Temporary Labor Certification for Foreign Workers

To ensure that the admission of foreign workers into the United States does not adversely affect the wages, working conditions, and employment opportunities of U.S. workers.

Foreign labor certification programs are designed to ensure that the admission of foreign workers into the United States will not adversely affect the job opportunities, wages, and working conditions of U.S. workers. Temporary foreign labor certification programs permit U.S. employers to hire foreign workers on a temporary basis to fill jobs essential to the U.S. economy. Certification may be obtained in cases where it can be demonstrated that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment. In most instances, before a U.S. employer can submit a nonimmigrant petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a labor certification.

Any U.S. employer that is unable to find a qualified and available U.S. worker and seeks to hire a foreign worker to fill a given temporary job opportunity is eligible to file an application for temporary labor certification with the Department of Labor (DOL) DOL provides annual grants to State Workforce Agencies (SWAs) in 55 states and U.S. territories to support required state-level foreign labor certification activities. These activities include, but are not limited to, reviewing and placing job orders to recruit U.S. workers; conducting inspections of employer-provided housing for H-2A agricultural workers; assisting employers in the effective recruitment of U.S. workers; performing prevailing practice and wage surveys used to set the wages and working standards for occupations within the state; and conducting post-certification site visits to support employer compliance with H-2A and H-2B program requirements.

U.S. employers may, upon meeting certain conditions of employment and regulatory immigration requirements, use this assistance to seek the admission of foreign workers for temporary positions in the United States, provided that the employment of such foreign workers does not adversely affect the wages and working conditions of similarly-employed U.S. workers. This assistance may also be used by States and U.S. Territories to conduct required activities under the Immigration and Nationality Act in support of the foreign labor certification programs. These activities include, but are not limited to, reviewing and placing job orders to recruit U.S. workers; assisting employers in the effective recruitment of U.S. workers; conducting safety inspections of employer-provided housing for H-2A agricultural workers; performing prevailing practice and wage surveys used to set the wages and working standards for occupations within the state; and conducting post-certification site visits to support employer compliance with H-2A and H-2B program requirements.

U.S. employers may, upon meeting certain conditions of employment and regulatory immigration requirements, use this assistance to seek the admission of foreign workers for temporary positions in the United States, provided that the employment of such foreign workers does not adversely affect the wages and working conditions of similarly-employed U.S. workers.

Applications for temporary labor certification may be filed at any time. The Employment and Training Administration also issues grants to State Workforce Agencies for required activities supporting the labor certification programs.

Prior to filing an application for H-2B or CW-1 labor certification, the U.S. employer must obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC).

If the Department of Labor approves the application for temporary labor certification, the Certifying Officer issues a certification to the employer that submitted the application (and/or their representative or agent). The temporary labor certification is then filed by the U.S. employer, along with other necessary documentation, in support of a nonimmigrant worker petition filed with United States Citizenship and Immigration Services. State Workforce Agencies submit operational plans to the Department of Labor to establish continued eligibility for Foreign Labor Certification (FLC) grants. These plans describe each agency's planned FLC activities and workload expectations during the grant period.

H-1B: the Department of Labor (DOL) processes the application within seven days. H-2A: DOL issues an initial acceptance by the within seven days of filing and a final determination at least 30 days prior to the employer's date of need.

Renewals and extensions are treated as the filing of a new application.

There is no procedure for appealing Department of Labor determinations to accept or reject a Labor Condition Application submitted for the H-1B, H1-B1, and E3 Programs. Complaints regarding misrepresentation in connection with the attestation or failure of the U.S. employer to carry out the terms of the attestation may be filed with the Department of Labor's Wage and Hour Division.