Legal References

INA Section 203(b)(2)
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional
ability. (A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such
worldwide level, plus any visas not required for the classes specified in paragraph (1), to
qualified immigrants who are members of the professions holding advanced degrees or their
equivalent or who because of their exceptional ability in the sciences, arts, or business, will
substantially benefit prospectively the national economy, cultural or educational interests, or
welfare of the United States, an d whose services in the sciences, arts, professions, or business
are sought by an employer in the United States.
(B) (i) 1/ 1a/ Subject to clause (ii), the Attorney General may, when the Attorney General deems
it to be in the national interest, waive the requirements of subparagraph (A) that an alien's
services in the sciences, arts, professions, or business be sought by an employer in the United
States.
(ii) (I) The Attorney General shall grant a national interest waiver pursuant to clause (i) on behalf
of any alien physician with respect to whom a petition for preference classification has been filed
under subparagraph (A) if-(aa) the alien physician agrees to work full time as a physician in an area or areas designated by
the Secretary of Health and Human Services as having a shortage of health care professionals or
at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and
(bb) a Federal agency or a department of public health in any State has previously determined
that the alien physician's work in such an area or at such facility was in the public interest.
(II) No permanent resident visa may be issued to an alien physician described in subclause (I) by
the Secretary of State under section 204(b) , and the Attorney General may not adjust the status
of such an alien physician from that of a nonimmigrant alien to that of a permanent resident alien
under section 245 , until such time as the alien has worked full time as a physician for an
aggregate of 5 years (not including the time served in the status of an alien described in
section 101(a)(15)(J) ), in an area or areas designated by the Secretary of Health and Human
Services as having a shortage of health care professionals or at a health care facility under the
jurisdiction of the Secretary of Veterans Affairs.
(III) Nothing in this subparagraph may be construed to prevent the filing of a petition with the
Attorney General for classification under section204(a) , or the filing of an application for
adjustment of status under section 245 , by an alien physician described in subclause (I) prior to
the date by which such alien physician has completed the service described in subclause (II).
(IV) The requirements of this subsection do not affect waivers on behalf of alien physicians
approved under section 203(b)(2)(B) before the enactment date of this subsection. In the case of
a physician for whom an application for a waiver was filed under section 203(b)(2)(B) prior to
November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to section
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203(b)(2)(B) except that the alien is required to have worked full time as a physician for an
aggregate of 3 years (not including time served in the status of an alien described in
section 101(a)(15)(J) ) before a visa can be issued to the alien under section 204(b) or the status
of the alien is adjusted to permanent resident under section 245 .
(C) Determination of exceptional ability. - In determining under subparagraph (A) whether an
immigrant has exceptional ability, the possession of a degree, diploma, certificate, or similar
award from a college, university, school, or other institution of learning or a license to practice or
certification for a particular profession or occupation shall not by itself be considered sufficient
evidence of such exceptional ability.
INA Section 203(b)(3)
(3) Skilled workers, professionals, and other workers.(A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such
worldwide level, plus any visas not required for the classes specified in paragraphs (1) and (2), to
the following classes of aliens who are not described in paragraph (2):
(i) Skilled workers. - Qualified immigrants who are capable, at the time of petitioning for
classification under this paragraph, of performing skilled labor (requiring at least 2 years training
or experience), not of a temporary or seasonal nature, for which qualified workers are not
available in the United States.
(ii) Professionals. - Qualified immigrants who hold baccalaureate degrees and who are members
of the professions.
(iii) Other workers. - Other qualified immigrants who are capable, at the time of petitioning for
classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal
nature, for which qualified workers are not available in the United States.
(B) Limitation on other workers. - Not more than 10,000 of the visas made available under this
paragraph in any fiscal year may be available for qualified immigrants described in subparagraph
(A)(iii).
(C) Labor certification required.- An immigrant visa may not be issued to an immigrant under
subparagraph (A) until the consular officer is in receipt of a determination made by the Secretary
of Labor pursuant to the provisions of section 212(a)(5)(A) .
INA Section 212(a)(5)(A)
5) Labor certification and qualifications for certain immigrants.(A) Labor certification.(i) In general.-Any alien who seeks to enter the United States for the purpose of performing
skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and
certified to the Secretary of State and the Attorney General that2

(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the
case of an alien described in clause (ii)) and available at the time of application for a visa and
admission to the United States and at the place where the alien is to perform such skilled or
unskilled labor, and
(II) the employment of such alien will not adversely affect the wages and working conditions of
workers in the United States similarly employed.
(ii) Certain aliens subject to special rule.-For purposes of clause (i)(I), an alien described in this
clause is an alien who(I) is a member of the teaching profession, or
(II) has exceptional ability in the sciences or the arts.
(iii) 7PROFESSIONAL ATHLETES(I) In general.-A certification made under clause (i) with respect to a professional athlete shall
remain valid with respect to the athlete after the athlete changes employer, if the new employer is
a team in the same sport as the team which employed the athlete when the athlete first applied for
certification.
(II) Definition.-For purposes of subclause (I), the term "professional athlete" means an individual
who is employed as an athlete by(aa) a team that is a member of an association of 6 or more professional sports teams whose total
combined revenues exceed $10,000,000 per year, if the association governs the conduct of its
members and regulates the contests and exhibitions in which its member teams regularly engage;
or
(bb) any minor league team that is affiliated with such an association.
(iv) 7LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i)
with respect to an individual whose petition is covered by section 204(j) shall remain valid with
respect to a new job accepted by the individual after the individual changes jobs or employers if
the new job is in the same or a similar occupational classification as the job for which the
certification was issued.
8 CFR § Sec. 204.5 Petitions for employment-based immigrants.
(a) General . A petition to classify an alien under section 203(b)(1) , 203(b)(2), or 203(b)(3) of
the Act must be filed on Form I-140, Petition for Immigrant Worker. A petition to classify an
alien under section 203(b)(4) (as it relates to special immigrants under section 101(a)(27)(C) )
must be filed on Form I-360, Petition for Amerasian, Widow, or Special Immigrant. A separate
Form I-140 or I-360 must be filed for each beneficiary, accompanied by the applicable fee. A
petition is considered properly filed if it is:
(1) Accepted for processing under the provisions of part 103;
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(2) Accompanied by any required individual labor certification, application for Schedule A
designation, or evidence that the alien's occupation qualifies as a shortage occupation within the
Department of Labor's Labor Market Information Pilot Program; and
(3) Accompanied by any other required supporting documentation.
(b) Jurisdiction . Form I-140 or I-360 must be filed in accordance with the instructions on the
form . (Amended effective 7/6/09; 74 FR 26933 )
(c) Filing petition . Any United States employer desiring and intending to employ an alien may
file a petition for classification of the alien under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2) ,
or 203(b)(3) of the Act. An alien, or any person in the alien's behalf, may file a petition for
classification under section 203(b)(1)(A) or 203(b)(4) of the Act (as it relates to special
immigrants under section 101(a)(27)(C) of the Act).
(d) Priority date . The priority date of any petition filed for classification under section 203(b) of
the Act which is accompanied by an individual labor certification from the Department of Labor
shall be the date the request for certification was accepted for processing by any office within the
employment service system of the Department of Labor. The priority date of any petition filed
for classification under section 203(b) of the Act which is accompanied by an application for
Schedule A designation or with evidence that the alien's occupation is a shortage occupation
within the Department of Labor 's Labor Market Information Pilot Program shall be the date the
completed, signed petition (including all initial evidence and the correct fee) is properly filed
with the Service. The priority date of a petition filed for classification as a special immigrant
under section 203(b)(4) of the Act shall be the date the completed, signed petition (including all
initial evidence and the correct fee) is properly filed with the Service. The priority date of an
alien who filed for classification as a special immigrant prior to October 1, 1991, and who is the
beneficiary of an approved I-360 petition after October 1, 1991, shall be the date the alien
applied for an immigrant visa or adjustment of status. In the case of a special immigrant alien
who applied for adjustment before October 1, 199 1, Form I-360 may be accepted and
adjudicated at a Service District Office or sub-office. (Amended 6/27/96; 61 FR 33304 )
(e) Retention of section 203(b)(1) , (2) , or (3) priority date. -- A petition approved on behalf of
an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the
approved petition for any subsequently filed petition for any classification under sections
203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the
beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be
entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act
will not confer a priority date, nor will any priority date be established as a result of a denied
petition. A priority date is not transferable to another alien.
(f) Maintaining the priority date of a third or sixth preference petition filed prior to October 1,
1991. -- Any petition filed before October 1, 1991, and approved on any date, to accord status
under section 203(a)(3) or 203(a)(6) of the Act, as in effect before October 1, 1991, shall be
deemed a petition approved to accord status under section 203(b)(2) or within the appropriate
classification under section 203(b)(3), respectively, of the Act as in effect on or after October 1,
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1991, provided that the alien applies for an immigrant visa or adjustment of status within the two
years following notification that an immigrant visa is immediately available for his or her use.
(g) Initial evidence -(1) General. Specific requirements for initial supporting documents for the various employmentbased immigrant classifications are set forth in this section. In general, ordinary legible
photocopies of such documents (except for labor certifications from the Department of Labor)
will be acceptable for initial filing and approval. However, at the discretion of the director,
original documents may be required in individual cases. Evidence relating to qualifying
experience or training shall be in the form of letter(s) from current or former employer(s) or
trainer(s) and shall include the name, address, and title of the writer, and a specific description of
the duties performed by the alien or of the training received. If such evidence is unavailable,
other documentation relating to the alien's experience or training will be considered.
(2) Ability of prospective employer to pay wage. Any petition filed by or for an employmentbased immigrant which requires an offer of employment must be accompanied by evidence that
the prospective United States employer has the ability to pay the proffered wage. The petitioner
must demonstrate this ability at the time the priority date is established and continuing until the
beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the
form of copies of annual reports, federal tax returns, or audited financial statements. In a case
where the prospective United States employer employs 100 or more workers, the director may
accept a statement from a financial officer of the organization which establishes the prospective
employer's ability to pay the proffered wage. In appropriate cases, additional evidence, such as
profit/loss statements, bank account records, or personnel records, may be submitted by the
petitioner or requested by the Service.
(h) Aliens with extraordinary ability-(1) An alien, or any person on behalf of the alien, may file an I-140 visa petition for
classification under section 203(b)(1)(A) of the Act as an alien of extraordinary ability in the
sciences, arts, education, business, or athletics.
(2) Definition. As used in this section:
Extraordinary ability means a level of expertise indicating that the individual is one of that small
percentage who have risen to the very top of the field of endeavor.
(3) Initial evidence. A petition for an alien of extraordinary ability must be accompanied by
evidence that the alien has sustained national or international acclaim and that his or her
achievements have been recognized in the field of expertise. Such evidence shall include
evidence of a one-time achievement (that is, a major, internationally recognized award), or at
least three of the following:
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes
or awards for excellence in the field of endeavor;
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(ii) Documentation of the alien's membership in associations in the field for which classification
is sought, which require outstanding achievements of their members, as judged by recognized
national or international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major trade publications or other major
media, relating to the alien's work in the field for which classification is sought. Such evidence
shall include the title, date, and author of the material, and any necessary translation;
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work
of others in the same or an allied field of specialization for which classification is sought;
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related
contributions of major significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major
trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or
establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high
remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or
record, cassette, compact disk, or video sales.
(4) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may
submit comparable evidence to establish the beneficiary's eligibility.
(5) No offer of employment required. Neither an offer for employment in the United States nor a
labor certification is required for this classification; however, the petition must be accompanied
by clear evidence that the alien is coming to the United States to continue work in the area of
expertise. Such evidence may include letter(s) from prospective employer(s), evidence of
prearranged commitments such as contracts, or a statement from the beneficiary detailing plans
on how he or she intends to continue his or her work in the United States.
(i) Outstanding professors and researchers.
(1) Any United States employer desiring and intending to employ a professor or researcher who
is outstanding in an academic field under section 203(b)(1)(B) of the Act may file an I-140 visa
petition for such classification.
(2) Definitions. As used in this section:

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Academic field means a body of specialized knowledge offered for study at an accredited United
States university or institution of higher education. Permanent, in reference to a research
position, means either tenured, tenure-track, or for a term of indefinite or unlimited duration, and
in which the employee will ordinarily have an expectation of continued employment unless there
is good cause for termination.
(3) Initial evidence. A petition for an outstanding professor or researcher must be accompanied
by:
(i) Evidence that the professor or researcher is recognized internationally as outstanding in the
academic field specified in the petition. Such evidence shall consist of at least two of the
following:
(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement
in the academic field;
(B) Documentation of the alien's membership in associations in the academic field which require
outstanding achievements of their members;
(C) Published material in professional publications written by others about the alien's work in the
academic field. Such material shall include the title, date, and author of the material, and any
necessary translation;
(D) Evidence of the alien's participation, either individually or on a panel, as the judge of the
work of others in the same or an allied academic field;
(E) Evidence of the alien's original scientific or scholarly research contributions to the academic
field; or
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with
international circulation) in the academic field;
(ii) Evidence that the alien has at least three years of experience in teaching and/or research in
the academic field. Experience in teaching or research while working on an advanced degree will
only be acceptable if the alien has acquired the degree, and if the teaching duties were such that
he or she had full responsibility for the class taught or if the research conducted toward the
degree has been recognized within the academic field as outstanding. Evidence of teaching
and/or research experience shall be in the form of letter(s) from current or former employer(s)
and shall include the name, address, and title of the writer, and a specific description of the duties
performed by the alien; and
(iii) An offer of employment from a prospective United States employer. A labor certification is
not required for this classification. The offer of employment shall be in the form of a letter from:
(A) A United States university or institution of higher learning offering the alien a tenured or
tenure-track teaching position in the alien's academic field;
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(B) A United States university or institution of higher learning offering the alien a permanent
research position in the alien's academic field; or
(C) A department, division, or institute of a private employer offering the alien a permanent
research position in the alien's academic field. The department, division, or institute must
demonstrate that it employs at least three persons full-time in research positions, and that it has
achieved documented accomplishments in an academic field.
(j) Certain multinational executives and managers.
(1) A United States employer may file a petition on Form I-140 for classification of an alien
under section 203(b)(1)(C) of the Act as a multi-national executive or manager.
(2) Definitions. As used in this section:
Affiliate means:
(A) One of two subsidiaries both of which are owned and controlled by the same parent or
individual;
(B) One of two legal entities owned and controlled by the same group of individuals, each
individual owning and controlling approximately the same share or proportion of each entity; or
(C) In the case of a partnership that is organized in the United States to provide accounting
services, along with managerial and/or consulting services, and markets its accounting services
under an internationally recognized name under an agreement with a worldwide coordinating
organization that is owned and controlled by the member accounting firms, a partnership (or
similar organization) that is organized outside the United States to provide accounting services
shall be considered to be an affiliate of the United States partnership if it markets its accounting
services under the same internationally recognized name under the agreement with the
worldwide coordinating organization of which the United States partnership is also a member.
Doing business means the regular, systematic, and continuous provision of goods and/or services
by a firm, corporation, or other entity and does not include the mere presence of an agent or
office.
Executive capacity means an assignment within an organization in which the employee
primarily:
(A) Directs the management of the organization or a major component or function of the
organization;
(B) Establishes the goals and policies of the organization, component, or function;
(C) Exercises wide latitude in discretionary decision-making; and

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(D) Receives only general supervision or direction from higher level executives, the board of
directors, or stockholders of the organization.
Managerial capacity means an assignment within an organization in which the employee
primarily:
(A) Manages the organization, or a department, subdivision, function, or component of the
organization;
(B) Supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department or
subdivision of the organization;
(C) If another employee or other employees are directly supervised, has the authority to hire and
fire or recommend those as well as other personnel actions (such as promotion and leave
authorization), or, if no other employee is directly supervised, functions at a senior level within
the organizational hierarchy or with respect to the function managed; and
(D) Exercises direction over the day-to-day operations of the activity or function for which the
employee has authority.
Multinational means that the qualifying entity, or its affiliate or subsidiary, conducts business in
two or more countries, one of which is the United States.
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half
of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint
venture and has equal control and veto power over the entity; or owns, directly or indirectly, less
than half of the entity, but in fact controls the entity.
(3) Initial evidence-(i) Required evidence. A petition for a multinational executive or manager must be accompanied
by a statement from an authorized official of the petitioning United States employer which
demonstrates that:
(A) If the alien is outside the United States, in the three years immediately preceding the filing of
the petition the alien has been employed outside the United States for at least one year in a
managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate
or subsidiary of such a firm or corporation or other legal entity; or
(B) If the alien is already in the United States working for the same employer or a subsidiary or
affiliate of the firm or corporation, or other legal entity by which the alien was employed
overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the
entity abroad for at least one year in a managerial or executive capacity;

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(C) The prospective employer in the United States is the same employer or a subsidiary or
affiliate of the firm or corporation or other legal entity by which the alien was employed
overseas; and
(D) The prospective United States employer has been doing business for at least one year.
(ii) Appropriate additional evidence. In appropriate cases, the director may request additional
evidence.
(4) Determining managerial or executive capacities.
(i) Supervisors as managers. A first-line supervisor is not considered to be acting in a managerial
capacity merely by virtue of his or her supervisory duties unless the employees supervised are
professional.
(ii) Staffing levels. If staffing levels are used as a factor in determining whether an individual is
acting in a managerial or executive capacity, the reasonable needs of the organization,
component, or function, in light of the overall purpose and stage of development of the
organization, component, or function, shall be taken into account. An individual shall not be
considered to be acting in a managerial or executive capacity merely on the basis of the number
of employees that the individual supervises or has supervised or directs or has directed.
(5) Offer of employment. No labor certification is required for this classification; however, the
prospective employer in the United States must furnish a job offer in the form of a statement
which indicates that the alien is to be employed in the United States in a managerial or executive
capacity. Such letter must clearly describe the duties to be performed by the alien.
(k) Aliens who are members of the professions holding advanced degrees or aliens of exceptional
ability.
(1) Any United States employer may file a petition on Form I-140 for classification of an alien
under section 203(b)(2) of the Act as an alien who is a member of the professions holding an
advanced degree or an alien of exceptional ability in the sciences, arts, or business. If an alien is
claiming exceptional ability in the sciences, arts, or business and is seeking an exemption from
the requirement of a job offer in the United States pursuant to section 203(b)(2)(B) of the Act,
then the alien, or anyone in the alien's behalf, may be the petitioner.
(2) Definitions. As used in this section:
Advanced degree means any United States academic or professional degree or a foreign
equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign
equivalent degree followed by at least five years of progressive experience in the specialty shall
be considered the equivalent of a master's degree. If a doctoral degree is customarily required by
the specialty, the alien must have a United States doctorate or a foreign equivalent degree.

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Exceptional ability in the sciences, arts, or business means a degree of expertise significantly
above that ordinarily encountered in the sciences, arts, or business.
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well as any
occupation for which a United States baccalaureate degree or its foreign equivalent is the
minimum requirement for entry into the occupation.
(3) Initial evidence. The petition must be accompanied by documentation showing that the alien
is a professional holding an advanced degree or an alien of exceptional ability in the sciences, the
arts, or business.
(i) To show that the alien is a professional holding an advanced degree, the petition must be
accompanied by:
(A) An official academic record showing that the alien has an United States advanced degree or a
foreign equivalent degree; or
(B) An official academic record showing that the alien has a United States baccalaureate degree
or a foreign equivalent degree, and evidence in the form of letters from current or former
employer(s) showing that the alien has at least five years of progressive post-baccalaureate
experience in the specialty.
(ii) To show that the alien is an alien of exceptional ability in the sciences, arts, or business, the
petition must be accompanied by at least three of the following:
(A) An official academic record showing that the alien has a degree, diploma, certificate, or
similar award from a college, university, school, or other institution of learning relating to the
area of exceptional ability;
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien
has at least ten years of full-time experience in the occupation for which he or she is being
sought;
(C) A license to practice the profession or certification for a particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other remuneration for services, which
demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or
field by peers, governmental entities, or professional or business organizations.
(iii) If the above standards do not readily apply to the beneficiary's occupation, the petitioner
may submit comparable evidence to establish the beneficiary's eligibility.

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(4) Labor certification or evidence that alien qualifies for Labor Market Information Pilot
Program -(i) General. Every petition under this classification must be accompanied by an individual labor
certification from the Department of Labor, by an application for Schedule A designation (if
applicable), or by documentation to establish that the alien qualifies for one of the shortage
occupations in the Department of Labor's Labor Market Information Pilot Program. To apply for
Schedule A designation or to establish that the alien's occupation is within the Labor Market
Information Program, a fully executed un certified Form ETA-750 in duplicate must accompany
the petition. The job offer portion of the individual labor certification, Schedule A application, or
Pilot Program application must demonstrate that the job requires a professional holding an
advanced degree or the equivalent or an alien of exceptional ability.
(ii) Exemption from job offer. The director may exempt the requirement of a job offer, and thus
of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if
exemption would be in the national interest. To apply for the exemption, the petitioner must
submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate, as well as evidence
to support the claim that such exemption would be in the national interest.
(l) Skilled workers, professionals, and other workers.
(1) Any United States employer may file a petition on Form I-140 for classification of an alien
under section 203(b)(3) as a skilled worker, professional, or other (unskilled) worker.
(2) Definitions. As used in this part:
Other worker means a qualified alien who is capable, at the time of petitioning for this
classification, of performing unskilled labor (requiring less than two years training or
experience), not of a temporary or seasonal nature, for which qualified workers are not available
in the United States.
Professional means a qualified alien who holds at least a United States baccalaureate degree or a
foreign equivalent degree and who is a member of the professions.
Skilled worker means an alien who is capable, at the time of petitioning for this classification, of
performing skilled labor (requiring at least two years training or experience), not of a temporary
or seasonal nature, for which qualified workers are not available in the United States. Relevant
post-secondary education may be considered as training for the purposes of this provision.
(3) Initial evidence -(i) Labor certification or evidence that alien qualifies for Labor Market Information Pilot
Program. Every petition under this classification must be accompanied by an individual labor
certification from the Department of Labor, by an application for Schedule A designation, or by
documentation to establish that the alien qualifies for one of the shortage occupations in the
Department of Labor's Labor Market Information Pilot Program. To apply for Schedule A
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designation or to establish that the alien's occupation is a shortage occupation with the Labor
Market Pilot Program, a fully executed uncertified Form ETA-750 in duplicate must accompany
the petition. The job offer portion of an individual labor certification, Schedule A application, or
Pilot Program application for a professional must demonstrate that the job requires the minimum
of a baccalaureate degree.
(ii) Other documentation -(A) General. Any requirements of training or experience for skilled workers, professionals, or
other workers must be supported by letters from trainers or employers giving the name, address,
and title of the trainer or employer, and a description of the training received or the experience of
the alien.
(B) Skilled workers. If the petition is for a skilled worker, the petition must be accompanied by
evidence that the alien meets the educational, training or experience, and any other requirements
of the individual labor certification, meets the requirements for Schedule A designation, or meets
the requirements for the Labor Market Information Pilot Program occupation designation. The
minimum requirements for this classification are at least two years of training or experience.
(C) Professionals. If the petition is for a professional, the petition must be accompanied by
evidence that the alien holds a United States baccalaureate degree or a foreign equivalent degree
and by evidence that the alien is a member of the professions. Evidence of a baccalaureate
degree shall be in the form of an official college or university record showing the date the
baccalaureate degree was awarded and the area of concentration of study. To show that the alien
is a member of the professions, the petitioner must submit evidence showing that the minimum
of a baccalaureate degree is required for entry into the occupation.
(D) Other workers. If the petition is for an unskilled (other) worker, it must be accompanied by
evidence that the alien meets any educational, training and experience, and other requirements of
the labor certification.
(4) Differentiating between skilled and other workers. The determination of whether a worker is
a skilled or other worker will be based on the requirements of training and/or experience placed
on the job by the prospective employer, as certified by the Department of Labor. In the case of a
Schedule A occupation or a shortage occupation within the Labor Market Pilot Program, the
petitioner will be required to establish to the director that the job is a skilled job, i.e., one which
requires at least two years of training and/or experience.
(m) Religious workers -- This paragraph governs classification of an alien as a special immigrant
religious worker as defined in section 101(a)(27)(C) of the Act and under section 203(b)(4) of
the Act. To be eligible for classification as a special immigrant religious worker, the alien (either
abroad or in the United States) must: (Revised 11/26/08; 73 FR 72275 ) (Amended 5/26/94; 59
FR 27228 )(Amended 6/6/95; 60 FR 29751 )

13

(1) For at least the two years immediately preceding the filing of the petition have been a
member of a religious denomination that has a bona fide non-profit religious organization in the
United States.
(2) Be coming to the United States to work in a full time (average of at least 35 hours per week)
compensated position in one of the following occupations as they are defined in paragraph
(m)(5) of this section:
(i) Solely in the vocation of a minister of that religious denomination;
(ii) A religious vocation either in a professional or nonprofessional capacity; or
(iii) A religious occupation either in a professional or nonprofessional capacity.
(3) Be coming to work for a bona fide non-profit religious organization in the United States, or a
bona fide organization which is affiliated with the religious denomination in the United States.
(4) Have been working in one of the positions described in paragraph (m)(2) of this section,
either abroad or in lawful immigration status in the United States, and after the age of 14 years
continuously for at least the two-year period immediately preceding the filing of the petition. The
prior religious work need not correspond precisely to the type of work to be performed. A break
in the continuity of the work during the preceding two years will not affect eligibility so long as:
(i) The alien was still employed as a religious worker;
(ii) The break did not exceed two years; and
(iii) The nature of the break was for further religious training or for sabbatical that did not
involve unauthorized work in the United States. However, the alien must have been a member of
the petitioner's denomination throughout the two years of qualifying employment.
(5) Definitions . As used in paragraph (m) of this section, the term:
Bona fide non-profit religious organization in the United States means a religious organization
exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986,
subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code,
and possessing a currently valid determination letter from the IRS confirming such exemption.
Bona fide organization which is affiliated with the religious denomination means an organization
which is closely associated with the religious denomination and which is exempt from taxation
as described in section 501(c)(3) of the Internal Revenue Code of 1986, subsequent amendment
or equivalent sections of prior enactments of the Internal Revenue Code and possessing a
currently valid determination letter from the IRS confirming such exemption.

14

Denominational membership means membership during at least the two-year period immediately
preceding the filing date of the petition, in the same type of religious denomination as the United
States religious organization where the alien will work.
Minister means an individual who:
(A) Is fully authorized by a religious denomination, and fully trained according to the
denomination's standards, to conduct such religious worship and perform other duties usually
performed by authorized members of the clergy of that denomination;
(B) Is not a lay preacher or a person not authorized to perform duties usually performed by
clergy;
(C) Performs activities with a rational relationship to the religious calling of the minister; and
(D) Works solely as a minister in the United States, which may include administrative duties
incidental to the duties of a minister.
Petition means USCIS Form I-360 , Petition for Amerasian, Widow(er), or Special Immigrant, a
successor form, or other form as may be prescribed by USCIS, along with a supplement
containing attestations required by this section, the fee specified in 8 CFR 103.7(b)(1) , and
supporting evidence filed as provided by this part.
Religious denomination means a religious group or community of believers that is governed or
administered under a common type of ecclesiastical government and includes one or more of the
following:
(A) A recognized common creed or statement of faith shared among the denomination's
members;
(B) A common form of worship;
(C) A common formal code of doctrine and discipline;
(D) Common religious services and ceremonies;
(E) Common established places of religious worship or religious congregations; or
(F) Comparable indicia of a bona fide religious denomination.
Religious occupation means an occupation that meets all of the following requirements:
(A) The duties must primarily relate to a traditional religious function and be recognized as a
religious occupation within the denomination.

15

(B) The duties must be primarily related to, and must clearly involve, inculcating or carrying out
the religious creed and beliefs of the denomination.
(C) The duties do not include positions that are primarily administrative or support such as
janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the
solicitation of donations, or similar positions, although limited administrative duties that are only
incidental to religious functions are permissible.
(D) Religious study or training for religious work does not constitute a religious occupation, but
a religious worker may pursue study or training incident to status.
Religious vocation means a formal lifetime commitment, through vows, investitures, ceremonies,
or similar indicia, to a religious way of life. The religious denomination must have a class of
individuals whose lives are dedicated to religious practices and functions, as distinguished from
the secular members of the religion. Examples of individuals practicing religious vocations
include nuns, monks, and religious brothers and sisters.
Religious worker means an individual engaged in and, according to the denomination's
standards, qualified for a religious occupation or vocation, whether or not in a professional
capacity, or as a minister.
Tax-exempt organization means an organization that has received a determination letter from the
IRS establishing that it, or a group that it belongs to, is exempt from taxation in accordance with
sections 501(c)(3) of the Internal Revenue Code of 1986 or subsequent amendments or
equivalent sections of prior enactments of the Internal Revenue Code.
(6) Filing requirements . A petition must be filed as provided in the petition form instructions
either by the alien or by his or her prospective United States employer. After the date stated in
section 101(a)(27)(C) of the Act, immigration or adjustment of status on the basis of this section
is limited solely to ministers.
(7) Attestation . An authorized official of the prospective employer of an alien seeking religious
worker status must complete, sign and date an attestation prescribed by USCIS and submit it
along with the petition. If the alien is a self-petitioner and is also an authorized official of the
prospective employer, the self-petitioner may sign the attestation. The prospective employer
must specifically attest to all of the following:
(i) That the prospective employer is a bona fide non-profit religious organization or a bona fide
organization which is affiliated with the religious denomination and is exempt from taxation;
(ii) The number of members of the prospective employer's organization;
(iii) The number of employees who work at the same location where the beneficiary will be
employed and a summary of the type of responsibilities of those employees. USCIS may request
a list of all employees, their titles, and a brief description of their duties at its discretion;

16

(iv) The number of aliens holding special immigrant or nonimmigrant religious worker status
currently employed or employed within the past five years by the prospective employer's
organization;
(v) The number of special immigrant religious worker and nonimmigrant religious worker
petitions and applications filed by or on behalf of any aliens for employment by the prospective
employer in the past five years;
(vi) The title of the position offered to the alien, the complete package of salaried or non-salaried
compensation being offered, and a detailed description of the alien's proposed daily duties;
(vii) That the alien will be employed at least 35 hours per week;
(viii) The specific location(s) of the proposed employment;
(ix) That the alien has worked as a religious worker for the two years immediately preceding the
filing of the application and is otherwise qualified for the position offered;
(x) That the alien has been a member of the denomination for at least two years immediately
preceding the filing of the application;
(xi) That the alien will not be engaged in secular employment, and any salaried or non-salaried
compensation for the work will be paid to the alien by the attesting employer; and
(xii) That the prospective employer has the ability and intention to compensate the alien at a
level at which the alien and accompanying family members will not become public charges, and
that funds to pay the alien's compensation do not include any monies obtained from the alien,
excluding reasonable donations or tithing to the religious organization.
(8) Evidence relating to the petitioning organization . A petition shall include the following
initial evidence relating to the petitioning organization:
(i) A currently valid determination letter from the Internal Revenue Service (IRS) establishing
that the organization is a tax-exempt organization; or
(ii) For a religious organization that is recognized as tax-exempt under a group tax-exemption, a
currently valid determination letter from the IRS establishing that the group is tax-exempt; or
(iii) For a bona fide organization that is affiliated with the religious denomination, if the
organization was granted tax-exempt status under section 501(c)(3) of the Internal Revenue Code
of 1986, or subsequent amendment or equivalent sections of prior enactments of the Internal
Revenue Code, as something other than a religious organization:
(A) A currently valid determination letter from the IRS establishing that the organization is a taxexempt organization;

17

(B) Documentation that establishes the religious nature and purpose of the organization, such as
a copy of the organizing instrument of the organization that specifies the purposes of the
organization;
(C) Organizational literature, such as books, articles, brochures, calendars, flyers and other
literature describing the religious purpose and nature of the activities of the organization; and
(D) A religious denomination certification. The religious organization must complete, sign and
date a religious denomination certification certifying that the petitioning organization is affiliated
with the religious denomination. The certification is to be submitted by the petitioner along with
the petition.
(9) Evidence relating to the qualifications of a minister . If the alien is a minister, the petitioner
must submit the following:
(i) A copy of the alien's certificate of ordination or similar documents reflecting acceptance of
the alien's qualifications as a minister in the religious denomination; and
(ii) Documents reflecting acceptance of the alien's qualifications as a minister in the religious
denomination, as well as evidence that the alien has completed any course of prescribed
theological education at an accredited theological institution normally required or recognized by
that religious denomination, including transcripts, curriculum, and documentation that
establishes that the theological institution is accredited by the denomination, or
(iii) For denominations that do not require a prescribed theological education, evidence of:
(A) The denomination's requirements for ordination to minister;
(B) The duties allowed to be performed by virtue of ordination;
(C) The denomination's levels of ordination, if any; and
(D) The alien's completion of the denomination's requirements for ordination.
(10) Evidence relating to compensation . Initial evidence must include verifiable evidence of
how the petitioner intends to compensate the alien. Such compensation may include salaried or
non-salaried compensation. This evidence may include past evidence of compensation for similar
positions; budgets showing monies set aside for salaries, leases, etc.; verifiable documentation
that room and board will be provided; or other evidence acceptable to USCIS. If IRS
documentation, such as IRS Form W-2 or certified tax returns, is available, it must be provided.
If IRS documentation is not available, an explanation for its absence must be provided, along
with comparable, verifiable documentation.
(11) Evidence relating to the alien's prior employment . Qualifying prior experience during the
two years immediately preceding the petition or preceding any acceptable break in the continuity
of the religious work, must have occurred after the age of 14, and if acquired in the United
18

States, must have been authorized under United States immigration law. If the alien was
employed in the United States during the two years immediately preceding the filing of the
application and:
(i) Received salaried compensation, the petitioner must submit IRS documentation that the alien
received a salary, such as an IRS Form W-2 or certified copies of income tax returns.
(ii) Received non-salaried compensation, the petitioner must submit IRS documentation of the
non-salaried compensation if available.
(iii) Received no salary but provided for his or her own support, and provided support for any
dependents, the petitioner must show how support was maintained by submitting with the
petition additional documents such as audited financial statements, financial institution records,
brokerage account statements, trust documents signed by an attorney, or other verifiable
evidence acceptable to USCIS.
If the alien was employed outside the United States during such two years, the petitioner must
submit comparable evidence of the religious work.
(12) Inspections, evaluations, verifications, and compliance reviews . The supporting evidence
submitted may be verified by USCIS through any means determined appropriate by USCIS, up
to and including an on-site inspection of the petitioning organization. The inspection may include
a tour of the organization's facilities, an interview with the organization's officials, a review of
selected organization records relating to compliance with immigration laws and regulations, and
an interview with any other individuals or review of any other records that the USCIS considers
pertinent to the integrity of the organization. An inspection may include the organization
headquarters, satellite locations, or the work locations planned for the applicable employee. If
USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection
will be a condition for approval of any petition.
(n) Closing action . (1) Approval . An approved employment-based petition will be forwarded to
the National Visa Center of the Department of State if the beneficiary resides outside of the
United States. If the Form I-140 petition indicates that the alien has filed or will file an
application for adjustment to permanent residence in the United States (Form I-485) the
approved visa petition (Form I-140), will be retained by the Service for consideration with the
application for permanent residence (Form I-485). If a visa is available, and Form I-485 has not
been filed, the alien will be instructed on the Form I-797, Notice of Action, (mailed out upon
approval of the Form I-140 petition) to file the Form I-485. (Paragraph (n)(1) revised 7/31/02; 67
FR 49561 )
(2) Denial . The denial of a petition for classification under section 203(b)(1) , 203(b)(2) ,
203(b)(3) , or 203(b)(4) of the Act (as it relates to special immigrants under section
101(a)(27)(C)of the Act) shall be appealable to the Associate Commissioner for Examinations.
The petitioner shall be informed in plain language of the reasons for denial and of his or her right
to appeal.

19

(3) Validity of approved petitions . Unless revoked under section 203(e) or 205 of the Act, an
employment-based petition is valid indefinitely.
(o) Denial of petitions under section 204 of the Act based on a finding by the Department of
Labor . Upon debarment by the Department of Labor pursuant to 20 CFR 655.31, USCIS may
deny any employment-based immigrant petition filed by that petitioner for a period of at least 1
year but not more than 5 years. The time period of such bar to petition approval shall be based on
the severity of the violation or violations. The decision to deny petitions, the time period for the
bar to petitions, and the reasons for the time period will be explained in a written notice to the
petitioner. (Added effective 1/18/ 2009; 73 FR 78104 )
20 CFR §656.15 Applications for labor certification for Schedule A occupations.
(a) Filing application. An employer must apply for a labor certification for a Schedule
A occupation by filing an application with the appropriate DHS office, and not with an ETA
application processing center.
(b) General documentation requirements. A Schedule A application must include:
(1) An Application for Permanent Employment Certification form, which includes a
prevailing wage determination in accordance with §§656.40 and 656.41.
(2) Evidence that notice of filing the Application for Permanent Employment
Certification was provided to the bargaining representative or the employer's employees as
prescribed in §656.10(d).
(c) Group I documentation. An employer seeking labor certification under Group I
of Schedule A must file with DHS, as part of its labor certification application, documentary
evidence of the following:
(1) An employer seeking Schedule A labor certification for an alien to be employed as a
physical therapist (§656.5(a)(1)) must file as part of its labor certification application a letter or
statement, signed by an authorized state physical therapy licensing official in the state of
intended employment, stating the alien is qualified to take that state's written licensing
examination for physical therapists. Application for certification of permanent employment as a
physical therapist may be made only under this §656.15 and not under §656.17.
(2) An employer seeking a Schedule A labor certification for an alien to be employed as a
professional nurse (§656.5(a)(2)) must file as part of its labor certification application
documentation that the alien has received a Certificate from the Commission on Graduates of
Foreign Nursing Schools (CGFNS); that the alien holds a full and unrestricted (permanent)
license to practice nursing in the state of intended employment; or that the alien has passed the
National Council Licensure Examination for Registered Nurses (NCLEX-RN). Application for
certification of employment as a professional nurse may be made only under this §656.15(c) and
not under §656.17.

20

(d) Group II documentation. An employer seeking a Schedule A labor certification under
Group II of Schedule A must file with DHS, as part of its labor certification application,
documentary evidence of the following:
(1) An employer seeking labor certification on behalf of an alien to be employed as an alien
of exceptional ability in the sciences or arts (excluding those in the performing arts) must file
documentary evidence showing the widespread acclaim and international recognition accorded
the alien by recognized experts in the alien's field; and documentation showing the alien's work
in that field during the past year did, and the alien's intended work in the United States will,
require exceptional ability. In addition, the employer must file documentation about the alien
from at least two of the following seven groups:
(i) Documentation of the alien's receipt of internationally recognized prizes or awards for
excellence in the field for which certification is sought;
(ii) Documentation of the alien's membership in international associations, in the field for
which certification is sought, which require outstanding achievement of their members, as judged
by recognized international experts in their disciplines or fields;
(iii) Published material in professional publications about the alien, about the alien's work in
the field for which certification is sought, which shall include the title, date, and author of such
published material;
(iv) Evidence of the alien's participation on a panel, or individually, as a judge of the work
of others in the same or in an allied field of specialization to that for which certification is
sought;
(v) Evidence of the alien's original scientific or scholarly research contributions of major
significance in the field for which certification is sought;
(vi) Evidence of the alien's authorship of published scientific or scholarly articles in the
field for which certification is sought, in international professional journals or professional
journals with an international circulation;
(vii) Evidence of the display of the alien's work, in the field for which certification is
sought, at artistic exhibitions in more than one country.
(2) An employer seeking labor certification on behalf of an alien of exceptional ability in
the performing arts must file documentary evidence that the alien's work experience during the
past twelve months did require, and the alien's intended work in the United States will require,
exceptional ability; and must submit documentation to show this exceptional ability, such as:
(i) Documentation attesting to the current widespread acclaim and international recognition
accorded to the alien, and receipt of internationally recognized prizes or awards for excellence;

21

(ii) Published material by or about the alien, such as critical reviews or articles in major
newspapers, periodicals, and/or trade journals (the title, date, and author of such material shall be
indicated);
(iii) Documentary evidence of earnings commensurate with the claimed level of ability;
(iv) Playbills and star billings;
(v) Documents attesting to the outstanding reputation of theaters, concert halls, night clubs,
and other establishments in which the alien has appeared or is scheduled to appear; and/or
(vi) Documents attesting to the outstanding reputation of theaters or repertory companies,
ballet troupes, orchestras, or other organizations in which or with which the alien has performed
during the past year in a leading or starring capacity.
(e) Determination. An Immigration Officer determines whether the employer and alien have
met the applicable requirements of §656.10 and of Schedule A (§656.5); reviews the application;
and determines whether or not the alien is qualified for and intends to pursue the Schedule
A occupation. The Schedule A determination of DHS is conclusive and final. The employer,
therefore, may not appeal from any such determination under the review procedures at §656.26.
(f) Refiling after denial. If an application for a Schedule A occupation is denied, the
employer, except where the occupation is as a physical therapist or a professional nurse, may at
any time file for a labor certification on the alien beneficiary's behalf under §656.17. Labor
certifications for professional nurses and for physical therapists shall not be considered under
§656.17.
20 CFR §656.16 Labor certification applications for sheepherders.
(a) Filing requirements and required documentation. (1) An employer may apply for a labor
certification to employ an alien (who has been employed legally as a nonimmigrant sheepherder
in the United States for at least 33 of the preceding 36 months) as a sheepherder by filing
an Application for Permanent Employment Certification form directly with DHS, not with an
office of DOL.
(2) A signed letter or letters from each U.S. employer who has employed the alien as a
sheepherder during the immediately preceding 36 months, attesting the alien has been employed
in the United States lawfully and continuously as a sheepherder for at least 33 of the immediately
preceding 36 months, must be filed with the application.
(b) Determination. An Immigration Officer reviews the application and the letters attesting
to the alien's previous employment as a sheepherder in the United States, and determines whether
or not the alien and the employer(s) have met the requirements of this section.

22

(1) The determination of the Immigration Officer under this paragraph (b) is conclusive and
final. The employer(s) and the alien, therefore, may not make use of the review procedures set
forth at §§656.26 and 656.27 to appeal such a determination.
(2) If the alien and the employer(s) have met the requirements of this section, the
Immigration Officer must indicate on the Application for Permanent Employment
Certification form the occupation, the immigration office that made the determination, and the
date of the determination (see §656.30 for the significance of this date). The Immigration Officer
must then promptly forward a copy of the Application for Permanent Employment
Certification form, without attachments, to the Office of Foreign Labor Certification (OFLC)
Administrator.
(c) Alternative filing. If an application for a sheepherder does not meet the requirements of
this section, the application may be filed under §656.17.
20 CFR §656.17 Basic labor certification process.
(a) Filing applications. (1) Except as otherwise provided by §§656.15, 656.16, and 656.18,
an employer who desires to apply for a labor certification on behalf of an alien must file a
completed Department of Labor Application for Permanent Employment Certification form
(ETA Form 9089). The application must be filed with an ETA application processing center.
Incomplete applications will be denied. Applications filed and certified electronically must, upon
receipt of the labor certification, be signed immediately by the employer in order to be valid.
Applications submitted by mail must contain the original signature of the employer, alien,
attorney, and/or agent when they are received by the application processing center. DHS will not
process petitions unless they are supported by an original certified ETA Form 9089 that has been
signed by the employer, alien, attorney and/or agent.
(2) The Department of Labor may issue or require the use of certain identifying
information, including user identifiers, passwords, or personal identification numbers (PINS).
The purpose of these personal identifiers is to allow the Department of Labor to associate a given
electronic submission with a single, specific individual. Personal identifiers cannot be issued to a
company or business. Rather, a personal identifier can only be issued to specific individual. Any
personal identifiers must be used solely by the individual to whom they are assigned and cannot
be used or transferred to any other individual. An individual assigned a personal identifier must
take all reasonable steps to ensure that his or her personal identifier cannot be compromised. If
an individual assigned a personal identifier suspects, or becomes aware, that his or her personal
identifier has been compromised or is being used by someone else, then the individual must
notify the Department of Labor immediately of the incident and cease the electronic transmission
of any further submissions under that personal identifier until such time as a new personal
identifier is provided. Any electronic transmissions submitted with a personal identifier will be
presumed to be a submission by the individual assigned that personal identifier. The Department
of Labor's system will notify those making submissions of these requirements at the time of each
submission.

23

(3) Documentation supporting the application for labor certification should not be filed with
the application, however in the event the Certifying Officer notifies the employer that its
application is to be audited, the employer must furnish required supporting documentation prior
to a final determination.
(b) Processing. (1) Applications are screened and are certified, are denied, or are selected
for audit.
(2) Employers will be notified if their applications have been selected for audit by the
issuance of an audit letter under §656.20.
(3) Applications may be selected for audit in accordance with selection criteria or may be
randomly selected.
(c) Filing date. Non-electronically filed applications accepted for processing shall be date
stamped. Electronically filed applications will be considered filed when submitted.
(d) Refiling procedures. (1) Employers that filed applications under the regulations in effect
prior to March 28, 2005, may, if a job order has not been placed pursuant to those regulations,
refile such applications under this part without loss of the original filing date by:
(i) Submitting an application for an identical job opportunity after complying with all of the
filing and recruiting requirements of this part 656; and
(ii) Withdrawing the original application in accordance with ETA procedures. Filing an
application under this part stating the employer's desire to use the original filing date will be
deemed to be a withdrawal of the original application. The original application will be deemed
withdrawn regardless of whether the employer's request to use the original filing date is
approved.
(2) Refilings under this paragraph must be made within 210 days of the withdrawal of the
prior application.
(3) A copy of the original application, including amendments, must be sent to the
appropriate ETA application processing center when requested by the CO under §656.20.
(4) For purposes of paragraph (d)(1)(i) of this section, a job opportunity shall be considered
identical if the employer, alien, job title, job location, job requirements, and job description are
the same as those stated in the original application filed under the regulations in effect prior to
March 28, 2005. For purposes of determining identical job opportunity, the original application
includes all accepted amendments up to the time the application was withdrawn, including
amendments in response to an assessment notice from a SWA pursuant to §656.21(h) of the
regulations in effect prior to March 28, 2005.
(e) Required pre-filing recruitment. Except for labor certification applications involving
college or university teachers selected pursuant to a competitive recruitment and selection
24

process (§656.18), Schedule A occupations (§§656.5 and 656.15), and sheepherders (§656.16),
an employer must attest to having conducted the following recruitment prior to filing the
application:
(1) Professional occupations. If the application is for a professional occupation, the
employer must conduct the recruitment steps within 6 months of filing the application for alien
employment certification. The employer must maintain documentation of the recruitment and be
prepared to submit this documentation in the event of an audit or in response to a request from
the Certifying Officer prior to rendering a final determination.
(i) Mandatory steps. Two of the steps, a job order and two print advertisements, are
mandatory for all applications involving professional occupations, except applications for
college or university teachers selected in a competitive selection and recruitment process as
provided in §656.18. The mandatory recruitment steps must be conducted at least 30 days, but no
more than 180 days, before the filing of the application.
(A) Job order. Placement of a job order with the SWA serving the area of intended
employment for a period of 30 days. The start and end dates of the job order entered on the
application shall serve as documentation of this step.
(B) Advertisements in newspaper or professional journals. (1) Placing an advertisement on
two different Sundays in the newspaper of general circulation in the area of intended
employment most appropriate to the occupation and the workers likely to apply for the job
opportunity and most likely to bring responses from able, willing, qualified, and available U.S.
workers.
(2) If the job opportunity is located in a rural area of intended employment that does not
have a newspaper with a Sunday edition, the employer may use the edition with the widest
circulation in the area of intended employment.
(3) The advertisements must satisfy the requirements of paragraph (f) of this section.
Documentation of this step can be satisfied by furnishing copies of the newspaper pages in which
the advertisements appeared or proof of publication furnished by the newspaper.
(4) If the job involved in the application requires experience and an advanced degree, and a
professional journal normally would be used to advertise the job opportunity, the employer may,
in lieu of one of the Sunday advertisements, place an advertisement in the professional journal
most likely to bring responses from able, willing, qualified, and available U.S. workers.
Documentation of this step can be satisfied by providing a copy of the page in which the
advertisement appeared.
(ii) Additional recruitment steps. The employer must select three additional recruitment
steps from the alternatives listed in paragraphs (e)(1)(ii)(A)-(J) of this section. Only one of the
additional steps may consist solely of activity that took place within 30 days of the filing of the
application. None of the steps may have taken place more than 180 days prior to filing the
application.
25

(A) Job fairs. Recruitment at job fairs for the occupation involved in the application, which
can be documented by brochures advertising the fair and newspaper advertisements in which the
employer is named as a participant in the job fair.
(B) Employer's Web site. The use of the employer's Web site as a recruitment medium can
be documented by providing dated copies of pages from the site that advertise the occupation
involved in the application.
(C) Job search Web site other than the employer's. The use of a job search Web site other
than the employer's can be documented by providing dated copies of pages from one or more
website(s) that advertise the occupation involved in the application. Copies of web pages
generated in conjunction with the newspaper advertisements required by paragraph (e)(1)(i)(B)
of this section can serve as documentation of the use of a Web site other than the employer's.
(D) On-campus recruiting. The employer's on-campus recruiting can be documented by
providing copies of the notification issued or posted by the college's or university's placement
office naming the employer and the date it conducted interviews for employment in the
occupation.
(E) Trade or professional organizations. The use of professional or trade organizations as a
recruitment source can be documented by providing copies of pages of newsletters or trade
journals containing advertisements for the occupation involved in the application for alien
employment certification.
(F) Private employment firms. The use of private employment firms or placement agencies
can be documented by providing documentation sufficient to demonstrate that recruitment has
been conducted by a private firm for the occupation for which certification is sought. For
example, documentation might consist of copies of contracts between the employer and the
private employment firm and copies of advertisements placed by the private employment firm
for the occupation involved in the application.
(G) Employee referral program with incentives. The use of an employee referral program
with incentives can be documented by providing dated copies of employer notices or memoranda
advertising the program and specifying the incentives offered.
(H) Campus placement offices. The use of a campus placement office can be documented
by providing a copy of the employer's notice of the job opportunity provided to the campus
placement office.
(I) Local and ethnic newspapers. The use of local and ethnic newspapers can be
documented by providing a copy of the page in the newspaper that contains the employer's
advertisement.
(J) Radio and television advertisements. The use of radio and television advertisements can
be documented by providing a copy of the employer's text of the employer's advertisement along

26

with a written confirmation from the radio or television station stating when the advertisement
was aired.
(2) Nonprofessional occupations. If the application is for a nonprofessional occupation, the
employer must at a minimum, place a job order and two newspaper advertisements within 6
months of filing the application. The steps must be conducted at least 30 days but no more that
180 days before the filing of the application.
(i) Job order. Placing a job order with the SWA serving the area of intended employment
for a period of 30 days. The start and end dates of the job order entered on the application serve
as documentation of this step.
(ii) Newspaper advertisements. (A) Placing an advertisement on two different Sundays in
the newspaper of general circulation in the area of intended employment most appropriate to the
occupation and the workers likely to apply for the job opportunity.
(B) If the job opportunity is located in a rural area of intended employment that does not
have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition
with the widest circulation in the area of intended employment.
(C) Placement of the newspaper advertisements can be documented in the same way as
provided in paragraph (e)(1)(i)(B)(3) of this section for professional occupations.
(D) The advertisements must satisfy the requirements of paragraph (f) of this section.
(f) Advertising requirements. Advertisements placed in newspapers of general circulation or
in professional journals before filing the Application for Permanent Employment
Certification must:
(1) Name the employer;
(2) Direct applicants to report or send resumes, as appropriate for the occupation, to the
employer;
(3) Provide a description of the vacancy specific enough to apprise the U.S. workers of the
job opportunity for which certification is sought;
(4) Indicate the geographic area of employment with enough specificity to apprise
applicants of any travel requirements and where applicants will likely have to reside to perform
the job opportunity;
(5) Not contain a wage rate lower than the prevailing wage rate;
(6) Not contain any job requirements or duties which exceed the job requirements or duties
listed on the ETA Form 9089; and

27

(7) Not contain wages or terms and conditions of employment that are less favorable than
those offered to the alien.
(g) Recruitment report. (1) The employer must prepare a recruitment report signed by the
employer or the employer's representative noted in §656.10(b)(2)(ii) describing the recruitment
steps undertaken and the results achieved, the number of hires, and, if applicable, the number of
U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The
Certifying Officer, after reviewing the employer's recruitment report, may request the U.S.
workers' resumes or applications, sorted by the reasons the workers were rejected.
(2) A U.S. worker is able and qualified for the job opportunity if the worker can acquire the
skills necessary to perform the duties involved in the occupation during a reasonable period of
on-the-job training. Rejecting U.S. workers for lacking skills necessary to perform the duties
involved in the occupation, where the U.S. workers are capable of acquiring the skills during a
reasonable period of on-the-job training is not a lawful job-related reason for rejection of the
U.S. workers.
(h) Job duties and requirements. (1) The job opportunity's requirements, unless adequately
documented as arising from business necessity, must be those normally required for the
occupation and must not exceed the Specific Vocational Preparation level assigned to the
occupation as shown in the O*NET Job Zones. To establish a business necessity, an employer
must demonstrate the job duties and requirements bear a reasonable relationship to the
occupation in the context of the employer's business and are essential to perform the job in a
reasonable manner.
(2) A foreign language requirement can not be included, unless it is justified by business
necessity. Demonstrating business necessity for a foreign language requirement may be based
upon the following:
(i) The nature of the occupation, e.g., translator; or
(ii) The need to communicate with a large majority of the employer's customers,
contractors, or employees who can not communicate effectively in English, as documented by:
(A) The employer furnishing the number and proportion of its clients, contractors, or
employees who can not communicate in English, and/or a detailed plan to market products or
services in a foreign country; and
(B) A detailed explanation of why the duties of the position for which certification is sought
requires frequent contact and communication with customers, employees or contractors who can
not communicate in English and why it is reasonable to believe the allegedly foreign-languagespeaking customers, employees, and contractors can not communicate in English.
(3) If the job opportunity involves a combination of occupations, the employer must
document that it has normally employed persons for that combination of occupations, and/or
workers customarily perform the combination of occupations in the area of intended
28

employment, and/or the combination job opportunity is based on a business necessity.
Combination occupations can be documented by position descriptions and relevant payroll
records, and/or letters from other employers stating their workers normally perform the
combination of occupations in the area of intended employment, and/or documentation that the
combination occupation arises from a business necessity.
(4)(i) Alternative experience requirements must be substantially equivalent to the primary
requirements of the job opportunity for which certification is sought; and
(ii) If the alien beneficiary already is employed by the employer, and the alien does not
meet the primary job requirements and only potentially qualifies for the job by virtue of the
employer's alternative requirements, certification will be denied unless the application states that
any suitable combination of education, training, or experience is acceptable.
(i) Actual minimum requirements. DOL will evaluate the employer's actual minimum
requirements in accordance with this paragraph (i).
(1) The job requirements, as described, must represent the employer's actual minimum
requirements for the job opportunity.
(2) The employer must not have hired workers with less training or experience for jobs
substantially comparable to that involved in the job opportunity.
(3) If the alien beneficiary already is employed by the employer, in considering whether the
job requirements represent the employer's actual minimums, DOL will review the training and
experience possessed by the alien beneficiary at the time of hiring by the employer, including as
a contract employee. The employer can not require domestic worker applicants to possess
training and/or experience beyond what the alien possessed at the time of hire unless:
(i) The alien gained the experience while working for the employer, including as a contract
employee, in a position not substantially comparable to the position for which certification is
being sought, or
(ii) The employer can demonstrate that it is no longer feasible to train a worker to qualify
for the position.
(4) In evaluating whether the alien beneficiary satisfies the employer's actual minimum
requirements, DOL will not consider any education or training obtained by the alien beneficiary
at the employer's expense unless the employer offers similar training to domestic worker
applicants.
(5) For purposes of this paragraph (i):
(i) The term “employer” means an entity with the same Federal Employer Identification
Number (FEIN), provided it meets the definition of an employer at §656.3.

29

(ii) A “substantially comparable” job or position means a job or position requiring
performance of the same job duties more than 50 percent of the time. This requirement can be
documented by furnishing position descriptions, the percentage of time spent on the various
duties, organization charts, and payroll records.
(j) Conditions of employment. (1) Working conditions must be normal to the occupation in
the area and industry.
(2) Live-in requirements are acceptable for household domestic service workers only if the
employer can demonstrate the requirement is essential to perform, in a reasonable manner, the
job duties as described by the employer and there are not cost-effective alternatives to a live-in
household requirement. Mere employer assertions do not constitute acceptable documentation.
For example, a live-in requirement could be supported by documenting two working parents and
young children in the household, and/or the existence of erratic work schedules requiring
frequent travel and a need to entertain business associates and clients on short notice. Depending
upon the situation, acceptable documentation could consist of travel vouchers, written estimates
of costs of alternatives such as babysitters, or a detailed listing of the frequency and length of
absences of the employer from the home.
(k) Layoffs. (1) If there has been a layoff by the employer applicant in the area of intended
employment within 6 months of filing an application involving the occupation for which
certification is sought or in a related occupation, the employer must document it has notified and
considered all potentially qualified laid off (employer applicant) U.S. workers of the job
opportunity involved in the application and the results of the notification and consideration. A
layoff shall be considered any involuntary separation of one or more employees without cause or
prejudice.
(2) For the purposes of paragraph (k)(1) of this section, a related occupation is any
occupation that requires workers to perform a majority of the essential duties involved in the
occupation for which certification is sought.
(l) Alien influence and control over job opportunity. If the employer is a closely held
corporation or partnership in which the alien has an ownership interest, or if there is a familial
relationship between the stockholders, corporate officers, incorporators, or partners, and the
alien, or if the alien is one of a small number of employees, the employer in the event of an audit
must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available
to all U.S. workers, and must provide to the Certifying Officer, the following supporting
documentation:
(1) A copy of the articles of incorporation, partnership agreement, business license or
similar documents that establish the business entity;
(2) A list of all corporate/company officers and shareholders/partners of the
corporation/firm/business, their titles and positions in the business' structure, and a description of
the relationships to each other and to the alien beneficiary;

30

(3) The financial history of the corporation/company/partnership, including the total
investment in the business entity and the amount of investment of each officer,
incorporator/partner and the alien beneficiary; and
(4) The name of the business' official with primary responsibility for interviewing and
hiring applicants for positions within the organization and the name(s) of the business' official(s)
having control or influence over hiring decisions involving the position for which labor
certification is sought.
(5) If the alien is one of 10 or fewer employees, the employer must document any family
relationship between the employees and the alien.
20 CFR §656.10 General instructions.
(a) Filing of applications. A request for a labor certification on behalf of any alien who is
required by the Act to be a beneficiary of a labor certification in order to obtain permanent
resident status in the United States may be filed as follows:
(1) Except as provided in paragraphs (a)(2), (3), and (4) of this section, an employer seeking
a labor certification must file under this section and §656.17.
(2) An employer seeking a labor certification for a college or university teacher must apply
for a labor certification under this section and must also file under either §656.17 or §656.18.
(3) An employer seeking labor certification for an occupation listed on Schedule A must
apply for a labor certification under this section and §656.15.
(4) An employer seeking labor certification for a sheepherder must apply for a labor
certification under this section and must also choose to file under either §656.16 or §656.17.
(b) Representation. (1) Employers may have agents or attorneys represent them throughout
the labor certification process. If an employer intends to be represented by an agent or attorney,
the employer must sign the statement set forth on the Application for Permanent Employment
Certification form: That the attorney or agent is representing the employer and the employer
takes full responsibility for the accuracy of any representations made by the attorney or agent.
Whenever, under this part, any notice or other document is required to be sent to the employer,
the document will be sent to the attorney or agent who has been authorized to represent the
employer on the Application for Permanent Employment Certification form.
(2)(i) It is contrary to the best interests of U.S. workers to have the alien and/or agents or
attorneys for either the employer or the alien participate in interviewing or considering U.S.
workers for the job offered the alien. As the beneficiary of a labor certification application, the
alien can not represent the best interests of U.S. workers in the job opportunity. The alien's agent
and/or attorney can not represent the alien effectively and at the same time truly be seeking U.S.
workers for the job opportunity. Therefore, the alien and/or the alien's agent and/or attorney may

31

not interview or consider U.S. workers for the job offered to the alien, unless the agent and/or
attorney is the employer's representative, as described in paragraph (b)(2)(ii) of this section.
(ii) The employer's representative who interviews or considers U.S. workers for the job
offered to the alien must be the person who normally interviews or considers, on behalf of the
employer, applicants for job opportunities such as that offered the alien, but which do not
involve labor certifications.
(3) No person under suspension or disbarment from practice before any court or before the
DHS or the United States Department of Justice's Executive Office for Immigration Review is
permitted to act as an agent, representative, or attorney for an employer and/or alien under this
part.
(c) Attestations. The employer must certify to the conditions of employment listed below on
the Application for Permanent Employment Certification under penalty of perjury under 18
U.S.C. 1621 (2). Failure to attest to any of the conditions listed below results in a denial of the
application.
(1) The offered wage equals or exceeds the prevailing wage determined pursuant to §656.40
and §656.41, and the wage the employer will pay to the alien to begin work will equal or exceed
the prevailing wage that is applicable at the time the alien begins work or from the time the alien
is admitted to take up the certified employment;
(2) The wage offered is not based on commissions, bonuses or other incentives, unless the
employer guarantees a prevailing wage paid on a weekly, bi-weekly, or monthly basis that equals
or exceeds the prevailing wage;
(3) The employer has enough funds available to pay the wage or salary offered the alien;
(4) The employer will be able to place the alien on the payroll on or before the date of the
alien's proposed entrance into the United States;
(5) The job opportunity does not involve unlawful discrimination by race, creed, color,
national origin, age, sex, religion, handicap, or citizenship;
(6) The employer's job opportunity is not:
(i) Vacant because the former occupant is on strike or locked out in the course of a labor
dispute involving a work stoppage;
(ii) At issue in a labor dispute involving a work stoppage.
(7) The job opportunity's terms, conditions and occupational environment are not contrary
to Federal, state or local law;
(8) The job opportunity has been and is clearly open to any U.S. worker;
32

(9) The U.S. workers who applied for the job opportunity were rejected for lawful jobrelated reasons;
(10) The job opportunity is for full-time, permanent employment for an employer other than
the alien.
(d) Notice. (1) In applications filed under §§656.15 (Schedule A), 656.16 (Sheepherders),
656.17 (Basic Process), 656.18 (College and University Teachers), and 656.21 (Supervised
Recruitment), the employer must give notice of the filing of the Application for Permanent
Employment Certification and be able to document that notice was provided, if requested by the
Certifying Officer, as follows:
(i) To the bargaining representative(s) (if any) of the employer's employees in the
occupational classification for which certification of the job opportunity is sought in the
employer's location(s) in the area of intended employment. Documentation may consist of a copy
of the letter and a copy of the Application for Permanent Employment Certification form that
was sent to the bargaining representative.
(ii) If there is no such bargaining representative, by posted notice to the employer's
employees at the facility or location of the employment. The notice must be posted for at least 10
consecutive business days. The notice must be clearly visible and unobstructed while posted and
must be posted in conspicuous places where the employer's U.S. workers can readily read the
posted notice on their way to or from their place of employment. Appropriate locations for
posting notices of the job opportunity include locations in the immediate vicinity of the wage and
hour notices required by 29 CFR 516.4 or occupational safety and health notices required by 29
CFR 1903.2(a). In addition, the employer must publish the notice in any and all in-house media,
whether electronic or printed, in accordance with the normal procedures used for the recruitment
of similar positions in the employer's organization. The documentation requirement may be
satisfied by providing a copy of the posted notice and stating where it was posted, and by
providing copies of all the in-house media, whether electronic or print, that were used to
distribute notice of the application in accordance with the procedures used for similar positions
within the employer's organization.
(2) In the case of a private household, notice is required under this paragraph (d) only if the
household employs one or more U.S. workers at the time the application for labor certification is
filed. The documentation requirement may be satisfied by providing a copy of the posted notice
to the Certifying Officer.
(3) The notice of the filing of an Application for Permanent Employment Certification must:
(i) State the notice is being provided as a result of the filing of an application for permanent
alien labor certification for the relevant job opportunity;
(ii) State any person may provide documentary evidence bearing on the application to the
Certifying Officer of the Department of Labor;

33

(iii) Provide the address of the appropriate Certifying Officer; and
(iv) Be provided between 30 and 180 days before filing the application.
(4) If an application is filed under §656.17, the notice must contain the information required
for advertisements by §656.17(f), must state the rate of pay (which must equal or exceed the
prevailing wage entered by the SWA on the prevailing wage request form), and must contain the
information required by paragraph (d)(3) of this section.
(5) If an application is filed on behalf of a college and university teacher selected in a
competitive selection and recruitment process, as provided by §656.18, the notice must include
the information required for advertisements by §656.18(b)(3), and must include the information
required by paragraph (d)(3) of this section.
(6) If an application is filed under the Schedule A procedures at §656.15, or the procedures
for sheepherders at §656.16, the notice must contain a description of the job and rate of pay, and
must meet the requirements of this section.
(e)(1)(i) Submission of evidence. Any person may submit to the Certifying Officer
documentary evidence bearing on an application for permanent alien labor certification filed
under the basic labor certification process at §656.17 or an application involving a college and
university teacher selected in a competitive recruitment and selection process under §656.18.
(ii) Documentary evidence submitted under paragraph (e)(1)(i) of this section may include
information on available workers, information on wages and working conditions, and
information on the employer's failure to meet the terms and conditions for the employment of
alien workers and co-workers. The Certifying Officer must consider this information in making
his or her determination.
(2)(i) Any person may submit to the appropriate DHS office documentary evidence of fraud
or willful misrepresentation in a Schedule A application filed under §656.15 or a sheepherder
application filed under §656.16.
(ii) Documentary evidence submitted under paragraph (e)(2) of this section is limited to
information relating to possible fraud or willful misrepresentation. The DHS may consider this
information under §656.31.
(f) Retention of documents. Copies of applications for permanent employment certification
filed with the Department of Labor and all supporting documentation must be retained by the
employer for 5 years from the date of filing the Application for Permanent Employment
Certification.
5 CFR §1320.3 Definitions.
(b)(2) The time, effort, and financial resources necessary to comply with a collection of
information that would be incurred by persons in the normal course of their activities (e.g., in
compiling and maintaining business records) will be excluded from the “burden” if the agency
34

demonstrates that the reporting, recordkeeping, or disclosure activities needed to comply are
usual and customary.
20 CFR §656.20 Audit procedures.
(a) Review of the labor certification application may lead to an audit of the application.
Additionally, certain applications may be selected randomly for audit and quality control
purposes. If an application is selected for audit, the Certifying Officer shall issue an audit letter.
The audit letter will:
(1) State the documentation that must be submitted by the employer;
(2) Specify a date, 30 days from the date of the audit letter, by which the required
documentation must be submitted; and
(3) Advise that if the required documentation has not been sent by the date specified the
application will be denied.
(i) Failure to provide documentation in a timely manner constitutes a refusal to exhaust
available administrative remedies; and
(ii) The administrative-judicial review procedure provided in §656.26 is not available.
(b) A substantial failure by the employer to provide required documentation will result in
that application being denied under §656.24 and may result in a determination by the Certifying
Officer pursuant to §656.24 to require the employer to conduct supervised recruitment under
§656.21 in future filings of labor certification applications for up to 2 years.
(c) The Certifying Officer may in his or her discretion provide one extension, of up to 30
days, to the 30 days specified in paragraph (a)(2) of this section.
(d) Before making a final determination in accordance with the standards in §656.24,
whether in course of an audit or otherwise, the Certifying Officer may:
(1) Request supplemental information and/or documentation; or
(2) Require the employer to conduct supervised recruitment under §656.21.
29 CFR §1627.3 Records to be kept by employers.
(b)(1) Every employer who, in the regular course of his business, makes, obtains, or uses,
any personnel or employment records related to the following, shall, except as provided in
paragraphs (b) (3) and (4) of this section, keep them for a period of 1 year from the date of the
personnel action to which any records relate:

35

(i) Job applications, resumes, or any other form of employment inquiry whenever submitted
to the employer in response to his advertisement or other notice of existing or anticipated job
openings, including records pertaining to the failure or refusal to hire any individual,
(ii) Promotion, demotion, transfer, selection for training, layoff, recall, or discharge of any
employee,
(iii) Job orders submitted by the employer to an employment agency or labor organization
for recruitment of personnel for job openings,
(iv) Test papers completed by applicants or candidates for any position which disclose the
results of any employer-administered aptitude or other employment test considered by the
employer in connection with any personnel action,
(v) The results of any physical examination where such examination is considered by the
employer in connection with any personnel action,
(vi) Any advertisements or notices to the public or to employees relating to job openings,
promotions, training programs, or opportunities for overtime work.
(2) Every employer shall keep on file any employee benefit plans such as pension and
insurance plans, as well as copies of any seniority systems and merit systems which are in
writing, for the full period the plan or system is in effect, and for at least 1 year after its
termination. If the plan or system is not in writing, a memorandum fully outlining the terms of
such plan or system and the manner in which it has been communicated to the affected
employees, together with notations relating to any changes or revisions thereto, shall be kept on
file for a like period.
(3) When an enforcement action is commenced under section 7 of the Act regarding a
particular applicant or employee, the Commission or its authorized representative shall require
the employer to retain any record required to be kept under paragraph (b) (1) or (2) of this
section which is relative to such action until the final disposition thereof.
20 CFR §656.18 Optional special recruitment and documentation procedures for college
and university teachers.
(a) Filing requirements. Applications for certification of employment of college and
university teachers must be filed by submitting a completed Application for Permanent
Employment Certification form to the appropriate ETA application processing center.
(b) Recruitment. The employer may recruit for college and university teachers under
§656.17 or must be able to document the alien was selected for the job opportunity in a
competitive recruitment and selection process through which the alien was found to be more
qualified than any of the United States workers who applied for the job. For purposes of this
paragraph (b), documentation of the “competitive recruitment and selection process” must
include:
36

(1) A statement, signed by an official who has actual hiring authority from the employer
outlining in detail the complete recruitment procedures undertaken; and which must set forth:
(i) The total number of applicants for the job opportunity;
(ii) The specific lawful job-related reasons why the alien is more qualified than each U.S.
worker who applied for the job; and
(2) A final report of the faculty, student, and/or administrative body making the
recommendation or selection of the alien, at the completion of the competitive recruitment and
selection process;
(3) A copy of at least one advertisement for the job opportunity placed in a national
professional journal, giving the name and the date(s) of publication; and which states the job
title, duties, and requirements;
(4) Evidence of all other recruitment sources utilized; and
(5) A written statement attesting to the degree of the alien's educational or professional
qualifications and academic achievements.
(c) Time limit for filing. Applications for permanent alien labor certification for job
opportunities as college and university teachers must be filed within 18 months after a selection
is made pursuant to a competitive recruitment and selection process.
(d) Alternative procedure. An employer that can not or does not choose to satisfy the special
recruitment procedures for a college or university teacher under this section may avail itself of
the basic process at §656.17. An employer that files for certification of employment of college
and university teachers under §656.17 or this section must be able to document, if requested by
the Certifying Officer, in accordance with §656.24(a)(2)(ii), the alien was found to be more
qualified than each U.S. worker who applied for the job opportunity.
20 CFR §656.21 Supervised recruitment.
(a) Supervised recruitment. Where the Certifying Officer determines it appropriate, postfiling supervised recruitment may be required of the employer for the pending application or
future applications pursuant to §656.20(b).
(b) Requirements. Supervised recruitment shall consist of advertising for the job opportunity
by placing an advertisement in a newspaper of general circulation or in a professional, trade, or
ethnic publication, and any other measures required by the CO. If placed in a newspaper of
general circulation, the advertisement must be published for 3 consecutive days, one of which
must be a Sunday; or, if placed in a professional, trade, or ethnic publication, the advertisement
must be published in the next available published edition. The advertisement must be approved
by the Certifying Officer before publication, and the CO will direct where the advertisement is to
be placed.
37

(1) The employer must supply a draft advertisement to the CO for review and approval
within 30 days of being notified that supervised recruitment is required.
(2) The advertisement must:
(i) Direct applicants to send resumes or applications for the job opportunity to the CO for
referral to the employer;
(ii) Include an identification number and an address designated by the Certifying Officer;
(iii) Describe the job opportunity;
(iv) Not contain a wage rate lower than the prevailing wage rate;
(v) Summarize the employer's minimum job requirements, which can not exceed any of the
requirements entered on the application form by the employer;
(vi) Offer training if the job opportunity is the type for which employers normally provide
training; and
(vii) Offer wages, terms and conditions of employment no less favorable than those offered
to the alien.
(c) Timing of advertisement. (1) The advertisement shall be placed in accordance with the
guidance provided by the CO.
(2) The employer will notify the CO when the advertisement will be placed.
(d) Additional or substitute recruitment. The Certifying Officer may designate other
appropriate sources of workers from which the employer must recruit for U.S. workers in
addition to the advertising described in paragraph (b) of this section.
(e) Recruitment report. The employer must provide to the Certifying Officer a signed,
detailed written report of the employer's supervised recruitment, signed by the employer or the
employer's representative described in §656.10(b)(2)(ii), within 30 days of the Certifying
Officer's request for such a report. The recruitment report must:
(1) Identify each recruitment source by name and document that each recruitment source
named was contacted. This can include, for example, copies of letters to recruitment sources
such as unions, trade associations, colleges and universities and any responses received to the
employer's inquiries. Advertisements placed in newspapers, professional, trade, or ethnic
publications can be documented by furnishing copies of the tear sheets of the pages of the
publication in which the advertisements appeared, proof of publication furnished by the
publication, or dated copies of the web pages if the advertisement appeared on the web as well as
in the publication in which the advertisement appeared.

38

(2) State the number of U.S. workers who responded to the employer's recruitment.
(3) State the names, addresses, and provide resumes (other than those sent to the employer
by the CO) of the U.S. workers who applied for the job opportunity, the number of workers
interviewed, and the job title of the person who interviewed the workers.
(4) Explain, with specificity, the lawful job-related reason(s) for not hiring each U.S.
worker who applied. Rejection of one or more U.S. workers for lacking skills necessary to
perform the duties involved in the occupation, where the U.S. workers are capable of acquiring
the skills during a reasonable period of on-the-job training, is not a lawful job-related reason for
rejecting the U.S. workers. For the purpose of this paragraph (e)(4), a U.S. worker is able and
qualified for the job opportunity if the worker can acquire the skills necessary to perform the
duties involved in the occupation during a reasonable period of on-the-job training.
(f) The employer shall supply the CO with the required documentation or information
within 30 days of the date of the request. If the employer does not do so, the CO shall deny the
application.
(g) The Certifying Officer in his or her discretion, for good cause shown, may provide one
extension to any request for documentation or information.

20 CFR §656.24 Labor certification determinations.
(a)(1) The Office of Foreign Labor Certification Administrator (OFLC Administrator) is the
National Certifying Officer. The OFLC Administrator and the certifying officers in the ETA
application processing centers have the authority to certify or deny labor certification
applications.
(2) If the labor certification presents a special or unique problem, the Director of an ETA
application processing center may refer the matter to the Office of Foreign Labor Certification
Administrator (OFLC Administrator). If the OFLC Administrator has directed that certain types
of applications or specific applications be handled in the ETA national office, the Directors of
the ETA application processing centers shall refer such applications to the OFLC Administrator.
(b) The Certifying Officer makes a determination either to grant or deny the labor
certification on the basis of whether or not:
(1) The employer has met the requirements of this part.
(2) There is in the United States a worker who is able, willing, qualified, and available for
and at the place of the job opportunity.
(i) The Certifying Officer must consider a U.S. worker able and qualified for the job
opportunity if the worker, by education, training, experience, or a combination thereof, is able to
perform in the normally accepted manner the duties involved in the occupation as customarily
39

performed by other U.S. workers similarly employed. For the purposes of this paragraph
(b)(2)(i), a U.S. worker is able and qualified for the job opportunity if the worker can acquire the
skills necessary to perform the duties involved in the occupation during a reasonable period of
on-the-job training.
(ii) If the job involves a job opportunity as a college or university teacher, the U.S. worker
must be at least as qualified as the alien.
(3) The employment of the alien will not have an adverse effect upon the wages and
working conditions of U.S. workers similarly employed. In making this determination, the
Certifying Officer considers such things as: labor market information, the special circumstances
of the industry, organization, and/or occupation, the prevailing wage in the area of intended
employment, and prevailing working conditions, such as hours, in the occupation.
(c) The Certifying Officer shall notify the employer in writing (either electronically or by
mail) of the labor certification determination.
(d) If a labor certification is granted, except for a labor certification for an occupation
on Schedule A (§656.5) or for employment as a sheepherder under §656.16, the Certifying
Officer must send the certified application and complete Final Determination form to the
employer, or, if appropriate, to the employer's agent or attorney, indicating the employer may file
all the documents with the appropriate DHS office.
(e) If the labor certification is denied, the Final Determination form will:
(1) State the reasons for the determination;
(2) Quote the request for review procedures at §656.26 (a) and (b);
(3) Advise that failure to request review within 30 days of the date of the determination, as
specified in §656.26(a), constitutes a failure to exhaust administrative remedies;
(4) Advise that, if a request for review is not made within 30 days of the date of the
determination, the denial shall become the final determination of the Secretary;
(5) Advise that if an application for a labor certification is denied, and a request for review
is not made in accordance with the procedures at §656.26(a) and (b), a new application may be
filed at any time; and
(6) Advise that a new application in the same occupation for the same alien can not be filed
while a request for review is pending with the Board of Alien Labor Certification Appeals.
(f) If the Certifying Officer determines the employer substantially failed to produce required
documentation, or the documentation was inadequate, or determines a material misrepresentation
was made with respect to the application, or if the Certifying Officer determines it is appropriate
for other reasons, the employer may be required to conduct supervised recruitment pursuant to
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§656.21 in future filings of labor certification applications for up to two years from the date of
the Final Determination.
(g)(1) The employer may request reconsideration within 30 days from the date of issuance
of the denial.
(2) For applications submitted after July 16, 2007, a request for reconsideration may include
only:
(i) Documentation that the Department actually received from the employer in response to a
request from the Certifying Officer to the employer; or
(ii) Documentation that the employer did not have an opportunity to present previously to
the Certifying Officer, but that existed at the time the Application for Permanent Labor
Certification was filed, and was maintained by the employer to support the application for
permanent labor certification in compliance with the requirements of §656.10(f).
(3) Paragraphs (g)(1) and (2) of this section notwithstanding, the Certifying Officer will not
grant any request for reconsideration where the deficiency that caused denial resulted from the
applicant's disregard of a system prompt or other direct instruction.
(4) The Certifying Officer may, in his or her discretion, reconsider the determination or treat
it as a request for review under §656.26(a).
20 CFR §656.40 Determination of prevailing wage for labor certification purposes.
(a) Application process. The employer must request a PWD from the NPC, on a form or in a
manner prescribed by OFLC. Prior to January 1, 2010, the SWA having jurisdiction over the area
of intended employment shall continue to receive and process prevailing wage determination
requests in accordance with the regulatory provisions and Department guidance in effect prior to
January 1, 2009. On or after January 1, 2010, the NPC shall receive and process prevailing wage
determination requests in accordance with these regulations and with Department guidance. The
NPC will provide the employer with an appropriate prevailing wage rate. The NPC shall
determine the wage in accordance with sec. 212(t) of the INA. Unless the employer chooses to
appeal the center's PWD under §656.41(a) of this part, it files the Application for Permanent
Employment Certification either electronically or by mail with the processing center of
jurisdiction and maintains the PWD in its files. The determination shall be submitted to the CO,
if requested.
(b) Determinations. The National Processing Center will determine the appropriate
prevailing wage as follows:
(1) Except as provided in paragraphs (e) and (f) of this section, if the job opportunity is
covered by a collective bargaining agreement (CBA) that was negotiated at arms-length between
the union and the employer, the wage rate set forth in the CBA agreement is considered as not

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adversely affecting the wages of U.S. workers similarly employed, that is, it is considered the
“prevailing wage” for labor certification purposes.
(2) If the job opportunity is not covered by a CBA, the prevailing wage for labor
certification purposes shall be the arithmetic mean, except as provided in paragraph (b)(3) of this
section, of the wages of workers similarly employed in the area of intended employment. The
wage component of the DOL Occupational Employment Statistics Survey shall be used to
determine the arithmetic mean, unless the employer provides an acceptable survey under
paragraph (g) of this section.
(3) If the employer provides a survey acceptable under paragraph (g) of this section that
provides a median and does not provide an arithmetic mean, the prevailing wage applicable to
the employer's job opportunity shall be the median of the wages of workers similarly employed
in the area of intended employment.
(4) The employer may utilize a current wage determination in the area under the DavisBacon Act, 40 U.S.C. 276a et seq., 29 CFR part 1, or the McNamara-O'Hara Service Contract
Act, 41 U.S.C. 351 et seq.
(c) Validity period. The National Processing Center must specify the validity period of the
prevailing wage, which in no event may be less than 90 days or more than 1 year from the
determination date. To use a prevailing wage rate provided by the NPC, employers must file
their applications or begin the recruitment period required by §§656.17(e) or 656.21 of this part
within the validity period specified by the NPC.
(d) Similarly employed. For purposes of this section, similarly employed means having
substantially comparable jobs in the occupational category in the area of intended employment,
except that, if a representative sample of workers in the occupational category can not be
obtained in the area of intended employment, similarly employed means:
(1) Having jobs requiring a substantially similar level of skills within the area of intended
employment; or
(2) If there are no substantially comparable jobs in the area of intended employment, having
substantially comparable jobs with employers outside of the area of intended employment.
(e) Institutions of higher education and research entities. In computing the prevailing wage
for a job opportunity in an occupational classification in an area of intended employment for an
employee of an institution of higher education, or an affiliated or related nonprofit entity, a
nonprofit research organization, or a Governmental research organization, the prevailing wage
level takes into account the wage levels of employees only at such institutions and organizations
in the area of intended employment.
(1) The organizations listed in this paragraph (e) are defined as follows:

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(i) Institution of higher education means an institution of higher education as defined in
section 101(a) of the Higher Education Act of 1965. Section 101(a) of that Act, 20 U.S.C.
1001(a)(2000), provides an institution of higher education is an educational institution in any
state that:
(A) Admits as regular students only persons having a certificate of graduation from a school
providing secondary education, or the recognized equivalent of such a certificate;
(B) Is legally authorized within such state to provide a program of education beyond
secondary education;
(C) Provides an educational program for which the institution awards a bachelor's degree or
provides not less than a two-year program that is acceptable for full credit toward such a degree;
(D) Is a public or other nonprofit institution; and
(E) Is accredited by a nationally recognized accrediting agency or association or, if not so
accredited, is an institution that has been granted preaccreditation status by such an agency or
association that has been recognized by the Secretary of Education for the granting of
preaccreditation status, and the Secretary of Education has determined there is satisfactory
assurance the institution will meet the accreditation standards of such an agency or association
within a reasonable time.
(ii) Affiliated or related nonprofit entity means a nonprofit entity (including but not limited
to a hospital and a medical or research institution) connected or associated with an institution of
higher education, through shared ownership or control by the same board or federation, operated
by an institution of higher education, or attached to an institution of higher education as a
member, branch, cooperative, or subsidiary.
(iii) Nonprofit research organization or Governmental research organization means a
research organization that is either a nonprofit organization or entity primarily engaged in basic
research and/or applied research, or a United States Government entity whose primary mission is
the performance or promotion of basic research and/or applied research. Basic research is general
research to gain more comprehensive knowledge or understanding of the subject under study,
without specific applications in mind. Basic research is also research that advances scientific
knowledge, but does not have specific immediate commercial objectives although it may be in
fields of present or commercial interest. It may include research and investigation in the sciences,
social sciences, or humanities. Applied research is research to gain knowledge or understanding
to determine the means by which a specific, recognized need may be met. Applied research
includes investigations oriented to discovering new scientific knowledge that has specific
commercial objectives with respect to products, processes, or services. It may include research
and investigation in the sciences, social sciences, or humanities.
(2) Nonprofit organization or entity, for the purpose of this paragraph (e), means an
organization qualified as a tax exempt organization under the Internal Revenue Code of 1986,
section 501(c)(3), (c)(4), or (c)(6) (26 U.S.C. 501(c)(3), (c)(4) or (c)(6)), and which has received
43

approval as a tax exempt organization from the Internal Revenue Service, as it relates to research
or educational purposes.
(f) Professional athletes. In computing the prevailing wage for a professional athlete
(defined in Section 212(a)(5)(A)(iii)(II) of the Act) when the job opportunity is covered by
professional sports league rules or regulations, the wage set forth in those rules or regulations is
considered the prevailing wage (see Section 212(p)(2) of the Act). INA Section
212(a)(5)(A)(iii)(II), 8 U.S.C. 1182(a)(5)(A)(iii)(II) (1999), defines “professional athlete” as an
individual who is employed as an athlete by—
(1) A team that is a member of an association of six or more professional sports teams
whose total combined revenues exceed $10,000,000 per year, if the association governs the
conduct of its members and regulates the contests and exhibitions in which its member teams
regularly engage; or
(2) Any minor league team that is affiliated with such an association.
(g) Employer-provided wage information. (1) If the job opportunity is not covered by a
CBA, or by a professional sports league's rules or regulations, the NPC will consider wage
information provided by the employer in making a PWD. An employer survey can be submitted
either initially or after NPC issuance of a PWD derived from the OES survey. In the latter
situation, the new employer survey submission will be deemed a new PWD request.
(2) In each case where the employer submits a survey or other wage data for which it seeks
acceptance, the employer must provide the NPC with enough information about the survey
methodology, including such items as sample size and source, sample selection procedures, and
survey job descriptions, to allow the NPC to make a determination about the adequacy of the
data provided and validity of the statistical methodology used in conducting the survey in
accordance with guidance issued by the OFLC national office.
(3) The survey submitted to the NPC must be based upon recently collected data.
(i) A published survey must have been published within 24 months of the date of
submission to the NPC, must be the most current edition of the survey, and the data upon which
the survey is based must have been collected within 24 months of the publication date of the
survey.
(ii) A survey conducted by the employer must be based on data collected within 24 months
of the date it is submitted to the NPC.
(4) If the employer-provided survey is found not to be acceptable, the NPC will inform the
employer in writing of the reasons the survey was not accepted.
(5) The employer, after receiving notification that the survey it provided for NPC
consideration is not acceptable, may file supplemental information as provided by paragraph (h)
of this section, file a new request for a PWD, or appeal under §656.41.
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(h) Submittal of supplemental information by employer. (1) If the employer disagrees with
the skill level assigned to its job opportunity, or if the NPC informs the employer its survey is
not acceptable, or if there are other legitimate bases for such a review, the employer may submit
supplemental information to the NPC.
(2) The NPC will consider one supplemental submission about the employer's survey or the
skill level the NPC assigned to the job opportunity or any other legitimate basis for the employer
to request such a review. If the NPC does not accept the employer's survey after considering the
supplemental information, or affirms its determination concerning the skill level, it will inform
the employer of the reasons for its decision.
(3) The employer may then apply for a new wage determination or appeal under §656.41 of
this part.
(i) Frequent users. The Secretary will issue guidance regarding the process by which
employers may obtain a wage determination to apply to a subsequent application, when the wage
is for the same occupation, skill level, and area of intended employment. In no case may the
wage rate the employer provides the NPC be lower than the highest wage required by any
applicable Federal, State, or local law.
(j) Fees prohibited. No SWA or SWA employee may charge a fee in connection with the
filing of a request for a PWD, responding to such a request, or responding to a request for a
review of a SWA prevailing wage determination under §656.41.
20 CFR §656.41 Review of prevailing wage determinations.
(a) Review of NPC PWD. Any employer desiring review of a PWD made by a CO must
make a request for such review within 30 days of the date from when the PWD was issued. The
request for review must be sent to the director of the NPC that issued the PWD within 30 days of
the date of the PWD; clearly identify the PWD from which review is sought; set forth the
particular grounds for the request; and include all the materials pertaining to the PWD submitted
to the NPC up to the date of the PWD received from the NPC.
(b) Processing of request by NPC. Upon the receipt of a request for review, the NPC will
review the employer's request and accompanying documentation, and add any material that may
have been omitted by the employer, including any material the NPC sent the employer up to the
date of the PWD.
(c) Review on the record. The director will review the PWD solely on the basis upon which
the PWD was made and, upon the request for review, may either affirm or modify the PWD.
(d) Request for review by BALCA. Any employer desiring review of the director's
determination must make a request for review by the BALCA within 30 days of the date of the
Director's decision.

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(1) The request for review, statements, briefs, and other submissions of the parties and
amicus curiae must contain only legal arguments and only such evidence that was within the
record upon which the director made his/her affirmation of the PWD.
(2) The request for review must be in writing and addressed to the director of the NPC
making the determination. Upon receipt of a request for a review, the director will assemble an
indexed appeal file in reverse chronological order, with the index on top followed by the most
recent document.
(3) The director will send the Appeal File to the Office of Administrative Law Judges,
BALCA. The BALCA handles the appeals in accordance with §§656.26 and 656.27.

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