Brown Law Office 972-355-0092
Brown Law Office 972-355-0092
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Employer Law FAQ

How Does an Employer File a Labor Certification?

Employers who want to hire foreign nationals as either permanent or temporary employees may have to receive labor certification for the Department of Labor (DOL) before they can hire the new employees. The DOL requires labor certifications as a way to protect US workers from job displacement, lower wages and compromised working environments. The labor certifications also help protect the foreign-born workers by requiring employers to pay them fair wages.

Is Labor Certification Necessary?

The first step employers must take is to determine whether or not a particular type of employee requires labor certification. If the employer is seeking to sponsor a full-time, permanent employee for immigration, in most cases, the employer will need to file for labor certification. The classes of permanent employees are: EB-1, EB-2, EB-3 and EB-4. If the employer is seeking temporary help, the employer will need labor certification for H-1B, H-1C, H-2A and H-2B temporary workers.

Compiling the Necessary Information

After determining whether or not the employer must file a labor certification, then the employer needs to complete a prevailing wage determination and recruitment report. Both of these items must be filed with the request for labor certification.

  • The prevailing wage determination catalogues the prevailing wages for the work the employee will perform for the geographic region the employment will be in. Employers are required to pay foreign workers 100% of the prevailing wage.
  • The recruitment report documents the employer's efforts to recruit American workers for the open employment positions. Federal law sets minimum recruitment requirements that employers are bound to follow. Employers must be able to show that there were no available, willing or able US workers to fulfill the positions.

Requesting Labor Certification

Once these two reports are complete, then the employer can file the appropriate request for labor certification with the DOL. The type of labor certification may differ depending on the class of employee the employer requests the certification for. For example, if the employer seeks to hire an H-1B worker, the employer must file a Labor Condition Application.

In order to receive labor certification, the employer must be able to show that the job requirements for the position are those reasonably required and that they have not been altered to meet the foreign-born worker's qualifications. The employment position must be full-time, even if the employer only is seeking to hire temporary help.

Petitioning the USCIS

If the DOL approves the labor certification, then the employer is required to file the appropriate petition with the US Citizenship and Immigration Services (USCIS):

  • Immigration Petition for Alien Worker (Form I-140) for permanent employees
  • Petition for Nonimmigrant Worker (Form I-129) for temporary workers

If the petition is approved, the employee may then file for the correct type of immigrant or nonimmigrant visa to travel to the US. Employment may not begin until the labor certification, petition to the USCIS and the appropriate class of visa all have been approved and issued.

The process to hire foreign-born employees is complex. For additional information on filing a labor certification, contact an employment lawyer experienced in immigration issues in your area.

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Betty L. Brown
Board Certified by the Texas Board of Legal Specialization
in Labor and Employment Law
Fountain Park
1021 Long Prairie Road, Suite 402
Flower Mound, TX 75022
Phone: 972-355-0092
Fax: 972-899-9635
E-mail: betty@brownemploymentlaw.com