Immigration of Foreign Workers: Labor Market Tests and Protections

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

Economic indicators confirm that the economy is in a recession. Historically, international
migration ebbs during economic crises; e.g., immigration to the United States was at its lowest
levels during the Great Depression. While preliminary statistical trends hint at a slowing of
migration pressures, it remains unclear how the current economic recession will effect
immigration. Addressing these contentious policy reforms against the backdrop of economic
crisis sharpens the social and business cleavages and narrows the range of options.
Even as U.S. unemployment rises, some employers maintain that they continue to need the “best
and the brightest” workers, regardless of their country of birth, to remain competitive in a
worldwide market and to keep their firms in the United States. While support for increasing
employment-based immigration may be dampened by the economic recession, proponents argue
that the ability to hire foreign workers is an essential ingredient for economic growth.
Those opposing increases in foreign workers assert that such expansions—particularly during an
economic recession—would have a deleterious effect on salaries, compensation, and working
conditions of U.S. workers. Others question whether the United States should continue to issue
foreign worker visas (particularly temporary visas) during a recession and suggest that a
moratorium on such visas might be prudent.
The number of foreign workers entering the United States legally has notably increased over the
past decade. The number of employment-based legal permanent residents (LPRs) grew from
under 100,000 in FY1994 to over 250,000 in FY2005, and stood at 163,176 in 2007. The number
of visas for employment-based temporary nonimmigrants rose from just under 600,000 in
FY1994 to approximately 1.4 million in FY2007. In particular, “H” visas for temporary workers
tripled from 98,030 in FY1994 to 424,369 in FY2007.
The Immigration and Nationality Act (INA) bars the admission of any alien who seeks to enter
the U.S. to perform skilled or unskilled labor, unless it is determined that (1) there are not
sufficient U.S. workers who are able, willing, qualified, and available; and (2) the employment of
the alien will not adversely affect the wages and working conditions of similarly employed
workers in the United States. The foreign labor certification program in the U.S. Department of
Labor (DOL) is responsible for ensuring that foreign workers do not displace or adversely affect
working conditions of U.S. workers.
In the 110^th Congress, Senate action on comprehensive immigration reform legislation, which
included substantial revisions to employment-based immigration, stalled at the end of June 2007
after several weeks of intensive floor debate. The House, however, did not act on comprehensive ^th
legislation in the 110 Congress. During his time in the Senate, President-elect Barack Obama
supported comprehensive immigration legislation that reformed employment-based immigration.
Similar views have been expressed by his designee to become Secretary of Homeland Security –
Arizona Governor Janet Napolitano. At this time, it is not clear what priority the new
Administration will place on these issues.
This report does not track legislation and will be updated if policies are revised.

Introduc tion ..................................................................................................................................... 1
Key Elements............................................................................................................................1
Labor Certification..............................................................................................................2
Labor Attestation.................................................................................................................2
Brief History of Labor Certification..........................................................................................2
Permanent Employment-based Admissions....................................................................................3
LPR Labor Certification Process..............................................................................................6
Program Electronic Review Management (PERM)..................................................................7
Temporary Employment-Based Admissions...................................................................................8
Overvi ew ....................................................................................................................... ............ 8
Temporary Workers.............................................................................................................9
Multinational Executives and International Investors........................................................9
Cultural Exchange...............................................................................................................9
Outstanding and Extraordinary...........................................................................................9
Religious Workers.............................................................................................................10
Aliens in Transit and Crew Members...............................................................................10
Labor Market Tests for Workers on H Visas............................................................................11
H-1B Visas and Labor Attestations...................................................................................12
H-2A Visas and Labor Certification..................................................................................13
H-2B Visas and Labor Certifications................................................................................14
Funding Foreign Labor Certification.............................................................................................16
Selected Issues...............................................................................................................................17
Certification versus Attestation...............................................................................................17
Protections for U.S. Workers...................................................................................................18
Fraudulent Claims...................................................................................................................18
Enforcement Tool....................................................................................................................19
Small Business Concerns........................................................................................................19
Subcontractors and Multinational Companies........................................................................20
Unemployment Statistics and Other Economic Triggers........................................................21
Conclusion ..................................................................................................................................... 21
Figure 1. Permanent Employment-based Admissions for 1^st, 2^nd, and 3^rd Preferences,
1994-2007..................................................................................................................................... 5
Figure 2. Temporary Employment-based Admissions, 1994-2007................................................11
Figure 3. Appropriations for Foreign Labor Certification, FY1998-FY2007...............................16
Table 1. Summary of Foreign Temporary Worker Labor Market Tests and Protections...............15

Author Contact Information..........................................................................................................22

Economic indicators confirm that the economy is in a recession. Historically, international
migration ebbs during economic crises; e.g., immigration to the United States was at its lowest
levels during the Great Depression. While preliminary statistical trends hint at a slowing of
migration pressures, it remains unclear how the current economic recession will effect
immigration. Addressing these contentious policy reforms against the backdrop of economic
crisis sharpens the social and business cleavages and narrows the range of options.
Even as U.S. unemployment rises, some employers maintain that they continue to need the “best
and the brightest” workers, regardless of their country of birth, to remain competitive in a
worldwide market and to keep their firms in the United States. While support for increasing
employment-based immigration may be dampened by the economic recession, proponents argue
that the ability to hire foreign workers is an essential ingredient for economic growth.
Those opposing increases in foreign workers assert that such expansions—particularly during an
economic recession—would have a deleterious effect on salaries, compensation, and working
conditions of U.S. workers. Others question whether the United States should continue to issue
foreign worker visas (particularly temporary visas) during a recession and suggest that a
moratorium on such visas might be prudent.
The Immigration and Nationality Act (INA) bars the admission of any alien who seeks to enter
the U.S. to perform skilled or unskilled labor, unless the Secretary of Labor provides a ¹
certification to the Secretary of State and the Attorney General. Specifically, the Secretary of
Labor must determine that there are not sufficient U.S. workers who are able, willing, qualified,
and available at the time of the alien’s application for a visa and admission to the United States
and at the place where the alien is to perform such skilled or unskilled labor. The Secretary of
Labor must further certify that the employment of the alien will not adversely affect the wages ²
and working conditions of similarly employed workers in the United States.
The foreign labor certification program in the U.S. Department of Labor (DOL) is responsible for
ensuring that foreign workers do not displace or adversely affect working conditions of U.S.
workers. Under current law, DOL adjudicates labor certification applications (LCA) for
permanent employment-based immigrants, temporary agricultural workers, and temporary
nonagricultural workers as well as the streamlined LCA known as labor attestations for
temporary professional workers. Foreign labor certification is one of the “national activities” ³
within the Employment and Training Administration (ETA).

¹^T^h^e^a^d^mⁱ^nis^t^r^a^{tion of}^im^mⁱ^g^r^a^{tion a}ⁿ^d^c^itiz^eⁿ^s^hⁱ^p^polic^y^w^a^s^r^e^or^g^a^niz^e^d^by^H^o^m^e^la^{nd Se}^c^u^r^ity^A^c^{t of}²⁰⁰^{2 (}^P^.L^.
¹⁰⁷^-29⁶⁾^,^an^d^t^h^{e S}^ecret^ary^o^f^H^o^m^e^l^aⁿ^d^S^ecu^ri^t^yⁿ^o^w^o^v^erse^{es t}^hⁱ^s^f^uⁿ^c^tⁱ^oⁿ^t^h^at^t^h^{e INA}^assi^gn^{s t}^o^t^h^{e A}^t^t^o^rn^ey
^Geⁿ^e^r^a^l^.
²^I^N^A^§212(^a⁾⁽⁵⁾^.
³^DOL^{is c}^h^a^r^g^e^d^w^{ith ot}^he^{r im}^mⁱ^g^r^a^tion-re^la^te^{d re}^spoⁿ^sibi^litie^{s. M}^o^{st n}^o^ta^bly^,^the^W^a^g^e^a^{nd Hour}^Divⁱ^{sion i}ⁿ^DOL^is
^ta^sk^e^d^w^{ith e}ⁿ^suri^ng^c^o^m^p^lia^nc^e^w^{ith the}^e^m^ploy^m^e^{nt e}^lig^ib^ility^prov^isions^of^the^INA^a^s^w^e^{ll a}^s^la^{bor sta}ⁿ^da^{rds la}^w^s^,
^su^ch^{as t}^h^{e F}^aⁱ^r^L^a^b^o^r^S^t^and^a^rd^s^A^c^t^,^t^h^{e M}ⁱ^gran^t^an^d^S^easoⁿ^a^l^W^o^{rker P}^r^o^t^ectⁱ^oⁿ^A^c^t^,^an^d^t^h^{e F}^a^mi^l^y^an^d^M^e^dⁱ^cal
^Le^a^v^e^Ac^t^.

The process of admitting permanent employment-based immigrants, temporary agricultural
workers (H-2A), and temporary nonagricultural workers (H-2B) requires that employers conduct
an affirmative search for available U.S. workers and that the DOL determine that admitting alien
workers will not adversely affect the wages and working conditions of similarly employed U.S.
workers. Under this process—known as labor certification—employers must apply to the DOL
for certification that unemployed domestic workers are not available and that there will not be an
adverse effect on U.S. workers from the alien workers’ entry into the labor market. The H-2A visa
has additional requirements aimed at protecting the alien H-2A workers from exploitive working
situations and preventing the domestic work force from being supplanted by alien workers willing
to work for sub-standard wages. Most notably, the employer must offer the H-2A workers the
highest of the federal or applicable state minimum wage, the prevailing wage rate, or the adverse ⁴
effect wage rate (AEWR).
The labor market test required for temporary professional workers (H-1), known as labor
attestation, is considered by many to be less stringent than labor certification in that it is a
statement of intent rather than a documentation of actions taken. Any employer wishing to bring
in an H-1B worker must attest in an application to the DOL that the employer will pay the H-1B
worker the greater of the actual wages paid other employees in the same job or the prevailing
wages for that occupation; the employer will provide working conditions for the H-1B worker
that do not cause the working conditions of the other employees to be adversely affected; and
there is no strike or lockout. Employers defined as H-1B dependent (generally at least 15% of
their workforce are H-1Bs) meet additional labor market tests.
In 1885, Congress passed the contract labor law of 1885, known as the Foran Act, which made it
unlawful to import aliens for the performance of labor or service of any kind in the United ⁵
States. That bar on employment-based immigration lasted until 1952, when Congress enacted the
Immigration and Nationality Act (INA), a sweeping law also known as the McCarran-Walters Act
that brought together many disparate immigration and citizenship statutes and made significant ⁶
revisions in the existing laws. The 1952 Act authorized visas for aliens who would perform
needed services because of their high educational attainment, technical training, specialized ⁷
experience, or exceptional ability. Prior to the admission of these employment-based immigrants,
however, the 1952 Act required the Secretary of Labor to certify to the Attorney General and the
Secretary of State that there were not sufficient U.S. workers “able, willing, and qualified”to
perform this work and that the employment of such aliens would not “adversely affect the wages ⁸
and working conditions” of similarly employed U.S. workers. This provision in the 1952 Act

⁴^{For a}^m^o^re^c^o^m^p^le^te^e^x^plaⁿ^a^tion^of^{this pr}^ov^isio^{n a}ⁿ^d^h^o^w^{it w}^o^{rks, se}^e^{CRS Re}^{port RL}³²⁸^61,^Far^m^Lab^o^r^:^The
^Adv^e^rse^Effe^c^t^W^age^Rate⁽^AEW^R)^{, by}^W^illia^m^G^.^W^h^itta^k^e^r.
⁵^{23 Sta}^t^{. 33}^2.
⁶^T^h^e^Mc^C^a^r^r^a^n-^W^a^lte^r^s^A^c^{t (}^P^.L^.^82-⁴¹⁴⁾^.
⁷^§2⁰³⁽^a⁾⁽¹⁾^of^P^.^L^.⁸²^-⁴¹⁴^.
⁸^§2¹²⁽^a⁾⁽¹⁴⁾^of^P.L^.^82-⁴¹^4.

established the policy of labor certification. The major reform of INA in 1965 included language ⁹
that obligated the employers to file labor certification applications (LCAs).
Within DOL, the former Bureau of Employment Security first administered labor certification
following enactment of the policy in 1952. After the abolishment of Employment Security in
1969, the Manpower Administration handled labor certification. In 1975, the Manpower
Administration became the Employment and Training Administration (ETA), and ETA continues
to oversee the labor certification of aliens seeking to become legal permanent residents (LPRs).
Currently, foreign labor certification is one of the “national activities” within ETA.
The current statutory authority that conditions the admission of employment-based immigrants on
labor markets tests is found in the grounds for exclusion portion of the INA. It denies entry to the
United States of aliens seeking to work without proper labor certification. The labor certification
ground for exclusion covers both aliens coming to live as LPRs and as temporarily-admitted
aliens (i.e., nonimmigrants).The INA specifically states:
^An^y^alieⁿ^w^h^o^see^k^{s to}^en^ter^th^{e Un}^ited^States^f^o^r^th^{e p}^u^r^p^o^s^{e o}^f^p^e^r^f^o^r^mⁱⁿ^g^s^k^illed^o^r
^uⁿ^sk^illed^lab^o^r^{is in}^ad^mⁱ^s^s^ib^{le, u}ⁿ^l^e^{ss th}^{e Secr}^etar^y^o^f^L^a^b^o^r^h^a^{s d}^e^ter^mⁱⁿ^e^d^aⁿ^d^c^e^r^tⁱ^fⁱ^e^d^t^o
^th^{e Secretar}^y^o^f^State^an^d^th^e^A^ttorⁿ^e^y^Gen^e^r^a^l^th^a^t^—(^I⁾^th^er^{e ar}^{e n}^o^{t s}^u^f^f^icien^t^w^o^r^k^er^s
^w^h^o^ar^{e ab}^{le, w}^illⁱⁿ^g^,^q^u^ali^f^ie^d⁽^o^r^eq^u^a^lly^q^u^al^if^iedⁱⁿ^th^e^{case o}^f^an^alien^d^e^scrⁱ^b^e^dⁱⁿ
^clau^s^e⁽ⁱ^{i)) an}^{d av}^a^{ilable at t}^h^{e ti}^m^e^of^app^{lication f}^o^{r a}^vⁱ^s^a^an^{d ad}^mⁱ^s^sⁱ^oⁿ^{to t}^h^{e U}ⁿ^ited
^States^an^d^at^t^h^{e p}^l^ace^w^h^ere^t^h^{e alie}ⁿ^is^to^p^e^rf^o^r^m^s^u^ch^s^k^il^led^o^r^uⁿ^s^k^illed^lab^o^r^{, an}^d^(II)
^th^{e e}^m^p^l^o^y^m^eⁿ^t^o^f^s^u^ch^alieⁿ^wⁱ^l^lⁿ^o^{t ad}^v^e^r^s^el^y^a^f^f^{ect t}^h^e^wag^e^{s a}ⁿ^d^w^o^r^kⁱⁿ^g^coⁿ^d^itioⁿ^s^o^f¹⁰
^w^o^rk^ersⁱⁿ^t^h^{e United States}^sⁱ^m^ilarl^y^e^m^plo^y^ed.
The law also details additional requirements and exceptions for certain occupational groups and
classes of aliens, some of which are discussed below.

Immigrant admissions and adjustments to for legal permanent resident (LPR) status are subject to
a complex set of numerical limits and preference categories that give priority for admission on the
basis of family relationships, needed skills, and geographic diversity. The INA establishes a
statutory worldwide level of 675,000 LPRs annually, but this level is flexible and certain
categories of LPRs are excluded from, or permitted to exceed, the limits. This permanent
worldwide immigrant level consists of the following components: 480,000 family-sponsored
immigrants; 140,000 employment-based preference immigrants; and 55,000 diversity ¹¹
immigrants.
The employment-based preference categories are
• first preference: priority workers who are persons of extraordinary ability in the
arts, sciences, education, business, or athletics; outstanding professors and
researchers; and certain multinational executives and managers;

⁹^In^terp^{reter Relea}^s^es^{, “}^T^he^L^a^w^y^e^r^’^s^G^u^ide^{to §}²¹²⁽^a⁾⁽⁵⁾⁽^A⁾^:^L^a^bor^C^e^r^tif^ic^a^{tion f}^r^om¹⁹⁵²^to^P^E^R^M^,”^by^G^a^r^y
^Ende^lm^aⁿ^{, O}^c^{t. 1}¹^,²⁰^04.
¹⁰^§2¹²⁽^a⁾⁽⁵⁾^of^I^N^A^;^§11⁸²⁽^a⁾⁽⁵⁾^{8 U}^S^C^.
¹¹^C^R^S^R^e^por^{t R}^L³²²³⁵^,^U^.^{S. I}^m^mⁱ^gr^ati^oⁿ^Polⁱ^c^y^on^Pe^r^m^ane^nt^Ad^mⁱ^s^sⁱ^ons^,^by^{Ruth Elle}ⁿ^W^a^se^m^.

• second preference: members of the professions holding advanced degrees or
persons of exceptional ability;
• third preference: skilled workers with at least two years training, professionals
with baccalaureate degrees, and unskilled workers in occupations in which U.S.
workers are in short supply;
• fourth preference: special immigrants who largely consist of religious workers,
certain former employees of the U.S. government, and undocumented juveniles
who become wards of the court; and
• fifth preference: investors who invest at least $1 million (or less money in rural
areas or areas of high unemployment) to create at least 10 new jobs.
In 1990, Congress had amended the INA to raise the level of employment-based immigration
from 54,000 LPR visas to more than 143,000 LPR visas annually. That law also expanded two
preference categories into five preference categories and reduced the cap on unskilled workers
from 27,000 to 10,000 annually. Although there have been major legislative proposals since the ¹²
mid-1990s to alter employment-based immigration, these preference categories remain intact.

¹²^{CRS Rep}^o^r^{t 9}⁶^-1⁴⁹^,^I^m^mⁱ^gr^a^tio^n:^An^aly^s^is^o^f^M^a^jor^Pr^op^os^als^to^Re^vⁱ^s^e^Fam^ily^a^{nd Em}^ploy^m^e^nt^Admⁱ^s^sⁱ^ons^{, by}
^Jo^y^c^{e C.}^Vⁱ^al^et^and^Rut^h^E^l^l^eⁿ^W^a^se^m^.

Figure 1. Permanent Employment-based Admissions for 1^st, 2^nd, and 3^rd Preferences,
1994-2007
Thousands
250
Extraordinary
Skilled and Unskilled
200Advanced degrees
162,176
150
100
50
0
4 9 95 9 96 9 97 998 999 000 001 00 2 00 3 00 4 0 05 0 06 0 07
19 9 1 1 1 1 1 2 2 2 2 2 2 2 2
^Source:^{CRS analysis of data from the DHS Of}^{fice of Immigration}^{Statistics and the former}^INS.
^Note:^{The 25,91}^{1 Chinese}^who^{adjusted under t}^{he Chin}^{ese Stud}^{ent Protection Act from}¹⁹^{94 to}¹⁹⁹^{6 ar}^{e not}
^{depicted even t}^{hough t}^{hey we}^re^{counted u}^{nder t}^{he “Skilled and Unskilled” category.}
Currently annual admission of employment-based preference immigrants is limited to 140,000
plus certain unused family preference numbers from the prior year. As Figure 1 displays, LPR
admissions for the first, second and third employment-based preferences have exceeded the ¹³
ceilings in recent years. In 2003, however, processing delays—largely due to the reorganization
of immigration functions as the Department of Homeland Security (DHS) was established—
reduced the number of LPRs to only 705,827. Because DHS’ U.S. Citizenship and Immigration
Services Bureau (USCIS) was only able to process 161,579 of the potential 226,000 family-
sponsored LPRs in FY2003, an extra 64,421 LPR visas rolled over to the FY2004 employment-
based categories and created the spike depicted in Figure 1.
Employers who seek to hire prospective immigrant workers petition with the USCIS. An eligible
petitioner (in this instance, the eligible petitioner is the U.S. employer seeking to employ the
alien) must file an I-140 for the alien seeking to immigrate. USCIS adjudicators determine

¹³^F^o^{r a}ⁿ^exp^l^an^atⁱ^oⁿ^o^f^t^h^{ese t}^r^en^ds,^{see CRS}^Rep^o^r^t^RL³²²³⁵^,^U^.^S.^I^m^mⁱ^gr^ati^{on Polic}^y^{on Pe}^r^m^ane^nt^A^d^mⁱ^s^sⁱ^ons^{, b}^y
^{Ruth Elle}ⁿ^W^a^se^m^.

whether the prospective LPR has demonstrated that he or she meets the qualifications for the ¹⁴
particular job as well as the INA employment-based preference category.
In terms of employment-based immigration, decisions of the Board of Immigration Appeals
(BIA) have significantly effected the implementation of the law by offering clarification of the
statutory language. While DOL draws on regulations that govern its role, the USCIS is more often
guided through BIA decisions and procedures spelled out in the former Immigration and
Naturalization Service’s Operations Instructions.
Employment-based immigrants applying through the second and third preferences must obtain ¹⁵
labor certification. The intending employer may not file a Form I-140 with USCIS unless the
intending employer has obtained this labor certification, and includes the approved LCA with the
Form I-140.
Occupations for which the Secretary of Labor has already determined that a shortage exists and ¹⁶
U.S. workers will not be adversely affected are listed in Schedule A of the regulations.
Conversely, occupations for which the Secretary of Labor has already determined that a shortage ¹⁷
does not exist and that U.S. workers will be adversely affected are listed in Schedule B. If there
is not a labor shortage in the given occupation as published in Schedule A, the employer must
submit evidence of extensive recruitment efforts in order to obtain certification.
Several elements are key to the approval of the LCA. Foremost are findings that there are not
“available” U.S. workers or, if there are available workers, the workers are not “qualified.”
Equally important are findings that the hiring of foreign workers would not have an adverse affect
on U.S. workers, which often hinges on findings of what the prevailing wage is for the particular ¹⁸
occupation and what constitutes “similarly employed workers.”
Prior to the Program Electronic Review Management (PERM) regulations (which are discussed
below), employers would first file an “Application for Alien Employment Certification” (ETA

750 form) with the state Employment Service office in the area of intended employment, also ¹⁹

known as state workforce agencies (SWAs). The SWAs did not have the authority to grant or
deny LCAs; rather, the SWAs processed the LCAs. They also had a role in recruitment as well as
gathering data on prevailing wages and the availability of U.S. workers. They then forwarded the ²⁰
LCA along with their report to the regional ETA office.
DOL summarized the labor certification process to hire immigrant workers prior to the
implementation of PERM as follows:

¹⁴^§²⁰³⁽^b⁾^o^f^I^N^A^;⁸^U.^S^.^C^.^{§ 11}⁵³^.
¹⁵^Cert^aiⁿ^secoⁿ^d^p^r^ef^eren^{ce i}^m^mⁱ^g^r^an^t^s^w^h^o^{are d}^eemed^t^o^b^e^“iⁿ^t^h^{e n}^a^tⁱ^oⁿ^a^lⁱⁿ^t^e^rest^{” are exe}^m^p^t^f^r^o^m^l^a^b^o^r
^c^e^r^tif^ic^a^tion.
¹⁶^{20 C}^.^F.R^.^P^a^r^t⁶⁵^6.
¹⁷^{20 C}^.^F.R^.^P^a^r^t⁶⁵^6.
¹⁸^§2¹²⁽^a⁾⁽⁵⁾⁽^A⁾^of^I^N^A^.
¹⁹^Em^ploy^e^r^{s a}^l^{so f}^ileⁱ^m^mⁱ^g^r^a^tion^pe^titio^{ns w}^{ith USCIS}^on^be^ha^lf^of^the^a^lie^{ns t}^h^e^y^a^r^e^re^c^r^uiting^aⁿ^d^pa^y^f^e^e^s^f^o^r
^each^p^e^titioⁿ^s^th^ey^f^ile.
²⁰^T^h^ese^f^o^r^m^{s ar}^{e av}^ai^l^a^b^l^{e at}^h^t^t^p^:^/^/^www^.^f^o^r^ei^gn^l^a^b^o^r^cer^t^.^d^o^l^et^a.^gov/^,^access^e^d^A^p^r^.²³^,²⁰⁰⁷^.

^{... re}^qu^ires^e^m^plo^y^ers^{to f}^ile^{a perm}^an^eⁿ^t^{labor certif}^ication^app^lication^wⁱ^t^h^t^h^{e SWA}
^s^e^rvⁱⁿ^g^t^h^{e area of}ⁱⁿ^ten^d^{ed e}^m^ploy^m^eⁿ^t^an^{d, af}^ter^fⁱ^lin^g^,^to^activ^el^y^r^ecr^u^{it U.S.}^w^o^r^k^er^{s in}
^g^{ood f}^aⁱ^t^h^f^o^{r a}^peri^{od of}^at^l^e^as^t^{30 da}^y^s^f^o^{r t}^h^{e j}^{ob open}ⁱ^ng^{s f}^o^r^w^hⁱ^c^h^a^lⁱ^e^ns^are^s^ough^t^.
^J^{ob a}^pplican^ts^{are eith}^{er ref}^e^r^r^{ed directly}^to^th^{e e}^m^p^l^o^y^{er or th}^{eir res}^u^m^e^s^{are s}^eⁿ^t^{to th}^e
^e^m^pl^o^y^{er. T}^h^{e e}^m^pl^o^y^{er h}^a^s^{45 day}^s^t^o^repor^{t to}^eith^er^th^{e SW}^A^o^r^an^ET^A^b^ack^lo^g
^proces^sⁱⁿ^g^ceⁿ^t^{er or reg}ⁱ^on^al^offⁱ^{ce t}^h^{e l}^a^w^f^ul^j^ob-^rel^a^t^e^{d rea}^s^on^s^f^o^{r n}^o^t^hⁱ^ri^ng^aⁿ^y^r^e^f^e^r^r^e^d
^qu^{alified U.S.}^w^o^rk^{er..... If}^{, h}^o^w^e^v^e^{r, th}^{e e}^m^plo^y^{er believ}^e^s^a^b^le,^w^illiⁿ^g^,^aⁿ^d^q^u^alif^ied^U.S.
^w^o^r^k^er^{s ar}^{e n}^o^{t av}^ai^lab^l^{e to}^tak^e^th^{e j}^o^b^,^th^{e ap}^p^licatioⁿ^,^to^g^e^th^er^wⁱ^th^t^h^{e d}^o^c^u^m^eⁿ^t^a^tⁱ^oⁿ^o^f
^th^{e r}^ecr^uⁱ^t^m^eⁿ^{t r}^e^s^u^lt^{s an}^d^p^r^ev^ailiⁿ^g^w^a^g^eⁱⁿ^f^o^r^m^at^ion^,^is^s^eⁿ^t^{to eit}^h^{er an}^ET^A^bac^k^log
^proces^sⁱⁿ^g^{center or ET}^A^regⁱ^on^{al off}ⁱ^{ce. T}^h^{ere, it i}^s^re^vⁱ^e^w^e^d^an^{d a deter}^mⁱⁿ^atioⁿ^m^a^{de as}
^to^w^h^eth^e^r^to^is^su^{e t}^h^{e lab}^o^r^cer^tif^icatioⁿ^b^a^sed^u^p^oⁿ^th^e^e^m^p^l^o^y^er^’^s^co^m^p^liaⁿ^ce^wⁱ^t^h
^ap^p^licab^{le lab}^o^r^law^s^aⁿ^d^p^r^o^g^r^a^m^r^e^g^u^l^a^tioⁿ^s^{. I}^f^w^e^d^e^ter^mⁱⁿ^{e th}^er^{e ar}^eⁿ^o^ab^le,^wⁱ^l^lin^g^,
^q^u^alif^ied^,^an^d^av^ailab^l^{e U.S.}^w^o^r^k^er^{s, a}ⁿ^d^th^{e e}^m^p^l^o^y^m^eⁿ^t^o^f^th^{e alie}ⁿ^w^illⁿ^o^{t ad}^v^e^r^s^el^y
^af^f^e^c^t^t^h^e^w^a^g^e^{s a}ⁿ^d^w^o^r^kⁱⁿ^g^coⁿ^d^itioⁿ^s^o^f^si^m^ilar^l^y^e^m^p^l^o^y^ed^U.S.^w^o^r^k^er^s,^w^e^so^cer^tif^y²¹
^to^th^{e DHS a}ⁿ^d^th^{e DOS b}^y^is^suⁱⁿ^g^{a p}^e^r^m^aⁿ^eⁿ^{t lab}^o^r^cer^tifⁱ^catioⁿ^.
In 2003, DOL acknowledged a backlog of more than 300,000 LCAs for permanent admissions
and projected an average processing time of 3½ years before an employer would receive a
determination. At that time, DOL noted further that some states had backlogs that would lead to ²²
processing times of five to six years.
The Program Electronic Review Management (PERM) regulations were published on December
27, 2004, after initially being proposed in May 2002. The stated goals of PERM are to streamline
the labor certification process and reduce fraudulent filings. Now all LCAs for aliens becoming
LPRs are processed through PERM.
Rather than SWAs receiving the LCAs, all PERM applications are processed by national
processing centers (NPCs). There are currently NPCs in Chicago and Atlanta. With the exception
of their role in determining prevailing wages and maintaining the job orders, the SWAs have been
removed from the LCA adjudication process. To further streamline the process, PERM offers a

10-page attestation-based form that may be submitted electronically (i.e., using web-based forms ²³

and instructions) or mailed to one of the NPCs.
In additional to centralized filing, PERM requires the employer to register so that they receive a
personal identification number (PIN) and password. PERM also identifies employers by their
federal employer identification number.
Recruitment must be completed prior to filing the labor certification, but the documentation for
recruitment does not need to be submitted with the “Application for Permanent Employment
Certification” (ETA Form 9089). Employers must attest that they met the mandatory recruitment
requirements for all applications, which are

²¹^Fe^de^{ral Re}^gⁱ^ste^r^{, v}^o^l.^69,ⁿ^o^.²⁴^{7, D}^e^c^.²⁷^,²⁰^04,^p.⁷⁷³^25.
²²^C^R^S^R^e^por^{t R}^S²¹⁵²^0,^L^a^b^o^{r Ce}^rtific^atio^{n f}^o^{r Pe}^rmane^{nt Immigr}^ant^Admissioⁿ^s^,^by^{Ruth Elle}ⁿ^W^a^se^m^.
²³^T^h^e^ne^w^f^o^r^m^{, A}^pplic^a^{tion f}^o^r^Pe^r^m^aⁿ^eⁿ^{t Em}^ploy^m^e^{nt C}^e^r^tif^ic^a^tⁱ^{on (}^E^T^A^For^m⁹⁰⁸⁹⁾^{, is}^a^v^a^ila^ble^a^t
^http:^//w^w^w^.f^or^eⁱ^gⁿ^la^bor^c^e^r^t.d^o^le^t^a^.g^ov^/f^or^m^.^cf^m^{, a}^c^c^e^s^se^{d on A}^p^r^.²³^{, 2}⁰⁰⁷^{. D}^O^L^d^o^e^s^not^pe^r^m^{it em}^ploy^e^r^s^to
^subm^{it a}^pplic^a^tio^{ns by}^f^a^c^sⁱ^m^ile^.

• two Sunday newspaper job advertisements;
• state workforce agency job order;
• internal posting of job; and
• in-house media (if applicable).
There are specified exceptions to these recruitment requirements—notably those involving
college or university teachers selected through competitive recruitment and Schedule A
occupations. The recruitment documentation may be specifically requested by the Certifying
Officers (COs) through an audit letter. Audit letters may be issued randomly or triggered by
information on the form.
PERM recruitment requirements also differentiate between professional and non-professional
occupations. Professional occupation is defined in the final rule as “an occupation for which the
attainment of a bachelor’s or higher degree is a usual education requirement.” If the application is
for a professional occupation, the employer must conduct three additional steps that the employer ²⁴
chooses from a list published in the regulation.
As a result of these regulatory reforms, DOL predicts that its COs will adjudicate PERM
applications within 45-60 days. Since PERM provides specific recruitment and documentary
requirements, less discretion is given to the COs to determine whether the recruitment
requirements are met. Upon adjudication of an application, the CO will have three choices:
• certify the application,
• deny the application, or
• issue an audit letter.

Currently, there are 24 major nonimmigrant (i.e., aliens who the United States admits on a
temporary basis) visa categories, and 72 specific types of nonimmigrant visas issued. These visa
categories are commonly referred to by the letter and numeral that denote their subsection in the ²⁵
INA. Several visa categories are designated for employment-based temporary admission. The
term “guest worker” is not defined in law or policy and typically refers to foreign workers
employed in low-skilled or unskilled jobs that are temporay. While a variety of temporary visas—
by their intrinsic nature—allow foreign nationals to be employed in the United States, the
applications for many of these visas do not trigger the requirement for an LCA filing.

²⁴^Fe^de^{ral Re}^gⁱ^ste^r^{, v}^o^l.^69,ⁿ^o^.²⁴^{7, D}^e^c^.²⁷^,²⁰^04,^p^p^.⁷⁷³²^5-⁷⁷⁴²¹^.
²⁵^For^a^f^u^lle^r^dis^c^us^sⁱ^oⁿ^aⁿ^d^aⁿ^a^l^y^s^is^{, s}^e^e^C^R^S^R^e^por^{t R}^L³¹³⁸^1,^U^.^{S. I}^m^mⁱ^gr^atio^{n P}^o^lic^y^oⁿ^Te^m^p^or^ar^y^Admⁱ^s^sⁱ^oⁿ^s^,
^by^C^h^a^d^C^.^H^a^dda^{l a}ⁿ^{d R}^u^th^Elle^{n W}^a^s^e^m^.

The major nonimmigrant category for temporary workers is the H visa, and an LCA is required
for the admission of an H visa holder. The current H-1 categories include professional specialty
workers (H-1B) and nurses (H-1C). Temporary professional workers from Canada and Mexico
may enter according to terms set by the North American Free Trade Agreement (NAFTA) on TN
visas. There are two visa categories for temporarily importing seasonal workers, that is, guest
workers: agricultural guest workers enter with H-2A visas and other seasonal/ intermittent
workers enter with H-2B visas. The law sets numerical restrictions on annual admissions of the
H-1B (65,000), the H-1C (500), and the H-2B (66,000); however, most H-1B workers enter on
visas that are exempt from the ceiling. There is no limit on the admission of H-2A workers.
Intracompany transferees who are executive, managerial, and have specialized knowledge, and
who are employed with an international firm or corporation are admitted on the L visas. Aliens ²⁷
who are treaty traders enter on E-1 visas while those who are treaty investors use E-2 visas.
Whether a cultural exchange visa holder is permitted to work in the United States depends on the
specific exchange program in which they are participating. The J visa includes professors,
research scholars, students, foreign medical graduates, camp counselors and au pairs who are in
an approved exchange visitor program. Participants in structured exchange programs enter on Q-1
visas. Q-2 visas are for Irish young adults from specified Irish border counties in participating
exchange programs.
Persons with extraordinary ability in the sciences, arts, education, business, or athletics are
admitted on O visas, whereas internationally recognized athletes or members of an internationally
recognized entertainment group come on P visas. Generally, the O visa is reserved for the highest
level of accomplishment and covers a fairly broad set of occupations and endeavors, including
athletics and entertainers. The P visa has a somewhat lower standard of achievement than the O
visa, and although it is restricted to a narrower band of occupations and endeavors. The P visa is
used by an alien who performs as an artist, athlete, or entertainer (individually or as part of a
group or team) at an internationally recognized level of performance and who seeks to enter the
United States temporarily and solely for the purpose of performing in that capacity. The law
allows individual athletes to stay in intervals up to 5 years at a time, up to 10 years in total.

²⁶^Se^e^C^R^S^R^e^por^{t R}^L³⁰⁴⁹⁸^,^I^m^mⁱ^gr^ati^on:^Le^gis^l^ativ^e^I^s^s^u^e^s^on^N^o^nim^mⁱ^gr^aⁿ^{t Pr}^ofe^s^sⁱ^on^al^Spe^cⁱ^al^t^y⁽^H^-¹^B)
^Wo^rkers^{, b}^y^R^u^{th Elle}^{n W}^a^s^e^m^;^a^{nd C}^R^S^R^e^por^t^R^L³²⁰^44,^Immig^r^atio^{n: P}^o^lic^y^Co^nside^r^ati^ons^Re^late^{d t}^o^Gue^s^t
^W^o^r^k^e^r^Pr^ogr^am^s^{, by}^A^ndor^r^a^B^r^uno^.
²⁷^Se^e^C^R^S^R^e^por^{t R}^L³²⁰³⁰^,^I^m^mⁱ^gr^ati^on^Polic^y^f^o^r^Iⁿ^tr^ac^om^p^any^Tr^ans^fe^r^s⁽^L^Vis^a⁾^:^I^s^s^u^e^s^an^{d Le}^gis^l^ati^oⁿ^{, by}^Ruth
^Elle^{n W}^a^s^e^m^;^a^{nd C}^R^S^R^e^p^o^r^t^R^L³³⁸⁴^4,^F^o^reign^In^vesto^{r V}ⁱ^sa^s:^Po^{licies an}^d^Iss^u^es^{, by}^C^h^a^d^C^.^H^a^dda^l.

Aliens working in religious vocations enter on R visas. The regulations define religious
occupation as “an activity which relates to a traditional religious function.” USCIS has proposed
regulations further defining “religious denomination” to clarify that it applies to a religious group
or community of believers governed or administered under some form of common ecclesiastical
government. Under the proposed rule, the denomination must share a common creed or statement
of faith, some form of worship, a formal or informal code of doctrine and discipline, religious
services and ceremonies, established places of religious worship, religious congregations, or ²⁸
comparable indicia of a bona fide religious denomination.
Some of the earliest nonimmigrant categories enacted are the C visa for aliens traveling through
the United States en route to another destination and the D visa for alien crew members on
vessels or aircraft. Those foreign nationals with D visas are typically employed by the carrier and ²⁹
those on C visas may be traveling as part of their employment.
As Figure 2 illustrates, the issuances of temporary employment-based visas has risen steadily ³⁰
over the past decade. In FY2007, almost 1.4 million visas were issued. During the period 2000-
2007, the category with the largest percentage increase were the C and D crewmen (64.5%) and
the H and NAFTA workers (48.1%). The E and L visas rose by 37.2% over this period followed
closely by the J and J visas, which increased by 36.7%. The R visas also evidenced a noteworthy
increase of 31.6%

²⁸^U.^S^.^Ci^tⁱ^zen^shⁱ^p^an^{d Imm}ⁱ^gr^atⁱ^oⁿ^S^e^rvi^ces,^“S^p^eci^al^Immⁱ^gran^t^an^d^N^oⁿⁱ^m^mⁱ^gran^t^Relⁱ^gⁱ^o^u^s^W^o^rkers,^{” 7}²^Fe^de^ral
^Re^giste^r²⁰⁴⁴^{2, A}^p^r^il^25,²⁰⁰⁷^.
²⁹^D^-^{1 c}^r^e^w^m^e^m^b^e^r^s^{on f}^o^r^e^ig^{n v}^e^s^s^e^ls^a^r^e^ge^ne^r^a^ll^y^f^o^r^b^id^de^{n t}^o^p^e^r^f^or^m^long^s^hor^e^w^o^r^k^a^t^U^.^{S. p}^o^r^ts^{. T}^h^e^r^e^is^aⁿ
^e^x^c^e^p^{tion in}^w^h^ic^{h a}ⁿ^e^m^ploy^e^r^m^u^st^f^ile^aⁿ^a^tte^sta^{tion sta}^tⁱⁿ^g^tha^t^{it is t}^h^e^pre^v^a^iling^pra^c^tic^e^f^o^{r th}^e^a^c^tiv^it^y^a^t^tha^t
^p^o^r^t^,^t^h^{ere i}^sⁿ^o^st^rⁱ^{ke o}^r^l^o^cko^u^t^at^t^h^{e p}^l^{ace o}^f^em^p^l^o^y^men^t^,^an^d^t^h^at^no^tⁱ^{ce h}^a^{s b}^{een gi}^ven^t^o^U.^S^.^w^o^rker^{s o}^r^t^h^ei^r
^re^pre^s^eⁿ^ta^tiv^e^s^{. A}^nothe^{r e}^x^c^e^p^{tion a}^llow^s^{D-1 c}^r^e^w^m^e^{n to}^pe^rf^or^m^long^sh^ore^a^c^tiv^itie^{s in t}^h^e^Sta^t^e^o^f^A^l^a^s^k^a^{, if}^the
^em^ploy^e^r^a^l^s^o^ha^s^m^a^de^a^bona^fⁱ^de^r^e^que^s^t^f^o^r^aⁿ^{d ha}^s^e^m^ploy^e^d^U^.^{S. l}^ong^s^hor^e^w^o^r^k^e^r^s^w^{ho a}^r^e^qua^lif^ie^{d a}^nd
^avai^l^a^b^l^{e i}ⁿ^su^f^fⁱ^ci^en^tⁿ^u^m^b^e^rs^f^r^o^m^coⁿ^t^ract^st^eved^o^rⁱⁿ^{g co}^m^p^anⁱ^e^s,^l^a^b^o^r^o^r^ganⁱ^zatⁱ^oⁿ^s^reco^gnⁱ^z^e^d^{as excl}^u^sⁱ^v^e
^ba^r^g^aⁱ^ning^r^e^pr^e^s^eⁿ^ta^tiv^e^s^of^Uⁿ^ite^{d Sta}^t^e^s^lo^ng^s^hor^e^w^o^r^k^e^r^s^,^a^nd^pr^iv^a^t^e^doc^k^ope^r^a^t^o^r^s^{. 2}⁰^C^F^R^Pa^r^t⁶⁵^{5, S}^u^b^p^a^r^ts
^{F a}^{nd G}^.
³⁰^F^o^{r a}^d^e^t^aⁱ^l^e^d^an^al^y^sⁱ^s^,^see^Ta^b^l^{e 2}ⁱⁿ^{CRS Rep}^o^{rt RL}³¹³⁸¹^,^U^.^S.^I^m^mⁱ^gr^ati^{on Polic}^y^{on Te}^m^por^ar^y^Admⁱ^s^sⁱ^ons^{, b}^y
^Ch^ad^C.^Hadd^al^and^Rut^h^E^l^l^eⁿ^W^a^s^e^m^.

Figure 2. Temporary Employment-based Admissions, 1994-2007
Thousands
1600
14001,391,906
1200
1000C & D
R
L & E
800O & P
J & Q
600H & NAFTA
400
200
0
4 99 5 99 6 99 7 99 8 99 9 00 0 001 002 003 004 005 006 007
199 1 1 1 1 1 2 2 2 2 2 2 2 2
^Source:^{CRS analysis of data from the U.S. Department of State,}^{Bureau of Cons}^{ular Affairs.}
Prospective employers of H-1B, H-2A, and H-2B workers must apply to the Secretary of Labor
for labor certification before they can file petitions with DHS to bring in foreign workers.
Similarly with LCAs for LPRs, the determinations for H workers are made by DOL’s
Employment and Training Administration (ETA) on behalf of the Secretary or Labor. The INA
requires that employers apply for a certification that there are not sufficient U.S. workers who are
qualified and available to perform the work; and the employment of foreign workers will not
adversely affect the wages and working conditions of U.S. workers who are similarly employed.
As summarized below, the particular employer requirements to obtain labor certification differ
under the three visas. H-2A and H-2B LCAs include an offer of employment. This job offer,
which describes the terms and conditions of employment, is used in the recruitment of U.S.
workers and H-2A or H-2B workers, as relevant.

The largest number of H visas are issued to temporary workers in specialty occupations, known
as H-1B nonimmigrants. The regulations define a “specialty occupation” as requiring theoretical
and practical application of a body of highly specialized knowledge in a field of human endeavor
including, but not limited to, architecture, engineering, mathematics, physical sciences, social
sciences, medicine and health, education, law, accounting, business specialties, theology, and the ³²
arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. The
prospective H-1B nonimmigrants must demonstrate to the USCIS that they have the requisite
education and work experience for the posted positions. After DOL approves the labor attestation,
USCIS processes the petition for the H-1B nonimmigrant (assuming other immigration
requirements are satisfied) for periods up to three years. An alien can stay a maximum of six
years on an H-1B visa.
The H-1B labor attestation, a three-page application form, is a streamlined version of the labor
certification application (LCA) and is the first step for an employer wishing to bring in an H-1B
professional foreign worker. As noted above, the attestation is a statement of intent rather than a ³³
documentation of actions taken. In LCA’s for H-1B workers, the employer must attest that the
firm will pay the nonimmigrant the greater of the actual wages paid other employees in the same
job or the prevailing wages for that occupation; the firm will provide working conditions for the
nonimmigrant that do not cause the working conditions of the other employees to be adversely
affected; and that there is no applicable strike or lockout. The firm must provide a copy of the
LCA to representatives of the bargaining unit or—if there is no bargaining representative—must ³⁴
post the LCA in conspicuous locations at the work site.
The law requires that employers defined as H-1B dependent (generally firms with at least 15% of ³⁵
the workforce who are H-1B workers) meet additional labor market tests. These H-1B
dependent employers must also attest that they tried to recruit U.S. workers and that they have not
displaced U.S. workers in similar occupations within 90 days prior or after the hiring of H-1B
workers. Additionally, the H-1B dependent employers must offer the H-1B workers compensation ³⁶
packages (not just wages) that are comparable to U.S. workers. Employers recruiting the H-1C

³¹^P^o^r^tⁱ^ons^of^this^s^e^c^tio^{n dr}^a^w^on^C^R^S^R^e^por^t^R^L³⁰⁴^98,^I^m^mⁱ^gr^a^tⁱ^on:^Le^gis^l^a^tiv^e^I^s^s^u^e^s^on^N^oⁿⁱ^m^mⁱ^gr^an^t
^Pr^ofe^s^sⁱ^on^al^Spe^cⁱ^alty⁽^H^-¹^B)^W^o^r^k^e^r^s^{, b}^y^{Ruth Elle}^{n W}^a^se^m^.^(He^r^e^a^f^t^e^r^c^ite^{d a}^s^{CRS Re}^{port RL}³⁰⁴⁹⁸^,
^N^onim^mⁱ^gr^ant^Pr^ofe^s^sⁱ^o^nal^S^p^e^cⁱ^alty⁽^H^-¹^B)^W^o^r^k^e^r^s^.)
³²^{8 C}^.^F^.^R^.^§2^14.²⁽^h)⁽⁴⁾^.^L^a^w^a^{nd r}^e^g^u^la^tions^a^l^s^o^s^p^e^cⁱ^f^y^tha^t^f^a^s^h^io^{n m}^ode^ls^de^e^m^e^d^“^p^r^o^mⁱ^ne^nt”^m^a^y^eⁿ^te^r^{on H}^-^1B
^visas.
³³^A^tte^s^t^a^{tion w}^a^s^pa^r^t^of^a^c^o^m^p^r^o^mⁱ^se^pa^c^k^ag^e^{on H}^-^1B^vⁱ^s^a^tha^tⁱⁿ^c^l^ude^{d a}ⁿ^nua^l^num^e^r^ic^a^l^li^m^its^{in the}^I^m^mⁱ^g^r^a^tion
^A^c^{t o}^f¹⁹⁹^{0 (}^P^.L^{. 10}^0-⁶⁴⁹⁾^.^Se^e^C^R^S^R^e^por^t^R^L³⁰⁴^98,^N^o^nim^mⁱ^g^r^{ant Pr}^ofe^s^sⁱ^on^al^Spe^cⁱ^al^ty⁽^H^-¹^B)^W^o^r^k^e^r^s^.
³⁴^I^N^A^§212(ⁿ⁾^;^{8 C}^.^F^.^R^.^§2^14.²⁽^h)⁽⁴⁾^.^F^o^r^a^f^u^r^t^he^r^dis^c^us^sⁱ^oⁿ^of^la^bor^a^tte^s^t^a^tⁱ^ons^{, s}^e^e^C^R^S^R^e^p^o^r^t^R^L³⁰⁴⁹^8,
^N^onim^mⁱ^gr^ant^Pr^ofe^s^sⁱ^o^nal^S^p^e^cⁱ^alty⁽^H^-¹^B)^W^o^r^k^e^r^s^.
³⁵^T^itle^IV^of^P^.^L^.¹^05-²⁷⁷^de^fⁱ^ne^d^{H-1B de}^peⁿ^d^eⁿ^t^e^m^ploy^e^r^{s a}^s^fⁱ^r^m^{s ha}^vⁱ^ng²⁵^{or le}^{ss e}^m^ploy^e^e^s^,^of^w^h^o^m^a^t^le^a^s^t
^{8 a}^r^e^H^-^1B^s^;²⁶^-⁵^{0 e}^m^ploy^e^e^s^of^w^h^o^m^a^t^le^a^s^{t 13 a}^r^e^H^-^1B^s^;^a^t^le^a^s^{t 51 e}^m^ploy^e^e^s^,^15%^of^w^hom^a^r^e^H^-^1B^s^;
^e^x^c^l^ude^s^thos^e^e^a^r^ning^a^t^le^a^s^t^$6^0,0⁰⁰^or^ha^vⁱ^ng^m^a^s^t^e^r^s^de^g^r^e^e^s^.^C^R^S^R^e^por^t⁹⁸^-⁵^31,^I^m^mⁱ^gr^at^ioⁿ^:^N^onim^mⁱ^gr^aⁿ^{t H}^-
^{1B S}^p^e^cⁱ^alty^W^o^r^k^e^r^I^s^s^u^e^s^an^d^L^e^gis^l^ati^oⁿ^,^by^{Ruth E}^lle^{n W}^a^se^m^.
³⁶^I^N^A^§212(ⁿ⁾^.

nurses must attest similarly to those recruiting H-1B workers, with the additional requirement that ³⁷
the facility attest that it is taking significant steps to recruit and retain U.S. registered nurses.

The H-2A program provides for the temporary admission of foreign agricultural workers to
perform work that is itself temporary in nature, provided U.S. workers are not available. In
contrast to the H-1B and H-2B nonimmigrant visas, the H-2A visa is not subject to numerical
restrictions. An approved H-2A visa petition is generally valid for an initial period of up to one
year. An H-2A worker’s total period of stay may not exceed three consecutive years.
The H-2A visa requires that employers conduct an affirmative search for available U.S. workers
and that DOL determine that admitting alien workers will not adversely affect the wages and
working conditions of similarly employed U.S. workers. This process—known as labor
certification—is similar but not identical to the process required of employers who seek to bring ³⁹
in workers as permanent, employment-based immigrants (discussed above). Employers must
apply to DOL for certification that unemployed domestic workers are not available and that there
will not be an adverse effect from the alien workers’ entry. The application must include a copy of
the job offer to be used to recruit U.S. and H-2A workers. Under DOL’s H-2A labor certification
regulations, a prospective H-2A employer must submit a plan for conducting independent,
positive recruitment of U.S. workers as part of the LCA, and must engage in such recruitment
until the foreign workers have departed for the employer’s place of work. H-2A employers’
recruitment responsibilities include assisting the Employment Service system in the preparation
of local, intrastate, and interstate job orders; placing newspaper and/or radio advertisements; and
contacting farm labor contractors, migrant workers, and other workers in other areas of the state ⁴⁰
or country.
Beyond the procedural requirements mentioned above, the H-2A visa has requirements aimed at
protecting the alien H-2A workers from exploitive working situations and preventing the
domestic work force from being supplanted by alien workers willing to work for sub-standard
wages. The H-2A visa requires employers to provide their temporary agricultural workers the
following benefits.

³⁷^C^R^S^R^e^por^{t R}^S²⁰¹⁶^4,^I^m^mⁱ^gr^ati^on:^Te^m^por^ar^y^A^d^mⁱ^s^sⁱ^oⁿ^o^f^N^u^r^s^e^s^for^H^e^alth^Sh^or^ta^ge^Ar^e^a^s⁽^P^.^L^{. 1}^06-⁹⁵⁾^{, by}
^Jo^y^c^{e V}ⁱ^al^et^.
³⁸^For^a^f^u^lle^r^dis^c^us^sⁱ^oⁿ^of^la^bor^c^e^r^tif^ic^a^{tion f}^o^r^H^-^2A^tem^por^a^r^y^f^o^r^e^ig^{n w}^o^r^k^e^r^s^,^s^e^e^C^R^S^R^e^por^t^R^L³²⁰⁴^4,
^Immigratio^{n: P}^o^lic^y^Co^nside^r^a^tio^ns^Re^late^d^to^Gue^s^{t W}^o^rk^e^r^Prog^rams^{, by}^A^ndor^r^a^B^r^un^o.
³⁹^Iⁿ^a¹⁹⁹⁸^a^u^dit,^the^L^a^bor^D^e^pa^r^t^m^e^nt’^s^O^f^fⁱ^c^e^o^f^the^Iⁿ^s^p^e^c^t^or^G^e^ne^r^a^{l c}^onc^lu^de^d^tha^t^“^t^he^H^-^2A^c^e^r^tif^ic^a^tion
^pr^oc^e^s^s^is^ine^f^f^e^c^tiv^e^.^I^t^is^c^h^a^r^a^c^t^e^r^iz^e^d^by^e^x^t^e^ns^iv^e^a^d^mⁱ^nis^t^r^a^tiv^e^r^e^quir^e^m^e^nts^,^pa^pe^r^w^or^k^a^{nd r}^e^g^u^la^tions^t^h^a^t^of^teⁿ
^see^m^dⁱ^sso^ci^at^ed^wⁱ^t^h^DOL^’s^maⁿ^d^a^t^e^o^f^p^r^o^vⁱ^dⁱⁿ^{g assu}^ran^{ce t}^h^at^Ameri^can^w^o^{rkers’ j}^o^b^s^{are p}^r^o^t^e^c^t^e^d^.^”
^Consol^id^atioⁿ^{of L}^a^b^o^{r’s En}^forc^e^m^eⁿ^{t Re}^spoⁿ^sibil^itie^{s for}^the^H-2^A^Progr^{am Co}^uld^Be^tte^r^Prote^c^t^U.S.^A^g^ric^u^lt^ural
^Wo^rkers^{, R}^e^por^{t 04-}⁹⁸^-⁰⁰⁴^-^03-³^21,^Ma^r^.^31,¹⁹⁹⁸^.
⁴⁰^I^N^A^§101(^a⁾⁽¹⁵⁾⁽^H⁾⁽ⁱⁱ⁾⁽^a⁾^,^§2¹⁸⁽^a⁾⁽¹⁾^,⁽^d⁾⁽¹⁾^;²⁰^C^F^R^§⁶⁵⁵^.¹⁰⁰^;^§⁶⁵⁵^.1⁰¹⁽^a⁾^,⁽^b⁾^;^§6⁵⁵^.1^03.

• Employers must pay their H-2A workers and similarly employed U.S. workers
the highest of the federal or applicable state minimum wage, the prevailing wage ⁴¹
rate, or the adverse effect wage rate (AEWR).
• The employer must provide the worker with an earnings statement detailing the
worker’s total earnings, the hours of work offered, and the hours actually worked.
• The employer must provide transportation to and from the worker’s temporary
home, as well as transportation to the next workplace when that contract is
fulfilled.
• The employer must provide housing to all H-2A workers who do not commute.
The housing must be inspected by DOL and satisfy the appropriate minimum
federal standards.
• The employer must provide the necessary tools and supplies to perform the work
(unless it is generally not the practice to do so for that type of work).
• The employer must provide meals and/or facilities in which the workers can
prepare food.
• The employer must provide workers’ compensation insurance to the H-2A
workers.
H-2A workers, however, are exempt from the Migrant and Seasonal Agricultural Worker
Protection Act that governs agricultural labor standards and working conditions as well as from
unemployment benefits (Federal Unemployment Tax Act) and Social Security coverage (Federal
Insurance Contributions Act). Farm workers in general lack coverage under the National Labor
Relations Act provisions that ensure the right to collective bargaining.

The H-2B program provides for the temporary admission of foreign workers to the United States
to perform temporary non-agricultural work, if unemployed U.S. workers cannot be found. The
work itself must be temporary. Under the applicable immigration regulations, work is considered
to be temporary if the employer’s need for the duties to be performed by the worker is a one-time ⁴³
occurrence, seasonal need, peakload need, or intermittent need. The statute does not establish ⁴⁴
specific skills, education or experience required for the visa, with some exceptions. Foreign
medical graduates coming to perform medical services are explicitly excluded from the program. ⁴⁵
An approved H-2B visa petition is valid for an initial period of up to one year. An alien’s total ⁴⁶
period of stay as an H-2B worker may not exceed three consecutive years.

⁴¹^{For a}^m^o^re^c^o^m^p^le^te^e^x^plaⁿ^a^tion^of^{this pr}^ov^isio^{n a}ⁿ^d^h^o^w^{it w}^o^{rks, se}^e^{CRS Re}^{port RL}³²⁸^61,^Far^m^Lab^o^r^:^The
^Adv^e^rse^Effe^c^t^W^age^Rate⁽^AEW^R)^{, by}^W^illia^m^G^.^W^h^itta^k^e^r.
⁴²^T^h^is^s^e^c^{tion is}^dr^a^w^{n, in}^pa^r^t^{, f}^r^o^m^C^R^S^R^e^por^{t R}^L³²⁰^44,^Immigr^atio^{n: P}^o^lic^y^Co^nside^r^at^io^{ns Re}^la^te^{d to}^Gue^s^t
^W^o^r^k^e^r^Pr^ogr^am^s^{, by}^A^ndor^r^a^B^r^uno^.
⁴³^For^de^fⁱ^nitio^{ns of}^the^s^e^ty^pe^{s of}^ne^e^d^{, se}^e^{8 C.}^F.R.^§2¹⁴^.2(^h⁾⁽⁶⁾⁽ⁱⁱ⁾^.
⁴⁴⁸^CF^R^§²¹⁴^.²⁽^h^).^T^h^{ere are sp}^eci^al^req^uⁱ^rem^eⁿ^t^{s f}^o^{r p}^r^o^f^essi^oⁿ^a^l^at^h^l^et^es,^f^o^{r exa}^m^p^l^e.^S^{ee CRS}^coⁿ^g^ressi^oⁿ^a^l
^dis^t^rⁱ^b^u^ti^{on m}^e^m^o^r^a^ndum^,^Te^m^p^o^r^ar^y^Admⁱ^s^sⁱ^oⁿ^of^For^eⁱ^{gn Pr}^ofe^s^sⁱ^ona^{l At}^hle^t^e^s^{, by}^Ruth^Elle^{n W}^a^s^e^m^,^Fe^{b. 1}⁵^,
²⁰⁰^{5 (}^a^v^a^ila^ble^u^p^oⁿ^r^e^q^u^e^s^{t f}^r^om^the^a^u^thor⁾^.
⁴⁵^Se^e^{8 C}^.^F^.^R^.^§2^14.²⁽^h)⁽⁹⁾⁽ⁱⁱⁱ⁾⁽^B⁾^.
⁴⁶^In^cl^ud^edⁱⁿ^t^hⁱ^s^t^h^ree-^y^{ear p}^e^ri^o^dⁱ^s^an^y^tⁱ^m^e^an^H-2^B^alⁱ^eⁿ^sp^entⁱⁿ^t^h^{e U}ⁿⁱ^t^e^d^S^t^at^{es un}^d^e^{r t}^h^{e “H” (t}^em^p^o^r^ar^y
⁽^c^onti^nue^d.^..)

Like prospective H-2A employers, prospective H-2B employers must first apply to DOL for a
certification that U.S. workers capable of performing the work are not available and that the
employment of alien workers will not adversely affect the wages and working conditions of
similarly employed U.S. workers. Under DOL policy guidance on the H-2B labor certification
process, a prospective H-2B employer must advertise the job opportunity in a newspaper or other
appropriate publication for three consecutive days and provide the SWA with proof of
publication; and must document that union and other recruitment sources were contacted. H-2B
employers must pay their workers at least the prevailing wage rate. Unlike H-2A employers, they ⁴⁷
are not subject to the AEWR and do not have to provide housing, transportation, and other
benefits required under the H-2A program.
Table 1 summarizes key labor market tests for employers to meet and immigration-related
protections for workers that are required for the admission of the foreign temporary workers. For
employers seeking H temporary workers, only two labor market elements apply to all: (1) some
form of a comparable wage requirement and (2) some affirmation that the working conditions for
similarly employed U.S. workers will not be adversely affected.
Table 1. Summary of Foreign Temporary Worker Labor Market Tests and
Protections
^H-1B^H-1B^H-2A^H-2B
^Requirements^Professional^Dependent^Agric^ultural^Non-agric^ultural
^{Efforts to re}^{cruit U.S. workers}^no^yes^yes^yes
^{Offering com}^para^{ble or prevailin}^g^{yes yes}^yes^yes
^wages
^{Offering com}^para^{ble bene}^fits^no^yes^no^no
^{U.S. w}^{orking conditions not}^{yes yes}^yes^yes
^{adversely affected}
^{No strikes or lockouts of U.S.}^{yes yes}^yes^no
^workers
^{Protection from retaliation}^{yes yes}^yes^no
^{(whistleblower)}
^{Lay-off protections for U.S.}^{no yes}^yes^no
^workers
^{Work site postings of intent to}^{yes yes}^no^no
^{hire foreign worker}^s
^{Housing, insura}^{nce a}^nd^{no no}^yes^no
^{transportation}
^{Numerical ca}^ps^65,0⁰⁰^{plus e}^xceptions^no^66,0⁰⁰^plus
^exceptions
^Source:^{CRS summar}^{y of INA}^{§212(a)(5), §21}^{2(g), §212(n), §21}⁸⁽^{b) and (c)(4); 8 C.F.R §214.2; and}^{20 C.F.R.}
^§655-Sub^parts^{A, B.}

^(...c^on^tin^ue^d)
^w^o^{rker) o}^r^“L^{” (t}^e^m^p^o^r^ar^yⁱⁿ^t^r^aco^m^p^an^y^t^r^an^sf^er^{ee) vi}^s^a^cat^e^g^o^rⁱ^e^s.
⁴⁷^W^h^ile^not^s^u^b^j^e^c^t^{to t}^h^e^br^oa^de^r^t^r^aⁿ^s^por^ta^ti^on^r^e^quir^e^m^e^nts^of^the^H^-^2A^pr^og^r^a^m^,^H^-^2B^e^m^plo^y^e^r^s^a^r^e^r^e^quir^e^d^by
^la^w^{to pa}^y^the^r^e^a^s^ona^ble^c^o^s^t^s^of^r^e^turⁿ^tr^aⁿ^s^p^or^ta^tio^{n a}^b^r^o^a^d^f^o^r^aⁿ^H^-^2B^w^o^r^k^e^r^w^{ho is}^dis^m^is^s^e^{d pr}^ior^to^the^eⁿ^{d of}
^his^or^he^r^a^u^t^hor^iz^e^d^pe^rⁱ^od^of^s^t^a^y^.

As Figure 3 shows, funding for foreign labor certification has fluctuated over the past 10 years
despite the steady upward trends in employment-based immigration (Figures 1 and 2). In 1997,
DOL projected that its backlog of applications for permanent LCAs would grow from 40,000 to
65,000 during FY1998. By 2003, however, the backlog of LCAs for permanent admissions was
300,000, and DOL projected an average processing time of 3½ years before an employer received
a determination. The Bush Administration sought and received funding increases in FY2004 and ⁴⁸
FY2005 to reduce the backlog of LCAs that were pending at that time. PERM’s on-line filings
are also credited with reducing the LCA processing times.
Figure 3. Appropriations for Foreign Labor Certification, FY1998-FY2007
Dollars in millions
50
$44.1
$40.9$39.7
40$36.5
$31.3
30 $26.1 $26.1 $26.1
20
$13.0$13.0$12.7
10
0
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Fiscal Year
^Source:^{CRS prese}^{ntation of DOL Budget J}^{ustifications for Ap}^pr^{opriations, FY1999-FY20}^08.
Although over 90% of the funding for USCIS comes from fees for providing adjudication and ⁴⁹
naturalization services that are deposited into the Examinations Fee Account, Congress has not
specifically authorized DOL to collect fees to cover the costs of processing LCAs. The Clinton
Administration sought authority in 1997 to charge a user fee that employers would pay to offset

⁴⁸^FY1⁹⁹⁸^B^u^d^g^e^t^J^u^stific^atio^{ns o}^f^Appro^p^ria^tio^{ns Estima}^t^e^s^{for C}^o^mmitte^e^{on A}^ppr^opri^a^tio^ns^,^vo^l.^1,^S^U^I^E^S^O^-²⁸^.
⁴⁹^§2⁸⁶^of^the^Im^mⁱ^g^r^a^{tion a}^{nd Na}^tⁱ^ona^lity^A^c^{t. 8 U.S.C.}¹³^56.

the cost of processing the LCAs, but Congress opted not to do so.⁵⁰ The Bush Administration
sought authority to use a portion of the H-1B education and training fees for the processing of ⁵¹
LCAs. Congress continues to fund LCA processing with appropriations from the “national
activities” account of ETA’s Employment Services.

Many criticize the foreign labor certification process, both from the perspective of employers and
employees (native-born as well as foreign-born workers). Employers often describe frustration
with the process, labeling it as unresponsive to their need to hire people expeditiously.
Representatives of U.S. workers question whether it provides adequate safeguards and assert that
employers find ways to “end run” the lengthy process. Advocates for temporary foreign workers,
in turn, maintain that they remain caught up in the long wait for visas to become LPRs, leaving
them vulnerable to exploitation by those employers who promise to petition for them. The issues
that follow are illustrative of the multifaceted aspects of this debate.
Many argue that the labor market tests in the INA in their current forms are insufficiently flexible,
entail burdensome regulations, and may pose potential litigation expenses for employers.
Proponents of these views support extensive changes—particularly moving from labor
certification based upon documented actions (i.e., evidence of recruitment advertisements) to a
streamlined attestation of intent. These advocates of streamlining maintain it would increase the
speed with which employers could hire foreign workers and reduce the government’s role in ⁵²
delaying or blocking such employment.
Others maintain that the streamlined attestation process may be adequate for employers hiring H-
1B workers because those foreign workers also must meet rigorous educational and work
experience requirements, but that an attestation process would be an insufficient labor market test ⁵³
for jobs that do not require a baccalaureate education and skilled work experience. They express
concern that PERM regulations have undermined the integrity of labor market tests for the LPR
process.

⁵⁰^U^.^{S. D}^e^pa^r^t^m^e^{nt of}^L^a^bor^,^FY1⁹^{98 B}^u^d^g^e^t^J^u^sti^fic^ati^ons^{of A}^ppr^o^p^riati^ons^Estimate^s^f^o^{r Committe}^e^on
^Appr^o^p^rⁱ^a^tio^ns^{, v}^o^l.^1,^SU^I^E^SO^-^28.
⁵¹^C^R^S^R^e^por^{t R}^L³¹⁹⁷³^,^Pr^o^g^r^a^m^s^Fun^d^e^d^by^the^H^-^{1B V}ⁱ^s^a^E^duc^at^ion^an^{d Tr}^ainⁱⁿ^g^Fe^e^,^aⁿ^d^La^bor^M^a^r^k^e^t
^Cond^itio^{ns f}^o^{r Inf}^o^rmati^oⁿ^Te^c^hⁿ^o^lo^gy⁽^I^{T) W}^o^rk^e^r^s^{, by}^Lⁱ^nda^L^e^vine^aⁿ^d^B^l^a^k^e^A^l^aⁿ^N^a^ug^hton.
⁵²^{In Ja}^n.²⁰⁰⁵^{, USCIS}^pr^op^ose^d^re^g^u^la^{tions t}^o^stre^a^m^line^th^e^H-2B^pe^titioⁿⁱ^ng^proc^e^{ss, w}^h^ic^{h w}^ould^sigⁿ^if^ic^aⁿ^tl^y^a^lte^r
^pr^oc^e^dur^e^s^{. A}^m^ong^othe^r^c^h^aⁿ^g^e^s^,^the^pr^op^os^e^d^r^u^le^w^ould^e^lim^ina^t^e^the^r^e^quir^e^m^e^{nt tha}^t^pr^os^pe^c^tⁱ^v^e^H^-^2B^em^ploy^e^r^s
^fⁱ^l^e^f^o^{r a l}^a^b^o^r^certⁱ^fⁱ^catⁱ^oⁿ^f^r^o^m^DOLⁱⁿ^m^o^st^cas^es.^In^st^ead^,^em^p^l^o^y^{ers s}^eekiⁿ^{g H-2}^B^w^o^{rkers i}ⁿ^{areas o}^t^h^e^{r t}^h^an
^log^gⁱ^ng^{, the}^eⁿ^te^r^t^aⁱ^nm^eⁿ^{t indus}^tr^y^,^a^{nd pr}^of^e^s^sⁱ^ona^{l a}^t^hle^tic^s^w^oul^{d inc}^l^ude^c^e^r^taⁱⁿ^la^bor^a^tte^s^t^a^tion^s^a^s^pa^r^t^of^the^H^-
^{2B pe}^tit^io^{n the}^y^f^ile^w^{ith USCIS.}^A^c^c^o^rding^to^the^pro^pose^d^r^u^le^,^t^h^is^H^-^2B^a^tte^s^t^a^tⁱ^on^pr^oc^e^s^s^w^oul^{d be}^sⁱ^m^ila^r^{to t}^h^e
^p^r^o^{cess cu}^rren^t^l^y^u^s^ed^f^o^{r H-1}^B^pro^f^essi^oⁿ^a^l^sp^eci^al^t^y^w^o^rk^ers.^T^h^{e p}^r^o^p^o^s^ed^US^CI^S^rul^eⁱ^s^avai^l^a^b^l^{e at}
^h^t^t^p^:^/^/^a²⁵⁷^.^g.^akamai^t^ech^.ⁿ^et^/⁷^/²⁵⁷^/²⁴²²^/⁰¹^j^an2⁰⁰⁵¹⁸⁰⁰^/^ed^o^c^ket^.^access.^gp^o^.^go^v/²⁰⁰⁵^/⁰⁵^-¹²⁴⁰^.^h^t^m^.^DOL^h^a^s
^pub^lis^he^d^a^c^o^m^p^aⁿ^ion^pr^op^os^a^l^,^w^h^ic^{h is}^a^v^a^ila^ble^a^t^http:/^/a²⁵^7.g^.^a^k^am^a^itec^h^.ne^t^/⁷^/25⁷^/²⁴²^2/^01jaⁿ²⁰⁰⁵¹⁸⁰^0/
^ed^o^c^ket^.^acces^s.^gp^o^.^go^v/²⁰⁰⁵^/⁰⁵^-¹²²²^.^h^t^m^.
⁵³^{For e}^x^a^m^ple^,^se^e^A^F^L^-^CI^{O L}^e^gⁱ^sla^tiv^e^A^l^e^r^{t, le}^tte^{r to U.S}^.^Se^na^t^o^{rs f}^r^o^m^W^illia^m^Sa^m^u^e^l^{, Oc}^{t. 19,}²⁰⁰^5.

Some recommend opting for a streamlined attestation process in which employers who have
collective bargaining agreements with their U.S. workers would be afforded expedited
consideration. Proponents of this position argue that collective bargaining agreements would
enable the local labor-management partnerships to develop the labor market test for whether ⁵⁴
foreign workers are needed.
Some allege that employers prefer foreign workers because they are less demanding in terms of
wages and working conditions and that an industry’s dependence on temporary foreign workers
may inadvertently lead the brightest U.S. students to seek positions in fields offering more stable ⁵⁵
and lucrative careers. Many cite the GAO studies that document abuses of H-1B visas and ⁵⁶
recommend additional controls to protect U.S. workers.
Some have warned that PERM and other intent-based attestations are more likely to foster non-
meritorious applications than the prior system because they hinge on self-reporting by the
employers and that such attestations provide inadequate protections for workers currently in the
U.S. labor market. Others have expressed concern that the Certifying Officers (COs) are
relatively unfamiliar with the local labor markets and that this centralized decision-making might
adversely affect U.S. workers. The AFL-CIO has maintained that a thorough manual review of ⁵⁷
labor certification applications is, at times, the sole protection of American workers.
DOL argues that the COs possess sufficient knowledge of local job markets, recruitment sources,
and advertising media to administer the program appropriately. DOL maintains that it will handle
the non-meritorious applications by adjusting the audit mechanism in the new system as needed.
The Administration further points out that it retained authority under the regulations to adjust the
audit mechanism—increasing the number of random audits or changing the criteria for targeted
audits—as necessary to ensure program integrity. Many practitioners observe that under PERM, ⁵⁸
employers must recruit more intensively and boost their salary offers.
Many observers argue that PERM and other intent-based attestations are more susceptible to
fraudulent filings. The American Council of International Personnel (ACIP), for example, has
argued that PERM’s audit and enforcement procedures would not act as effective deterrents to
fraud and misrepresentation. One of the SWAs commenting on the proposed PERM rule stated
the incidence of fraud and abuse of the current system suggests a need for tighter controls, rather ⁵⁹
than a process that relies on employer self-attestations.

⁵⁴^For^e^x^a^m^ple^,^s^e^e^the^“^H^-²^A^R^e^f^o^r^m^a^{nd A}^g^rⁱ^c^u^ltur^a^{l W}^o^r^k^e^r^A^d^jus^t^m^e^{nt A}^c^{t of}^2001”^S.¹³^13/H^.^R^.²⁷³⁶
^intro^duc^e^d^{in the}¹⁰⁷^th^C^ong^r^e^s^s^.
⁵⁵^C^R^S^R^e^por^{t R}^L³⁰¹⁴⁰^,^Aⁿ^Iⁿ^for^m^atio^{n Te}^c^h^nol^ogy^L^a^b^o^r^Sh^or^ta^ge^{? Le}^gⁱ^s^l^ati^oⁿⁱⁿ^the¹⁰⁶^th^Con^g^ress^{, by}^Lⁱ^nda
^L^e^vⁱ^ne^{; a}^{nd C}^R^S^R^e^por^t⁹⁸^-⁴^62,^I^m^mⁱ^gr^atioⁿ^an^{d I}ⁿ^for^m^at^io^{n Te}^c^hno^lo^gy^J^obs^:^The^I^s^s^u^e^{of Te}^m^p^or^ar^y^For^e^igⁿ
^Wo^rkers^{, b}^y^R^u^{th Elle}^{n W}^a^s^e^m^{and L}ⁱⁿ^d^a^L^e^vⁱ^ne^.
⁵⁶^{For e}^x^a^m^ple^,^se^e^A^F^L^-^CI^{O L}^e^gⁱ^sla^tiv^e^A^l^e^r^{t, le}^tte^{r to U.S}^.^Se^na^t^o^{rs f}^r^o^m^W^illia^m^Sa^m^u^e^l^{, Oc}^{t. 19,}²⁰⁰^5.
⁵⁷^Fe^de^{ral Re}^gⁱ^ste^r^{, v}^o^l.^69,ⁿ^o^.²⁴^{7, D}^e^c^.²⁷^,²⁰^04,^p^p⁷⁷³^25-⁷⁷⁴²^1.
⁵⁸^Fe^de^{ral Re}^gⁱ^ste^r^{, v}^o^l.^69,ⁿ^o^.²⁴^{7, D}^e^c^.²⁷^,²⁰^04,^p^p⁷⁷³^25-⁷⁷⁴²^1.
⁵⁹^Fe^de^{ral Re}^gⁱ^ste^r^{, v}^o^l.^69,ⁿ^o^.²⁴^{7, D}^e^c^.²⁷^,²⁰^04,^p^p⁷⁷³^25-⁷⁷⁴²^1.

In terms of its evaluations of the LCA process for H-1B workers in particular, GAO reported that
the H-1B petitions had potential for abuses. GAO has issued studies that recommended more
controls to protect workers, to prevent abuses, and to streamline services in the issuing of H-1B
visas. GAO concluded that the DOL has limited authority to question information on the labor ⁶⁰
attestation form and to initiate enforcement activities. Most recently, an investigation by
USCIS’s Office of Fraud Detection and National Security (FDNS) discovered that 13% of the H-⁶¹

1B files sampled were fraudulent and another 7% had technical violations of the law.

DOL asserts that critics underestimate the process’ capacity to detect and deter fraud, though the
department acknowledges labor certification fraud to be a serious matter. DOL maintains the COs
will review applications upon receipt to verify whether the employer-applicant is a bona fide
business entity and has employees on its payroll. DOL has promised to aggressively pursue
methods to identify those applications that may be fraudulently filed. The Administration is
reportedly considering a plan to cross-check the employer’s federal employer identification ⁶²
number with other available databases.
A few practitioners assert that PERM fails in achieving the objectives of the law because, as they
argue, it functions as only an enforcement mechanism for the relatively small subset of employers ⁶³
who are required to file LCAs. They further point out that most LPRs working in the United ⁶⁴
States entered on visas not subject to labor market tests. These observers conclude that PERM in
particular and labor certification in general neither protects U.S. workers nor facilitates employers
who need workers.
Another view is that PERM’s streamlining reforms serve to enhance enforcement. According to
DOL Assistant Secretary Emily Stover DeRocco, “Technology allows us to strengthen our overall
program’s integrity and provide better customer service.” One practitioner characterizes PERM as ⁶⁵
“a step in the right direction to move these cases through and do it in a timely fashion.”
Some have expressed the concern that the INA’s labor market tests favor large companies and
unduly affect small businesses because they lack the in-house legal and human resource
specialists who can complete and track the LCAs. They point to the PERM regulations in which
certain types of aliens are ineligible: small business investors (who also do not qualify as fifth

⁶⁰^U^.^{S. G}^e^ne^r^a^{l A}^c^c^ountiⁿ^g^O^f^fⁱ^c^e^,^H^-^{1B F}^o^r^e^ign^W^o^r^k^e^r^s^:^Be^tte^r^C^ontr^o^ls^N^e^e^d^e^d^t^o^H^e^lp^Em^pl^oy^e^r^s^an^{d Pr}^ote^c^t
^Wo^rkers^,^G^A^O^/^H^E^H^S^-^00-¹⁵^{7, Se}^pt.²⁰^00;^aⁿ^d^U^.^{S. G}^e^ne^r^a^{l A}^c^c^ounting^O^f^fⁱ^c^e^,^H-1^B^Fo^reigⁿ^Wo^rk^{ers: Better}
^Tr^ac^kⁱ^{ng N}^e^e^d^e^d^to^H^e^{lp D}^e^te^r^m^ine^H^-^{1B Pr}^ogr^am^’^s^Effe^c^t^s^oⁿ^U^.^{S. W}^o^r^k^for^c^e^{, G}^A^O^-^03-⁸⁸^{3 Se}^pt.²⁰⁰^3.
⁶¹^{USCIS Of}^fⁱ^c^e^of^Fra^{ud De}^te^c^tio^{n a}ⁿ^d^Na^tio^na^{l Se}^c^u^rity^,^{H-1B Be}^ne^{fit Fra}^u^d^a^{nd C}^o^mplⁱ^aⁿ^c^e^Asse^ssmeⁿ^t^,
^W^a^s^h^ing^t^{on, D}^.^C^.^{, Se}^pte^m^be^r²⁰^08.
⁶²^Fe^de^{ral Re}^gⁱ^ste^r^{, v}^o^l.^69,ⁿ^o^.²⁴^{7, D}^e^c^.²⁷^,²⁰^04,^p^p⁷⁷³^25-⁷⁷⁴²^1.
⁶³^In^terp^{reter Relea}^s^es,^“^T^he^L^a^w^y^e^r^’^s^G^u^ide^{to §}²¹²⁽^a⁾⁽⁵⁾⁽^A⁾^:^L^a^bor^C^e^r^tif^ic^a^{tion f}^r^om¹⁹⁵²^to^P^E^R^M^,”^by^G^a^r^y
^Ende^lm^aⁿ^{, O}^c^{t. 1}¹^,²⁰^04.
⁶⁴^Iⁿ^FY²⁰^04,^a^tota^l^of¹⁵^5,³³^{0 L}^P^R^s^w^e^r^e^em^ploy^m^e^nt-^b^a^s^e^d^pr^e^f^er^eⁿ^c^e^im^mⁱ^g^r^aⁿ^ts⁽ⁱ^nc^ludi^ng^s^p^o^u^s^e^s^a^nd
^chⁱ^l^d^ren⁾^,^co^m^p^ri^siⁿ^g¹⁶^.⁴^%^o^f^al^l^L^P^{Rs t}^h^at^y^ear.
⁶⁵^Bu^sin^e^{ss Da}^teliⁿ^e^{, “}^T^he^{U.S. L}^a^{bor De}^pa^rtm^e^{nt unv}^e^{ils a}^stre^a^m^li^ne^{d pa}^t^h^,”^by^W^illia^m^T^.^{Quinn (}^quo^ting^W^illia^m
^Mc^A^l^va^na^h)^{, A}^p^r^.^4,²⁰⁰⁵^.

preference investors); employees in key positions who previously worked for affiliated,
predecessor, or successor entities; and alien workers who are so inseparable from the sponsoring ⁶⁶
employer the employer would be unlikely to continue in operations without the foreign national.
DOL points out that a small business investor is not an occupational category. The Administration
further states that some foreign workers with special or unique skills might be eligible for labor
certification under the basic process. In terms of alien workers who are “so inseparable from the
sponsoring employer that the employer would be unlikely to continue in operation without the
alien,” DOL has long held the position that if a job opportunity is not open to U.S. workers, labor ⁶⁷
certification will be denied.
Over the years, the media has aired stories of U.S. workers who have been laid off and replaced
by foreign workers who are employed by subcontractors. In many of these accounts, the
subcontractor provides the foreign worker fewer benefits than the displaced U.S. workers. In
some instances, the displaced workers reportedly have been asked to train their foreign ⁶⁸
replacements. The additional requirements for H-1B dependent employers are expressly aimed
at discouraging subcontractors who recruit H-1B workers from placing the worker with another ⁶⁹
employer who had recently laid off U.S. workers.
Some employers argue that they will not be able to stay in business without expedient access to
the contingent workers supplied by subcontractors, some of whom are foreign nationals with the
requisite skills. These contingent workers meet the need for a specialized, seasonal, intermittent
or peak-load workforce that is able to adapt with the market forces. They express concern that
labor market tests for visas may limit the flexibility of firms that are hiring the caliber of workers ⁷⁰
necessary to stay competitive in the global marketplace.
Some observers have expressed concern that intra-company transferees on L-1 visas should be
admitted only after a determination that comparable U.S. personnel are not adversely affected,
particularly in the cases of foreign nationals entering as mid-level managers and specialized
personnel. They argue that the L-1 visa currently gives multinational firms an unfair advantage
over U.S.-owned businesses by enabling multinational corporations to bring in lower-cost foreign ⁷¹
personnel.

⁶⁶^Fe^de^{ral Re}^gⁱ^ste^r^{, v}^o^l.^69,ⁿ^o^.²⁴^{7, D}^e^c^.²⁷^,²⁰^04,^p^p⁷⁷³^25-⁷⁷⁴²^1.
⁶⁷^Fe^de^{ral Re}^gⁱ^ste^r^{, v}^o^l.^69,ⁿ^o^.²⁴^{7, D}^e^c^.²⁷^,²⁰^04,^p^p⁷⁷³^25-⁷⁷⁴²^1.
⁶⁸^Iⁿ¹⁹^95,^the^D^O^L^Iⁿ^s^p^e^c^t^or^G^e^ne^r^a^{l f}^{ound w}ⁱ^de^s^p^r^e^a^d^a^b^us^e^s^of^the^H^-^1B^pr^og^r^a^m^,^a^{nd f}^o^r^m^e^r^Se^c^r^e^t^a^r^y^of^L^a^bor
^Ro^b^e^rt^Rei^c^h^argu^{ed f}^o^{r ch}^an^{ges i}ⁿ^t^h^{e H-1}^B^p^r^o^vⁱ^sⁱ^oⁿ^s^so^DOL^co^u^l^d^t^a^{ke act}ⁱ^oⁿ^agaiⁿ^s^t^em^p^l^o^y^er^{s w}^h^o^dⁱ^sp^l^ace
^U^.^{S. w}^o^r^k^e^r^s^w^{ith no}^nim^m^ig^r^a^nts.
⁶⁹^{CRS Rep}^o^r^{t 9}⁸^-5³¹^,^I^m^mⁱ^gr^a^tio^n:^N^o^nim^mⁱ^gr^{ant H}^-^1B^Spe^cⁱ^al^ty^W^o^r^k^e^r^I^s^s^u^e^s^{and Le}^gⁱ^s^l^ati^oⁿ^{, b}^y^{Ruth Elle}ⁿ
^Wa^s^e^m^.
⁷⁰^C^R^S^R^e^por^{t R}^L³⁰⁰⁷²^,^Te^m^p^or^ar^y^W^o^r^k^e^r^s^as^M^e^m^b^e^r^s^{of the}^C^oⁿ^tinge^{nt L}^a^b^o^r^For^c^e^,^by^Lⁱ^nda^L^e^vⁱ^ne^{; a}^{nd C}^R^S
^R^e^por^{t R}^L³⁰⁴⁹^8,^N^onim^mⁱ^gr^aⁿ^{t Pr}^ofe^s^sⁱ^on^{al Spe}^cⁱ^alty⁽^H^-¹^B)^W^o^r^k^e^r^s^.
⁷¹^T^h^e^D^H^S^O^f^fⁱ^c^e^o^f^the^Ins^p^e^c^t^or^G^e^ne^r^a^{l f}^ound^poteⁿ^tia^{l v}^u^lⁿ^e^r^a^bⁱ^litie^s^a^{nd a}^bus^e^sⁱⁿ^the^L^-^{1 v}ⁱ^s^a^f^o^{r in}^tra^c^o^m^p^aⁿ^y
^tr^aⁿ^s^f^e^r^ee^s^tha^t^be^a^r^on^la^bo^r^m^a^r^k^e^t^pr^ote^c^tio^ns^f^o^r^U^.^{S. w}^o^r^k^e^r^s^;^U^.^{S. D}^e^pa^r^t^m^e^{nt of}^H^o^m^e^l^a^{nd Se}^c^u^r^ity^{, Of}^fⁱ^c^e^of
^Iⁿ^s^p^e^c^t^or^G^e^ne^r^a^l,^Re^vⁱ^e^w^{of V}^u^lⁿ^e^r^abili^tie^s^a^nd^Poteⁿ^tial^Ab^us^e^s^{of t}^h^e^L-¹^Vis^a^Pr^ogr^am^{, O}^I^G^06-^{22, J}^a^n.²⁰⁰^6.

Supporters of current law governing intra-company transfers argue that it is essential for
multinational firms to be able to assign top personnel to facilities in the United States on an “as
needed basis” and that it is counterproductive to have government bureaucrats delay these
transfers to perform labor market tests. They warn these multinational firms will find it too ⁷²
burdensome and unprofitable to do business in the United States.
The option of using unemployment rates and other economic indicators to determine what
occupations and sectors might import foreign workers has arisen several times over the past few
decades. During the legislative debate leading up to the Immigration Act of 1990, supporters of
this alternative argued that it would be a more objective basis to govern employment-based
immigration and would place the priorities of the national economy ahead of individual employer
preferences. At that time, however, leading government economists acknowledged that they did
not have labor force and other economic data available to make such determinations. The option
of using national and regional unemployment data to regulate foreign worker admissions arose ^th
most recently during the debate over comprehensive immigration reform in the 110 Congress.
Echoing earlier arguments, proponents also maintained such triggers would afford better
protections for U.S. workers. Opponents asserted that adoption of such policies would prompt
some firms to relocate to areas in which they had access to foreign workers, further harming U.S.
workers in locations with higher unemployment.

The legal entry of foreign workers into the United States has been governed by the same basic
provisions since 1952, with some policy adjustments along the way. A decade ago, the
Commission on Immigration Reform estimated that the labor certification process costs ⁷³
employers in administrative, paperwork, and legal fees a total of $10,000 per immigrant. As is
apparent in the analysis above, the current set of provisions and policies are visa-specific and
yield various standards and thresholds for different occupations and sectors of the economy.
There are, however, common critiques underlying the recruitment of foreign workers with
specialized expertise as well as workers with no skills. Legislation that would comprehensively
reform the INA may provide an opportunity to revise and update the labor market tests; on the
other hand, a consensus on the labor market tests may also be hurdle to enacting comprehensive
immigration reform.

⁷²^{U.S. C}^ong^re^{ss, Se}^na^te^Com^m^itte^e^{on t}^h^e^Ju^dicⁱ^a^r^y^,^Subc^om^m^itte^e^{on Im}^mⁱ^g^r^a^{tion, Citiz}^eⁿ^sh^{ip a}^nd^Borde^r^Se^c^u^ri^ty^,
^The^L-^{1 Vis}^a^a^nd^Am^e^r^ic^{an I}ⁿ^te^r^e^s^t^s^{in the}²¹^st^C^e^nt^ur^y^G^l^o^bal^Ec^onom^y^,^h^earⁱⁿ^gs,¹⁰⁸^th^Co^ng^{., 1}^st^sess.^,^Ju^ly²⁹^,
²⁰⁰^{3; a}^{nd U}^.^{S. C}^ong^r^e^s^s^,^H^ous^e^C^o^m^m^itte^e^{on For}^e^ig^{n R}^e^la^tio^ns^,^L^Visa^s:^L^o^siⁿ^g^Job^s^T^h^rou^g^h^L^aⁱ^ssez-fa^ire^th^nd
^Polic^ie^s^{? h}^eariⁿ^gs,¹⁰⁸^Co^ng^{., 2}^s^e^ss^{., Fe}^b.^4,²⁰^04.
⁷³^Co^ng^ressioⁿ^a^l^Reco^rd^{, v}^o^l.¹⁴^2,^Sta^t^e^m^eⁿ^{t of}^Se^na^tor^T^e^{d K}^e^nne^d^y^,^A^p^r^.^15,¹⁹⁹⁶^{, p}^.^S³²^87.

^Ru^t^h^Elleⁿ^W^a^se^m
^Sp^{ecialist i}ⁿ^I^m^mⁱ^g^r^atioⁿ^P^o^lic^y
^r^w^as^e^m^@crs^.l^oc.g^o^v^{, 7-}⁷³⁴²