Requirement for U.S. employers seeking to employ certain persons whose immigration to the United States is based on job skills or nonimmigrant temporary workers coming to perform services for which qualified authorized workers are unavailable in the United States. Labor certification is issued by the Secretary of Labor and contains attestations by U.S. employers as to the numbers of U.S. workers available to undertake the employment sought by an applicant, and the effect of the alien’s employment on the wages and working conditions of U.S. workers similarly employed. Determination of labor availability in the United States is made at the time of a visa application and at the location where the applicant wishes to work.
As an employer, you may need to hire foreign labor when a U.S. citizen is not available. As a starting point you will need to consider whether you wish to petition for permanent residence (a green card) for your prospective employee to work here permanently or whether you wish to petition for someone to come temporarily to the United States to fill an employment need.
Foreign workers may obtain permanent residence (a green card) if they are able to establish that they have unique skills, or are being offered a job in the United States that will not displace a U.S. worker or have an adverse effect on wages and working conditions of U.S. workers. This determination is made by the Department of Labor and is demonstrated by obtaining a “labor certification.”
Permanent worker visas are broken into five preference categories. For a description of the preference categories, see the “Permanent worker ”.
Department of Labor: Labor Certification
A U.S. employer who is “sponsoring” or petitioning for a permanent worker may be required to obtain a labor certification from the Department of Labor (DOL) verifying that there are an insufficient number of available, qualified, and willing U.S. workers to fill the position, and that the employment will not have an adverse effect on the wages and working conditions of similarly situated U.S. workers.
For more information, see “Permanet Labor Certification”.
Permanent Residence (a Green Card) Through a Job Offer
For information on how you can obtain a green card see the“Green Card Eligibility Categories”.
There are several temporary (nonimmigrant) categories which allow a foreign national to work in the United States. For a list of these nonimmigrant categories of temporary workers, as well as information on the petitioning process, see “Temporary (Nonimmigrant) Workers”.
Department of Labor: Labor Condition Application
Some nonimmigrant categories require that a U.S. employer obtain a certification of labor condition application from the Department of Labor. That application requires the employer to state (“attest”) that it will comply with the following requirements:
- The employer must pay a wage that is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area.
- The employer must provide working conditions that will not adversely affect other similarly employed workers.
- The employer must attest that there is no strike or lockout at the place of business of the prospective temporary worker.
- The employer must give notice to the bargaining representative or post a notice at the place of business that a labor condition application has been filed with the DOL.
How To Verify Employment Eligibility (Form I-9 and E-Verify)
All U.S. employers must verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986 by completing an Employment Eligibility Verification form (Forms I-9) for all employees, including U.S. citizens. Employers who hire or continue to employ individuals knowing that they are not authorized to be employed in the United States may face civil and criminal penalties.