Hiring Foreign Workers

Employers must comply with federal regulations and follow certain procedures when hiring foreign workers. Here, you can learn about foreign labor certification and the responsibilities of Minnesota employers when hiring foreign workers as temporary or permanent employees.

Overview

The Foreign Labor Certification Program allows employers to hire foreign workers as permanent or temporary employees. The employer may apply for a labor certification from the U.S. Department of Labor when it can be demonstrated that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment.

Regulations
This program is governed by the Immigration and Nationality Act (INA: 8 U.S.C. 1101 et seq.) and by 20 CFR Parts 655 and 656, administered by the U.S. Department of Labor, Employment and Training Administration.

Permanent Employment
The Department of Labor will process a labor certification application for professional and nonprofessional occupations under the PERM program. A professional occupation means an occupation for which a bachelor's degree or higher degree is a usual education requirement. A nonprofessional occupation means any occupation for which a bachelor's degree or higher degree is not a usual requirement for the occupation.

Temporary Employment
The Department of Labor will process a labor certification application for agricultural workers under the H-2A program and a labor certification application for non-agricultural workers under the H-2B program. The USDOL also processes labor condition applications for Specialty (professional) Workers under the H-1B program.

Required Wages
The wages paid to a foreign worker must meet the prevailing wage for work applied under the PERM, H-1B and H-2B programs. The wages paid to a foreign agricultural worker under the H-2A program must meet the Adverse Effect Wage Rate.

How to File

Prevailing Wage
Employers must obtain a prevailing wage determination from the U.S. Department of Labor to file an application for a Labor Certification under the following programs: H-1B, H2-B, E-3, and permanent labor certification (PERM).

Contact DEED’s Foreign Labor Unit  
Reach our Foreign Labor Unit Coordinator directly at 651.259.7513 or email deed.foreignlabor@state.mn.us.

FAQs

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:

1) 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

2) 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, 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 not contain unduly restrictive job requirements, unless substantiated by business necessity.
  • 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 an application under the PERM, H-1B, H-2A and H-2B programs, go to the U.S. DOL website.

How is the Minnesota Department of Employment and Economic Development involved?
DEED is an agent for the Department of Labor and is charged with the following responsibilities:

  • To make job referrals under the H-2A Agricultural worker program, inspect worker housing, and conduct prevailing wage and prevailing practices surveys.
  • To assist employers with entry of H-2B job orders.

Specialty Workers

The H-1B Process for Temporary Specialty Workers allows U.S. employers to hire foreign workers in occupations requiring highly specialized knowledge traditionally acquired through a college education, and as distinguished fashion models. To qualify for this visa category, a foreign worker must have at least a bachelor's degree or higher degree. Fashion models do not need a college degree. The job may be full-time or part-time.

How to File
The employer must file form ETA-9035 (Labor Condition Application) directly with the U.S. Department of Labor. Go to their website for up-to-date filing instructions and forms.

The Minnesota Foreign Labor Certification Unit has no involvement in the H-1B process. DO NOT contact the FLC Unit for assistance with this filing system, to request the ETA-9035, or to request a prevailing wage determination.

Seasonal Ag Workers

The H-2A Process for Temporary Seasonal Agricultural Workers allows agricultural employers to employ foreign workers on a temporary or seasonal basis.

Regulations
Immigration and Nationality Act (INA) as amended by the Immigration Reform and Control Act of 1986. Department of Labor regulations at 20 CFR Part 655, Subpart B.

Under the H-2A program, an employer is required to provide free housing to U.S. workers and to foreign workers hired under this program who are not reasonably able to return to their residence the same day. This housing must be inspected by the State Workforce Agency and pass inspection according to U.S. DOL or OSHA guidelines.

Who May Apply
An employer who anticipates a shortage of U.S. workers to perform agricultural labor or services of a temporary or seasonal nature.

Validity Period
"Temporary or seasonal nature" means agricultural employment performed at certain seasons of the year or for a limited time period of less than one year when the employer can show that the need for the foreign worker(s) is truly temporary.

Where to Obtain Application and Filing Instructions
U.S. Department of Labor/ETA
Foreign Labor Certification

Non-Agricultural Workers

The H-2B Process for Temporary Non-Agricultural Workers allows U.S. employers to hire skilled or unskilled foreign workers in temporary or seasonal non-agricultural occupations. The employer must show that there are no or insufficient number of qualified, available U.S. workers to fill the existing job opening.

Temporary employment should not be confused with part-time employment which does not qualify for temporary labor certification. H-2B applications are now filed directly with the U.S. Department of Labor.

Regulations

20 CFR Part 655 Subpart A