Despite the recession, the lack of jobs and the training fees charged to U.S. employers hiring foreign workers on temporary H-1B work visas, the U.S. Department of Labor’s (“USDOL”) recently released Foreign Labor Certification Annual Report shows that U.S. employers are still struggling to find qualified U.S. workers in the fields of Science, Technology, Engineering and Math (“STEM”). Employers report recruiting for STEM positions for over two years in hopes of ultimately finding a qualified U.S. worker – often resulting in the employer losing lucrative contracts or having to resort to using contract workers.

Although an employer is not required to show the unavailability of a qualified U.S. worker when sponsoring a foreign national for a temporary H-1B work visa, an employer seeking to hire a foreign worker to work permanently in the U.S. must obtain a labor certification from USDOL before it can submit an immigrant visa petition to U.S. Citizenship and Immigration Services. Prior to submitting an application for labor certification, the employer must perform a labor market test to determine whether U.S. workers are able, willing, qualified and available for the position in the area where the job will be performed. If there are no such U.S. workers, the employer may file an application for labor certification evidencing the recruitment efforts undertaken and any results thereof. The employer must also demonstrate that employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. USDOL’s Annual Report confirms that employers should not have a difficult time showing the unavailability of qualified U.S. workers for STEM positions.