About Foreign Labor Certification
Hiring foreign workers for employment in the U.S. normally requires approval from several government agencies. First, employers must seek labor certification through the U.S. Department of Labor (DOL). Once the application is certified (approved), the employer must petition the U.S. Citizenship and Immigration Services (CIS) for a visa. Approval by DOL does not guarantee a visa issuance. The Department of State (DOS) will issue an immigrant visa number to the foreign worker for U.S. entry. Applicants must also establish that they are admissible to the U.S. under the provisions of the Immigration and Nationality Act (INA).
The foreign labor certification process is the responsibility of the employer, not the employee; however, the employee can benefit from understanding these programs. The actual procedures depend on the nature of the visa being requested: Permanent, H-1B, H-2A, H-2B, and D-1.
Although each foreign labor certification program is unique, there are similar requirements that the employer must complete prior to the issuance of a labor certification. In general, the employer will be required to complete these basic steps to obtain a labor certification:
- The employer must ensure that the position meets the qualifying criteria for the requested program;
- The employer must complete the ETA form designated for the requested program. This may include the form and any supporting documentation (e.g., job description, resume of the applicant, etc.);
- The employer must ensure that the wage offered equals or exceeds the prevailing wage for the occupation in the area of intended employment;
- The employer must ensure that the compliance issues affected upon receipt of a foreign labor certification are completely understood;
- The completed ETA form is submitted to the designated Department of Labor office for the requested program (e.g., SWA, processing center or the national office); and
- The employer is notified of the determination of the Department of Labor.
The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, the Department’s regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.
The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Effective January 4, 2010, employers can obtain this wage rate by submitting a request to the National Prevailing Wage Center (NPWC), or by accessing other legitimate sources of information such as the Online Wage Library (OWL) available for use in some programs.
The requirement to pay prevailing wages as a minimum is true of most employment based visa programs involving the Department of Labor. In addition, the H-1B, H-1B1, and E-3 programs require the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher.
The Department of Labor, Bureau of Labor Statistics (BLS) has provided wage data collected under the Occupational Employment Statistics (OES) program for use in the Foreign Labor Certification process since 1998. The wage data is available on the Foreign Labor Certification Data Center Online Wage Library (OWL), found at the following website: http://www.flcdatacenter.com/.
Since September 1999, the Standard Occupational Classification (SOC) has been used by the OES program to classify occupational wage information. The SOC provides a common language for categorizing occupations. It also serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET). The O*NET provides the general public information on skills, abilities, knowledge, tasks, work activities, and the specific vocational preparation levels associated with occupations. O*NET information can be found at http://online.onetcenter.org/. Wage data from the OES survey and occupational information in O*NET are both classified by the SOC, reducing the need to use crosswalks to connect wages to occupational requirements.
The prevailing wage information provided on this page pertains to the Nonagricultural Immigration Programs (PERM, H-2B, H-1B, H-1B1, H-1C and E-3).
The NPWC uses the Prevailing Wage Determination Policy Guidance in issuing wage determinations for the Nonagricultural Immigration Programs. The Department updated the guidance in November 2009 following the publication of the H-2B regulation and the corresponding changes to PERM, H-1B, H-1B1, H-1C and E-3 regulations that affected the prevailing wage determination process. To read the updated Prevailing Wage guidance, please visit: http://www.flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf