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
the Foreign Labor Certification Process
Program Regulations & FAQs
CFR 655.0 - .99
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.
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
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.