Immigration of Foreign Workers: Labor
Market Tests and Protections
Ruth Ellen Wasem
Specialist in Immigration Policy
March 30, 2010
Congressional Research Service
7-5700
www.crs.gov
RL33977
CRS Report for Congress
P
repared for Members and Committees of Congress
Immigration of Foreign Workers: Labor Market Tests and Protections
Summary
Economic indicators confirm that the U.S. economy sunk into a recession in December 2007.
Although some economic indicators suggest that growth has resumed, unemployment remains
high and is projected to remain so for some time. Historically, international migration ebbs during
economic crises; for example, 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 affect immigration. Addressing these
contentious policy reforms against the backdrop of economic crisis sharpens the social and
business cleavages and narrows the range of options.
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 high levels of unemployment, 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 a
period of high unemployment—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 166,511 in 2008. The number
of visas issued to employment-based temporary nonimmigrants rose from just under 600,000 in
FY1994 to approximately 1.3 million in FY2007. In FY2009, the number of visas issued to
employment-based temporary nonimmigrants dropped slightly to 1.1 million.
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.
The 111th Congress has addressed one element of the labor market test for foreign workers issue
in §1611 of P.L. 111-5, the American Recovery and Reinvestment Act of 2009, which requires
companies receiving Troubled Asset Relief Program (TARP) funding to comply with the more
rigorous labor market rules of H-1B dependent companies if they hire foreign workers on H-1B
visas. Also, §524 of division D of the Consolidated Appropriations Act, 2010 (P.L. 111-117)
authorized the Department of Labor to use its share of the H-1B, H-2B, and L Fraud Prevention
and Detection fees to conduct wage and hour enforcement of industries more likely to employ
any type of nonimmigrants (not just H-1B, H-2B or L visaholders).
This report does not track legislation and will be updated if policies are revised.
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Immigration of Foreign Workers: Labor Market Tests and Protections
Contents
Introduction ................................................................................................................................ 1
Key Elements........................................................................................................................ 1
Brief History of Labor Certification ...................................................................................... 2
Permanent Employment-based Admissions ................................................................................. 3
LPR Labor Certification Process ........................................................................................... 5
Program Electronic Review Management (PERM)................................................................ 6
Temporary Employment-Based Admissions ................................................................................ 8
Overview .............................................................................................................................. 8
Temporary Workers......................................................................................................... 8
Multinational Executive and Specialist Employees and International Investors ................ 8
Cultural Exchange........................................................................................................... 9
Outstanding and Extraordinary........................................................................................ 9
Religious Workers........................................................................................................... 9
Trends in Temporary Employment-Based Visas................................................................... 10
Labor Market Tests for Workers on H Visas......................................................................... 12
H-1B Visas and Labor Attestations ................................................................................ 13
H-2A Visas and Labor Certification............................................................................... 14
Required Benefits for H-2A Workers................................................................................... 15
H-2B Visas and Labor Certifications ............................................................................. 16
Investigating and Enforcing LCAs ............................................................................................ 18
Resources for Foreign Labor Certification................................................................................. 19
Funding the LCA Approval Process..................................................................................... 19
Funding the LCA Enforcement Activities ............................................................................ 21
Selected Issues .......................................................................................................................... 23
Unemployment Statistics and Other Economic Triggers ...................................................... 23
Global Competition for Talent ............................................................................................. 24
Certification Versus Attestation ........................................................................................... 25
Protections for U.S. Workers ............................................................................................... 26
Fraudulent Claims............................................................................................................... 26
Enforcement Tool................................................................................................................ 27
Small Business Concerns .................................................................................................... 27
Subcontractors and Multinational Companies ...................................................................... 28
Conclusion................................................................................................................................ 29
Figures
Figure 1. Permanent Employment-based Admissions for 1st, 2nd, and 3rd Preferences,
1994-2008................................................................................................................................ 4
Figure 2. Temporary Employment-based Visas Issued, 1994-2009............................................. 11
Figure 3. Temporary Admissions for Selected Employment-based Visas.................................... 12
Figure 4. Funding to ETA for Foreign Labor Certification ......................................................... 20
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Immigration of Foreign Workers: Labor Market Tests and Protections
Tables
Table 1. Summary of Foreign Temporary Worker Labor Market Tests and Protections ............... 17
Table 2. Amounts from the Fraud Prevention and Detection Fees Allocated to DOL,
FY2005-FY2009.................................................................................................................... 22
Contacts
Author Contact Information ...................................................................................................... 29
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Immigration of Foreign Workers: Labor Market Tests and Protections
Introduction
Economic indicators confirm that the economy went into a recession at the close of 2007.1
Although some economic indicators suggest that growth has resumed, unemployment remains
high and is projected to remain so for some time.2 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 economic recession of the past two years affected 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 remains at a historically high level, 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 high levels of
unemployment, 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 a
period of high unemployment—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) at this time and suggest that a
moratorium on such visas might be prudent.
Key Elements
The Immigration and Nationality Act (INA) bars the admission of a prospective immigrant who
seeks to enter the United States to perform skilled or unskilled labor, unless the Secretary of
Labor provides a certification to the Secretary of State and the Attorney General.3 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 an LPR 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 and working conditions of similarly employed workers in the
United States.4 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.
1 The National Bureau of Economic Research (NBER) has declared the U.S. economy to be in recession since
December 2007.
2 CRS Report R41006, Unemployment: Issues and Policies, by Jane G. Gravelle, Thomas L. Hungerford, and Marc
Labonte.
3 The administration of immigration and citizenship policy was reorganized by Homeland Security Act of 2002 (P.L.
107-296), and the Secretary of Homeland Security now oversees this function that the INA assigns to the Attorney
General.
4 INA §212(a)(5).
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As discussed in more detail below, many of the foreign nationals entering the United States on a
temporary basis for employment are not subject to a labor market test (i.e., demonstrating that
there are not sufficient U.S. workers who are able, willing, qualified, and available), and as a
result, their employers do not file LCAs with the DOL. There are several groups of temporary
foreign employees, however, that are covered by labor market tests. The DOL adjudicates the
streamlined LCA known as labor attestations for temporary agricultural workers, temporary
nonagricultural workers, and temporary professional workers. Foreign labor certification is one of
the “national activities” within the Employment and Training Administration (ETA).5
Brief History of Labor Certification
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 States.6 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 revisions in the
existing laws.7 The 1952 Act authorized visas for aliens who would perform needed services
because of their high educational attainment, technical training, specialized experience, or
exceptional ability.8 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 and working
conditions” of similarly employed U.S. workers.9 This provision in the 1952 Act established the
policy of labor certification. The major reform of INA in 1965 included language that obligated
the employers to file labor certification applications (LCAs).10
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
5 DOL is charged with other immigration-related responsibilities. Most notably, the Wage and Hour Division in DOL is
tasked with ensuring compliance with the employment eligibility provisions of the INA as well as labor standards laws,
such as the Fair Labor Standards Act, the Migrant and Seasonal Worker Protection Act, and the Family and Medical
Leave Act.
6 23 Stat. 332.
7 The McCarran-Walters Act (P.L. 82-414).
8 §203(a)(1) of P.L. 82-414.
9 §212(a)(14) of P.L. 82-414.
10 Interpreter Releases, “The Lawyer’s Guide to §212(a)(5)(A): Labor Certification from 1952 to PERM,” by Gary
Endelman, Oct. 11, 2004.
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United States of aliens seeking to work without proper labor certification. The labor certification
ground for exclusion covers aliens coming to live as LPRs.11 The INA specifically states
Any alien who seeks to enter the United States for the purpose of performing skilled or
unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to
the Secretary of State and the Attorney General that—(I) there are not sufficient workers
who are able, willing, qualified (or equally qualified in the case of an alien described in
clause (ii)) and available at the time of 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, and (II)
the employment of such alien will not adversely affect the wages and working conditions of
workers in the United States similarly employed.12
The law also details additional requirements and exceptions for certain occupational groups and
classes of aliens, some of which are discussed below.
Permanent Employment-based Admissions
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
immigrants.13
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;
• 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.
11 LCAs are not required for aliens who are coming as priority workers, investors, refugees, or family-based
immigrants.
12 §212(a)(5) of INA; §1182(a)(5) 8 USC.
13 CRS Report RL32235, U.S. Immigration Policy on Permanent Admissions, by Ruth Ellen Wasem.
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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
mid-1990s to alter employment-based immigration, these preference categories remain intact.14
Figure 1. Permanent Employment-based Admissions for First, Second, and Third
Preferences, 1994-2008
Thousands
250
Extraordinary
Skilled and Unskilled
200
Advanced degrees
155,627
150
100
50
0
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Source: CRS analysis of data from the DHS Office of Immigration Statistics and the former INS.
Note: The 25,911 Chinese who adjusted under the Chinese Student Protection Act from 1994 to 1996 are not
depicted even though they were counted under the “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
ceilings several times in recent years.15 Although there were almost the same number of first,
second, and third preference employment-based LPRs in FY2007 and FY2008 (155,889 and
14 CRS Report 96-149, Immigration: Analysis of Major Proposals to Revise Family and Employment Admissions, by
Joyce C. Vialet and Ruth Ellen Wasem.
15 For an explanation of these trends, see CRS Report RL32235, U.S. Immigration Policy on Permanent Admissions, by
Ruth Ellen Wasem.
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155,627, respectively), the number of employment-based LPRs in the extraordinary and
exceptional categories rose in FY2008, particularly among those with advanced degrees.16
The dip and surge early in the 2000s depicted in Figure 1 was not necessarily the result of labor
market demand. In 2003, 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’s 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
whether the prospective LPR has demonstrated that he or she meets the qualifications for the
particular job as well as the INA employment-based preference category.17
In terms of employment-based immigration, decisions of the Board of Immigration Appeals
(BIA) have significantly affected 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.
LPR Labor Certification Process
Employment-based immigrants applying through the second and third preferences must obtain
labor certification.18 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
U.S. workers will not be adversely affected are listed in Schedule A of the regulations.19
Conversely, occupations for which the Secretary of Labor has already determined that a shortage
does not exist and that U.S. workers will be adversely affected are listed in Schedule B.20 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
16 For detailed tables presenting these data, see Office of Immigration Statistics, Yearbook of Immigration Statistics:
2008, U.S. Department of Homeland Security, Table 6, http://www.dhs.gov/files/statistics/publications/LPR08.shtm.
17 § 203(b) of INA; 8 U.S.C. § 1153.
18 Certain second preference immigrants who are deemed to be “in the national interest” are exempt from labor
certification.
19 20 C.F.R. Part 656.
20 20 C.F.R. Part 656.
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on U.S. workers, which often hinges on findings of what the prevailing wage is for the particular
occupation and what constitutes “similarly employed workers.”21
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
known as state workforce agencies (SWAs).22 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
LCA along with their report to the regional ETA office.23
DOL summarized the labor certification process to hire immigrant workers prior to the
implementation of PERM as follows:
... requires employers to file a permanent labor certification application with the SWA
serving the area of intended employment and, after filing, to actively recruit U.S. workers in
good faith for a period of at least 30 days for the job openings for which aliens are sought.
Job applicants are either referred directly to the employer or their resumes are sent to the
employer. The employer has 45 days to report to either the SWA or an ETA backlog
processing center or regional office the lawful job-related reasons for not hiring any referred
qualified U.S. worker.... If, however, the employer believes able, willing, and qualified U.S.
workers are not available to take the job, the application, together with the documentation of
the recruitment results and prevailing wage information, is sent to either an ETA backlog
processing center or ETA regional office. There, it is reviewed and a determination made as
to whether to issue the labor certification based upon the employer’s compliance with
applicable labor laws and program regulations. If we determine there are no able, willing,
qualified, and available U.S. workers, and the employment of the alien will not adversely
affect the wages and working conditions of similarly employed U.S. workers, we so certify
to the DHS and the DOS by issuing a permanent labor certification.24
Prior to the implementation of the procedural reforms discussed below, DOL acknowledged a
backlog of more than 300,000 LCAs for permanent admissions in 2003 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 processing times of five to six
years.25
Program Electronic Review Management (PERM)
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.
21 §212(a)(5)(A) of INA.
22 Employers also file immigration petitions with USCIS on behalf of the aliens they are recruiting and pay fees for
each petitions they file.
23 These forms are available at http://www.foreignlaborcert.doleta.gov/, accessed March 16, 2009.
24 Federal Register, vol. 69, no. 247, Dec. 27, 2004, p. 77325.
25 CRS Report RS21520, Labor Certification for Permanent Immigrant Admissions, by Ruth Ellen Wasem.
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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
and instructions) or mailed to one of the NPCs.26
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
• 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
chooses from a list published in the regulation.27
As a result of these regulatory reforms, DOL predicted 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.
26 The new form, Application for Permanent Employment Certification (ETA Form 9089), is available at
http://www.foreignlaborcert.doleta.gov/form.cfm , accessed on Apr. 23, 2007. DOL does not permit employers to
submit applications by facsimile.
27 Federal Register, vol. 69, no. 247, Dec. 27, 2004, pp. 77325-77421.
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Temporary Employment-Based Admissions
Overview
Currently, there are 24 major nonimmigrant (i.e., aliens who the United States admits on a
temporary basis) visa categories, and over 70 specific types of nonimmigrant visas issued. These
visa categories are commonly referred to by the letter and numeral that denote their subsection in
the INA.28 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 temporary.29 While a variety of temporary
visas—by their intrinsic nature—allow foreign nationals to be employed in the United States, the
applications for these visas do not trigger the requirement for an LCA filing under §212(a)(5).
Under current law, only employers hiring workers through the H visa categories are required to
file an LCA, as discussed more fully later in the report.
Temporary Workers30
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.
Multinational Executive and Specialist Employees and International Investors
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. The
prospective L nonimmigrant must demonstrate that he or she meets the qualifications for the
particular job as well as the visa category. The alien must have been employed by the firm for at
least six months in the preceding three years in the capacity for which the transfer is sought. The
alien must be employed in an executive capacity, a managerial capacity, or have specialized
knowledge of the firm’s product to be eligible for the L visa. The INA does not require firms who
wish to bring L intracompany transfers into the United States to demonstrate that U.S. workers
will not be adversely affected order to obtain a visa for the transferring employee.
28 For a fuller discussion and analysis, see CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions,
by Chad C. Haddal and Ruth Ellen Wasem.
29 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 those on C visas may be traveling as part of their employment.
30 See CRS Report RL30498, Immigration: Legislative Issues on Nonimmigrant Professional Specialty (H-1B)
Workers, by Ruth Ellen Wasem; and CRS Report RL32044, Immigration: Policy Considerations Related to Guest
Worker Programs, by Andorra Bruno.
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Aliens who are treaty traders enter on E-1 visas, whereas those who are treaty investors use E-2
visas. An E-1 treaty trader visa allows a foreign national to enter the United States for the purpose
of conducting “substantial trade” between the United States and the country of which the person
is a citizen. An E-2 treaty investor can be any person who comes to the United States to develop
and direct the operations of an enterprise in which he or she has invested, or is in the process of
investing, a “substantial amount of capital.” Both these E-class visas require that a treaty exist
between the United States and the principal foreign national’s country of citizenship. 31
The E-3 treaty professional visa is a temporary work visa limited to citizens of Australia. It is
usually issued for two years at a time. Occupationally, it mirrors the H-1B visa in that the foreign
worker on an E-3 visa must be employed in a specialty occupation.32
Cultural Exchange
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.
Outstanding and Extraordinary
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 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 five years at a time, up to 10 years in total.
Religious Workers
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
31 See CRS Report RL32030, Immigration Policy for Intracompany Transfers (L Visa): Issues and Legislation, by Ruth
Ellen Wasem; and CRS Report RL33844, Foreign Investor Visas: Policies and Issues, by Alison Siskin and Chad C.
Haddal.
32 §501 of P.L. 109-13, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief, 2005.
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Immigration of Foreign Workers: Labor Market Tests and Protections
services and ceremonies, established places of religious worship, religious congregations, or
comparable indicia of a bona fide religious denomination.33
Trends in Temporary Employment-Based Visas
As Figure 2 illustrates, the issuances of temporary employment-based visas rose steadily over the
past decade, then dropped in FY2009. In FY2009, there were 1.1 million temporary employment-
based visas issued, down from a high of 1.3 million in FY2007. The number of visa issued to H
and NAFTA workers dropped by 33.4% from FY2007 to FY2009. The E and L visas fell by
18.7%, and the J and Q visas decreased by 8.1%. Only the numbers of O and P visas held steady,
dipping only by 1.7%.
During the period FY1994-FY2007, the category with the largest percentage increase were the H
and NAFTA workers (340.6%). The R visas also evidenced a noteworthy increase of 216.7%
through FY2007. The E and L visas rose by 144.3% over this period, followed by the O and P
visas, which increased by 104.5% through FY2007.
These data are from the Department of State Consular Affairs Bureau, which reports the number
of visas issued annually by category. As noted above, many of these visas are valid for several
years and may be used for multiple entries into the United States. While visa data offer a measure
of labor market demand for a given year, they do not reflect the actual number of temporary
employment-based foreign workers in the United States any given year.
33 U.S. Citizenship and Immigration Services, “Special Immigrant and Nonimmigrant Religious Workers,” 72 Federal
Register 20442, April 25, 2007.
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Figure 2. Temporary Employment-based Visas Issued, 1994-2009
Thousands
1400
1200
1.1 million
1000
C & D
R
800
L & E
O & P
600
J & Q
H & NAFTA
400
200
0
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Source: CRS analysis of data from the U.S. Department of State, Bureau of Consular Affairs.
Admissions data from the DHS Office of Immigration Statistics (OIS) offer a different
perspective on foreign temporary workers in Figure 3. These data indicate that foreign temporary
employment-based visa holders entered the United States approximately 2.2 million times in
FY2008. This number has increased markedly from a total of 1.3 million times foreign temporary
employment-based visa holders entered the United States in FY1999. Most of the visa categories
comprised a comparable percentage in FY1999 and FY2008, with two notable exceptions. The
number of entries by H-1 visaholders had decreased from 22.9% to 18.4%, and the number of
entries by H-2 visaholders had increased from 5.2% to 12.7%.
That the OIS admissions number is almost twice that of the visa issuances number is due to the
fact that many of these visas are multiple entry for multiple years. It is not surprising that the
percentage of Hs, Ls, and Es are disproportionately larger in the OIS data than the Consular
Affairs data because H, L, and E visas are typically valid for longer periods of time than some of
the other temporary employment-based visas. These data suggest that temporary foreign workers
who are on professional and managerial visas (e.g., H-1Bs and Ls) are more likely to exhibit
circular migration patterns than less skilled temporary foreign workers in shortage occupations.34
34 This pattern is not surprising given that H-1B and L visas are among the few nonimmigrant visas that permit the
holder to have dual intent, that is, renew a nonimmigrant visas while seeking an LPR visa.
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The OIS admission data do not reflect the actual number of temporary employment-based foreign
workers in the United States any given year.
Figure 3. Temporary Admissions for Selected Employment-based Visas
FY1999
FY2008
H-2
12.7%
J-1
H-1
H-1
J-1
20.9%
18.4%
22.9%
20.6%
H-2
O
5.2%
1.7%
TN
O
TN
6.6%
2.7%
4.9%
E
P
R
R
11.5%
3.4%
1.4%
1.2%
P
3.8%
L
E
26.3%
10.9%
L
25.0%
1.3 million
2.2 million
Source: CRS analysis of data from the DHS Office of Immigration Statistics.
Notes: The H-3 visaholders and the Q visaholders are too few to depict.
Labor Market Tests for Workers on H Visas
Prospective employers of H-1B, H-2A, and H-2B workers (approximately one-third of the
temporary foreign workers in the United States) must apply to the Secretary of Labor for labor
certification before they can file petitions with DHS to bring in foreign workers. 35 Similarly with
35 D-1 crew members on foreign vessels are generally forbidden to perform longshore work at U.S. ports. There is an
exception in which an employer must file an attestation stating that it is the prevailing practice for the activity at that
port, there is no strike or lockout at the place of employment, and that notice has been given to U.S. workers or their
representatives. Another exception allows D-1 crewmen to perform longshore activities in the State of Alaska, if the
employer also has made a bona fide request for and has employed U.S. longshore workers who are qualified and
available in sufficient numbers from contract stevedoring companies, labor organizations recognized as exclusive
bargaining representatives of United States longshore workers, and private dock operators. 20 CFR Part 655, Subparts
F and G.
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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. Under the H-2a and H-2B labor certification processes, as revised by regulations
effective in January 2009, prospective employers must engage in specified recruitment activities
filing the LCA. 36
H-1B Visas and Labor Attestations
The largest number of H visas are issued to temporary workers in specialty occupations, known
as H-1B nonimmigrants.37 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
arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum.38 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
documentation of actions taken.39 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
post the LCA in conspicuous locations at the work site.40
36 U.S. Department of Labor Employment and Training Administration, “Labor Certification Process and Enforcement
for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing ,” 73 Federal Register
78019-78069, December 19, 2008.
37 Portions of this section draw on CRS Report RL30498, Immigration: Legislative Issues on Nonimmigrant
Professional Specialty (H-1B) Workers, by Ruth Ellen Wasem. (Hereafter cited as CRS Report RL30498,
Nonimmigrant Professional Specialty (H-1B) Workers.)
38 8 C.F.R. §214.2(h)(4). Law and regulations also specify that fashion models deemed “prominent” may enter on H-1B
visas.
39 Attestation was part of a compromise package on H-1B visa that included annual numerical limits in the Immigration
Act of 1990 (P.L. 101-649). See CRS Report RL30498, Immigration: Legislative Issues on Nonimmigrant Professional
Specialty (H-1B) Workers, by Ruth Ellen Wasem.
40 INA §212(n); 8 C.F.R. §214.2(h)(4). For a further discussion of labor attestations, see CRS Report RL30498,
(continued...)
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H-1B Dependent
The law requires that employers defined as H-1B dependent (generally firms with at least 15% of
the workforce who are H-1B workers) meet additional labor market tests.41 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
packages (not just wages) that are comparable to U.S. workers.42 Employers recruiting the H-1C
nurses must attest similarly to those recruiting H-1B workers, with the additional requirement that
the facility attest that it is taking significant steps to recruit and retain U.S. registered nurses.43
The American Recovery and Reinvestment Act of 2009 (also known as H.R. 1, the “Stimulus
Act,” P.L. 111-5) requires companies receiving Troubled Asset Relief Program (TARP) funding to
comply with the more rigorous labor market rules.44 Specifically, §1611 of P.L. 111-5 requires
companies receiving TARP funding to follow the labor recruitment and attestation rules of H-1B
dependent companies if they wish to hire foreign workers on H-1B visas. It does not, however,
place any additional restrictions on companies receiving TARP funding that have other temporary
foreign workers such as L-1s with specialized product knowledge or E-3 professional workers, or
those petitioning for employment-based LPRs.
H-2A Visas and Labor Certification45
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 INA provisions pertaining to 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. 46 The
new regulations have replaced employer submitted recruitment documentation with an
attestation-based process similar but not identical to the H-1B attestations. 47 Under the threat of
(...continued)
Immigration: Legislative Issues on Nonimmigrant Professional Specialty (H-1B) Workers, by Ruth Ellen Wasem.
41 Title IV of P.L. 105-277 defined H-1B dependent employers as firms having 25 or less employees, of whom at least
8 are H-1Bs; 26-50 employees of whom at least 13 are H-1Bs; at least 51 employees, 15% of whom are H-1Bs;
excludes those earning at least $60,000 or having masters degrees. CRS Report 98-531, Immigration: Nonimmigrant H-
1B Specialty Worker Issues and Legislation, by Ruth Ellen Wasem.
42 INA §212(n).
43 CRS Report RS20164, Immigration: Temporary Admission of Nurses for Health Shortage Areas (P.L. 106-95), by
Joyce Vialet.
44 For a discussion of TARP, see CRS Report R40224, Troubled Asset Relief Program and Foreclosures, by N. Eric
Weiss et al.
45 For a fuller discussion of labor certification for H-2A temporary foreign workers, see CRS Report RL32044,
Immigration: Policy Considerations Related to Guest Worker Programs, by Andorra Bruno.
46 INA §101(a)(15)(H)(ii)(a), §218(a)(1), (d)(1);
47 U.S. Department of Labor Employment and Training Administration, “Temporary Agricultural Employment of H-
2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement,” 73 Federal Register,
(continued...)
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penalties including fines and revocation of certification, employers are required to attest that they
have fully complied with all program requirements.48 Under the new regulations, employers of H-
2A workers may filed unnamed petitions that specify only the number of positions sought (i.e.,
not identifying the alien workers by name).49
On March 17, 2009, however, DOL published a Notice of Proposed Suspension of the H-2A Final
Rule and solicited public comment for a 10-day period. According to DOL, all employers were
expected to comply with the regulations effective as of January 17, 2009.50 In February 2010,
DOL published a new H-2A final rule to replace the December 2008 rule.51
Required Benefits for H-2A Workers
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.
• 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
rate, or the adverse effect wage rate (AEWR).52
• 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.
(...continued)
December 16, 2008. Prior to these rules, the process was similar but not identical to the labor certification process
required of employers who seek to bring in workers as permanent, employment-based immigrants (discussed above). In
a 1998 audit, the Labor Department’s Office of the Inspector General concluded that “the H-2A certification process is
ineffective. It is characterized by extensive administrative requirements, paperwork and regulations that often seem
dissociated with DOL’s mandate of providing assurance that American workers’ jobs are protected.” Consolidation of
Labor’s Enforcement Responsibilities for the H-2A Program Could Better Protect U.S. Agricultural Workers, Report
04-98-004-03-321, Mar. 31, 1998.
48 Prior to January 19, 2009, the effective date of the new regulations, the application must have included a copy of the
job offer used to recruit U.S. and H-2A workers. Under the old regulations, a prospective H-2A employer had to submit
a plan for conducting independent, positive recruitment of U.S. workers as part of the LCA, and had to engage in such
recruitment until the foreign workers have departed for the employer’s place of work. H-2A employers’ recruitment
responsibilities had included 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 or country. 20 CFR §655.100; §655.101(a), (b); §655.103.
49 U.S. Department of Labor Employment and Training Administration, “Temporary Agricultural Employment of H-
2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement,” 73 Federal Register,
December 16, 2008.
50 Department of Labor Employment and Training Administration and Wage and Hour Division, “Temporary
Employment of H–2A Aliens in the United States,” 74 Federal Register 11408-11440, March 17, 2009.
51 U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division, “Temporary
Agricultural Employment of H-2A Aliens in the United States,” 75 Federal Register 6884-6995, February 12, 2010.
52 For a more complete explanation of this provision and how it works, CRS Report RL34739, Temporary Farm Labor:
The H-2A Program and the U.S. Department of Labor’s Proposed Changes in the Adverse Effect Wage Rate (AEWR),
by Gerald Mayer.
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• 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.
H-2B Visas and Labor Certifications53
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
occurrence, seasonal need, peakload need, or intermittent need.54 The statute does not establish
specific skills, education or experience required for the visa, with some exceptions.55 Foreign
medical graduates coming to perform medical services are explicitly excluded from the program.
An approved H-2B visa petition is generally valid for an initial period of up to 10 months.56 An
alien’s total period of stay as an H-2B worker may not exceed three consecutive years.57
Regulations that became effective January 19, 2009, revise the definition of temporary or
seasonal job for one occurrence lasting less than 10 months to one occurrence lasting up to three
years, reportedly so that additional sectors of the economy (e.g., construction firms and
shipyards) could use H-2B workers. Under the new regulations, employers of H-2B workers may
53 This section is drawn, in part, from CRS Report RL32044, Immigration: Policy Considerations Related to Guest
Worker Programs, by Andorra Bruno.
54 For definitions of these types of need, see 8 C.F.R. §214.2(h)(6)(ii).
55 8 CFR §214.2(h). There are special requirements for professional athletes, for example. See CRS congressional
distribution memorandum, Temporary Admission of Foreign Professional Athletes, by Ruth Ellen Wasem, Feb. 15,
2005 (available upon request from the author).
56 See 8 C.F.R. §214.2(h)(9)(iii)(B).
57 Included in this three-year period is any time an H-2B alien spent in the United States under the “H” (temporary
worker) or “L” (temporary intracompany transferee) visa categories.
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filed unnamed petitions that specify only the number of positions sought (i.e., not identifying the
individual aliens).58
Like prospective H-2A employers, prospective H-2B employers must 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.59 Under the new regulations, H-2B employers attest that they
tried to recruit U.S. workers at prevailing wages. 60 Unlike H-2A employers, they are not subject
to the AEWR and do not have to provide housing, transportation,61 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
Agricultural
Non-agricultural
Efforts to recruit U.S. workers
no
yes
yes
yes
Offering comparable or prevailing
yes yes yes yes
wages
Offering comparable benefits
no
yes
no
no
U.S. working conditions not
yes yes yes yes
adversely affected
No strikes or lockouts of U.S.
yes yes yes yes
workers
Protection from retaliation
yes yes yes no
(whistleblower)
58 U.S. Department of Labor Employment and Training Administration, “Labor Certification Process and Enforcement
for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing ,” 73 Federal Register
78019-78069, December 19, 2008; and U.S. Department of Homeland Security U.S. Citizenship and Immigration
Services, “Changes to Requirements Affecting H-2B Nonimmigrants and Their Employers,” 73 Federal Register
78103, December 19, 2008. These rules also permit the Secretary of Homeland Security, in consultation with the
Secretary of State to designate nationals of certain countries for receipt of H-2B visas.
59 Prior to January 19, 2009, the effective date of the new regulations, DOL policy guidance on the H-2B labor
certification process required a prospective H-2B employer to advertise the job opportunity in a newspaper or other
appropriate publication for three consecutive days and to provide the SWA with proof of publication; and to document
that union and other recruitment sources were contacted.
60 U.S. Department of Labor Employment and Training Administration, “Labor Certification Process and Enforcement
for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing ,” 73 Federal Register
78019-78069, December 19, 2008.
61 While not subject to the broader transportation requirements of the H-2A program, H-2B employers are required by
law to pay the reasonable costs of return transportation abroad for an H-2B worker who is dismissed prior to the end of
his or her authorized period of stay.
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H-1B
H-1B
H-2A
H-2B
Requirements
Professional
Dependent
Agricultural
Non-agricultural
Lay-off protections for U.S.
no yes yes no
workers
Work site postings of intent to
yes yes no
no
hire foreign workers
Housing, insurance and
no no yes no
transportation
Numerical caps
65,000 plus exceptions
no
66,000 plus
exceptions
Source: CRS summary of INA §212(a)(5), §212(g), §212(n), §218(b) and (c)(4); 8 C.F.R §214.2; and 20 C.F.R.
§655-Subparts A, B.
Investigating and Enforcing LCAs
The INA does not delineate a standard policy to investigate and enforce violations of the LCAs,
and the statutory authority for such investigations and enforcement actions varies across visa
categories. The enforcement responsibilities for violations of these adverse effect provisions,
however, are variously assigned to the Department of Homeland Security (DHS) or the
Department of Justice (DOJ) as well as to DOL.
As discussed at the outset of this report, the INA requires the Secretary of Labor to certify that the
employment of an employment-based LPR will not adversely affect the wages and working
conditions of similarly employed workers in the United States.62 The DOL Certifying Officer
(CO) who learns that an LCA for an employment-based LPR is possibly fraudulent refers that
case to DHS or DOJ for investigation.63 Presumably, DOJ and DHS could also investigate such
cases as document fraud under §274C of the INA.64 DOL has the authority to revoke the LCA if
an employer is subsequently found in violation. DOL also may debar an employer for three years
if the employer is found to have violated the LCA requirements.65
In the case of H-1B labor attestation, however, the Secretary of Labor has statutory authority to
investigate and enforce LCA violations of H-1B petitions, which she has delegated to the
Administrator of the Wage and Hour Division (WHD).66 More precisely, the WHD is charged
with investigating the complaints.67 The WHD Administrator may assess back wages and benefits
for the H-1B worker, civil penalties against the employer, and other administrative remedies.68 If
an employer is found to have willfully violated the INA, the WHD may conduct random
investigations of that employer over the next five years. A DOL administrative law judge would
62 INA §212(a)(5).
63 20 C.F.R. § 656.31(b).
64 CRS Report RL34007, Immigration Fraud: Policies, Investigations, and Issues, by Ruth Ellen Wasem; and CRS
Report RL32657, Immigration-Related Document Fraud: Overview of Civil, Criminal, and Immigration Consequences,
by Yule Kim and Michael John Garcia.
65 20 C.F.R. § 656.31(f).
66 The Wage and Hour division is located in the Employment Standards Division of DOL.
67 20 C.F.R. § 655.800 implementing INA §212(n) and (t).
68 20 C.F.R. § 655.810 implementing INA §212(n) and (t).
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decide the case if the employer charged with an H-1B violation requests a hearing. The WHD is
also responsible for informing ETA and USCIS of employer violations. It is DHS, however, that
has the authority to charge a fee of $500 to H-1B (and L visa) employers for H-1B visa (and L
visa) fraud detection and prevention.
The INA provisions governing the enforcement of LCAs for H-2A workers offer yet another
approach. “The Secretary of Labor is authorized to take such actions, including imposing
appropriate penalties and seeking appropriate injunctive relief and specific performance of
contractual obligations, as may be necessary to assure employer compliance with terms and
conditions of employment under this section.” 69 The INA authorizes appropriated funding for
DOL to carry out these actions.70 The Secretary of Labor has delegated this enforcement authority
to the WHD. 71
DHS has the investigative and enforcement authorities for H-2B labor certifications. The INA
authorizes the DHS to charge a fee of $150 to H-2B employers for fraud detection and
prevention.72 The Secretary of DHS may delegate to the Secretary of Labor, with the agreement
of the Secretary of Labor, any of the authority given to the Secretary of DHS given to impose
administrative remedies (including civil monetary penalties in an amount not to exceed $10,000
per violation) for H-2B violations. The H-2B violations cited are substantial failure to meet the
LCA conditions or a willful misrepresentation of a material fact in the LCA.73 DOL recently
promulgated regulations that state that DHS had formally delegated this authority to impose
penalties to the WHD as part of an revision in H-2B procedures. The new regulations have added
post-adjudication audits that WHD will conduct as well procedures for penalizing employers who
fail to comply the LCAs.74
Resources for Foreign Labor Certification
Funding the LCA Approval Process
As Figure 4 shows, funding for foreign labor certification has fluctuated over the past dozen
years despite the steady upward trends in employment-based immigration (Figure 1 and Figure
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
69 §218(g) of the INA.
70 §218(g) of the INA.
71 U.S. Department of Labor Employment and Training Administration, “Labor Certification Process and Enforcement
for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing ,” 73 Federal Register
78019-78069, December 19, 2008; and U.S. Department of Homeland Security U.S. Citizenship and Immigration
Services, “Changes to Requirements Affecting H-2B Nonimmigrants and Their Employers,” 73 Federal Register
78103, December 19, 2008.
72 P.L. 109-13, §403; 8 U.S.C. §1184(c). This provision states that fraud collection and prevention fees should also go
towards “programs and activities to prevent and detect fraud pertaining to H-2B visa petitions.
73 §214(c)(14) of the INA.
74 U.S. Department of Labor Employment and Training Administration, “Labor Certification Process and Enforcement
for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing ,” 73 Federal Register
78019-78069, December 19, 2008.
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employer received a determination. The Bush Administration sought and received funding
increases in FY2004 and FY2005 to reduce the backlog of LCAs that were pending at that time.75
PERM’s online filings are also credited with reducing the LCA processing times. The conference
report on the FY2008 Consolidated Appropriations Act (P.L. 110-161) included $42.2 million “to
improve the timeliness and quality of processing applications under the foreign labor certification
program.”76
Figure 4. Funding to ETA for Foreign Labor Certification
FY1998-FY2010 Appropriations and FY2011 Request
Dollars in millions
80
Federal Administration
$68.0
70
$68.4
State Workforce Agencies
$65.6
60
$54.9
50
$44.1
$40.9
$39.7
40
$36.5
$31.3
30
$26.1 $26.1 $26.1
20
$13.0
$15.1 $15.1 $15.1
$13.0 $12.7
10
0
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011(req)
Fiscal Year
Source: U.S. Department of Labor, Budget Justification of Appropriation Estimates for Committee on
Appropriations, FY2006-FY2009; U.S. Congress, House Committee on Appropriations, Consolidated
Appropriations Act, 2008, H. R. 2764, P.L. 110-161, Division G, committee print, 110th Congress, 1st sess; and
Explanatory language accompanying H.R. 1105, Congressional Record, February 23, 2009.
Until the implementation of PERM, state workforce agencies (SWAs) were funded to handle LCA
processing with appropriations from the “national activities” account of ETA’s Employment
Services. As Figure 4 illustrates, Congress has increased the funding for the federal
administration of LCAs to reflect the shift in workload as well as backlog issues.
75 FY1998 Budget Justifications of Appropriations Estimates for Committee on Appropriations, vol. 1, SUIESO-28.
76 U.S. Congress, House Committee on Appropriations, Consolidated Appropriations Act, 2008, H. R. 2764, P.L. 110-
161, Division G, committee print, 110th Cong., 1st sess., p.1472.
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Although over 90% of the funding for USCIS comes from fees for providing adjudication and
naturalization services that are deposited into the Examinations Fee Account,77 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
the cost of processing the LCAs, but Congress opted not to do so.78 The George W. Bush
Administration had unsuccessfully sought authority to use a portion of the H-1B education and
training fees for the processing of LCAs.79
The President’s FY2011 Budget proposes $65,648,000 for foreign labor certification, of which
$50,519,000 would be for the federal administration (181 FTE) and $15,129,000 would be for
state grants.80 Although this is a decrease of $2.8 million from the FY2010 appropriation and $2.3
million from the FY2009 appropriation, it remains an increase of $10.7 million from the FY2008
appropriation.
The President’s FY2011 Budget seeks legislative authority to charge user fees to cover the costs
of processing LCA for employers seeking to import three specific types of foreign workers: those
coming on permanent employment-based visa; those coming on temporary H-2A visas;81 and
those coming on temporary H-2B visas. According to DOL budget justifications, “Once the fees
are enacted, the discretionary budget request for these activities could be reduced or
eliminated.”82
Funding the LCA Enforcement Activities
There are very limited data available on funding for enforcing the LCAs and investigating those
employers who hire temporary foreign workers. DOL is allocated one-third of the total receipts
DHS obtains from employers for the H-1B and L visa fraud detection and prevention fee of $500
per employee that has been collected since FY2005.83 The fee of $150 per H-2B employee also
goes into the same visa fraud detection and prevention account.84 As presented in Table 2, DOL’s
estimated share of the total Fraud Prevention and Detection Fee Accounts has been $31 million in
recent years. However, DOL reportedly used only $6.7 million in FY2007, $5.5 million in
FY2008 and an estimated $5.5 million in FY2009 for H-1B, H-2B and L visa fraud investigation
activities.85
77 §286 of the Immigration and Nationality Act. 8 U.S.C. 1356.
78 U.S. Department of Labor, FY1998 Budget Justifications of Appropriations Estimates for Committee on
Appropriations, vol. 1, SUIESO-28.
79 CRS Report RL31973, Programs Funded by the H-1B Visa Education and Training Fee, and Labor Market
Conditions for Information Technology (IT) Workers, by Linda Levine and Blake Alan Naughton.
80 U.S. Department of Labor, FY2011 Congressional Budget Justification, Employment and Training Administration
Overview, February 2010, p. 11, http://www.dol.gov/dol/budget/2011/PDF/CBJ-2011-V1-03.pdf.
81 DOL is authorized to charge employers a fee for each LCA filed for H-2A workers, but the funds collected currently
remain in the U.S. Treasury.
82 U.S. Department of Labor, FY2011 Congressional Budget Justification, State Unemployment Insurance and
Employment Service Operations, February 2010, pp. 54-69, http://www.dol.gov/dol/budget/2011/PDF/CBJ-2011-V1-
08.pdf.
83 P.L. 108-447, Division J, Title IV, Subtitle B, §426.
84 §286(v) of the INA; 8 U.S.C. §1356(v).
85 U.S. Department of Labor, FY2009 Budget Justification of Appropriation Estimates for Committee on
Appropriations, Volume II, Employment Standards Administration, 2008.
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Table 2. Amounts from the Fraud Prevention and Detection Fees Allocated to DOL,
FY2005-FY2009
Dollar Amount is in Thousands of Dollars
Estimated Share of
Budget Year
Fees
Amount Reported Used
FY2005
26,175
NA
FY2006
31,000
NA
FY2007
31,000
6,700
FY2008
31,000
4,700
FY2009
31,000
5,500
FY2010 (estimates)
31,000
12,500
FY2011 (request)
33,150
Source: U.S. Department of Labor, Budget Justification of Appropriation Estimates for Committee on
Appropriations, FY2006-FY2011, Volume II, Employment Standards Administration.
Notes: The estimates of total share of fees are matched with the U.S. Citizenship and Immigration Services’
Congressional Budget Justifications, FY2006-FY2010, because INA §212(n) al ocates that agency the same portion of
the fees collected as DOL.
During the George W. Bush Administration, DOL sought to use a portion of these H-1B and L
visa funds for “self-directed” investigations aimed at industries that were more likely to employ
low-wage, foreign workers. When Congress did not revise INA §286(v) to permit H-1B and L
visas investigation fees to be used to fund investigations for low-skilled employment, the funds
were rescinded. 86 Although the DOL has not provided detailed data on how much of the H-1B,
H-2B, and L visas investigation fees it did not expend, the conference report on the FY2008
Consolidated Appropriations Act (P.L. 110-161) states
The amended bill includes a rescission of $102,000,000 in unobligated funds collected
pursuant to section 286(v) of the Immigration and Nationality Act. The House and the Senate
proposed a rescission of $70,000,000; however, information received from the Department
of Labor indicates that receipts in this account allow a higher amount to be rescinded while
still ensuring that the $5,500,000 the Department estimates it will use in fiscal year 2008
under current authority remains available.87
DOL’s Budget Justification of Appropriation Estimates for Committee on Appropriations, Volume
II, however, reported that only $30,000,000 was rescinded in FY2008.88 It is unclear at this time
what accounts for this difference in FY2008, but it has been addressed further in the FY2009
appropriation. The report language accompanying the Omnibus Appropriations Act, 2009 (H.R.
1105, P.L. 111-8) stated the following:
86 U.S. Department of Labor, FY2009 Budget Justification of Appropriation Estimates for Committee on
Appropriations, Volume II, Employment Standards Administration, 2008.
87 U.S. Congress, House Committee on Appropriations, Consolidated Appropriations Act, 2008, H. R. 2764, P.L. 110-
161, Division G, committee print, 110th Cong., 1st sess., p. 1473.
88 U.S. Department of Labor, FY2009 Budget Justification of Appropriation Estimates for Committee on
Appropriations, Volume II, Employment Standards Administration, 2008.
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The bill includes a rescission of $97,000,000 in unobligated funds collected pursuant to
section 286(v) of the Immigration and Nationality Act. Sufficient funds will remain to ensure
that the Department of Labor will be able to continue its enforcement activities under the
current legislative authority. 89
This issue was addressed in §524 of division D of the Consolidated Appropriations Act, 2010
(P.L. 111-117). That provision amended §426(b) of division J of the Consolidated Appropriations
Act, 2005 (P.L. 108-447) to authorize the Department of Labor to use one-third of the amounts
deposited into the Fraud Prevention and Detection Account for wage and hour enforcement
programs and activities that focus on industries likely to employ nonimmigrants, including
enforcement pertaining to §212(n) for H-1B workers and §214(c)(14)(A) for H-2B workers.90
The INA authorizes appropriated funding for DOL to enforce the LCAs for H-2A workers.91
Detailed funding data are not available to determine how much, if any, funds have been requested
and appropriated to DOL for this specific activity in recent years.92
Selected Issues
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. Others point out that certain professional
employees such as L intracompany transferees with specialized knowledge or E-3 professional
workers from Australia are not appreciably different from H-1B workers, yet only employers of
the latter are required to file LCA attestations. 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 on the labor market test for
foreign workers.93
Unemployment Statistics and Other Economic Triggers
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
89 Explanatory language accompanying H.R. 1105, Congressional Record, February 23, 2009, pp. H2162-H2167.
90 §524 of P.L. 111-117 also gave USCIS the authority to use the H-1B, H-2B and L Fraud Prevention and Detection
Fees to investigate all types of immigration benefit fraud, not just that pertaining to foreign temporary workers.
91 §218(g) of the INA.
92 Explanatory language accompanying H.R. 1105, stated: “Due to concern about the Department’s new requirement
for State Workforce Agencies to assume the responsibility for employment verification in the H-2A agricultural
workers program, the Secretary is directed to provide a report to the Committees on Appropriations of the House of
Representatives and the Senate within 90 days of the enactment of this Act on the costs to States and legal basis for
imposing this responsibility on a mandatory basis.” Congressional Record, February 23, 2009, pp. H2162-H2167.
93 For legislative tracking of these issues, see CRS Report R40848, Immigration Legislation and Issues in the 111th
Congress, coordinated by Andorra Bruno.
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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.94 At that time, however, leading government economists acknowledged that they did
not have labor force and other economic data available to make such determinations.95 The option
of using national and regional unemployment data to regulate foreign worker admissions arose
most recently during the debate over comprehensive immigration reform in the 110th 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 or “out-source” to areas in which they had access to foreign workers,
further harming U.S. workers in locations with higher unemployment.
Global Competition for Talent
As the United States is rising out of an economic recession, attention is again focused on
recruitment of the “best and the brightest” people to the United States. Once a debate limited to
the H-1B visas, the global competition for foreign workers with advanced degrees and high-level
skills has broadened to encompass more sweeping revisions to the permanent employment-based
preferences. Some promote amending the INA to create expedited pathways for foreign students
earning degrees at U.S. universities in the fields of the sciences, technology, engineering or math
(STEM) to become LPRs without a prospective employer submitting an LCA.96 However,
Michael Teitelbaum, vice president of the Alfred P. Sloan Foundation (which funds basic
scientific, economic and civic research) has said over the past few years that there are
“substantially more scientists and engineers” graduating from U.S. universities than can find
attractive jobs.97 A fundamental question is whether the current labor market tests to hire foreign
workers offer an efficacious response to these competing perspectives on the international race
for talent.
Some, which notably includes a panel of international experts assembled by the Transatlantic
Council on Migration, advocate what they refer to as more “flexible” and “forward-thinking”
approaches to bringing foreign workers into the labor market. These options are typically based
upon the human capital needs of the national economy rather than the hiring preferences of
individual employers.98 Other policy researchers, such as the Directorate for Science, Technology,
and Industry of the Organization for Economic Cooperation and Development, maintain that
immigration laws and labor market protections are not the most decisive factors for talented
migrants.
94 U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration, Refugees, and International Law,
Legal Immigration, 100th Cong., 1st sess., July 21, 1987.
95 U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Immigration, Reform of Legal Immigration,
104th Cong., 1st sess., September 13, 1995.
96 For further discussion, see CRS Report RL30498, Immigration: Legislative Issues on Nonimmigrant Professional
Specialty (H-1B) Workers, by Ruth Ellen Wasem.
97 Greg Toppo and Dan Vergano, “Scientist Shortage? Maybe Not,” USA Today, July 8, 2009; and U.S. Congress,
House Committee on Science and Technology, Subcommittee on Technology and Innovation, The Globalization of
R&D and Innovation: Implications for the Science and Engineering Workforce, 110th Cong., 1st sess., November 7,
2007.
98 Demetrios G. Papademetriou and Annette Heuser, “Talent, Competitiveness and Migration,” in Council Statement:
Responding Competitively to the New Mobility of the 21st Century, ed. Bertelsmann Stiftung, Migration Policy Institute
(2009).
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Various factors contribute to the flows of the highly skilled. In addition to economic
incentives, such as opportunities for better pay and career advancement and access to better
research funding, mobile talent also seek higher quality research infrastructure, the
opportunity to work with “star” scientists and more freedom to debate.99
The United States arguably fares quite well on these factors.100 Labor markets tests that employers
must pass in order to hire foreign workers are arguably aimed at curbing employer abuses rather
than influencing the migration decisions of foreign worker.
Certification Versus Attestation
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
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
for jobs that do not require a baccalaureate education and skilled work experience.101 They
express concern that PERM regulations have undermined the integrity of labor market tests for
the LPR process. Opponents of the new H-2A and H-2B regulations argue that they weaken
government protections for vulnerable domestic and foreign workers in industries known
exploitative working conditions and for lax enforcement of the minimum wage.102
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
foreign workers are needed.103
99 Organization for Economic Cooperation and Development (OECD), The Global Competition for Talent: Mobility of
the Highly Skilled, Directorate for Science, Technology and Industry, September 2008.
100 Lesleyanne Hawthorne, “The Growing Global Demand for Students as Skilled Migrants,” in Talent, Competiveness
and Migration, ed. Bertelsmann Stiftung, Migration Policy Institute (2009).
101 For example, see AFL-CIO Legislative Alert, letter to U.S. Senators from William Samuel, Oct. 19, 2005.
102 Susan Ferriss, “Bush administration makes last-minute changes in farmworker hiring,” The Sacramento Bee,
December 11, 2008. The Southern Poverty Law Center (SPLC) called conditions for many H-2B workers “close to
slavery,” citing unsavory recruiters, abusive employers and substandard wages. Nicolle Gaouette, “Guest workers in
U.S. say they are being exploited,” Los Angeles Times, June 12, 2008.
103 For example, see the “H-2A Reform and Agricultural Worker Adjustment Act of 2001” S. 1313/H.R. 2736
introduced in the 107th Congress.
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Protections for U.S. Workers
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
and lucrative careers.104 Many cite the GAO studies that document abuses of H-1B visas and
recommend additional controls to protect U.S. workers.105
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
labor certification applications is, at times, the sole protection of American workers.106
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 Bush Administration further pointed 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, employers must recruit more intensively and boost their salary offers.107
Fraudulent Claims
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
than a process that relies on employer self-attestations.108
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
attestation form and to initiate enforcement activities.109 Most recently, an investigation by
104 CRS Report RL30140, An Information Technology Labor Shortage? Legislation in the 106th Congress, by Linda
Levine; and CRS Report 98-462, Immigration and Information Technology Jobs: The Issue of Temporary Foreign
Workers, by Ruth Ellen Wasem and Linda Levine.
105 For example, see AFL-CIO Legislative Alert, letter to U.S. Senators from William Samuel, Oct. 19, 2005.
106 Federal Register, vol. 69, no. 247, Dec. 27, 2004, pp 77325-77421.
107 Federal Register, vol. 69, no. 247, Dec. 27, 2004, pp 77325-77421.
108 Federal Register, vol. 69, no. 247, Dec. 27, 2004, pp 77325-77421.
109 U.S. General Accounting Office, H-1B Foreign Workers: Better Controls Needed to Help Employers and Protect
Workers, GAO/HEHS-00-157, Sept. 2000; and U.S. General Accounting Office, H-1B Foreign Workers: Better
Tracking Needed to Help Determine H-1B Program’s Effects on U.S. Workforce, GAO-03-883 Sept. 2003.
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USCIS’s Office of Fraud Detection and National Security (FDNS) discovered that 13% of the H-
1B files sampled were fraudulent and another 7% had technical violations of the law.110
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 Bush Administration
reportedly considered a plan to cross-check the employer’s federal employer identification
number with other available databases.111
Enforcement Tool
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
who are required to file LCAs.112 They further point out that most LPRs working in the United
States entered on visas not subject to labor market tests.113 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
“a step in the right direction to move these cases through and do it in a timely fashion.”114
Small Business Concerns
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
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
employer the employer would be unlikely to continue in operations without the foreign
national.115
110 USCIS Office of Fraud Detection and National Security, H-1B Benefit Fraud and Compliance Assessment,
Washington, D.C., September 2008.
111 Federal Register, vol. 69, no. 247, Dec. 27, 2004, pp 77325-77421.
112 Interpreter Releases, “The Lawyer’s Guide to §212(a)(5)(A): Labor Certification from 1952 to PERM,” by Gary
Endelman, Oct. 11, 2004.
113 In FY2004, a total of 155,330 LPRs were employment-based preference immigrants (including spouses and
children), comprising 16.4% of all LPRs that year.
114 Business Dateline, “The U.S. Labor Department unveils a streamlined path,” by William T. Quinn (quoting William
McAlvanah), Apr. 4, 2005.
115 Federal Register, vol. 69, no. 247, Dec. 27, 2004, pp 77325-77421.
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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
certification will be denied.116
Subcontractors and Multinational Companies
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
replacements.117 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
employer who had recently laid off U.S. workers.118 However, multinational firms have the option
of substituting employees on the L visa for those on the H-1B visa.
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
necessary to stay competitive in the global marketplace.119
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
personnel.120
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
burdensome and unprofitable to do business in the United States.121
116 Federal Register, vol. 69, no. 247, Dec. 27, 2004, pp 77325-77421.
117 In 1995, the DOL Inspector General found widespread abuses of the H-1B program, and former Secretary of Labor
Robert Reich argued for changes in the H-1B provisions so DOL could take action against employers who displace
U.S. workers with nonimmigrants.
118 CRS Report 98-531, Immigration: Nonimmigrant H-1B Specialty Worker Issues and Legislation.
119 CRS Report RL30072, Temporary Workers as Members of the Contingent Labor Force, by Linda Levine; and CRS
Report RL30498, Immigration: Legislative Issues on Nonimmigrant Professional Specialty (H-1B) Workers.
120 The DHS Office of the Inspector General found potential vulnerabilities and abuses in the L-1 visa for intracompany
transferees that bear on labor market protections for U.S. workers; U.S. Department of Homeland Security, Office of
Inspector General, Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program, OIG 06-22, Jan. 2006.
121 U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Immigration, Citizenship and Border Security,
(continued...)
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Conclusion
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. Over a decade ago, the
Commission on Immigration Reform estimated that the labor certification process costs
employers in administrative, paperwork, and legal fees a total of $10,000 per immigrant.122 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 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 immigration reform.
Author Contact Information
Ruth Ellen Wasem
Specialist in Immigration Policy
rwasem@crs.loc.gov, 7-7342
(...continued)
The L-1 Visa and American Interests in the 21st Century Global Economy, hearings, 108th Cong., 1st sess., July 29,
2003; and U.S. Congress, House Committee on Foreign Relations, L Visas: Losing Jobs Through Laissez-faire
Policies? hearings, 108th Cong., 2nd sess., Feb. 4, 2004.
122 Congressional Record, vol. 142, Statement of Senator Ted Kennedy, Apr. 15, 1996, p. S3287.
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