Alien labor certification is a qualification that is granted under a program of the federal Department of Labor (DOL) to citizens of foreign nations who wish to work in the U.S. It is the result of a process that allows the U.S. government to ensure that jobs are made available to Americans before foreign nationals are hired for them and that employers do not exploit foreign workers.
Additionally, this certification shows the U.S. government that jobs offered to foreign workers would not have an undesirably negative effect on the job opportunities, working conditions and wages of Americans.
In most situations, an employer who hires a foreign worker must have the proper labor certification from the federal government. It does not matter if the employer plans to hire only one foreign worker or hundreds. An employer who hires a foreign national without the proper labor certification may be penalized and have to pay large fines.
Alien labor certification is sought through a process that is most often used by employers who want to help a foreign worker obtain a green card based on employment when the worker already works for the same company but in a branch of the company that is in a foreign country.
Permanent labor certification is only available for the employment of foreign nationals in full-time positions, except in certain limited circumstances. The certification is not available for employees who would be hired for part-time positions. An employer must prove that they are hiring for full-time positions and that the employee is aware of this.
A lawyer consultation with a Texas lawyer would help an employer, or a foreign national who wants to work in the U.S., understand the alien labor certification process in Texas.
What Is the Process for Obtaining Alien Labor Certification?
Multiple government agencies may be involved in giving permission to an employer to hire workers from outside the U.S. First, an employer needs to get certification from the DOL. Then, they must submit a petition to the USCIS to obtain a visa for the worker. Next, the worker themselves must get approval to accept a job offer.
The federal DOL can issue labor certifications for the employment of foreign nationals under the following programs:
- Permanent Labor Certification: There are several steps to obtaining a permanent labor certification (PLC). An employer must demonstrate to the federal government that no qualified American workers are available to perform the available job at the local prevailing wage. This showing would justify hiring foreign workers.
The DOL has an online system for U.S. employers to use in applying for PLC. The process involves showing the DOL that the employer intends to hire a worker on a full-time basis for permanent employment.
The employer must also prove that the job has reasonable requirements, which means requirements that are customary for the occupation at issue. However, if the employer can show a clear business necessity, they might obtain an exception for unusual requirements. The employer must also agree to pay the prevailing wage or above for the position.
- Specialty Professional Workers: This certification allows employers to employ foreign workers who are highly specialized, such as architects, engineers, mathematicians, theologians, and the like.
Before an employer submits a petition to U.S. Citizenship and Immigration Services (USCIS) for a temporary work visa for a foreign worker, they must submit a Labor Condition Application (LCA) to the Department of Labor saying they agree with all the requirements of the H-1B, H-1B1 or E-3 programs. This is the program that allows employers to employ highly specialized foreign workers on a temporary basis.
Employers must have the LCA certification from the DOL before they can sponsor the employee’s work visa. The DOL expects employers to submit their LCA through the DOL’s FLAG System.
- Temporary Labor Certification for Seasonal Agricultural Workers: The H-2A Temporary Labor Certification process is designed for use by farmers so they can employ seasonal agricultural workers in the event of a shortage of U.S. workers. Before an employer files a petition with USCIS for a farm worker’s visa, they must complete the H-2A Temporary Labor Certification process which has 4 steps.
Employers are required to use the DOL’s FLAG system to submit a job order and H-2A. This system is reportedly quite complicated and may require consultation of user guides and video tutorials, so they recommend consulting an attorney. It can make the process faster and more likely to bring success.
- Temporary Labor Certification for Non-agricultural Workers: The H-2B Temporary Labor Certification allows employers to hire non-agricultural temporary workers from outside the U.S. on a temporary basis. An employer must have a temporary labor certification from the DOL before they file a petition for a foreign worker’s visa with the USCIS. To be approved for a temporary labor certification, the employer must do the following:
- File a Prevailing Wage Determination from the National Prevailing Wage Center using the DOL’s FLAG System.
- File a job order with the Texas State Workforce Agency (SWA).
- Submit the H-2B application with a copy of the job order that was filed with the SWA to the Chicago National
- Processing Center (NPC).
If the Chicago NPC gives permission, there are still several requirements the employer must meet. Again, this process is complicated, and it is recommended that an employer consult an attorney.
- D-1 Crewmembers Certification: Loading and unloading shipping vessels at U.S. ports by foreign workers is not allowed. However, the DOL provides exemptions for crew people with D-1 visas in certain situations. This exemption is known as a D-1 Crewmember Certification. In order to allow a foreign crewman to load or unload a vessel at a U.S. port, an employer must submit an attestation stating the following:
The use of crewmembers for longshore work who are not U.S. workers is the prevailing practice for the activity at that port. In addition, no strike or lockout is occurring. Notice about the available work has been given to U.S. workers or their representatives
Do All Classes of Alien Employees Require Labor Certification?
Generally speaking, labor certification of one of the types listed above is required for the employment in the U.S. of anyone who is foreign national and does not have a visa of a type that allows them to work in the U.S.
However, there are certain groups of alien workers who do not require labor certification for employment. They are as follows:
- Aliens with Extraordinary Ability in the Arts, Sciences, Business, Athletics, or Education: This group would include executives, supervisors, researchers, or professors. These workers fall under the visa category of “Employment First Preference.”
- Professionals with Advanced Degrees (Employment Second Preference): These professionals would encompass employees with special abilities in the arts, sciences, etc.
- Skilled Workers and Professionals with Baccalaureate Degrees: (Employment Third Preference).
- “Special Immigrants:” These are individuals such as religious workers and pastors (Employment Fourth Preference).
- Immigrant Investors: Individuals who are willing to invest $500,000 to $1 million in the U.S. and create at least ten job positions (Employment Fifth Preference)
If a foreign worker does not fall into any of these preference categories, the employer must go through the alien labor certification process in order to employ them legally.
How Do Employers Apply With the State of Texas?
Within the state of Texas, an employer would apply for the labor certification of the type they need for their purposes, as explained above. They apply through the federal DOL and some applications may involve the USCIS as well. As noted above, the Texas State Workforce Agency is involved in some applications for alien labor certification.
Of course, a foreign national who is legally present in the U.S. and has a green card visa has the right to work, and a prospective employer would not need to obtain alien labor certification for this person.
What Is the Recruiting Process?
An employer can recruit foreign nationals to work in the U.S. in all of the ways they use to recruit citizens and immigrants with green cards. There are employment agencies that offer global recruitment of potential employees. Also, employers are often companies with global operations who want to bring their foreign employees to the U.S. to live and work.
Immigrant worker rights differ greatly depending on their status and the work they seek to do. There are 3 categories of Immigrant visas. Many immigrants come to work in the U.S. by identifying an employer or organization who will petition for them to relocate to the U.S. to work So, the visas available are generally categorized according to the applicant’s relationship to the prospective employer who petitions for their visa. The categories are as follows:
- Family-Based: Petitioners may be family members, fiancés, and other people who are willing to help an applicant obtain their visa.
- Employment-Based: Employers may serve as a petitioner for a worker who wishes to relocate permanently to the U.S. An employer may offer sponsorship for employment visa status.
- Special Immigrants: Special immigrants may be religious workers, or applicants from selected, favored nations, or a member of one of the groups noted above who do not need alien labor certification.
Again, of course, it is also true that a person may have a green card for reasons other than prospective employment, e.g., because of marriage to a citizen, and with their green card, they are free to seek employment of any kind.
What About Results and DOL Approval?
It is important to remember that before a U.S. employer can submit an immigration petition to the USCIS, an employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA). After the DOL has issued an alien labor certification, the employer still has to obtain other work authorization for the employee. The certification is not the end of the process.
What Is the Post Approval Process?
After approval for alien labor certification, the employer may file with other agencies, such as the federal USCIS, for a visa or other work authorization. They can begin the process of applying for a visa to receive a green card for a foreign worker.
Everything depends on the type of employment for which the employer wants to hire the foreign national and the type of visa for which the foreign national might qualify. There is no one clear process that applies in all circumstances.
Do I Need a Texas Lawyer for Alien Labor Certification?
If you are an employer who believes that you need to recruit foreign nationals to perform the work of your business, you need to talk to a Texas immigration lawyer. As can be seen from the information above, the process of getting the needed legal authorization to employ foreign workers is complicated.
If you are a foreign national who is interested in working in the U.S. or obtaining work authorization for your family members, you too would want to talk to a Texas immigration lawyer. Again, the process involved is complicated and a person is more likely to succeed with the professional help of an immigration lawyer.
