US employers interested in hiring foreign employers to occupy certain US-based positions need to obtain a obtain labor certification before applying with the United States Citizenship and Immigration (USCIS).
Prospective employers must handle the multi-step process, which varies depending on whether the work is permanent or temporary. In this article, you will understand what temporary labor certification is.
What is the Temporary Labor Certification? – Understanding the Concept
With few exceptions, US petitioners who want to bring temporary foreign workers to the United States must obtain a temporary labor certification with the US Department of Labor (DOL).
The Department has several regulations governing worker protections, including employer requirements for wages and working conditions. The DOL’s Wage and Hour Division is responsible for enforcing provisions on worker contracts.
Throughout the process, the DOL must determine that:
- There are not enough US workers who are able, willing, qualified, and available to fill the temporary or seasonal employment gap
- The employment of temporary foreign workers will adversely affect the wages and working conditions of domestic workers under similar employment conditions
Temporary Labor Certification – Understanding the Application Process
The process required for US petitioners to bring agricultural (H-2A) and nonagricultural (H-2B) workers is similar, with few specific differences. All employers recruiting workers under the H-2 status must prove they will meet the DOL’s required wage standard.
Upon receipt, the US DOL will determine the prevailing wage for the application and send the form back to the applicant. The next step is to file the Application for Temporary Employment Certification.
H-2A and H-2B visas require different forms depending on the type of application (even though the forms are quite similar).
These forms request petitioners to provide key information, such as the job title, the amount and schedule of hours to be worked, the description of the job duties, whether it requires education and training, etc.
Temporary Labor Certification – Requirements for US Employers
In the appendix to the application, US employers must provide a set of written declarations to the federal government. The forms have different appendixes, but H-2A and H-2B-related applications have similar forms.
- The employer’s declarations serve to attest to the US government that:
- The petitioner will comply with all federal and state employment-related laws
- The job offer is a full-time position, with qualification requirements similar to other comparable positions
- The position is and has been open to all interested US residents
- The position offers US residents the same benefits, wages, and working conditions that it offers prospective visa applicants
- The position will offer no less than the required prevailing wage
- No domestic workers are able, willing, qualified, and available to apply
- The employment gap is not a result of a strike or worker lay-offs
The list of applicable laws for US employers is extensive. Employers seeking a temporary labor certification must consult with an expert attorney.