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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 (DOL).
Regulations
The Immigration and Nationality Act (administered by U.S. Citizenship and Immigration Services) and 20 CFR Parts 655 and 656 (administered by the U.S. DOL, Employment and Training Administration) requires that an employer first receive a labor certification from the U.S. DOL 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.
Permanent Employment
The U.S. DOL 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.
Applications for permanent employees must be filed directly with the U.S. DOL.
Temporary Employment
The U.S. DOL 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 U.S. DOL also processes labor condition applications for Specialty (professional) Workers under the H-1B program.
Filing Process
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.
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Job Types
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 permanent or temporary employment. Under H-1B, the job may be part- 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 U.S. 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.
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Specialty Workers (H-1B)
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- or part-time.
Regulations
Immigration and Nationality Act (INA) as amended by the Immigration Reform and Control Act of 1986 and U.S. Department of Labor (DOL) regulations at 20 CFR Part 655, Subpart H.
How to Apply
The employer must file form ETA-9035 (Labor Condition Application) directly with the U.S. DOL. Applications for temporary H-1B employees must be filed directly with the U.S. DOL.
The Minnesota Foreign Labor Certification (FLC) Unit has no involvement in the H-1B process. DO NOT contact the FLC Unit for assistance with this filing process, to request the ETA-9035, or to request a prevailing wage determination.
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Seasonal Ag Workers (H-2A)
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 and U.S. Department of Labor (DOL) regulations at 20 CFR Part 655, Subpart B.
How to Apply
Applications for temporary H-2A agricultural workers must be filed directly with the U.S. DOL.
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 Department of Employment and Economic Development (DEED) staff and pass inspection according to U.S. DOL or OSHA guidelines. The H-2A applications are submitted concurrently with Minnesota and Chicago National Processing Center (CNPC). In this manner, DEED can conduct the pre-occupancy housing inspections.
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Non-Agricultural Workers (H-2B)
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. Temporary employment should not be confused with part-time employment which does not qualify for temporary labor certification.
Regulations
Immigration and Nationality Act (INA) as amended by the Immigration Reform and Control Act of 1986 and U.S. Department of Labor (DOL) regulations at 20 CFR Part 655 Subpart A.
How to Apply
An employer must obtain an approved temporary labor certification from U.S. DOL.
Minnesota Employers
1. Create an employer account in MinnesotaWorks.net.
- Tutorials are available for use by employers.
2. Enter the job information into MinnesotaWorks.net.
- Enter Status of job as "Suspended"
3. Email a printed copy of the "suspended" status job to Minnesota's Foreign Labor Certification Unit.
4. When you receive the Notice of Acceptance (NOA) from CNPC, return to MinnesotaWorks.net and post the job to the internet for public viewing.
