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

OVERVIEW

The U.S. Department of Labor's (DOL) responsibilities regarding foreign workers includes certification of positions for temporary and permanent employment of aliens and hiring and wage issues. See also Wages and Hours Worked / Wages under Foreign Labor Certification.

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. These programs are generally designed to ensure 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.

While there are several federal agencies involved with granting permission for foreign workers to work in the United States, employers generally must first obtain certification through DOL. Certification may be granted 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.

Once the application is certified/approved by DOL, the employer generally must petition the U.S. Citizenship and Immigration Services (formerly the Immigration and Naturalization Service) for a visa on behalf of the foreign worker. Approval by DOL does not guarantee a visa issuance. The foreign worker applicant(s) must also establish that they are admissible to the United States under provisions of the Immigration and Nationality Act (INA).

The DOL Employment and Training Administration (ETA) provides labor certifications to employers. The Wage and Hour Division of the Employment Standards Administration (ESA) at the Department is responsible for investigating and determining an employer's misrepresentation in or failure to comply with the H-1B, H-1B1, and H-2A program requirements and with employment laws, principally the Fair Labor Standards Act.

Please see the Hiring Topic Overview page for information about Immigration and Naturalization Service Form I-9.

COMPLIANCE ASSISTANCE MATERIALS

BASIC INFORMATION

• Foreign Labor Certification - Describes the role of DOL's Division of Foreign Labor Certification with the Employment and Training Administration, which provides labor certifications to employers seeking to bring foreign workers into the United States.
• 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 - 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 - Workers in Professional and Specialty Occupations (H-1B and H-1B1 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 nonimmigrant visa classification, and specialty occupations using the H-1B1 nonimmigrant visa classification.
• 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.
• 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.
• Filing a complaint - DOL's Wage and Hour Division manages complaints regarding violations of the various laws and regulations it administers. To file a complaint concerning one of these laws, contact your nearest Wage and Hour Division office or call the Department's Toll-Free Wage and Hour HelpLine at 1-866-4-US-WAGE. See also Form WH-4 for use by those alleging violations of H-1B rules.

FACT SHEETS

• Agricultural Employers - Section H-2A of the Immigration Reform and Control Act

• Application of U.S. Labor Laws to Immigrant Workers : Effect of Hoffman Plastics Decision on Laws Enforced by the Wage and Hour Division
• Publication of Final H-1B (Professional and Specialty Occupation Visas) Regulations
• Changes made by the H-1B Visa Reform Act of 2004

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.
• Undocumented Foreign Workers - Employers of undocumented foreign workers are subject to the same recordkeeping/posting/notice requirements of whichever laws apply to their employees' particular occupation, regardless of their employees' immigration status.

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 United States and includes provisions that address employment eligibility and employment verification. These provisions apply to all employers.
• 20 CFR Part 655 - Regulation regarding 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.
• 20 CFR Part 656 - Regulation regarding the labor certification process for permanent employment of aliens in the United States.

RELATED TOPICS AND LINKS

• Migrant and Seasonal Farm Workers Protection Act (MSPA) - The MSPA provides employment-related protections to migrant and seasonal agricultural workers. See also Compliance Assistance By Law - The MSPA.
• Equal Employment Opportunity Commission (EEOC) - Enforces the federal prohibition against national origin discrimination in employment under Title VII of the Civil Rights Act of 1964.
• Office of Federal Contract Compliance Programs (OFCCP) - Part of the DOL's Employment and Standards Administration, OFCCP enforces laws prohibiting national origin discrimination for employees of federal contracts.
• Civil Rights Center (CRC) - Part of DOL's Office of the Assistant Secretary for Administration and Management, CRC enforces laws prohibiting national origin discrimination in employment for entities receiving federal financial assistance.
• Recruitment of U.S. Workers - As part of the foreign labor certification process, employers must first attempt to recruit U.S. workers. Services available include:
  
  • Connecting with Qualified Employees
  ,
  • America's Job Bank,
  • Service Locator, and
  • Employer Assistance Referral Network (EARN)
• For information regarding other employment-based visas which do not require U.S. Department of Labor certification, see the U.S. Department of State's Web site or the U.S. Citizenship and Immigration Services' Web site.

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.