should select "yes" to H8, select "Bachelor’s" in H8A and write "5" in H8C.
This section is also important, because it explains to the DOL the recruitment steps the employer took in advertising for the job opportunity. Putting the correct dates for the advertisements is exceedingly important, because the DOL may require the employer to provide copies of the advertisements. These copies should show the dates the advertisements ran, and the DOL will compare the copies to the ETA Form 9089 to make sure the information is correct and consistent. Additionally, employers cannot include advertisements that are more than 180 days old on the ETA Form 9089. Therefore, if the employer accidentally states that an advertisement ran on December 1, 2004, when the ad actually ran on December 1, 2014, this mistake will likely result in a denial of the ETA Form 9089.
Subsection J17-23 requires the employer to explain how the foreign worker qualifies for the job opportunity. These are "yes/no" questions that must be answered carefully to ensure the DOL receives the correct information. Confusion usually results when the job opportunity has alternate requirements. Taking the example above regarding the Market Research Analyst position, let’s say that the worker does not possess the primary requirements, lacking a Master’s Degree. Rather, the worker meets the alternate requirements, having the requisite Bachelor’s Degree and years of experience. In this situation, the employer should check "yes" to question H19. If instead the worker possesses the Master’s Degree and one year of experience, the employer should select "no" to question H19.
Processing of the ETA Form 9089 will take several months, and The DOL can either approve or deny the ETA Form 9089. If your application is denied, you can file a request for reconsideration. For detail on that process, see Appealing a Denied ETA Form 9089.
The PERM process and ETA Form 9089 present the most complex immigration processing issues. It is highly recommended that you consult an experienced immigration attorney before beginning the PERM and ETA Form 9089 process.