Employment Law Guide

	In This Chapter
Who Is Covered Basic Provisions/Requirements Employee Rights Compliance Assistance Available Penalties/Sanctions Relation to State, Local and Other Federal Laws

Permanent Employment of Workers
Based on Immigration

Immigration and Nationality Act
(8 USC §1101 et seq; 20 CFR 656)

Who is Covered

Section 212(a) of the Immigration and Nationality Act applies to employers seeking to hire foreign workers immigrating for the purpose of employment. Section 122(a) of IMMACT requires employers to provide notice of the filing of a permanent labor certification application.

Basic Provisions/Requirements

Before a foreign worker can be admitted to the U.S. for permanent employment, the prospective employer must obtain a labor certification from the Secretary of Labor. The Secretary must certify that there are not sufficient U.S. workers who are able, willing, qualified and available, and that the employment of an immigrant foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The employer begins the labor certification process by filing Parts A and B of an Application for Alien Employment Certification, Form ETA 750, with the State Workforce Agency (SWA) serving the geographic area where the alien will work. Employers are required to recruit U.S. workers at prevailing wages and working conditions through the SWA by placing a job order with the SWA and by placing an advertisement, depending upon the occupation, in a newspaper of general circulation or in a professional, trade or ethnic journal. The employer must also provide notice of the filing of the application for labor certification at the facility or location of the employment. Regional certifying officers have broad authority to require an employer to use other sources to recruit for U.S. workers that may be appropriate in a particular case.

In addition to recruiting through the SWA, employers may also recruit before filing their applications pursuant to the reduction in recruitment (RIR) provisions of the regulations at 20 CFR 656.21(i). The RIR provisions allow certifying officers to reduce, partially or completely, the employer's recruitment efforts through the SWAs (e.g., by partially or completely decreasing the number of days which the employer must run the job order and/or ad).

A decision to grant or deny an employer's application for a permanent alien employment certification is based on the results of the employer's recruitment efforts and compliance with the Department of Labor's regulations governing the permanent labor certification process. Those regulations are found at 20 CFR part 656.

Employee Rights

All appropriate protections under U.S labor laws apply to these workers.

Compliance Assistance Available

Employers may obtain information on how to apply for a permanent labor certification, including application forms and regulatory and procedural requirements, from the SWAs, the regional offices of the Employment and Training Administration, or ETA's Web site. Form ETA 750 may be downloaded from the Web site as well.

SWA staff members can help employers fill out application forms, place job orders, and draft advertisements that meet regulatory requirements. Copies of the regulations and applications forms are also available from www.workforcesecurity.doleta.gov/foreign.

Penalties/Sanctions

Not applicable.

Relation to State, Local and Other Federal Laws

Various other laws, such as workers’ compensation, tax (unemployment insurance, local, state and federal), the Fair Labor Standards Act, and the Family Medical and Leave Act, may apply to the employment of these workers.