Practical Guide to Labor Certification in U.S. Immigration Law
Introduction
Labor certification is a critical process in U.S. immigration law that ensures the employment of foreign workers does not adversely affect the wages and working conditions of U.S. workers. It is a prerequisite for certain work visas and permanent residency (green card) applications. This guide will provide practical information and solutions for navigating the labor certification process.
Options and Solutions
Labor Condition Application (LCA) for Temporary Work Visas
Who It's For: Employers seeking to hire foreign workers on non-immigrant visas like the H-1B, H-1B1, and E-3.
Key Requirements:
- Submit a Labor Condition Application (LCA) to the U.S. Department of Labor
- Attest to paying at least the prevailing wage or the employer's actual wage, whichever is higher
- Provide benefits and working conditions on par with U.S. workers
- Notify the Employment and Training Administration (ETA) of any strikes or lockouts
Timing: The LCA must be approved before filing the visa petition with U.S. Citizenship and Immigration Services (USCIS).
Next Steps:
1. Determine the prevailing wage for the position
2. Prepare and submit the LCA to the Department of Labor
3. Upon approval, include the certified LCA with the visa petition
Permanent Labor Certification for Green Cards
Who It's For: Employers seeking to sponsor foreign workers for permanent residency (green cards) through employment-based categories.
Key Requirements:
- File a Form ETA-9089 with the Department of Labor
- Demonstrate a lack of qualified U.S. workers for the position
- Prove that hiring the foreign worker will not adversely affect U.S. workers' wages and conditions
Timing: The permanent labor certification must be approved before filing the immigrant petition (Form I-140) with USCIS.
Next Steps:
1. Conduct recruitment efforts to demonstrate a lack of qualified U.S. workers
2. Prepare and submit the Form ETA-9089 to the Department of Labor
3. Upon approval, include the certified Form ETA-9089 with the Form I-140 immigrant petition
Additional Requirements for Dependent Employers and Willful Violators
Employers who are dependent on H-1B workers (15% or more of their workforce) or have willfully violated H-1B rules must adhere to additional requirements, such as:
- Not displacing similarly employed U.S. workers
- Making bona fide inquiries before placing H-1B workers at third-party worksites
- Taking good faith steps to recruit U.S. workers and offering the job to qualified applicants
Key Takeaways
- Labor certification is a crucial step in hiring foreign workers and obtaining work visas or green cards.
- The LCA process applies to temporary work visas, while permanent labor certification is required for employment-based green cards.
- Employers must demonstrate a lack of qualified U.S. workers and ensure foreign workers' wages and conditions do not undercut those of U.S. workers.
- Compliance with labor certification requirements is essential to avoid penalties and maintain eligibility for hiring foreign workers.
By following the outlined steps and meeting the relevant requirements, employers can navigate the labor certification process successfully and continue to attract and retain global talent while protecting U.S. workers' interests.