Foreign Labor Certification - Frequently Asked Questions
The employer must first file an application for foreign labor certification with the U.S. Department of Labor (USDOL). To hire a foreign national for permanent employment, the employer must file directly with the USDOL under the new PERM process.
To hire a foreign national as a temporary worker, return to our Home Page for filing procedures for the H-1B, H-2A and H-2B programs.
What is a Foreign Labor Certification?
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 labor certification:
- At the time the application is filed, sufficient qualified U.S. workers cannot be found in the area of intended employment who are available, willing, and able to fill the position offered to the foreign worker, and
- Employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
What kind of job qualifies 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 Minnesota for an agricultural occupation under the H-2A program.
What is the filing procedure?
The labor certification application is filed by the employer on behalf of the foreign worker. The certification process is an employer process; the foreign worker has no active role in the application process. A labor certification concerns only the job offered, not the foreign worker personally.
- To file a PERM application, use form ETA -9089
- To file an H-1B Labor Condition application, use form ETA -9035
- To file an H-2A application, use form ETA -750A and 790 Attachments
- To file an H-2B application, use form ETA -750A
How is the Minnesota Department of Employment and Economic Development (DEED) involved?
DEED is an agent for the Department of Labor and is charged with the following responsibilities:
- To determine the prevailing wage for a permanent job offer or for a temporary job offer under the H-1B or H-2B programs.
- To process applications under the H-2B Non-agricultural worker program.
- To make job referrals under the H-2A Agricultural worker program and inspect worker housing.
Questions or Comments?
You may contact the Foreign Labor Unit Coordinator directly at 651.259.7506 or email deed.foreignlabor@state.mn.us.