Labor law and immigration law meet at almost every step of a foreign worker’s path. The Department of Labor certifies the job before USCIS approves the worker. Every employer verifies every new hire. Most workplace protections apply whatever a worker’s immigration status.

Quick Facts

  • PERM: 20 C.F.R. Part 656
  • Certification valid: 180 days
  • H-1B LCA: 8 U.S.C. § 1182(n)
  • H-2B cap: 66,000 per fiscal year
  • I-9 Section 2: 3 business days
  • Notice of Inspection: at least 3 business days

Who does what

  • Department of Labor (DOL). Its Office of Foreign Labor Certification decides labor certifications and certifies Labor Condition Applications. Its Wage and Hour Division enforces wage rules, including the obligations employers accept in the H-1B, H-2A and H-2B programs.
  • USCIS decides the employer’s petition for the worker, such as Form I-129 for temporary workers and Form I-140 for immigrant workers.
  • ICE, through Homeland Security Investigations, conducts worksite enforcement, including Form I-9 inspections.
  • The State Department issues the visa when the worker is abroad.
  • The Justice Department’s Immigrant and Employee Rights Section enforces the ban on citizenship-status and national-origin discrimination in hiring and on document abuse (8 U.S.C. § 1324b).

Labor certification (PERM) and the H-1B Labor Condition Application

PERM labor certification

For most employment-based green cards in the second and third preference categories, the employer must first obtain a labor certification. It is DOL’s finding that there are not enough able, willing, qualified and available U.S. workers for the job, and that employing the foreign worker will not adversely affect the wages and working conditions of U.S. workers (8 U.S.C. § 1182(a)(5)(A)). The process, known as PERM, is set out in 20 C.F.R. Part 656:

  1. a prevailing wage determination from DOL (Form ETA-9141);
  2. a recruitment campaign to test the U.S. labor market;
  3. the labor certification application (Form ETA-9089), filed in DOL’s FLAG system;
  4. after certification, the employer’s immigrant petition (Form I-140), which must be filed while the certification is valid, which is 180 days (20 C.F.R. § 656.30(b)).

Some cases skip the DOL stage. National interest waiver cases (8 U.S.C. § 1153(b)(2)(B)) and the first-preference categories need no labor certification at all. Schedule A occupations go straight to USCIS, with the labor certification application filed together with the petition (20 C.F.R. § 656.5). Schedule A covers professional nurses and physical therapists, and certain people of exceptional ability in the sciences, arts or performing arts.

The H-1B Labor Condition Application

Before an H-1B petition, the employer files a Labor Condition Application with DOL (8 U.S.C. § 1182(n); 20 C.F.R. Part 655, Subparts H and I). In it, the employer attests that it will pay at least the higher of the actual wage for the job and the prevailing wage, that the employment will not adversely affect similarly employed workers, that there is no strike or lockout, and that it has given notice of the filing. These are enforceable promises: the Wage and Hour Division investigates violations.

Seasonal and temporary workers: H-2A and H-2B

H-2A covers temporary or seasonal agricultural work. H-2B covers temporary non-agricultural work. In both programs the employer first obtains a temporary labor certification from DOL (20 C.F.R. Part 655, Subpart B for H-2A and Subpart A for H-2B), then files Form I-129 with USCIS. H-2A has no annual cap. H-2B is capped at 66,000 workers per fiscal year, split between the two halves of the year (8 U.S.C. § 1184(g)). H-2A employers also take on obligations such as providing housing (20 C.F.R. § 655.122) and paying at least the wage set under DOL’s rules.

What employers must do: Form I-9, E-Verify and inspections

  • Form I-9 for every hire. Every employer must verify the identity and work authorization of each new employee (8 U.S.C. § 1324a(b)). The employee completes Section 1 by the first day of work. The employer completes Section 2 within three business days (8 C.F.R. § 274a.2(b)(1)).
  • E-Verify is voluntary for most private employers under federal law. It is required for certain federal contractors and by some states.
  • Inspections. ICE begins an I-9 inspection with a Notice of Inspection. The employer has at least three business days to produce the forms (8 C.F.R. § 274a.2(b)(2)(ii)). Paperwork violations and knowingly employing workers without authorization carry civil penalties, and patterns of violations carry criminal ones (8 U.S.C. § 1324a(e)–(f)).
  • No document abuse. An employer may not demand more or different documents than the I-9 rules require, or reject valid documents, with the intent to discriminate (8 U.S.C. § 1324b(a)(6)).

Rights that apply whatever a worker’s status

Federal minimum wage and overtime rules under the Fair Labor Standards Act protect workers regardless of immigration status. The Wage and Hour Division enforces them without regard to whether a worker is authorized to work (DOL Fact Sheet #48). Workplace safety protections under the Occupational Safety and Health Act also apply.

The limits concern remedies. Workers without authorization are “employees” under the National Labor Relations Act, but the Supreme Court has held that the National Labor Relations Board cannot award them back pay for work not performed (Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002)). Wages for work already done remain recoverable. Federal anti-discrimination laws enforced by the EEOC also apply, although some remedies can be limited for workers without work authorization.

Protection for workers who report abuse

  • T visa for victims of severe forms of trafficking, including labor trafficking (8 U.S.C. § 1101(a)(15)(T)). The annual cap is 5,000 principal applicants.
  • U visa for victims of qualifying crimes who help law enforcement (8 U.S.C. § 1101(a)(15)(U)). The qualifying crimes include involuntary servitude, peonage, trafficking, fraud in foreign labor contracting, extortion and obstruction of justice. A certifying agency must sign Form I-918 Supplement B. The regulation’s definition of a certifying agency expressly includes the Department of Labor and the EEOC (8 C.F.R. § 214.14(a)(2)). The annual cap is 10,000 principal applicants.
  • Deferred action for labor disputes. In January 2023 DHS introduced a process that let workers involved in a labor agency’s investigation request deferred action with a statement of interest from that agency. USCIS has since archived its page on the process and marks it as out of date. Reporting in July 2025 described the agency as no longer processing requests, without a formal announcement. The page remains archived as of this article’s last review.

When a labor certification stalls

DOL publishes current processing times for prevailing wage determinations and PERM applications. Cases selected for audit or supervised recruitment take longer. A labor certification is a discrete agency decision, like any other application, and the unreasonable-delay rules described in What a Writ of Mandamus Is, and What It Cannot Do apply to DOL as well, including when a labor certification has been pending too long.

Sources

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