How to Get Temporary Labor Certification for Foreign Workers

Use these links to jump to different sections:

• How to Start the Process
• Employer Requirements for Labor Certification
• Legal Advice Is Important

Foreign workers coming to the U.S. have an extra hurdle to gain entry compared to other visitors and immigrants: the foreign labor certification process. However, it’s actually the U.S. employer who is responsible for completing the process, which varies depending on whether the worker is seeking permanent residence or a temporary visa.

For temporary workers, there are two different processes depending on the visa:

1. Employers of H-1B applicants must submit a Labor Condition Application (LCA) to the U.S. Department of Labor (USDOL);
2. H-2A and H-2B workers must gain approval through temporary labor certification.

U.S. employers must obtain temporary labor certification before petitioning the foreign worker to enter the U.S., and obtaining that certification is the bulk of the visa process. Temporary labor certification involves setting a fair wage for the open position and making adequate recruitment efforts for qualified U.S. workers. This is to ensure that workers are not displaced or denied job opportunities and that the employer has a real and desperate need for foreign help.

How to Start the Process

The processes for bringing in agricultural workers (H-2A) and non-agricultural employees (H-2B) are much the same, but there are some differences.

All employers wanting to bring foreign employees to the U.S. must demonstrate they will pay a fair wage to the employee, but H-2B employers must submit an Application for Prevailing Wage Determination to the DOL, while H-2A employers do not need to submit the form. The DOL will determine the prevailing wage for the position and send the form back to the employer.

Next, employers submit the Application for Temporary Employment Certification. There are two different forms depending on whether the worker is obtaining an H-2A visa or an H-2B visa, but the forms are much the same. These forms request information about the job, the employer, and, most importantly, the job posting, including:

• Job title;
• Amount and schedule of hours to be worked;
• Description of the job duties;
• Whether the job involves supervision duties;
• Education and training required for the job; and
• Employer’s recruitment efforts for position.

Employer Requirements for Labor Certification

The employer must also submit certain declarations to the U.S. government about the hiring of the foreign worker. The declarations are contained within an appendix to the application. There are different appendixes for each visa, but the forms are much the same for H-2A positions and H-2B positions. Both appendixes contain promises from the U.S. employer, including:

• The job for the visa applicant is a full-time position, the qualifications for which are similar to other comparable positions;
• The job is and has been open to all interested U.S. residents;
• The job offers U.S. residents no less than the same benefits, wages, and working conditions that the job offers the visa applicant;
• The job will offer no less than the prevailing wage or similar through the National Prevailing Wage Center;
• No U.S. workers are available or willing to apply;
• The job is not vacant because of a strike or recent lay-offs; and
• The employer will comply with all federal and state employment-related laws.

There is a lengthy list of applicable laws for U.S. employers hiring foreign workers; U.S. employers must understand those laws or face severe civil or even criminal penalties.

For employers of non-agricultural workers, one last document is required to complete their application, which is not required of H-2A employers: Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers. The form requires the employer to agree to conduct further recruitment efforts of U.S. employees. The form also requires employers to be able to demonstrate, if necessary, that the employer’s business will suffer irreparable harm without the foreign workers.

Legal Advice Is Important

If labor certification is approved, a U.S. Department of Labor official will sign the certification and provide the valid start date the foreign employee is authorized to work based on the employer’s need.

However, the final determination is often not that simple. Employers considering hiring foreign workers should first consult with an experienced immigration attorney to successfully navigate the labor certification application and have the best chance of a successful hire.

For more information on this area of law, see our immigration overview.