Hiring Foreign Workers

Foreign Labor Certification Overview

The Department of Labor issues labor certifications for permanent and temporary employment under the following programs:

Foreign labor certification programs permit U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy. Certification may be obtained in cases where it can be demonstrated that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment.

Foreign labor certification programs are designed to assure that the admission of foreign workers into the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.

Employment based immigration is a complex process that may involve a number of government agencies within the Federal Department of Labor, the State Department of Labor, the Bureau of Citizenship and Immigration Services (BCIS) and the Department of State. The Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.) regulates the admission of foreign workers into the United States. The INA designates the Attorney General and the Secretary of State as the principal administrators of its provisions.

About the Foreign Labor Certification Process

Program Regulations & FAQs

20 CFR 655.0 - .99

FAQs

Compensation of Foreign Workers

Regulations require that the wages attested to on foreign labor certification applications must be the average wage paid to all other workers in the requested occupation in the area of intended employment. This average wage is referred to as the prevailing wage. See Prevailing Wages for more information.

The employer is not precluded from paying nonimmigrant(s) more than the prevailing wage.

Employer Compliance

The employer should be aware that in filing for a foreign labor certification, the employer is obligated to comply with all employment related laws and regulations. In the case of H-1B Specialty (Professional) Workers and “H-2A”: http://workforcesecurity.doleta.gov/foreign/h-2a.asp Temporary Seasonal Agricultural workers, additional obligations also apply. The details on these obligations may be found in the sections detailing H-1B and H-2A. Failure to comply with the established laws and regulations may potentially result in penalties and possible legal action.

The Wage and Hour Division of the Employment Standards Administration (ESA) at the Department of Labor is responsible for investigating and determining an employer's misrepresentation in or failure to comply with the H-1B and H-2A program requirements and with employment laws, principally the Fair Labor Standards Act.

Non-DOL Employment Visas

For information regarding other employment based visas which do not require Department of Labor certification, see the U.S. Department of State's website or the Bureau of Citizenship and Immigration Service's website.

Foreign Labor Certification

This information is provided by the Division of Foreign Labor Certification. Foreign labor certification programs are generally designed to assure that the admission of aliens to work in this country on a permanent or temporary basis will not adversely affect the job opportunities, wages and working conditions of U.S. workers. With few exceptions, these five programs are jointly administered by the Department and the State Employment Security Agencies (SESAs). The program titles link to the regulations which govern each program. The Department of Labor is responsible for administering programs for Permanent Labor Certifications, H-1B Specialty (Professional) Workers, H-2A Temporary Labor Certifications, and H-2B Temporary Labor Certifications.

H-2A Temporary Labor Certification

The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant aliens to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Before the INS can approve an employer's petition for such workers, the employer must file an application with the Department stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Employment Standards Administration (ESA) has responsibility for enforcing provisions of worker contracts.
Further Information on H-2A program and how to apply.

Permanent Labor Certification

An alien seeking to immigrate to the United States on the basis of employment must obtain an offer of permanent full-time employment from an employer in the United States. The alien cannot be admitted as a permanent resident unless, among other things, the employer obtains a labor certification from the Department that qualified U.S. workers are not available for the employment offered to the alien, and that the wages and working conditions offered will not adversely affect those of similarly employed U.S. workers.

The labor certification process requires the employer to recruit U.S. workers at prevailing wages and working conditions through the State Employment Service, by advertising, posting notice of the job opportunity, and by other appropriate means. A Departmental regional certifying officer makes a decision to grant or deny the labor certification based on the results of the employer's recruitment efforts and compliance with Departmental regulations.To view the regulations governing this program click on the title of this program.
Information on application form ETA 750 and how to apply for a Permanent Labor Certification

H-1B Specialty (Professional) Workers

Employers who intend to employ alien workers for a temporary period in professional occupations or as fashion models must file labor condition applications with the Department stating that they will pay the appropriate wage rate to the alien, that they have notified the bargaining representative or otherwise posted notice of their intent to employ alien workers, and that there is no strike or lockout at the place of employment. Aggrieved parties may file complaints with the Department regarding misrepresentation or failure to comply with the statements attested to in the application.

Where the complaint is successful, the Wage and Hour Division of the Employment Standards Administration may assess penalties and the employer may be barred from filing petitions for permanent and temporary workers for at least 1 year. Labor condition applications may be approved for periods of up to 3 years, renewable for a total of 6 years, the maximum allowable period of stay in the U.S. under H-1B status.

ETA is beginning the process of implementing nationally a New Automated Fax-In/Fax-Out System for processing Labor Condition Applications for H-1B nonimmigrants.
How to apply for a Labor Condition Application.

H-2B Temporary Labor Certification

Under the H-2B nonimmigrant visa classification, aliens may come temporarily to the United States to perform temporary nonagricultural work. The process for obtaining an H-2B labor certification is very similar to that required for permanent labor certification, but is not as extensive or time consuming. The labor certification may be issued for a period of up to one year, renewable for a maximum of three years. To view the regulations governing this program click on the title of this program. You will need a form ETA 750 part A and B to apply for this program.
Information on how to apply Temporary Labor Certification