DOL Discusses Entry of Foreign Worker’s Qualifications on ETA Form 9089 and Familial Relationships

On July 28, 2014, the Employment and Training Administration (ETA) within the Department of Labor (DOL) posted the following answers to two new frequently asked questions.

ALIEN EXPERIENCE

Where on the ETA Form 9089 should I enter the foreign worker’s qualifications, such as certifications, licensure, or other credentials, to show that he/she meets the actual minimum requirements?4

ETA must assess whether the foreign worker possesses all the qualifications for the employer’s job opportunity. When the employer lists specific skills and other requirements for the job opportunity in Section H, Question 14, the employer must also demonstrate on the ETA Form 9089 that the foreign worker possesses those skills and requirements. In order to do so, the employer should list separately in Section K all the foreign worker’s qualifications, such as certificates, licenses, professional coursework, or other credentials that meet the requirements to perform the job opportunity listed in Section H, if those qualifications have not already been explicitly identified under information about the jobs held in the past three years. If not listed elsewhere, the list of certificates, licenses, professional coursework, or other credentials held by the foreign worker and required in order to perform the job opportunity, should be entered after all jobs held in the past three years are listed, under Question 9, “Job Details (duties performed, use of tools, machines, equipment, etc.)”; Question Numbers 1-8 requesting information about the job can be left blank.

For example, assume a situation in which the foreign worker has had two jobs in the last three years, and holds a license required to perform the employer’s job opportunity that he or she obtained in the last three years through a course of study not undertaken in connection with either job. The employer should complete Section K, Question Numbers 1-9 for Job 1 and Question Numbers 1-9 for Job 2. If the required license is not explicitly stated in information provided under Job 1 or Job 2 in Section K because it was not obtained performing either job, the employer must list the license since it demonstrates the foreign worker meets the requirements to perform the job opportunity under Job 3, Question 9. The employer may leave blank Question Numbers 1-8 on Job 3.

Examples of certifications, licensure, or other credentials that must be provided in Section K if relevant to the foreign worker’s qualifications include, but are not limited to, bar admission, medical residency, ordination, professional exams, certifications such as medical Board certifications or other professional certifications, teaching certificates, university or professional coursework, and professional insurance.

The employer must be prepared to demonstrate the business necessity of each and every special skill or requirement listed in Section H.

Such qualifications must be listed on any application submitted on or after the date of posting of this FAQ.

FAMILIAL RELATIONSHIPS

When should an employer mark “yes” when responding to the Question C.9: “is there a familial relationship between the foreign worker and the owners, stockholders, partners, corporate officers, and incorporators?”5

If there is a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the alien, the employer must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to U.S. workers. 20 C.F.R. 656.17(l). In order to provide the Certifying Officer (CO) the opportunity to evaluate whether the job opportunity has been and is clearly open to qualified U.S. workers, an employer must disclose any familial relationship(s) between the foreign worker and the owners, stockholders, partners, corporate officers, and incorporators by marking “yes” to Question C.9 on the ETA Form 9089. See also Matter of Modular Container, 1989-INA-228 (Jul. 16, 1991) (en banc).

A familial relationship includes any relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws and step-families. The term “marriage” will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated.

A familial relationship between the alien and the employer does not establish the lack of a bona fide job opportunity per se. Ultimately, the question of whether a bona fide job opportunity exists in situations where the alien has a familial relationship with the employer depends on “whether a genuine determination of need for alien labor can be made by the employer corporation and whether a genuine opportunity exists for American workers to compete for the opening.” Modular Container at *8. Therefore, the employer must disclose such relationships, and the CO must be able to determine that there has been no undue influence and control and that these job opportunities are available to U.S. workers. When the employer discloses a family relationship, and the application raises no additional denial issues, the employer will be given an opportunity to establish, to the CO’s satisfaction, that the job opportunity is legitimate and, in the context of the application, does not pose a bar to certification. The CO will consider the employer’s information and the totality of the circumstances supporting the application in making this determination.

Please note that failure to disclose familial relationships or ownership interests when responding to Question C.9 is a material misrepresentation and may therefore be grounds for denial, revocation or invalidation in accordance with the Department’s regulations.

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