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, 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.
If your company is hiring for a permanent position, you must have a 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.
Does Your Company Need a Labor Certification to Hire Foreign Workers?
Before your company can hire foreign workers on a permanent basis, it must apply for and receive a labor certification from the U.S. Department of Labor. (See the following section for more information on hiring temporary workers without a labor certification.)
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Does Your Company Need a Labor Certification to Hire Foreign Workers?
Before your company can hire foreign workers on a permanent basis, it must apply for and receive a labor certification from the U.S. Department of Labor. (See the following section for more information on hiring temporary workers without a labor certification.)
What About Temporary Workers?
Employers that wish to hire foreign workers on a temporary basis may not need to have labor certifications. Often, employers that offer temporary positions are able to employ temporary workers who have the appropriate visas. Generally, employers must sponsor workers for these visas. However, if you are unsure whether your company needs a labor certification, you should speak to an immigration attorney who can help keep you on the right side of the law.
What is the Labor Certification Process Like?
Obtaining a 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.
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. The following sections explain.
Full-Time Employment
Only companies hiring for full time positions qualify for labor certification. 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.
Permanent Positions
The position you are hiring for must be a permanent one. If you intend to hire a temporary worker, you most likely don't need a labor certification; a temporary work visa may suffice. However, if you are hiring a temporary worker who needs a temporary work visa, you will most likely still be responsible for sponsoring that worker.
Reasonable Requirements
The job for which you're hiring must have reasonable requirements. For example, the minimum educational and experience requirement 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.
Prevailing Wage
The prevailing wage is the average wage paid to similarly employed workers in the same field. There are several ways to determine the national prevailing wage if you aren't sure what it is for the position you want a foreign worker to fill. Many employers submit requests to the National Prevailing Wage Center, or NPWC, to find out, but you may use other legitimate sources of information. Your attorney may also help you determine the prevailing wage for a position if you are unsure.
Note: You must complete and file the appropriate forms with the United States government – specifically, the Department of Labor – and receive approval before you can begin the hiring process.
Can a Business Immigration Lawyer Fill Out and File the Paperwork for Your Foreign Labor Certification?
Your business immigration attorney can fill out and file the paperwork for your foreign labor certification for you. In fact, the reason many businesses work with attorneys is so they don't have to worry about running into snags on the paperwork or making the wrong declarations to the Department of Labor.
What Happens After You Get the Foreign Labor Certification?
After your company receives an approved foreign labor certification from the Department of Labor, it's okay to begin advertising the job opening to applicants. You cannot begin the hiring process until you have received an approved labor certification.
After you have made your selection, your company will most likely need to apply for a visa on your new employee’s behalf. Remember, employees cannot enter the country without a valid visa.
A Word on Visas for Workers
Generally, any foreigner entering the United States to work must have a valid visa. Typically, employers sponsor employees for these visas. However, there are some exceptions, which your attorney can cover with you.
Do Companies Have to Sponsor Workers’ Families?
In many cases, people who are coming to the United States to work may bring their families with them. If a worker you hire intends to bring their family, the worker – whom your company sponsors – is the one responsible for sponsoring their own family.
Can Workers Get Green Cards After Taking a Job in the U.S.?
Often, the visas that apply to work circumstances for permanent positions lead to lawful permanent residency in the United States. If you have a worker who becomes a lawful permanent resident, you need to know that they are entitled to work anywhere they wish in the United States; you’ll no longer be their sponsor when they receive a green card.
Do You Need to Talk to a Business Immigration Lawyer About Labor Certification?
If you're considering hiring foreign workers, you may need the help of an experienced and knowledgeable business immigration attorney. Call our office today to schedule a free consultation with a committed professional. Our team will be happy to answer your questions and get you pointed in the right direction.