Labor Certification to Hire Foreign Workers
If your company is considering hiring foreign workers, there's a good chance that you'll need a labor certification from the United States Department of Labor. But what does the labor certification do, how does it impact your ability to hire workers from other countries, what types are there, and how do you get one? This guide explains.
What Is A Labor Certification?
A labor certification allows the United States government to ensure that jobs are available to Americans, and that the employer isn't going to take advantage of foreign workers. Additionally, this certification shows the U.S. government that jobs offered to foreign workers won't adversely affect American workers’ job opportunities, working conditions or wages.
In most situations, if you are hiring a foreign worker, you must have a proper labor certification. That's true whether you intend to hire just one foreign worker or a hundred foreign workers. Without a labor certification, companies that are required to have one face heavy penalties, including fines.
Department of Labor’s Labor Certification Programs
The Department of Labor can issue employers labor certifications under the following programs:
- Permanent Labor Certification
- Specialty (Professional) Workers
- Temporary Labor Certification (Seasonal Agricultural)
- Temporary Labor Certification (Non-agricultural)
- D-1 Crewmembers Certification
- CW-1 Nonimmigrant Visa Program
Permanent Labor Certification Program
What Is The Permanent Labor Certification Process Like?
Obtaining a permanent labor certification is a process that requires several steps. As an employer, you must demonstrate to the United States government that there are no qualified American workers available who will perform the work at the local prevailing wage. The burden of proof is on you; that means you're responsible for showing the government why you need to hire foreign workers rather than Americans.
The Department of Labor developed an online system for U.S. employers who plan to hire foreign workers on a permanent basis. The PERM system lets employers file and submit their applications for Permanent Employment Certification. Despite a new online system, the laws and regulations involving hiring foreign workers are not any less complicated.
Part of the process includes demonstrating to the Department of Labor that you intend to hire a worker as a full-time employee, and that the job is permanent in nature (rather than temporary or term). You must also prove that the job has reasonable requirements, which means that the requirements for performing the duties of the job are customary in that occupation. The only exception to the “reasonable requirements” rule is when you can demonstrate a clear business necessity that explains the unusual job requirements. You must also agree that your company will pay the prevailing wage or higher for the position.
Permanent, Full-Time Employment
Only companies hiring for full time positions qualify for the Permanent Labor Certification program. Companies that are hiring for part time positions don't qualify. You must demonstrate through documentation that the position you're hiring for will be full time, and that the employee you hire will be aware of that. The position you are hiring for must be a permanent one.
Reasonable Requirements
The job for which you're hiring must have reasonable requirements. For example, the minimum educational and experience requirements must be the same as those that are customarily required in that occupation. That means if it's common for someone holding that position to need a bachelor’s degree or its equivalent, and that is all you require for the position, your job requirements are reasonable.
However, if you are also requiring 10 years of experience, which isn't common in the industry, you need to provide justification to the Department of Labor that explains why that is a business necessity. This rule is in place to ensure that employers don't first find a specific candidate that they want to hire, and then later change job descriptions to match that candidate's background.
What About Temporary Employment?The Department of Labor also has programs for employers who hire foreign workers that are not permanent in nature.
Employing Specialty (Professional) Workers
Before an employer submits a petition with USCIS for a foreign worker’s visa, they must submit a Labor Condition Application (LCA) to the Department of Labor saying they agree with all the requirements of the H-1B, H-1B1 or E-3 program. The program lets employers temporarily employ foreign workers who are highly specialized like architects, engineers, mathematicians, law, theology and more.
Employers in this category must have a certification of a Labor Condition Application from the Department of Labor before they sponsor a foreign employee’s work visa. Employers are expected to file their LCA through the Department of Labor’s FLAG System.
Employing Seasonal Agricultural Workers
The H-2A Temporary Labor Certification process is so that farmers can legally employ seasonal agricultural workers when it looks like there will be a shortage of U.S. workers. Before an employer files a petition with USCIS for the worker’s visa, they must complete the very detailed, four-step H-2A Temporary Labor Certification.
Employers are required to file their job order and H-2A application using the Department of Labor’s FLAG System. The system can be very complicated and while it features user guides and video tutorials, consulting with an attorney beforehand can save a lot of time and lower your chances of a denial due to error.
Employing Temporary Non-Agricultural Workers
All jobs being offered as part of the H-2B Temporary Labor Certification program must be considered both temporary and full-time. The H-2B Temporary Labor Certification allows employers to hire non-agricultural temporary workers from outside the United States. Before the employer files a petition for a foreign worker’s visa with USCIS, the employer themselves must have a temporary labor certification from the Department of Labor. To be approved for a temporary labor certification, the employer must first:
- File a Prevailing Wage Determination from the National Prevailing Wage Center using the Department of Labor’s FLAG System
- File a job order with the State Workforce Agency
- Submit the H-2B application with a copy of the job order that was filed with the SWA to the Chicago National Processing Center
Of course, that’s just the start. If the Chicago NPC gives the green light, there are still several hoops the employer must jump through. This process is complicated and there are many chances for errors, so it’s best to consult with an attorney from the start.
Employing Crewmen To Load & Unload At U.S. Ports
A foreign worker on a vessel is usually not allowed to load and unload at a U.S. port, but the Department of Labor can provide exemptions for crewmen under certain situations for crewmen with D-1 visas. This is called a D-1 Crewmember Certification. If an employer needs to use foreign crewman to load or unload a vessel at a U.S. port, they must file an attestation saying the following:
- The use of crewmembers for longshore work who are not U.S. workers is the prevailing practice for the activity at that port
- There is no strike or lockout going on
- Notice about the available work has been given to U.S. workers or their representatives
To learn more about D-1 Crewmembers Certification, visit the Department of Labor or speak with a qualified attorney.
Legal Assistance For Employers Of Foreign Labor
As you can see, multiple government agencies are involved with allowing you to hire workers from outside the United States. First, you need to get certification from the Department of Labor. Then, you usually must petition USCIS for the worker’s visa. Next, the worker themselves must get approval to take the job offer. There are many places where something can go wrong.
As an employer, the penalties for not following all laws and regulations can be hefty, so make sure you are getting help from a qualified attorney who knows the ins and outs of labor certifications. Contact Davis & Associates today for a free consultation.