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Foreign Labor Certification

Males Viewing A LaptopWhat is the Foreign Labor Certification Program? The Immigration and Nationality Act (INA: 8 U.S.C. 1101 et seq.) requires that an employer first receive a labor certification from the U.S. Department of Labor to hire a foreign worker. The Secretary of Labor must make two findings as part of the certification. First, at the time the application was submitted sufficient qualified U.S. workers cannot be found in the area of intended employment that are available, willing and able to fill the position offered to the foreign worker. Additionally, the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Foreign Labor Certification Job Order Form
(PDF Form 90 KB)
This form is used by employers seeking both temporary and
permanent labor certification.
 

What types of employment are eligible for
Foreign Labor Certification?

The job offer must be:

  • Work performed in an employer-employee relationship. Self-employment does not qualify.

  • A bona-fide job opening for which the employer is ready and willing to hire an available, qualified U.S. worker.

  • Located in the U.S. and be either full-time, permanent, year round employment or temporary employment. Under H-1B, the job may be part-time or full-time. Under H-2A and H-2B, the job must be full-time, but last no longer than one year.

  • A job with hiring requirements conforming to the Department of Labor's data for usual experience and education standards common to the occupation and the industry; may not be tailored to the qualifications of the foreign worker; and must not include requirements for a language other than English without written justification.

  • Employers must pay at least the prevailing wage for the occupation in the area of intended employment under the PERM, H-1B and H-2B programs and the Adverse Effect Wage Rate assigned for Iowa for an agricultural occupation under the H-2A program.

What forms are needed for Foreign Labor Certification?

In some cases temporary or permanent foreign workers require Labor Certification before applying to the United State Customs and Immigration Service (USCIS). This process is required of the US employer and there are no requirements that the foreign worker has to complete before submission to the USCIS. When filling a Foreign Labor Certification or Labor Condition application the following forms should be used:

  1. To file a PERM (AKA Green Card) application, use for ETA-9089

  2. To file an H-1B Labor Condition Application Professional Skilled Visa use form ETA-9035

  3. To File an H-2A application Agricultural Visa, use form ETA-750A and 790 Attachments

  4. To File an H-2B application Temporary Unskilled Visa, use form ETA-750A

Prevailing Wage Determination:

In some cases the Labor Condition Application should include a completed Prevailing wage form that determines if employers are paying a rate of pay for similarly employed US workers in the area of intended employment. Prevailing wage forms can be found online or by calling (515) 281-9336.

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