|Foreign Labor Certification|
OverviewThe Department of Labor issues labor certifications for permanent and temporary employment under the following programs:
- Permanent Labor Certification
- H-1B Specialty (Professional) Workers
- H-2A Temporary Labor Certification (Seasonal Agricultural)
- H-2B Temporary Labor Certification (Non-agricultural)
- D-1 Crewmembers 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. 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.
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 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 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.