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
U.S. Citizenship and Immigration Services (CIS) 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.
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 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.