Wages and Hours Worked:

Wages under Foreign Labor Certification


Frequently Asked Questions

OVERVIEW

The Immigration and Nationality Act (INA) allows U.S. employers to hire foreign workers on a temporary or permanent basis to perform certain types of work. The U.S. Department of Labor's (DOL) Employment and Training Administration (ETA) generally grants certification to employers to hire foreign workers in cases where there are insufficient qualified U.S. workers available and willing to perform work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment. Specific rules apply to each category of visas:

H-1B and H-1B1 Specialty (Professional) Workers must be paid the higher of the prevailing wage (average wage paid to similarly employed workers in the occupation in the area of employment) or the actual wage paid by the firm to workers with similar skills and qualifications.

H-2A Agricultural Workers must be paid the highest of the (a) Adverse Effect Wage Rate (AEWR), (b) the prevailing rate for a given crop/area or (c) the federal or state minimum wage. The law also contains requirements regarding employer-provided meals and transportation of workers and restricts the deductions that may be legally made from workers' wages.

H-2B Non-agricultural Workers must be paid the prevailing wage (average wage paid to similarly employed workers in the occupation in the area of employment).

D-1 Crewmembers (longshore work) must be paid the prevailing wage (average wage paid to similarly employed workers in the occupation in the area of employment).

Permanent Employment of Aliens - employer must agree to offer and pay the prevailing wage, determined in accordance with one of several options under the regulation, from the time permanent residency is granted or the alien is admitted to the United States to take the position.

COMPLIANCE ASSISTANCE MATERIALS

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) - The Act sets forth the conditions for the temporary and permanent employment of aliens in the U.S. and includes provisions that address employment eligibility and employment verification. These provisions apply to all employers.

  • 20 CFR Part 655 - Department of Labor regulations regarding temporary employment of aliens in the United States, including under all the "H" categories.

  • Interim Final Rule, 20 CFR 655 Subparts H and I (PDF) - Interim Final Rule implementing DOL's responsibilities regarding H-1B1 visas for professionals from Chile and Singapore.

  • 20 CFR Part 656 - Department of Labor regulations regarding labor certification for the permanent employment of aliens in the United States.

  • 29 CFR Part 501 - Regulations regarding the enforcement of contractual obligations for temporary alien agricultural workers admitted under Section 216 of the INA.

  • The Fair Labor Standards Act (FLSA) - Establishes minimum wages, overtime pay, record keeping and child labor standards for private sector and government workers.

  • 29 CFR Part 531 - Regulations on wage payments under the FLSA.

RELATED TOPICS AND LINKS

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.