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Frequently Asked Questions What is the Foreign Labor Certification Process for hiring foreign workers?

OVERVIEW

The Immigration and Nationality Act (INA) sets forth the conditions for the temporary and permanent employment of aliens in the United States and includes provisions that address employment eligibility and employment verification. These provisions apply to all employers.

COMPLIANCE ASSISTANCE MATERIALS

BASIC INFORMATION

• Employment Law Guide: Authorized Workers - Describes what employers must do to verify the identity and employment eligibility of anyone to be hired, and the protections afforded to employees from discrimination in hiring or discharge on the basis of national origin and citizenship status.
• Employment Law Guide: Crewmembers (D-1 Visas) - Describes the requirements of vessels/employers seeking to employ their nonimmigrant aliens as crewmembers to perform longshore work in U.S. ports under D-1 visas.
• Employment Law Guide: Workers in Professional and Specialty Occupations (H-1B Visas) - Describes the requirements on the part of employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models using the H-1B and H-1B1 nonimmigrant visa classification.
• Employment Law Guide: Temporary Agricultural Workers (H-2A Visas) - Describes the procedures for obtaining a labor certification and the contractual obligations of employers seeking to hire temporary agricultural workers under H-2A visas.
• Employment Law Guide: Temporary Nonagricultural Workers (H-2B Visas) - Describes the requirements on the part of employers seeking to obtain temporary nonagricultural labor certifications in order to import temporary nonagricultural workers to work in temporary jobs in the U.S. under H-2B visas.
• Employment Law Guide: Permanent Employment of Workers Based on Immigration - Describes the requirements on the part of employers seeking to hire foreign workers immigrating to the U.S. for the purpose of employment, including the application process for employers to obtain a permanent alien employment certification.

FACT SHEETS

• Publication of Final H-1B (Professional and Specialty Occupation Visas) Regulations
• Changes made by the H-1B Visa Reform Act of 2004
• H-2A (Temporary Agricultural Worker Visas)
• Application of U.S. Labor Laws to Immigrant Workers (In Korean - PDF) (En Español)
• Fair Labor Standards Act Application to Foreign Commercial Vehicle Operators (En Español)

RECORDKEEPING

• Documents and Forms - Links to the forms needed to obtain foreign labor certification under various programs, including the Application for H-1B and H-1B1 Nonimmigrants (form ETA-9035), the Application for Permanent Employment Certification (form ETA-9089), the Application for Alien Employment Certification (form ETA-750A), and Part B of this application: Statement of Qualifications of the Alien (form ETA-750B), and the Application for Alien Employment Certification for Agricultural services (form ETA-790). Please note that these forms are in PDF format and require the Adobe Acrobat Reader.
• H-2A Visa Program - Employers certified for H-2A contracts must keep records of the hours each worker actually works. In addition, the employer must retain a record of time "offered" to the worker but which the worker "refused" to work. Each worker must receive a wage statement showing hours of work, hours refused, pay for each type of crop, the basis of pay (i.e., whether the worker is being paid by the hour, by the piece, "task" pay, etc.). The wage statement must indicate total earnings for the pay period and all deductions from wages (along with a statement as to why deductions were made). See 20 CFR 655.102(b)(7) for further information on recordkeeping requirements under the H-2A visa program.
• H-1B and H-1B1 Visa Program - Employers using the H-1B or H-1B1 visa classifications to hire nonimmigrant foreign workers in specialty (professional) occupations are required to maintain documentation to meet their burden of proof with respect to the validity of the statements made in their Labor Condition Application (LCA) and the accuracy of the information provided. See 20 CFR 655.760 for regulations for employers of H-1B and H-1B1 classified specialty/professional nonimmigrant foreign workers.
• H-2B Visa Program - Employers of temporary nonagricultural workers under the H-2B visa program are not subject to any post entry (H-2B) program specific recordkeeping/posting/notice requirements; however, the recordkeeping/posting/notice requirements of any other laws applicable from DOL to the employment would apply.

APPLICABLE LAWS AND REGULATIONS

• Immigration and Nationality Act (INA)
• 20 CFR Part 655 - Regulations implementing the INA regarding the temporary employment of aliens in the United States.
• Interim Final Rule, 20 CFR Part 655 Subparts H and I (PDF) - Interim Final Rule implementing DOL's responsibilities regarding H-1B1 visas for professionals from Chile and Singapore.
• 29 CFR Part 501 -Regulations implementing the INA regarding the enforcement of contractual obligations applicable to the temporary employment of foreign and other workers employed in agriculture.

RELATED TOPICS AND LINKS

• Labor Certification Process-Temporary Employment of Aliens in the United States
• See also Compliance Assistance:
  
  • By Topic: Wages and Hours Worked / Wages under Foreign Labor Certification
  • By Topic: Equal Opportunity
  • By Audience: Foreign Workers

DOL CONTACTS*

• Employment and Training Administration
  Office of National Programs
  Division of Foreign Labor Certification
  200 Constitution Avenue, NW
  Room C-4312
  Washington, DC 20210
  E-mail: ETApagemaster@dol.gov
  Tel: 1-877-US2-JOBS (1-877-872-5627) or 202-693-3010
  TTY: 1-877-889-5627

• Employment Standards Administration (ESA)
  Wage and Hour Division
  200 Constitution Avenue, NW
  Room S-3502
  Washington, DC 20210
  Contact WHD
  Tel: 1-866-4USWAGE (1-866-487-9243)
  TTY: 1-877-889-5627
  Local Offices

• For questions on other DOL laws,
  please call DOL's Toll-Free Help Line at 1-866-4-USA-DOL. Live assistance is available in English and Spanish, Monday through Friday from 8:00 a.m. to 8:00 p.m. Eastern Time. Additional service is available in more than 140 languages through a translation service.
  Tel: 1-866-4-USA-DOL
  TTY: 1-877-889-5627

*Pursuant to the U.S. Department of Labor's Confidentiality Protocol for Compliance Assistance Inquiries, information provided by a telephone caller will be kept confidential within the bounds of the law. Compliance assistance inquiries will not trigger an inspection, audit, investigation, etc.