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When employers decide to hire foreign-born employees to fulfill permanent, full-time positions or temporary ones, they may be required to receive labor certification from the US Department of Labor (DOL) before the prospective employees are allowed to enter the country.
The purpose of the labor certification is to ensure that by hiring foreign-born workers, US workers are not being displaced, and their working environment and wages are not being compromised. The labor certification also protects foreign-born workers by making sure employers are not taking advantage of them, that they are not being paid less than the prevailing wage, and in the case of temporary workers, that they are being provided sufficient housing and food.
For permanent employees (classes EB-1, EB-2, EB-3 and EB-4), employers must complete a prevailing wage determination and recruitment report prior to requesting DOL certification. The prevailing wage determination shows what the prevailing wages for the type of work in the community are. Under current law, employers are required to pay 100% of the prevailing wage to foreign-born employees. The recruitment report, on the other hand, documents the employer’s attempts to hire US workers for the open position(s). Employers are required to meet certain minimum standards in their recruitment efforts as set out in federal regulations. The report must prove that there were no available, willing and able US workers to fill the open positions.
In order to receive labor certification, employers must be able to show:
- The open position is for permanent, full-time employment
- The position is bona fide i.e. it was not created specifically for the foreign-born worker
- The position was made available to US workers
- The job requirements are those reasonably required for the position and have not been altered to meet the foreign-born worker’s skill set
- The employer is paying the prevailing wage for the position
If the DOL approves the labor certification, then the employer is required to file a petition (Immigrant Petition for Alien Worker Form I-140) with the US Citizenship and Immigration Services (USCIS). Only after the USCIS petition is approved may the worker apply for a visa to travel to the US for employment.
Temporary workers must apply for nonimmigrant visas to travel to the US. Employers only have to seek labor certification for certain classes of temporary workers, which currently includes:
- H-1B (specialty occupations)
- H-1C (registered nurses)
- H-2A (temporary agriculture workers)
- H-2B (skilled and unskilled temporary workers)
The types of labor certification that are required for these classes have different names. For example, employers seeking to hire H-1B workers must file a Labor Condition Application. Those seeking to hire foreign nationals to fill registered nurse vacancies must file an Attestation. These forms require the employer to provide specific types of documentation and information. It is essential employers submit the correct labor certification form to the DOL. Otherwise, their application will be delayed or may be rejected altogether.
As with permanent employees, employers must receive approval from the DOL before they can submit their Petition for a Nonimmigrant Worker (Form I-129) to the USCIS for the temporary workers. After receiving authorization from the USCIS, then the workers may apply for the correct class of nonimmigrant visa.
Since the process to employ foreign-born workers is complex and time-consuming, it is best to begin the process as early as possible and to be aware of the deadlines imposed on these applications. An experienced immigration attorney can help employers simplify the process and complete each step as required by federal law.
Getting Ready To Apply for a Visa
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