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PERM Program
header EFFECTIVE DATE
  1. As of March 28, 2005, will all previously filed labor certification applications be converted and/or processed under PERM?
    No, labor certification applications filed prior to March 28, 2005, will not be automatically converted and/or processed under PERM. Applications filed under the regulation in effect prior to March 28, 2005, will continue to be processed at the appropriate Backlog Processing Center under the rule in effect at the time of filing. As of March 28, 2005, applications (Form 750) will no longer be accepted under the regulation in effect prior to March 28, 2005, and instead new applications (Form 9089) will need to be filed under PERM at the appropriate National Processing Center. Only if an employer chooses to withdraw an earlier application and refile the application for the identical job opportunity under the refile provisions of PERM will a previously filed application be processed under the PERM regulation.
  2. Are any PERM regulation provisions applicable to applications filed under the regulation in effect prior to March 28, 2005?
    No, while many provisions in the PERM regulation are the same as, or similar to, the provisions found in the regulation in effect prior to March 28, 2005, the PERM regulation can not be applied to applications filed under the former regulation. At this point, all provisions of the PERM regulation are applicable only to applications filed on or after March 28, 2005, under the PERM regulation.

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header STANDARDS/ MAJOR DIFFERENCES
  1. What standards will be used in making labor certification determinations under the new, streamlined system?
    The standards used in making labor certification determinations under the new system will be substantially the same as those used in arriving at a determination in the former system. The determination will continue to be based on: whether there are not sufficient United States workers who are able, willing, qualified and available; whether the employment of the foriegn worker will have an adverse effect on the wages and working conditions of United States workers similarly employed; and whether the employer has met the procedural requirements of the regulations.
  2. What provisions have changed in the new system?

    This is a brief list of some of the changes; they are covered in greater detail in the particular topic areas below.

    Filing: Employers have the option of submitting the new form, the Application for Permanent Employment Certification, ETA Form 9089, electronically directly to a National Processing Center.

    Filing: Supporting documentation is not submitted with the application.

    Filing: Employers file applications directly with the U.S. Department of Labor and not with a State Workforce Agency (SWA).

    Refiling: An employer may, at any time, withdraw an application filed under the regulation in effect prior to March 28, 2005, refile under PERM, and maintain the original filing date if the new application complies with the new regulation, the application is identical to the original application, and a job order has not been placed by the SWA for the original application.

    Prevailing Wage: The offered wage must be equal to or greater than the prevailing wage. The wage must be at least 100% of the prevailing wage; the 5% deviation is no longer acceptable.

    Prevailing Wage: Where an acceptable employer-provided survey provides a median and does not provide an arithmetic mean, the median will be used as the prevailing wage.

    Prevailing Wage: The prevailing wage validity period will vary from no less than 90 days to no greater than one year depending on the wage source used.

    Notice of Filing: A notice of filing must be posted in specific locations for ten consecutive business days rather than merely ten days.

    Recruitment: The employer is required to conduct recruitment (more than 30 days and less than 180 days) prior to filing.

    NOTE: While pre-filing recruitment was the basis for reduction-in-recruitment under the regulation in effect prior to March 28, 2005, the recruitment provisions in the new system differ.

    Recruitment: Recruitment provisions are divided into professional and nonprofessional occupations and additional recruitment steps are required for professional occupations.

    Recruitment: Sunday edition newspaper advertisements are required.

    Recruitment: A job order, obtained through the SWA, is required.

    Recruitment: The special handling provision has been removed. Optional recruitment provisions for college and university teachers are in § 656.18. Provisions for college and university teachers of exceptional ability in the science and arts are covered in § 656.5.

    Revocation: Certifying Officers have the authority to revoke approved labor certifications.

    Adjudication:Certifying Officers will either certify or deny applications. The interim step under the previous regulations of issuing a Notice of Finding (NOF) has been eliminated.

    Schedule A, Professional Nurses: A Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate rather than merely passage of the CGFNS examination is required to qualify the foreign worker for Schedule A certification.

    Schedule A, Professional Nurses: Passage of the National Council Licensure Examination for Registered Nurses (NCLEX—RN) examination is a means by which to qualify the foreign worker for Schedule A certification.

    Schedule B: Schedule B has been eliminated.

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header FILING - HOW TO FILE
  1. Does the Office of Foreign Labor Certification expedite applications?
  2. How can an employer file an Application for Permanent Employment Certification, ETA Form 9089?
  3. How does the employer file an application electronically?
  4. Is it possible to complete only portions of an application, save it, and retrieve it at a later date without having to submit it?
  5. Where does an employer file an application by mail and how can people contact the Atlanta National Processing Center to ask questions about an application?
  6. What is the process by which an employer registers and files an application on line?
  7. Where the employer has established a sub-account for an attorney or agent, is the attorney or agent permitted to submit applications on-line?
  8. How can the employer ensure that no unauthorized use of the employer's personal identification number (PIN) and/or usernames and passwords exists?
  9. If a parent entity wishes to centralize administration/control over PERM filings of its subsidiaries having different FEINs, can the parent company create sub-accounts for each subsidiary and then permit each subsidiary to assume responsibility for its own filings?
  10. Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?
  11. Where can I email my questions?
  12. Under PERM, is it permissible for an employer to have more than one labor certification application actively in process for the same foreign worker for the same job opportunity at any given time? What should an employer do if it has already filed multiple applications for the same foreign worker for the same job opportunity?
  13. In view of the past practice of allowing the filing of multiple applications by the same employer for the same foreign worker if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same foreign worker actively in process at any given time?
  14. For electronically filed applications, please provide a listing, and explanation, of the status indicators that appear on the website.
  15. Employer Point of Contact Information
  16. Who may the employer designate as its point of contact in Section D of ETA Form 9089?
  17. Can the employer designate its attorney or agent as its point of contact in Section D of the ETA Form 9089?
  18. When filing an application electronically, using the PERM Case Management System, what are the abbreviations to select from the address State/Province dropdown menu fields for the territories of American Samoa, the Northern Mariana Islands, the Marshall Islands, the Federated States of Micronesia and Palau?
  19. Can third party software tools that interface with the web based forms made available by the Department of Labor (Department) be used to manage the filing of online applications?
  1. Does the Office of Foreign Labor Certification expedite applications?

    The Office of Foreign Labor Certification (OFLC), as a matter of long standing policy, does not expedite the processing of applications due to the particular circumstances of any individual employer, foreign worker, or a family member.

    August 3, 2010

  2. How can an employer file an Application for Permanent Employment Certification, ETA Form 9089?

    The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, filing electronically provides prompts that assist in the completion of the ETA Form 9089.

    An application for a Schedule A occupation must be filed by mail with the appropriate Department of Homeland Security office and not with a Department of Labor National Processing Center.

    NOTE: Employers will not be permitted to submit applications by facsimile.

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  3. How does the employer file an application electronically?

    The employer can access a customer-friendly web site (https://www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.

    NOTE: The web site also provides an option to permit employers that frequently file permanent applications to set up secure files within the ETA electronic filing system containing information common to any permanent application the employer files. Under this option, each time an employer files an ETA Form 9089, the information common to all of its applications, e.g., employer name, address, etc., will be entered automatically and the employer will only need to enter the data specific to the application at hand.

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  4. Is it possible to complete only portions of an application, save it, and retrieve it at a later date without having to submit it?

    Yes, the system provides the employer with the choice, upon finishing an online session, of either saving an application as a draft or submitting it to the Atlanta National Processing Center.

  5. Where does an employer file an application by mail and how can people contact the Atlanta National Processing Center to ask questions about an application?

    Applications for Permanent Employment Certification, ETA Form 9089, must be mailed to the following address:

    United States Department of Labor
    Employment and Training Administration
    Atlanta National Processing Center
    Harris Tower
    233 Peachtree Street, N.E., Suite 410,
    Atlanta, Georgia 30303

    The employer can contact the
    Atlanta National Processing Center at:
    E-mail: plc.atlanta@dol.gov
    Telephone: (404) 893-0101
    FAX: (404) 893-4642

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  6. What is the process by which an employer registers and files an application on line?

    In order to file permanent labor certification applications on-line, the employer must have a Permanent Online System account, username, password, and PIN. The account allows for the preparation and management of applications on-line, the username and password are necessary to access the account, and the PIN is required to submit applications on-line.

    Permanent Online System account – An account is created after an employer has submitted registration information on-line at https://www.plc.doleta.gov and the employer information is verified by DOL. Account creation is a means by which to control filing authorization and to provide account holders filing management capabilities. An employer must be registered and be in possession of a PIN in order to file applications on-line. Upon verification of the employer's information, a password and confirmation of the account holder's username are sent to the employer in one email and, for security reasons, the PIN in another. It must be noted that upon accessing the account for the first time, the system requires the DOL password be changed to a new password. It is critical that the employer be aware of and know the new password, as only an individual in possession of the account's valid username and password is able to access the account.

    Sub-account – The holder of a Permanent Online System account is able to create multiple sub-accounts with individual usernames and passwords for persons authorized by the employer to file applications in its name, to include attorneys and agents. It is a means by which to provide the employer the security of ensuring only persons authorized by the employer are filing on the employer's behalf. In creating a sub-account, the employer is able to designate whether the sub-account holder is the employer's employee, the employer's agent or the employer's lawyer. The employer is also able to designate the level of security access available to the sub-account holder.

    NOTE: While the employer is permitted the opportunity to designate persons to represent the employer in the application filing process, the employer must recognize that ultimate responsibility for the accuracy of all representations made by such designated persons rests with the employer. Therefore, the employer is encouraged to establish measures designed to ensure only legitimate dissemination and use of account information.

    Federal Employer Identification Number (FEIN) – The FEIN is provided to the employer by the IRS. It is a means by which the Department of Labor (DOL) verifies the bona fides of the employer and ensures that only legitimate employers are able to avail themselves of the labor certification process. In order to satisfy the definition of employer for purposes of labor certification, all employers, including employers of household domestic workers, must possess a valid FEIN.

    Username – The username is a log-in name provided by the employer registrant. After registration, upon successful employer verification, confirmation of the username is emailed to the employer by DOL. It is a means by which to identify the account holder and establish access authority. Each username is unique; duplications are not accepted.

    Password – An initial password is provided by the Permanent Online System. After registration, upon successful employer verification, the temporary password is emailed to the employer by DOL. Upon activation of an account after registration, the individual initially accessing the account is required to create a new password. The password is a means by which to identify the account holder and establish access authority. NOTE: An account can only be accessed by the holder of the username and password. Where the password is changed, only an individual with the user name and the new password will be able to access the account.

    Personal Identification Number (PIN) – The PIN is provided to the employer after registration upon successful employer verification by DOL. It is a means by which to safeguard on-line filing. Only an individual in possession of a PIN is able to actually submit a labor certification application on-line. The PIN used in submitting an application must be the PIN of the employer named on the application filing the application.

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  7. Where the employer has established a sub-account for an attorney or agent, is the attorney or agent permitted to submit applications on-line?

    Yes, an attorney or agent may submit applications under the following circumstances. An employer must complete the registration process as explained at https://www.plc.doleta.gov, including the initial log-in. During the initial log-in, the employer will change the employer's temporary password (as assigned by the system during registration) and once logged-in, the employer can establish a sub-account for an attorney or agent. The employer will select a username for the attorney or agent, and the system will assign a temporary password. The attorney or agent will receive an e-mail with the username, temporary password, and the employer's PIN. When the attorney or agent logs in and changes the attorney's or agent's password, the attorney or agent is then permitted to complete and submit applications on-line on behalf of the employer using the PIN of the employer in whose name the application is being filed.

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  8. How can the employer ensure that no unauthorized use of the employer's personal identification number (PIN) and/or usernames and passwords exists?

    The employer is able to view all applications filed under the employer's account, to include all applications filed under the employer's sub-accounts, and we recommend employers implement a mechanism by which to identify any unauthorized use of the employer's PIN and/or usernames and passwords. We also recommend employers require those persons to whom sub-accounts have been assigned to carefully monitor the accounts for unauthorized activity. If the employer uncovers unauthorized use of the PIN and/or usernames and passwords, the employer must immediately contact the Department of Labor at PLC.HELP@DOL.gov.

    NOTE:The employer is advised to set up a sub-account for the attorney or agent. Thereafter, the attorney or agent, using the sub-account's username and password, will be able to access the sub-account and be able to do what is required and/or needed to file labor certification applications on behalf of the employer, depending on the level of access granted by the employer. In filing applications for an employer, the attorney or agent must use the employer's PIN, which is provided to the attorney or agent upon creation of the sub-account along with the sub-account's own username and password. The employer is cautioned that ultimate responsibility for the representations of its attorney and/or agent rests with the employer.

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  9. If a parent entity wishes to centralize administration/control over PERM filings of its subsidiaries having different FEINs, can the parent company create sub-accounts for each subsidiary and then permit each subsidiary to assume responsibility for its own filings?

    No, a parent company can not create sub-accounts for subsidiaries having FEINs different from that of the parent company in order to centralize administration and control. When an application is being completed using a sub-account, employer information from the main account, including FEIN and address, is automatically populated into the application and that information can not physically be changed or altered.

  10. Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?

    No, mailing in an application will not prove more successful, as the mailed-in application, upon receipt at the National Processing Center, is initially merely date stamped. Until the application is data entered into the electronic system by a data entry person (using the exact information shown on the ETA Form 9089), processing will not begin on the application. Once entered into the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. If there are two identical applications, one submitted electronically and one mailed-in, there will be no difference in how they are processed. The only difference may be in processing time; a mailed-in application will take longer, as not only mailing but also the data entry time will be involved. Remember: the on-line system will identify mistakes (e.g. entering four digits for a zip code instead of five digits) before allowing the application to be submitted, but the data entry person must enter the information exactly as shown on the application; a mistake on the form may trigger an audit or denial.

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  11. Where can I email my questions?

    There are two locations where you may send your questions, depending upon the type of question asked.

    If you have a technical question (for example, if you forgot your password), then please email those questions to plc.help@dol.gov.

    If you have a program specific question (for example, if you have a question concerning the content of an advertisement) or a policy question, then please email your questions to PLC.Atlanta@dol.gov (the Atlanta National Processing Center)

    Please note: Questions should no longer be e-mailed to perm.dflc@dol.gov.

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  12. Under PERM, is it permissible for an employer to have more than one labor certification application actively in process for the same foreign worker for the same job opportunity at any given time? What should an employer do if it has already filed multiple applications for the same foreign worker for the same job opportunity?

    Under the old and new permanent labor certification regulations, DOL certifies that there are not available U.S. workers for a particular "job opportunity." See, e.g., 20 CFR 656.10(c) (new PERM regulation) and 656.20(c) (prior regulation). DOL's longstanding policy has been that an employer is not prohibited from filing applications for the same foreign worker involving different, legitimate job openings to which U.S. workers may be referred. See, e.g., Field Memorandum 48-94 (May 16, 1994) (Policy Guidance on Alien Labor Certification Issues at § 6). However, DOL has not processed or certified multiple labor certifications for the same foreign worker and same job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

    In the months since the PERM regulation's streamlined procedures for filing and processing of permanent labor certification applications took effect on March 28, 2005, some employers have filed multiple electronic applications for the same foreign worker and same job opportunity. In some cases, the multiple applications are identical in all respects and may have been the result of inadvertently repeating the "submit" function. In other cases, the applications differ in minor respects, such as answering questions regarding job requirements differently or varying in descriptions of skill requirements. In some cases, these minor differences may have been intended to prematurely respond to electronic denials (that is, in advance of receiving the written denial letter) or to test the system's responsiveness and auditing criteria.

    DOL intends to apply its longstanding policy regarding multiple applications to multiple applications filed under the new PERM regulation. Therefore, an employer may not have more than one Form 9089, Application for Permanent Employment Certification, in process under the PERM regulation for the same foreign worker for the same job opportunity at any given time.

    Recognizing that multiple filings are already in the PERM queue for the same employer, foreign worker and job opportunity, we have developed the following procedures to transition in implementation of this policy to PERM:

    1. If an employer currently has multiple applications in process under PERM for the same foreign worker and job opportunity, the employer must withdraw, by January 19, 2006, all applications other than the one it wants processed. (For withdrawal information, see the separate FAQ on procedures for withdrawing an application.)
    2. As of January 19, 2006, if multiple applications from an employer for the same foreign worker and same job opportunity are still pending under PERM, we will assume that the employer wishes the last-filed application to be processed (since this presumably includes any corrections or clarifications from earlier filings) and the other pending PERM applications for the same foreign worker and the same job opportunity will be denied.
    3. After January 19, 2006, if an application for a particular employer/foreign worker/job opportunity is pending under PERM and a second application is filed under PERM for the same employer/foreign worker/job opportunity, we will continue to process the first-filed PERM application and deny subsequent PERM filings except where the employer follows the procedures outlined here. If the employer wishes to file a new or changed application under PERM for that same foreign worker and job opportunity, the employer should not file the new PERM application until the employer formally withdraws the PERM application currently in process or the employer has received the Final Determination form notifying the employer that the previous application is denied. NOTE: An employer may not file a new application for a foreign worker while a request for review is pending with the Board of foreign worker Labor Certification Appeals (BALCA) for that same alien, employer, and job opportunity. See 20 CFR 656.24(e)(6).

    DOL will continue to apply its longstanding policy regarding multiple applications under Field Memorandum 48-94 where multiple cases have been filed and are being processed under the old regulation at Backlog Elimination Centers. DOL will continue to process and certify multiple permanent labor certification applications filed under the prior regulation for the same foreign worker if the employer is proposing to employ the foreign worker in multiple different bona fide job openings to which U.S. workers can be referred. DOL will not process or certify multiple labor certifications filed under the prior regulation for the same foreign worker, employer, and job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

    If a BEC identifies multiple pending applications for the same employer, job opportunity, and foreign worker, the BEC will issue a Notice of Findings for all related applications, and provide the employer the opportunity to identify which application contains the bona fide job opportunity. Should an employer currently have multiple applications pending at a BEC for the same employer, job opportunity, and foreign worker, the employer may take the initiative and notify the BEC as to which application it wishes to have processed and withdraw all other applications.

    This FAQ does not address the situation in which an application for the same employer, foreign worker and job opportunity is pending under both the prior and new PERM regulation. DOL is considering stakeholder input on this situation, which in some cases may have implications for priority dates.

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  13. In view of the past practice of allowing the filing of multiple applications by the same employer for the same foreign worker if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same foreign worker actively in process at any given time?

    We have removed the response to this question posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future.

  14. For electronically filed applications, please provide a listing, and explanation, of the status indicators that appear on the website.

    The status indicators for an application filed on-line are as follows:

    Incomplete: A case number preceded by a "T" indicates that the application has not been formally "filed" by the employer or its agent, i.e., electronically submitted, and is still a temporary draft. When an application is electronically submitted to a National Processing Center, the "T" changes to an "A."

    In process: An "in process" status indicates the application is in the process of moving through the DOL's certification process. If the application is in a stage of review requiring further information/documentation from the employer, the employer will be notified.

    Withdrawn: A "withdrawn" status indicates the employer has withdrawn the application.

    Denied: A "denied" status indicates the application is denied. A Final Determination form, stating the reasons for the determination and advising the employer of how to request review, should the employer choose to do so, will be sent to the employer. The Final Determination must be included in any request for review, therefore, the employer must wait to receive the form before making such a request. The employer is also advised to wait for the Final Determination before filing a new application for the same foreign worker to avoid repeating errors made in the original application.

    Appeal: An "appeal" status indicates the application is under reconsideration and/or review and is considered "in process." No new application for the same foreign worker can be filed while an application is in a reconsideration and/or review queue.

    Certified: A "certified" status indicates the labor certification is granted. The certified application and a complete Final Determination form will be sent to the employer, or, if appropriate, to the employer's agent or attorney, indicating the employer may file all the documents with the appropriate office in the Department of Homeland Security (DHS).

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    Employer Point of Contact Information

  16. Who may the employer designate as its point of contact in Section D of ETA Form 9089?

    The employer must designate as its point of contact an employee of the employer who is authorized to act on its behalf in labor certification matters pertaining to the specific job opportunity for which certification is sought. The designated employee may not be the sponsored foreign worker. The employer point of contact will be contacted by the National Processing Center to verify whether the employer is authorizing the filing of the application and sponsoring the foreign worker named therein. Therefore, an authorized employee's name and contact information must be listed in Section D of the employer's submitted ETA Form 9089. It is not acceptable, for example, to reenter the employer's name listed in Section C of the ETA Form 9089 or provide a generic title such as "HR Manager." Moreover, as indicated on the ETA Form 9089 and accompanying instructions, such a person's name and/or contact information, e.g., the phone number and email address, must be different from the attorney or agent name and/or contact information listed in Section E of the ETA Form 9089, unless the attorney or agent is an employee of the employer.

    October 12, 2010

  17. Can the employer designate its attorney or agent as its point of contact in Section D of the ETA Form 9089?

    The employer can designate its attorney or agent as its point of contact in Section D in addition to Section E, Attorney or Agent Information, only when the attorney or agent is an employee of the employer. Otherwise, the point of contact must be an employee who is authorized to act on the employer's behalf in labor certification matters and, as indicated on the ETA Form 9089 and accompanying instructions, the point of contact name and contact information, e.g., the phone number and email address, must be different from the attorney or agent name and contact information listed in Section E. The designated employee may not be the sponsored foreign worker.

    October 12, 2010

  18. When filing an application electronically, using the PERM Case Management System, what are the abbreviations to select from the address State/Province dropdown menu fields for the territories of American Samoa, the Northern Mariana Islands, the Marshall Islands, the Federated States of Micronesia and Palau?

    The following are the abbreviations for the listed Territories in the State/Province dropdown menu:

    1. AS - American Samoa
    2. FM - Federated States of Micronesia
    3. MH - Republic of the Marshall Islands
    4. MP - Commonwealth of the Northern Mariana Islands
    5. PW - Republic of Palau

    March 01, 2012

  19. Can third party software tools that interface with the web based forms made available by the Department of Labor (Department) be used to manage the filing of online applications?

    The Department takes no position as to whether an employer can use third party software tools. However, it is important to remember that these third party tools were developed without the participation, review, or approval of the Department or the Office of Foreign Labor Certification. As such, the Department cannot vouch for the accuracy or integrity of data submitted using third party tools. It is the responsibility of the party using such tools to review the submitted application completely for accuracy and errors prior to submitting.

    When making inquiries about situations encountered while submitting data to the PERM Case Management System please be sure to advise the helpdesk if you are submitting information with the aid of a third party software application. In some situations you may need to contact the developer of the third party system to resolve issues.

    May 29, 2012

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header WHAT TO FILE/DOCUMENTATION
  1. May an employer submit unsolicited documentation to the National Processing Center?

    Where an employer or its representative submits unsolicited documentation in conjunction with, or after filing an ETA Form 9089, the application will be automatically selected for audit except in the case of a request for reconsideration filed after an application is denied. Where an employer or its representative submits unsolicited documentation prior to filing an ETA Form 9089, i.e., where there is no record at the National Processing Center of an application having been submitted by the employer, the documentation will be returned to the sender.

    Please note that where an employer or its representative does receive a request for information or documentation from the National Processing Center, e.g. a request regarding confirmation of the bona fide existence of the business or sponsorship verification, such a request does not necessarily signify the application has been placed into the audit queue. However, failure to respond to the request for information or documentation may result in the application being placed in the audit queue or denied.

    August 3, 2010
  2. What forms or documents must the employer include in an application?

    The employer must file a completed Application for Permanent Employment Certification, ETA Form 9089.

    Except as required for applications filed under § 656.5, Schedule A, supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.

  3. How long must supporting documents be retained?

    The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification, ETA Form 9089.

  4. When must applications be signed?

    Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

    NOTE: Where the employer provides a copy of an application to a Certifying Officer pursuant to an audit or otherwise, the copy must be signed.

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header FILING TIME FRAMES
  1. When is PERM effective and must the employer wait until the effective date to begin recruitment?

    PERM is effective March 28, 2005, and will apply to all applications filed on or after the effective date.

    If all applicable provisions including timeframes of the regulation have been satisfied, an application may be filed under the PERM regulation on or after the effective date. Required timeframe provisions include, among others: that recruitment be conducted at least 30 days, but no more than 180 days, prior to filing under § 656.17; that filing must be within 18 months after selection under § 656.18; and that notice of filing be provided between 30 and 180 days prior to filing under § 656.10.


header REGISTRATION
  1. Can an attorney, agent or law firm register to use the Permanent On-line System?

    No, only an employee or owner of the employer entity may register to use the Permanent On-line System because employers must make the attestations required for the permanent application process and a PIN will only be assigned to an employer. The registration must be submitted by an individual with actual hiring authority for the employer. The individual listed under the "Employer Contact Information" section of the registration page must be the individual with actual hiring authority for the employer and cannot be the attorney or agent. During the registration process, the employer may create sub-accounts for attorneys or agents. We will cancel or deny registrations submitted by non-employers. Submission of a permanent labor certification application using a PIN assigned to a non-employer will be grounds for denial or revocation of a permanent labor certification.

    NOTE: To withdraw or delete a registration account (as in a situation where the original registration was set up showing an attorney or representative as the "user" and/or where the contact person for the employer is not a person with actual hiring authority), please e-mail PLC.HELP@dol.gov, provide the user name and password, and request the account be deleted. At that point, the person with actual hiring authority can re-register with the correct information.

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header REFILING
  1. Can the employer refile a labor certification application filed under the previous permanent labor certification regulations under the new streamlined system and retain the filing date of the original application?

    Yes, if a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all of the filing and recruiting requirements of the new PERM regulation.

    NOTE: Indicating on the Application for Permanent Employment Certification, ETA Form 9089, the desire to use the filing date from a previously submitted application, i.e., marking "yes" to question A-1, is deemed to be a withdrawal of the original application.

    NOTE: If a job order for an application has been placed by the State Workforce Agency (SWA) as part of the traditional recruitment process under the regulations in effect prior to March 28, 2005, the employer is prohibited from refiling the application and retaining the original filing date. However, if an employer placed a job order as a recruitment step in a reduction-in-recruitment application, the job order is not considered a job order placed by the SWA as part of the traditional recruitment process and the employer is permitted to withdraw and refile.

  2. Will the job opportunity on the original and refiled application not be considered identical if, for instance, the prevailing wage has changed?

    No, having a different prevailing wage on the refiled application from that on the original will not impact whether or not the job opportunity is identical. For a job opportunity to be identical, the regulation requires that the employer (including address), alien, job title, job location, job requirements, and job description be identical in both the original and refiled applications. It is quite possible that the prevailing wage in the new application, which must be filed in accordance with the PERM regulations and which must evidence a current prevailing wage, will not be the same as the prevailing wage in the original application.

  3. Should an employer withdraw an earlier application and refile under PERM?

    The Department of Labor does not provide counsel as to questions of this nature. However, employers are reminded refiled labor certification applications must conform to the provisions of the PERM regulation.

  4. How must the employer save and/or store the documentation necessary to support a labor certification application?

    No one method for saving and/or storing necessary documents is prescribed, nor is any particular method proscribed. The burden of establishing the validity of any documentation provided in support of a labor certification application rests with the employer. In establishing a method by which to save/store supporting documentation, the employer must remember that the responsibility for producing valid and defensible documentation in the event it is requested by a Certifying Officer rests solely with the employer. Such documentation must be retained by the employer for five years from the date of filing.

  5. In the event an employer wanted to refile a reduction-in-recruitment (RIR) conversion application, what date would be considered the original filing date (priority date), i.e., is the filing date of the original application the date the traditional recruitment application was filed with the State Workforce Agency (SWA) or the date the application was accepted as a RIR conversion application?

    The original filing date (priority date) is the date the original application was initially accepted for processing by the SWA under the basic labor certification process; it is not the date the application was accepted as a RIR conversion application.

  6. Is it possible to refile an application under the PERM optional special recruiting provision for college and university teachers if eighteen months or more have passed since the selection of the foreign worker was made pursuant to a competitive recruitment and selection process?

    No, an application can not be refiled under the PERM optional special recruiting provision on behalf of an foreign worker selected pursuant to a competitive recruitment and selection process if eighteen months have passed since the selection of the foreign worker.

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header REQUEST FOR EXTENSION
  1. What should an employer do if it is unable to provide documentation in response to a decision or a request for information in a timely manner, i.e., prior to an established deadline, particularly in extenuating circumstances where the deadline is immediate?

    Where an employer is required to provide documentation within an established time period and is unable to do so, the employer should request an extension in writing. The regulations permit the Certifying Officer, in his or her discretion, to grant an extension where the employer provides a legitimate reason for the request.

    An employer may submit a request in writing outlining the reason for its need for an extension to the Atlanta National Processing Center (NPC) either by:

    E-mailing the request to: plc.Atlanta@dol.gov, or

    Mailing the request to:

    Department of Labor
    ATTN: Request for Extension
    Employment and Training Administration
    Atlanta National Processing Center
    Harris Tower, 233 Peachtree Street, Suite 410
    Atlanta, Georgia 30303

    Extension requests should clearly reference the application number and type of documentation (e.g. audit request, business existence check) and provide as much detail as possible regarding the application in question, including the employer's name and foreign worker's name. Although extension requests are expected to be filed prior to a deadline, the Certifying Officer may accept requests after the deadline in rare circumstances such as when conditions due to extreme weather preclude the employer from timely submitting documents to the Atlanta NPC. If the employer is submitting its extension request after the established deadline, it should outline the need for the extension as well as fully explain the reason(s) for the delay in submitting its request.

    In the case of responses to appeals, audits and requests for information, specifically, the timeliness of the employer's response is based on the date it is mailed (and postmarked) and not the date it is received by the Atlanta NPC. Therefore, if the employer's documentation already has been submitted by mail and postmarked on or before the established deadline, an extension request is not necessary.

    Please note: Applications for Permanent Employment Certification that are mailed-in are accepted for processing, i.e., filed, when date stamped by the Atlanta NPC. A postmark or other proof of mailing does not serve to establish a filing date.

    April 5, 2011

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header ATTESTATION
  1. What is meant by the "employer's being able to place the alien on the payroll" under § 656.10(c)(4)? How does it differ from having funds available to pay the foreign worker's wage or salary in § 656.10(c)(3)?

    The employer may be required, depending on the circumstances, to establish that the position offered is actually available at the time of the foreign worker's proposed entrance into the United States. For example, the employer may be asked to provide evidence that a plant or restaurant, which is in the planning stage or under construction at the time the application is filed, will be completed at the time of the foreign worker's proposed entrance into the United States. While the employer may be fiscally able to pay the foreign worker, other circumstances, such as non-viability of the business itself, may preclude the employer from placing the foreign worker on the payroll.

  2. What role does an attorney or agent play?

    Employers may have agents and/or attorneys represent them, however, the employer is required to sign in Section N of the Application for Permanent Employment Certification, ETA Form 9089, that the employer has designated the agent or attorney identified in Section E to represent it, and by virtue of its signature, is taking full responsibility for the accuracy of any representations made by the attorney or agent. In signing, the employer acknowledges that to knowingly furnish false information in the preparation of the application form and any supplement thereto or to aid, abet, or counsel another to do so is a federal offense punishable by a fine or imprisonment up to five years or both under 18 U.S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621.

    NOTE: An attorney or agent is not permitted to register to use the Permanent On-line System for the employer. Only an employee or owner of the employer entity may register. Nor is an attorney or agent of either the foreign worker or the employer permitted to participate in interviewing or considering U.S. workers for the job offered the foreign worker. The agent or attorney may only participate if the agent or attorney is the employer's representative, i.e., the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the foreign worker, but which do not involve labor certifications.
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header WITHDRAWAL
  1. How can a pending application filed under PERM be withdrawn?

    If the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing, must be sent to the National Processing Center.

  2. Must the employer wait to receive confirmation of withdrawal from a Backlog Elimination Center (BEC) prior to refiling an application?

    No, the employer does not need to wait to receive confirmation of withdrawal prior to refiling an application.

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  4. How can an employer withdraw a PERM application if the employer has difficulty withdrawing electronically or the application was originally filed by mail?

    In the event an employer is unable to withdraw electronically, the employer should send a withdrawal request by e-mail to the Atlanta National Processing Center at: PLC.Atlanta@dol.gov. To ensure the request is processed expeditiously, please include the following information in the e-mail request:

    Show the words "Withdrawal Request" and the employer's name in the subject line of the e-mail.

    In the body of the e-mail, include the following information:
    1. Application Number
    2. Employer's Name
    3. Employer's EIN
    4. Foreign worker's Name
    5. Name and title of individual requesting withdrawal

    If the application was filed by mail or if the employer does not have access to e-mail, a letter must be mailed to the National Processing Center using the format as outlined above.

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  5. How can an employer withdraw a PERM application if it has already been certified?

    An employer may withdraw a certified PERM application at any time. A certified PERM application may not be withdrawn electronically; therefore, the employer should send a withdrawal request by U.S. Mail to the Atlanta Processing Center:

    Atlanta National Processing Center
    ATTN: Certification Withdrawal
    Harris Tower
    233 Peachtree Street, Suite 410
    Atlanta, Georgia 30303

    The employer must enclose all pages of the original certified ETA Form 9089 issued by the National Processing Center and include the following information in the written withdrawal request:

    Show the words "Withdrawal Request - Certified PERM Application" and the employer's name in the subject line of the letter.

    In the body of the letter, include the following information:
    1. Application Number
    2. Employer's Name
    3. Employer's EIN
    4. Foreign worker's Name
    5. Name and title of individual requesting withdrawal

    NOTE: While an application may be withdrawn at any time, if the employer has received an audit letter, it is still required to comply with the audit procedure provisions of 20 CFR § 656.20. The employer must submit the documentation required by the Certifying Officer within 30 days from the date of the audit letter.

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  6. Once an employer requests its application be withdrawn, how soon can the employer file a new application for the same foreign worker?

    After requesting a withdrawal, an employer may not file a new ETA Form 9089 for the same foreign worker until one of the following occurs:

    (A) Employer sees, using the online PERM system, that the status of the original case changes from "In Process" to "Withdrawn," or

    (B) Employer receives confirmation (via standard U.S. Mail or e-mail) from the NPC that the ETA Form 9089 currently in process has been withdrawn.

    The employer is reminded that an employer may not file a new application merely because the online status changed to "Denied." The employer must wait until it receives the Final Determination Form from the National Processing Center stating the reasons for the denial. This ensures the employer is apprised of all the application's deficiencies.
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header NOTICE OF FILING
  1. For purposes of posting the Notice of Filing for a permanent labor application, what does the Office of Foreign Labor Certification count as a "business day"?
  2. How does an employer demonstrate that it is open for business?
  3. What should I do if my permanent labor application was denied because I included a Saturday, Sunday, and/or holiday to complete the Notice of Filing 10 consecutive business day posting requirement?
  4. Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process hag timeframe end at least 30 days prior to filing?
  5. Must the ten consecutive business days posting of the notice of filing timeframe end at least 30 days prior to filing?
  6. What address must the employer provide on the posted notice of filing?
  7. For how long must the employer publish a notice of filing in the employer's in-house media?
  8. Could the publishing of the notice of filing in the employer's in-house media be counted as one of the additional steps required in the recruitment for professional occupations provision?
  9. Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?
  10. May I post a Notice of Filing for a permanent labor certification indefinitely?
  11. I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?
  12. Where must I post a Notice of Filing for a permanent labor certification for roving employees?
  13. Does the language on the electronic in-house media Notice of Filing need to be exactly the same as the language on the physical in-house Notice of Filing?
  1. For purposes of posting the Notice of Filing for a permanent labor application, what does the Office of Foreign Labor Certification count as a "business day"?

    OFLC has consistently interpreted “business day” to mean Monday through Friday, except for Federal holidays. However, where an employer is open for business on a Saturday, Sunday, and/or holiday, the employer may include the Saturday, Sunday and/or holiday in its count of the 10 consecutive business day period required for the posting of the Notice of Filing so long as the employer demonstrates that it was open for business on those days. Similarly, where an employer is not open for business any day, Monday through Friday, the employer should not include any such days in its count of the 10 consecutive business day period required for the posting of the Notice of Filing.
  2. December 21, 2010


  3. How does an employer demonstrate that it is open for business?

    If an employer is requested on audit or otherwise to demonstrate that it was open for business on a Saturday, Sunday, and/or holiday at the time of posting, the employer must provide documentation which establishes that on those days: 1) its employees were working on the premises and engaged in normal business activity; 2) the worksite was open and available to its clients and/or customers, if applicable, as well as to its employees; and 3) its employees had access to the area where the Notice of Filing was posted
  4. December 21, 2010


  5. What should I do if my permanent labor application was denied because I included a Saturday, Sunday, and/or holiday to complete the Notice of Filing 10 consecutive business day posting requirement?

    Within 30 days of the date of the determination, the employer may file a request for reconsideration with the Certifying Officer and provide documentation demonstrating that at the time of posting the Notice of Filing, the employer was open for business. If the application is already on appeal before the Board of Alien Labor Certification Appeals, then the employer may file a request to remand for further processing.
  6. December 21, 2010


  7. Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?

    Yes, for college and university teachers, notices of filing may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment.

  8. Must the ten consecutive business days posting of the notice of filing timeframe end at least 30 days prior to filing?

    Yes, the last day of the posting must fall at least 30 days prior to filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application.
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  10. What address must the employer provide on the posted notice of filing?

    The employer must provide the address of the appropriate Certifying Officer for the area of intended employment. Addresses for the National Processing Centers and Certifying Officers, including a chart of the states and territories within their jurisdiction, can be found under the section, How to File, above.

  11. For how long must the employer publish a notice of filing in the employer's in-house media?

    If the employer normally recruits for similar positions in the employer's organization through in-house media, then the employer must publish the notice of filing in its in-house media in accordance with the employer's normal procedures for recruitment of similar positions or for 10 consecutive business days, whichever is of longer duration.
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  13. Could the publishing of the notice of filing in the employer's in-house media be counted as one of the additional steps required in the recruitment for professional occupations provision?

    No, posting of the notice of filing on in-house media, including an "Intranet," can not be counted as an additional recruitment step, as it is believed that potential job applicants would only view the notice as a legal or information notice, not as an advertisement for a job opportunity, and would not apply.

  14. Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?

    No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process. However, the notice of filing must include the required advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).
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  16. May I post a Notice of Filing for a permanent labor certification indefinitely?

    Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor's regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).

    NOTE: At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.

  17. I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?

    Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor's regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).

    NOTE: At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.
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  19. Where must I post a Notice of Filing for a permanent labor certification for roving employees?

    If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

    If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

    If the work-site(s) is unknown and the staffing agency has no clients, the application would be denied based on the fact that this circumstance indicates no bona-fide job opportunity exists. The employer cannot establish an actual job opportunity under this circumstance. A denial is consistent with established policy in other foreign labor certification programs where certification is not granted for jobs that do not exist at the time of application.

  20. Does the language on the electronic in-house media Notice of Filing need to be exactly the same as the language on the physical in-house Notice of Filing?

    The regulations require that the employer publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The language should give sufficient notice to interested persons of the employer's having filed an application for permanent employment labor certification for the relevant job opportunity. It is not required to mirror, word for word, the physical posting. In most cases, the physical posting language will be the most efficient way to electronically post the Notice of Filing; in others, the software program used to create the electronic in-house posting may be unable to accept all of the language used in the physical Notice of Filing. In every case, the Notice of Filing that is posted to the employer's in-house media must state the rate of pay and apprise the reader that any person may provide documentary evidence bearing on the application to the Certifying Officer. If there is insufficient space to include the Certifying Officer's address, then information as to where the address can be found must be provided.
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header PROFESSIONAL / NON PROFESSIONAL
  1. How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?

    The employer must recruit under the standards for professional occupations set forth in § 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at § 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.

  2. When advertising for a professional occupation, must the required steps, i.e., the job order, the two print advertisements, and the three additional recruitment steps be different?

    Generally, all the required steps must be different. Steps can not be duplicated nor can one step be used to satisfy two requirements, except in the case of copies of web pages generated in conjunction with the newspaper advertisements which can serve as documentation of the use of a web site other than the employers. For example, the employer can not count two advertisements in a local and/or ethnic newspaper, or two postings on a web site, as two steps. Similarly, the employer can not use a professional journal in lieu of a second Sunday newspaper advertisement and then count it again as an additional "trade or professional organizations" recruitment step, or count the job order again as an additional "web site other than the employer's" step.

  3. Will placing an advertisement on America's Job Bank (AJB) satisfy the "web site other than the employer's" additional step requirement for professional occupations?

    Yes, but only if the placement is not being used to satisfy the job order requirement. Where the State Workforce Agency job order placement procedure consists of placement of the job order on AJB, then that job order placement can not be counted as one of the additional recruiting steps.

  4. Is it permissible to use forms of media other than the alternative steps listed in the professional occupations recruitment provision, i.e., is it permissible to count advertisements on movie theater screens, on screens in airports, on sides of buses, billboards, etc., as additional steps?

    No, it is not permissible to use other forms of media other than the alternative steps listed in the professional occupations provision as additional steps. The restriction on acceptable forms of media is governed, in part, by questions of verifiability. Employers, however, are not precluded from using these means as above and beyond the regulation requirements.

  5. What documentation can an employer provide to evidence its use of an employee referral program with incentives as one of the mandatory three additional recruitment steps for a professional occupation?

    Pursuant to 20 CFR 656.17(e)(4)(ii)(G), an employer can document its use of an employee referral program with incentives by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered as well as other appropriate documentation.  In addition to establishing the existence of a referral program, employers must document that its employees were aware of the vacancy for which certification is being sought through means such as a posting on the employer's internal web site.  The Notice of Filing provided to satisfy § 656.10(d) shall not be sufficient for this purpose.
    August 3, 2010
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header ACCEPTABLE PUBLICATIONS
  1. What is considered an acceptable newspaper and/or acceptable journal and is there a published list?

    There is no published list of acceptable publications.

    Most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers (or journals for certain professional positions) that are most likely to bring responses from able, willing, qualified, and available U.S. workers. The employer must be able to document that the newspaper and/or journal chosen is the most appropriate to the occupation and the workers likely to apply for the job opportunity.

    NOTE: In the case of a rural area where there is no newspaper with a Sunday edition and the employer chooses to use the edition having the widest circulation, the employer must be able to document the edition chosen does, in fact, have the widest circulation.

  2. Is the employer permitted to use an electronic national professional or trade journal when using a journal as an alternative to one of the mandatory newspaper Sunday advertisements as permitted under §656.17(e)(1)(i)(B)(4)?

    The employer may not use an electronic national professional journal to satisfy the provision found at 20 CFR §656.17(e)(1)(i)(B)(4) permitting the use of a journal as an alternative to one of the mandatory Sunday advertisements for professional positions. Section 656.17(e)(1)(i) clearly requires two print advertisements. This requirement applies equally to the newspaper advertisements identified in (B)(1) and the journals advertisements referenced in (B)(4).

    An employer may use an electronic national professional journal when utilizing the optional special recruitment procedures for college and university teachers per §656.18(b)(3) in accordance with the Department's guidance published on August 31, 2011, in an Frequently Asked Question1. Additionally, if the employer wishes to use a professional or trade organization as a recruitment source to satisfy the additional recruitment required for professionals per §656.17(e)(1)(ii)(E), the employer may use that organization's electronic journal to place an advertisement. Dated copies of pages from the electronic journal showing the advertisement can serve to satisfy the documentation requirement.

    1Is the employer permitted to use an electronic or web-based national professional journal instead of a print journal when conducting recruitment under 20 CFR 656.18, Optional special recruitment and documentation procedures for college and university teachers?
    Revised September 8, 2011

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header TIME FRAMES
  1. When must the advertisements in the newspaper or professional journals be placed?

    Generally, the newspaper advertisements must be placed on two different Sundays at least 30 days, but no more than 180 days, prior to filing the application. The Sundays may be consecutive.

    However, if the job opportunity is located in a rural area that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation.

    This exception applies to rural newspapers only. If a suburban newspaper has no Sunday edition, the employer must publish the Sunday advertisement in the most appropriate city newspaper that serves the suburban area.

    For journals, there is no specific edition requirement, however, the advertisement must be placed at least 30 days, but no more than 180 days, prior to filing the application.

  2. Must all recruitment take place at least 30 days, but no more than 180 days prior to filing?

    No, while the majority of the recruitment must take place within the 30 - 180 day timeframe, one of the three additional steps required for professional occupations may consist solely of activity which takes place within 30 days of filing. However, none of the steps may take place more than 180 days prior to filing the application.

  3. What are the sequencing or timeframe requirements for the various additional recruitment steps?

    Beyond the standard "no greater than 180 days and no less than 30 days prior to filing" there are no further timeframe requirements. The only sequencing requirement is that the two Sunday advertisements must be placed on two different Sundays which may be consecutive.

    NOTE: There is one exception to the standard 30 – 180 days prior to filing timeframe: One of the additional steps required for recruitment for professional occupations may be conducted within 30 days prior to filing. However, no steps may have taken place more than 180 days prior to filing.

  4. When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

    The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of the foreign worker.

  5. How do I count days to establish recruitment timelines and time periods as outlined by the regulation?

    Timelines are the number of days prior to or after a required event. When counting a timeline, the day of the event is not counted, the next day is counted as one, and the last day is included in the count. Thus, when determining the required 30 day timeline prior to filing an application for a newspaper advertisement placed on Thursday, February 1, 2007, the Thursday is not counted because it is the day of the event. Friday, February 2nd, is counted as day 1 of the timeline; Saturday, February 3rd, is day 2; etc., up until Saturday, March 3rd, which is day number 30. The application can be filed on the 30th day after the event, Saturday, March 3rd, but not before. The same result is achieved if counting back from the day of the filing. If the application is filed on Saturday, March 3rd, the 3rd is not counted because it is the day of the event. Friday, the 2nd, becomes day 1; Thursday, the 1st, is day 2; back to February 1st, the 30th day. Under the limitation precluding filing in the 30 days prior to the date of filing, if an application was filed on March 3, 2007, a newspaper or national journal advertisement could have been placed as late as February 1st, but no later.

    Time Periods are the number of days during which an activity must take place. Examples of time periods are the requirement that a job order must be placed for 30 days and the requirement that a Notice of Filing must be posted for ten consecutive business days which may include Saturdays, Sundays and Federal holidays where the place of business is open for business on those days. When counting a time period, both the start date and end date are included in the count. Thus, if a job order is posted from February 1, 2007, through March 8, 2007, February 1st, is counted as day 1; February 2nd, is day 2; March 2nd, is day 30; and March 8th, is day 36.

    To determine the first date on which the application can be filed after posting a job order, the 30-day time period for the job posting and the 30-day prior to filing timeline must both be calculated. In the example we are using above, March 2nd, [not March 8th] is the last day of the 30 day time period for the job order placement and is considered the event day so it is not counted in the timeline. Rather, the counting of the filing timeline starts on March 3rd, which is counted as day 1; March 4th, is day 2; etc., up until April 1st, which is day 30, the earliest possible filing date for an application. In counting backward from April 1st to February 1st, the 1st is only day 59, not day 60, the outcome if the 30 day time period required for the job order plus the 30 day timeline restriction prior to filing were added.  This is because two counting paradigms are being combined-one where the event (or start date) is counted and the other where it is not. Counting forward 60 days from the start of the 30 day job order time period does provide the correct calculation if the first day of the event is counted, as required, when counting days in a time period To avoid mistakes, it is recommended that the time period and the timeline be counted separately.

    As another example, the regulation requires the Notice of Filing to be posted for a time period of ten consecutive business days. Assume that a place of business is open for business Monday through Friday and is closed holidays. If the order is posted on Monday, April 30, 2007, Monday is day 1; Friday, May 4th, is day 5; the following Monday, May 7th, is day 6; and Friday, May 11th, is day 10. May 11th, is the last day of this time period and is therefore defined as the event and not counted when calculating the 30 day restriction prior to filing timeline. To calculate the 30 day timeline, May 12th, is day 1; May 13th, is day 2; May 23rd, is day 12; May 31st, is day 20; and June 10th, is day 30. The application can be filed on June 10, 2007.

    Examples of the earliest filing date permissible for a particular Notice of Filing posting or job order placement date are as follows:

    Job Order

    If the job order start date is Monday, November 13, 2006, the end date must be Tuesday, December 12, 2006 to meet the 30 day job order posting requirement. The earliest filing date permissible is Thursday, January 11, 2007 (neither the 30 day job order placement requirement nor the 30 day prior to filing limitation have a business day restriction and, therefore, weekends and holidays are included in both of the counts).

    Notice of Filing

    Where the place of business is open for business for ten consecutive business days but closed Saturdays, Sundays and Federal holidays
    If the Notice of Filing is posted on Thursday, June 28, 2007, the posting dates must be June 28 - July 121, and the earliest filing date permissible is Saturday, August 11, 2007.

    Where the place of business is open for business for ten consecutive business days including Saturdays, Sundays and Federal holidays
    If the Notice of Filing is posted on Thursday, June 28, 2007, the posting dates must be June 28 - July 7, and the earliest filing date permissible is Monday, August 6, 2007.

    Where the place of business is open for business Saturdays and Sundays but closed on Mondays
    If the Notice of Filing is posted on Saturday, August 18, 2007, the posting dates must be August 18 - August 29. The days counted are Tuesdays through Sundays; Mondays are not included in the count due to the business being closed on those days. The earliest filing date permissible is Sunday, September 28, 2007 (the 30 day prior to filing limitation has no business day restriction and, therefore, weekends and holidays are included in the count).


    __________________________

    1 Assume, for this example, that the employer is only open for business Monday through Friday, and it is closed on July 4.

    In Summary: There are two "types" of time calculations used by the Permanent Online System: timeline calculations and time period calculations.

    1. Timeline calculations are those calculations verifying the number of days prior to or after an event. For example, verifying that advertisements did not run less than 30 days and no more than 180 days from the date of filing.

      When calculating timelines, the day the event occurred is not counted. The next day is counted as day one and the last day of the event is included in the count.

    2. Time period calculations are those calculations verifying the number of days an activity took place. For example, verifying a job order ran for 30 days.

      When calculating time periods, the day the event occurred is counted as day one and the last day of the event is included in the count.

      Revised September 9, 2011

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header ADVERTISEMENT CONTENT
  1. What level of detail regarding the job offer must be included in the advertisement?
  2. If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?
  3. Does the job location address need to be included in the advertisement?
  4. Does the employer's address need to be included in the advertisement?
  5. Does the offered wage need to be included in the advertisements?
  6. Why must the advertisement medium be different in order for advertisements to be counted as additional steps? For instance why is it not permissible to count advertisements on two separate web sites as two steps or to place a third advertisement in the same newspaper of general circulation rather than using a local or ethnic publication and have it count as an additional step?
  7. Does the advertisement have to contain the so-called "Kellogg" language where the application requires it to be used on the application?
  8. Can jobs requiring experience be advertised through an on-campus placement office?
  9. Is the employer required to include the statement, "any suitable combination of experience of education, training, or experience is acceptable" on the application when the employer requires experience in an alternate occupation and not in the job offered?
  10. After completing our recruitment, but before filing the ETA Form 9089, our company's name was changed after it was wholly acquired by another company. Does the company name used in the advertisements used for recruitment have to match the company name used on the ETA Form 9089?

  1. What level of detail regarding the job offer must be included in the advertisement?

    Employers need to apprise applicants of the job opportunity. The regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer's application, the employer will meet the requirement of apprising applicants of the job opportunity. An advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity.

    NOTE: While employers will have the option to place broadly written advertisements with few details regarding job duties and requirements, they must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

  2. If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?

    Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.

  3. Does the job location address need to be included in the advertisement?

    No, the address does not need to be included. However, advertisements must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. Employers are not required to specify the job site, unless the job site is unclear; for example, if applicants must respond to a location other than the job site (e.g., company headquarters in another state) or if the employer has multiple job sites.

  4. Does the employer's address need to be included in the advertisement?

    No, the employer's physical address does not need to be included in the advertisement. Employers may designate a central office or post office box to receive resumes from applicants, provided the advertisement makes clear where the work will be performed.

  5. Does the offered wage need to be included in the advertisements?

    No, the offered wage does not need to be included in the advertisement, but if a wage rate is included, it can not be lower than the prevailing wage rate.

  6. Why must the advertisement medium be different in order for advertisements to be counted as additional steps? For instance why is it not permissible to count advertisements on two separate web sites as two steps or to place a third advertisement in the same newspaper of general circulation rather than using a local or ethnic publication and have it count as an additional step?

    As with all the recruitment requirements, the purpose of requiring the employer to use three additional recruitment steps is to ensure that the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity. It should be noted that each of the steps may target slightly different applicant populations. Using at least three of the additional steps normally used by businesses to recruit workers is a means of apprising a greater number of U.S. applicants of the job opportunity and more adequately substantiates an employer's claim there are no available U.S. workers for the job offer.

  7. Does the advertisement have to contain the so-called "Kellogg" language where the application requires it to be used on the application?

    Where the "Kellogg" language is required by regulation to appear on the application, it is not required to appear in the advertisements used to notify potential applications of the employment opportunity. However, the placement of the language on the application is simply a mechanism to reflect compliance with a substantive, underlying requirement of the program. Therefore, if during an audit or at another point in the review of the application it becomes apparent that one or more U.S. workers with a suitable combination of education, training or experience were rejected, the application will be denied, whether or not the Kellogg language appears in the application.

  8. Can jobs requiring experience be advertised through an on-campus placement office?

    For professional positions, the regulations at 20 CFR 656.17(e)(1)(ii)(D) permit, as an additional recruitment step, optional pre-filing recruitment at or through a college or university placement office. The preamble to the regulation (69 Fed. Reg. 77325, 77345 (Dec. 27, 2004)) assumed that this option would be used only if the employment opportunity requires a degree but no experience. The Department has examined this policy in light of the fact that many college and university placement offices maintain job listings that are used by alumni with experience as well as recent college or university graduates. Consequently, the job opportunities requiring experience are included in the listings making campus placement offices a viable recruitment source for professional job requiring experience as well as not requiring experience. As a result, the Department is clarifying its position and permitting this option to be used for employment opportunities even if the job requires experience in addition to the degree.

  9. Is the employer required to include the statement, "any suitable combination of experience of education, training, or experience is acceptable" on the application when the employer requires experience in an alternate occupation and not in the job offered?

    No, the employer is not required to include the statement on the application if the employer has indicated it requires experience in an alternate occupation and not in the job offered. The "any suitable combination of experience of education, training, or experience is acceptable" statement is only required where there are primary as well as alternative requirements and then only if the foreign worker is already employed by the employer and the foreign worker does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's "alternative" as opposed to its "primary" requirements.

  10. After completing our recruitment, but before filing the ETA Form 9089, our company's name was changed after it was wholly acquired by another company. Does the company name used in the advertisements used for recruitment have to match the company name used on the ETA Form 9089?

    The employer must conduct recruitment using its legal name at the time of the recruitment. However, an Application for Permanent Employment Certification (ETA Form 9089) must be filed in the name of the employer's legal name at the time of submission. If a merger, acquisition, or any other corporate change in ownership occurs between the time of recruitment and the time of submission, resulting in a disparity between the employer's name shown on the advertising used to recruit for a job opportunity and the employer's name on the submitted ETA Form 9089, the employer must be prepared to provide documentation -- in the event of an audit -- proving that it is the successor in interest, a determination made based on the totality of the circumstances, including whether the current employer has assumed the assets and liabilities of the former entity with respect to the job opportunity.
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header MULTIPLE POSITIONS
  1. Can one advertisement be used for multiple positions?

    Yes, an advertisement for multiple positions may be used as long as all provisions in § 656.17(f), advertising requirements, have been met.

    NOTE: While employers have the option to place broadly written advertisements with few details regarding job duties and requirements, employers must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

  2. Is it possible to provide more specific guidelines for drafting PERM advertisements? For example, where there are multiple openings for the job offered which of the following, if not all, would be acceptable: "5 Attorneys," "Attorneys" or "Attorneys, multiple openings"?

    As stated in the advertising requirements provision, the advertisement must provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity for which certification is sought. At issue in evaluating whether the advertisement meets this criterion is whether the advertisement is written to attract the interest of the greatest number of qualified U.S. workers and encourage them to apply, not whether specific words or phases have, or have not, been used. The advertisement will be reviewed to ensure that it reasonably describes the vacancy and reflects the job opportunity as described on the ETA Form 9089. With respect to the examples, any one of the three can be used as long as it is specific enough, under the circumstances, to apprise U.S. workers of the job opportunity. In any event, if employers feel it necessary, employers may always include more detail.
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header JOB ORDER
  1. Must the employer place a job order with the State Workforce Agency (SWA) or will a job order placed on America's Job Bank (AJB) be sufficient?

    The employer is required to place a job order with the SWA serving the area of intended employment. It is recognized that states vary in their job order placement procedures and that some may, in fact, place job orders on AJB, in which case, as long as the employer is working through the SWA, a job order placed on AJB would be sufficient.

    NOTE: The employer is free to choose AJB as a means of satisfying one of the three additional steps required under professional occupations recruitment if the posting on AJB is not being used to satisfy the job order requirement.

  2. Must the required 30 day job order timeframe end at least 30 days prior to filing?

    Yes, the 30 day job order timeframe must end at least 30 days prior to filing. While the employer is not limited to the 30 day timeframe and may choose to post the job order for a longer period, 30 days of the posting must take place at least 30 days prior to filing.

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  3. Should the employer seek the information required regarding the placement of job orders from the State Workforce Agency (SWA) in the area of intended employment?

    Yes, the employer should seek any information required regarding job orders from the SWA. If an employer is not clear on how to place a job order, the employer should check with the SWA responsible for the area of intended employment. Placement of job orders with a SWA must be in accordance with each SWA's rules and regulations. In other words, SWAs place labor certification job orders the same way they place any other job order.

  4. Must the employer contact all individuals identified as a "match" by a computerized state employment system or must the employer only contact those applicants who have submitted a resume and/or response as specified by the employer in the job order?

    The employer is responsible for considering/contacting those applicants who have affirmatively provided a response as specified by the employer in the job order.

  5. When an employer places a job order with a State Workforce Agency (SWA), is it required to indicate its name on the job order posting? If so, what should the employer do if the SWA's procedures do not allow for the employer's name to be visible to job seekers?

    In accordance with PERM regulations at 20 CFR §656.17(f)(1) and the preamble (69 FR 77326, 77348 (Dec. 27, 2004)), as with any advertisement, the employer's name must appear on the job order placed with the SWA. SWA procedures that allow for applicants to view the employer name only after applying for the position do not satisfy the requirement that the employer's name be in the job order. If the SWA's job placement process results in the name of the employer not being visible to job seekers, the employer must include its name in the body of the job order so that the employer's name is visible to potential applicants when viewing the job order.
    June 11, 2012

  6. Must an employer receive all resumes that are submitted to a State Workforce Agency (SWA) through a SWA-posted job order? If yes, what must the employer do to ensure the SWA refers to it all U.S. workers?

    In the preamble to the PERM regulations (69 FR 77326, 77331 (Dec. 27, 2004)), the Department of Labor indicated that SWA job order "[r]eferrals will be handled the same way they are handled for other job orders, which may vary from state to state." However, the PERM regulations at 20 CFR §656.10(c)(8) also state that the employer must attest that "[t]he job opportunity has been and is clearly open to any U.S. worker." Therefore, the employer must receive all resumes submitted to the SWA through a posted job order. To ensure that the SWA refers to it all U.S. workers, the employer must indicate to the SWA, pursuant to each SWA's specific process, that it wants to receive all resumes and all types of referrals (e.g., qualified, best qualified, minimally qualified, etc.). This instruction to the SWA ensures that the employer is accepting and reviewing the resumes of all U.S. workers and determining which of the applicants meets the minimum qualifications for the job opportunity, as well as gives all U.S. workers access to such jobs.
    June 11, 2012
  7. How long must job orders be posted to be compliant with PERM requirements? Are there further requirements as to whom the job order content must be accessible and/or visible for the required time period?

    Under the PERM regulations at 20 CFR §656.17(e)(1)(i)(A) and §656.17(e)(2)(i), the employer's job order for both professional and nonprofessional occupations must be placed with the SWA serving the area of intended employment for a period of 30 days. Moreover, during this 30-day period, the job order must be accessible and visible to the public at large, i.e., the entire pool of job seekers potentially qualified for the position. Therefore, where a SWA has a special exemption of making job orders accessible to only certain groups, such as veterans, the employer must still ensure that the job order is accessible and/or visible to the public for the full required period of 30 days. The employer can accomplish this by instructing the SWA to post the job for the required 30-day time period only after the days during which the SWA holds the job order open only to the select group.

    For example: If the job order start date is Monday, May 7, 2012, the end date must be Wednesday, June 6, 2012, to meet the 30-day job order posting requirement. However, if the SWA places a hold on the job order, so that it is only accessible and/or visible to a certain group, from Monday, May 7, 2012, until Wednesday, May 9, 2012, then the employer must ask the SWA to keep the job order open, and accessible and/or visible to the public at large, from Thursday, May 10, 2012 until Saturday, June 9, 2012, to comply with the 30-day requirement.
    June 11, 2012
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header PREVAILING WAGE
  1. Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?

    No, the wage offered must equal or exceed the prevailing wage. The wage must be at least 100% of the prevailing wage. The 5% deviation, permitted under the former regulation, is no longer acceptable.

  2. If the employer's job opportunity is for an occupation which is subject to a wage determination under the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act (SCA), must the employer use the DBA or SCA?

    No, the employer is not required to use a wage determination under the DBA or the SCA but may choose to do so.

  3. Must the employer obtain a prevailing wage determination before the employer begins recruitment?

    No, the employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.
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  4. Why did the prevailing wage two tier skill level structure change to four levels?

    Congress enacted the Consolidated Appropriations Act of 2005 amending the Immigration and Naturalization Act (Section 212(p), 8 U.S.C. 1182(p)) to provide:
    "Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the two levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level."

  5. When does the four wage level provision go into effect?

    The four wage level provision goes into effect on March 8, 2005, as does the requirement to pay 100% of the prevailing wage.
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  6. Is the employer permitted to use a valid prevailing wage determination issued prior to March 8, 2005?

    Yes, but only if the wage source used to make the determination was one other than the wage component of the Occupational Employment Statistics (OES), i.e., an employer-provided survey, a McNamara-O'Hara Service Contract Act or Davis-Bacon Act wage, or a Collective Bargaining Agreement wage. To apply under PERM, those employers using the OES must obtain a prevailing wage determination after March 8, 2005.

    NOTE: In all labor certification applications filed (postmarked or electronically dated) on or after March 8, 2005, the wage offer must be 100% of the prevailing wage determination and, if the OES is used to make the prevailing wage determination, the determination must be based on the four wage level provision.

  7. Is it permissible to use the same prevailing wage determination for more than one application?

    Yes, as long as provisions regarding the validity period are followed, the employer is permitted to use the same prevailing wage determination if the prevailing wage is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved.
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  8. When is it permissible to use the median in lieu of the arithmetic mean to establish the prevailing wage?

    If an employer provided survey acceptable under § 656.40(g) provides only a median and not an arithmetic mean, use of the median is permitted.
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  9. What is meant by "domestic worker applicants" in the provision on actual minimum requirements?

    For purposes of § 656.17(i)(3), the provision on actual minimum requirements, the term "domestic" is being used as an alternative for "United States."

  10. What is meant by "contract employee" under the employer's actual minimum requirements provision?

    For purposes of the actual minimum requirements provision, the term "contract employee" is intended to include all persons contracted to work for the employer. The broad use of the term under the actual minimum requirements provision is intended to ensure the provision applies to experience gained working for the employer by the foreign worker, whatever the foreign worker's employment status.

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header RECRUITMENT REPORT
  1. How detailed does the recruitment report have to be with respect to the lawful, job-related reasons U.S. workers were rejected?

    The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity. NOTE: The Certifying Officer, after reviewing the employer´s recruitment report, may request the U.S. workers' resumes or applications, sorted by the lawful job related reasons the workers were rejected.

    NOTE: The Certifying Officer, after reviewing the employer's recruitment report, may request the U.S. workers' resumes or applications, sorted by the lawful job related reasons the workers were rejected.
  2. How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?

    As one condition of obtaining PERM labor certification, an employer must provide notice to and consider for hiring U.S. workers laid off by the employer during the six months preceding the filing of the application. 20 CFR 656.17(k)(1). Such notice and consideration must be given to all employees laid off during this period who worked in the occupation in the area of intended employment for which certification is sought or who worked in a related occupation ("potentially qualified U.S. workers"). 20 CFR 656.17(k). A related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought. 20 CFR 656.17(k)(2). An employer must maintain and, if requested, submit documentation establishing that it notified and considered all potentially qualified U.S. workers it laid off during the six months before filing the application. 20 CFR 656.17(a)(1), (3). The employer must include the results of its notification and consideration of these laid-off U.S. workers in its recruitment report. 20 CFR 656.17(g).

    As a result of auditing employer compliance with the requirements relating to laid-off workers, OFLC has determined that many applicant employers are applying section 656.17(k) in a straightforward manner, i.e., contacting their laid-off workers who are potentially qualified for the job covered by the application at the time the employer begins inviting interested candidates to apply for the job (about the time a job order is placed or it is advertised in a newspaper) and considering for hire those laid-off workers that apply for the position. Some audits, however, have revealed noncompliance by some employers; these employers have construed section 656.17(k) to only require that they inform workers at the time of their layoff that the employer may have future positions for which the worker may have an interest and inviting the worker to monitor the employer's job postings and apply for such positions, rather than the employer taking it upon itself to notify and consider the laid-off workers, as required by the regulations.

    This misapplication of the requirements established by section 656.17 will result in the denial of an application. OFLC is issuing this guidance to prevent other employers from following this approach in the mistaken belief that it satisfies the regulatory requirements.

    Where a U.S. worker who is potentially qualified for the job opportunity has been laid off by an employer during the six months preceding the application, the employer must directly notify the worker of the job opportunity and consider the worker if he or she applies for the job. The employer must make a reasonable, good-faith effort to notify each of the potentially-qualified laid-off workers that a relevant job opening exists. Notification should be provided by mail, fax, or e-mail, using the last known contact information for each worker. The employer must provide each worker a full description of the specific job opportunity and must invite the worker to apply for the position for which he or she is potentially qualified.

    At the time a worker is laid off, an employer should secure from the worker appropriate contact information to permit the required notification and consideration. The employer must inform the worker that it is his or her responsibility to apprise the employer of any change in the contact information. The employer may inform the worker that he or she may decline to receive or, upon the worker's later request, discontinue such notification. Where a worker declines to receive such notification, the employer will be deemed to have met its notification and consideration obligations. Where a worker requests that notification be discontinued, the employer will also be deemed to have satisfied its notification and consideration obligations for the remainder of the six-month period.

    An employer who files multiple labor certifications can satisfy its responsibilities under the regulation by notifying each laid-off worker (in the manner chosen by the worker) not less frequently than once monthly that a list of current relevant job openings is maintained electronically on a website operated by the employer. Where an employer chooses this alternative, the website must list or allow the worker to easily search for all the relevant job openings. Where a list is used, job openings must be identified by title and location and provide a hyperlink through which the worker may obtain a detailed description of, and the minimum requirements for, each position and apply for the position if he or she so chooses.

    Simply informing a laid-off worker to monitor the employer's website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer's regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity.

    An employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

    February 21, 2014

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header JOB REQUIREMENTS/DUTIES
  1. Can business necessity be used to justify requirements which exceed the occupation's Specific Vocational Preparation (SVP) and/or are not normal to the occupation involved in the employer's application?

    Yes, business necessity is a means to justify requirements which are not normal to the occupation and/or exceed the SVP. While the job opportunity's requirements, as a rule, must be those normally required for the occupation and must not exceed the SVP level assigned to the occupation as shown in the O*Net Job Zones, business necessity may be used to justify requirements not normal to the occupation and/or which exceed the SVP. NOTE: Business necessity can be established by the employer demonstrating that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner.


  2. Can the employer include a requirement for a foreign language?

    Yes, the employer can include a foreign language requirement if it is justified by business necessity. The regulation requires that a foreign language requirement be justified by business necessity based on the nature of the occupation, e.g., translator, or the need to communicate with a large majority of the employer's customers, contractors, or employees who can not communicate effectively in English. Documentation necessary to establish such a business necessity is noted in § 656.17(h)(2).

    NOTE: Needing to communicate with co-workers or subordinates who can not effectively communicate in English and/or having a working environment where safety considerations would support a foreign language requirement have been added to the ways to justify business necessity for a foreign language requirement.


  3. Does informing the National Prevailing Wage Center (NPWC) on a prevailing wage request (ETA Form 9141) that the job contains requirements not normal to the occupation meet an employer's obligation to inform the Department of Labor (Department) of these requirements on the Application for Permanent Employment Certification (ETA Form 9089)?


    No. Even if the employer has informed the NPWC of these requirements in a prevailing wage request (ETA Form 9141), the employer must still accurately outline its requirements on Questions H.12 or H.13 of the Application for Permanent Employment Certification (ETA Form 9089).

    Revised November 7, 2011



  4. If the employer will accept an alternate combination of education and experience and the acceptable number of years is other than a whole number, how can the employer inform the Department of the acceptable number of years on the ETA Form 9089? The field wherein the number of years must be entered, Section H, Item 8-C, only accepts whole number entries.


    To inform the Department of the acceptable number of years where the value is other than a whole number, the employer should round to the nearest whole number, e.g., a value of 6 months would become 1 year and a value of 15 months will become 1 year, enter the whole number in Section H, Item 8-C, and then use Section H, Item 14 to provide the actual number of years and months.

    Example 1: Where the employer accepts, as an alternate combination of education and experience, a Bachelor's degree and 6 months experience (0.5 years), the employer will mark "Bachelor's" in 8-A. and will enter "1" year in Section H, Item 8-C, having rounded the six months (0.5 years) up to the nearest whole number, in terms of years. The employer will then explain in Section H, Item 14, that its actual acceptable alternate combination of education and experience is a Bachelor's degree plus 6 months (0.5 years) experience but it entered 1 year in Section H, Item 8-C, per the FAQ.

    Example 2: Where the employer accepts, as an alternate combination of education and experience, a Bachelor's degree and 15 months experience (1.25 years), the employer will mark "Bachelor's" in 8-A. and will enter "1" year in Section H, Item 8-C, having rounded the 15 months (1.25 years) down to the nearest whole number, in terms of years. The employer will then explain in Section H, Item 14, that its actual acceptable alternate combination of education and experience is a Bachelor's degree plus 15 months (1.25 years) experience but it entered 1 year in Section H, Item 8-C, per the FAQ.

    Revised May 29, 2012

header ALIEN EXPERIENCE
  1. Under what circumstances may the foreign worker use experience gained with the employer as qualifying experience?

    If the foreign worker already is employed by the employer, the employer can not require U.S. applicants to possess training and/or experience beyond what the foreign worker possessed at the time of initial hire by the employer, including as a contract employee: (1) unless the foreign worker gained the experience while working for the employer in a position not substantially comparable to the position for which certification is sought; or (2) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.

    NOTE: A substantially comparable job or position means a job or position requiring performance of the same duties more than 50 percent of the time.

  2. For purposes of determining whether the foreign worker gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?

    For purposes of determining whether the foreign worker gained experience with the employer, an employer is "an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at § 656.3."

  3. Does the foreign worker need to have a bachelor's or higher degree to qualify for a professional occupation?

    No, the foreign worker does not need to have a bachelor's or higher degree to qualify. However, if the employer is willing to accept work experience in lieu of a baccalaureate degree, such work experience must be attainable in the U.S. labor market and the employer's willingness to accept work experience in lieu of a degree must apply equally to U.S. applicants and must be stated on the application form.
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  4. Is the employer permitted to accept an equivalent foreign degree?

    Yes, the employer may accept an equivalent foreign degree. However, the employer's willingness to do so must be clearly stated on the Application for Permanent Employment Certification, ETA Form 9089.

  5. Is the employer permitted to accept alternative job experience/qualifications?

    Yes, an employer may specify alternative experience or qualification requirements, provided the alternative requirements and primary requirements are substantially equivalent to each other with respect to whether the applicant can perform the proposed job duties in a reasonable manner. As discussed in the preamble to the final regulation, this is the standard developed by the Board of Alien Labor Certification Appeals in Matter of Francis Kellogg.

    NOTE: Even when the employer's alternative requirements are substantially equivalent, but the foreign worker does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, the alternative requirements will be considered unlawfully tailored to the foreign worker's qualifications unless the employer has indicated on the application that applicants with any suitable combination of education, training or experience are acceptable.
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  6. I need to enter the years of experience, education, or training on my ETA Form 9089. How do I do this? What if it's a range?

    When entering the years of experience, education, or training on ETA Form 9089, the questions asking for this type of information specify the answer be provided in the number of months necessary. Therefore, if the employer requires 1 year experience in the job offered in ETA Form 9089, the number 12 (for 12 months) would be entered for the answer to Question H-6A.

    However, if the employer would accept a range of experience in the job offered (such as 1 to 3 years), the employer must identify the actual minimum years/months of experience required to perform the job (please see 656.17(i) for additional information on Actual Minimum Requirements). The number that represents the Actual Minimum Requirement for the number of years/months experience would be the number entered in Question H-6A. If a range is indeed the Actual Minimum Requirement, the employer should use the low end of the range as the answer, since that represents the minimum level of requirement.
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  7. If the employer's minimum requirements include some period of training, must the foreign worker's training be listed on the Application for Permanent Employment Certification, ETA Form 9089, Section K, as well as attested to in Section J?

    An employer must list the actual minimum requirements for the job opportunity sought to be filled through the filing of the labor certification application. If training is required, the employer must list the training required for the position in Section H.5, noting the number of months of training required in H.5.A, and the field of training in H.5.B. The employer and foreign worker must also attest that the foreign worker meets the training requirement in section J.17.

    The employer is also required to list in Section K, as noted on the Form ETA 9089, "any other experience that qualifies the foreign worker for the job opportunity for which the employer is seeking certification." Accordingly, an employer seeking certification should list in Section K any training experience possessed by the foreign worker that qualifies the foreign worker for the job opportunity, regardless of how the training was secured. The source of the training should also be identified. For example, an application for the job opportunity of physician filed on behalf of a foreign worker that requires 36 months of medical residency training in H.5 should not only mark section J.17 as "yes" but also list in Section K all training experience by which the foreign worker meets that training requirement, as well as any other experience requirement. An employer filing an application for a job opportunity that requires 12 months of training in section H.5 should also list the training received by the foreign worker in section K, regardless of whether it was a paid training opportunity, and also list the source of the training.

    When completing section K, enter the training provider in the employer information section, to include the address. For the type of business, enter 'training provider' unless the training is of a work study type such as an apprenticeship or medical residency. The job title should be 'Training' unless there is an actual job title, in which case it should begin with 'Training –' followed by the title, such as 'Training – Apprentice Carpenter'. The employer should enter the beginning and end dates of the training. When there is an actual number of hours of training, the employer should enter those actual hours, otherwise the employer should enter the average number of hours per week spent in training. In the "Job Details" the employer should list the topics covered by the training, any certification of completion issued and, when applicable, the organization issuing the certificate, if different from the training provider, and the final test completion or certification date.

    For example:
    Employer A completes Section K as follows:
    1. Large Teaching Hospital
    2. 111 Main Street
    3. Anytown, DC 99999 USA
    4. Hospital
    5. Training-First Year Resident
    6. 01/01/2000
    7. 12/31/2000
    8. 60
    9. Basic hospital procedures. Patient care techniques. Staff duties and responsibilities.
    10. First Year Residency Certificate, 12/31/2000

    Employer B completes Section K as follows:
    1. Independent Project Management School
    2. 111 Main Street
    3. Anothertown, DC 99999 USA
    4. Training Provider
    5. Training
    6. 01/01/2000
    7. 12/31/2000
    8. 20
    9. Basic project management concepts. Use of graphics tools. Resource allocation.
    10. Professional Project Manager Certificate, Project Management Institute, 01/12/2001
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header COLLEGE AND UNIVERSITY TEACHERS - RECRUITMENT
  1. Are college and university teacher occupations included in Schedule A?
  2. If an application is for a college or university teacher who does not qualify as a college or university teacher of exceptional ability what provisions apply?
  3. If an application for a Schedule A college or university teacher is denied, is the employer permitted to file for a labor certification under § 656.17?
  4. Are the recruitment provisions different for college and university teachers?
  5. Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?
  6. Is the employer permitted to use an electronic or web-based national professional journal instead of a print journal when conducting recruitment under the Department of Labor (Department) regulations at 20 Code of Federal Regulations (CFR) § 656.18, Optional special recruitment and documentation procedures for college and university teachers?
  7. Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?
  8. Must a prevailing wage determination be obtained from the National Prevailing Wage Center (NPWC) if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision?
  9. When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?
  1. Are college and university teacher occupations included in Schedule A?

    No, only college and university teachers of exceptional ability in the sciences or arts who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States fall under Schedule A, Group II, Sciences or Arts.

  2. If an application is for a college or university teacher who does not qualify as a college or university teacher of exceptional ability what provisions apply?

    Applications for college and university teachers who do not qualify under the Schedule A, Group II, Sciences or Arts provision may be filed either under the provision for optional special recruitment and documentation procedures for college and university teachers, § 656.18, or under the provision for the basic process, § 656.17.
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  3. If an application for a Schedule A college or university teacher is denied, is the employer permitted to file for a labor certification under § 656.17?

    Yes, the employer may file an application previously denied under Schedule A for a college or university teacher either under the provision for optional special recruitment and documentation procedures for college and university teachers, § 656.18, or under the provision for the basic process, § 656.17.

  4. Are the recruitment provisions different for college and university teachers?

    Yes, while the employer may choose to recruit for college and university teachers under the basic process, the employer may choose to recruit under § 656.18, optional special recruitment and documentation procedures for college and university teachers.

    NOTE: The employer must support hiring of the foreign worker by documenting that the foreign worker was found to be more qualified than each U.S. worker who applied for the job opportunity.
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  5. Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?

    Yes, the employer must provide a notice of filing which must include the advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

  6. Is the employer permitted to use an electronic or web-based national professional journal instead of a print journal when conducting recruitment under the Department of Labor (Department) regulations at 20 Code of Federal Regulations (CFR) § 656.18, Optional special recruitment and documentation procedures for college and university teachers?

    Yes, an employer may use an electronic or web-based national professional journal to satisfy the regulatory provision at 20 CFR § 656.18(b)(3), which requires use of a national professional journal for advertisements for college or university teachers. The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal's website. Documentation of the placement of an advertisement in an electronic or web-based national professional journal must include evidence of the start and end dates of the advertisement placement and the text of the advertisement.

    Revised September 28, 2011

  7. Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?

    No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process.
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  8. Must a prevailing wage determination be obtained from the National Prevailing Wage Center (NPWC) if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision?

    Yes, a prevailing wage determination must be obtained from the NPWC even if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision.   Because the Department of Labor's PERM regulations require the employer to certify that the offered wage equals or exceeds the prevailing wage determined pursuant to the prevailing wage provision at 20 Code of Federal Regulations
    §§ 656.40 and 656.41, the employer must obtain a prevailing determination from the NPWC in order to meet that requirement.

    Revised October 7 2011

  9. When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

    The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of foreign worker.
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header SCHEDULE A - QUALIFIED PHYSICAL THERAPISTS
  1. What is Schedule A and who qualifies?

    Schedule A lists those occupations for which a determination by the Department of Labor has been made that there are not sufficient United States workers who are able, willing, qualified, and available and the wages and working conditions of United States workers similarly employed will not be adversely affected by employment of foreign workers in those occupations. An employer seeking a labor certification for a physical therapist, a professional nurse, or an alien of exceptional ability in the performing arts, sciences or arts, to include college and university teachers, should review § 656.5, Schedule A, to determine whether the foreign worker's qualifications meet the provision's requirements.


  2. Is an application for a labor certification for Schedule A occupations filed with a Department of Labor National Processing Center?

    No, an application for a labor certification for Schedule A occupations is filed, in duplicate, with the appropriate Department of Homeland Security (DHS) office.


  3. What form is used to file an application for a labor certification for Schedule A occupations?

    The employer must use an Application for Permanent Employment Certification, ETA Form 9089, which includes a prevailing wage determination.


  4. Must the employer request a prevailing wage determination from the State Workforce Agency (SWA) if filing under Schedule A?

    Yes, a prevailing wage determination must be requested from the SWA having jurisdiction over the proposed area of intended employment.
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  5. If filing an application under Schedule A, must an employer provide notice of filing?

    Yes, an employer must comply with the posting requirement in § 656.10(d) to file applications under Schedule A with the appropriate Department of Homeland Security office.

  6. If an application for a Schedule A occupation is denied is the employer permitted to file for a labor certification for a physical therapist or professional nurse under the basic process, § 656.17?

    No, labor certifications for professional nurses and for physical therapists will not be considered under § 656.17.

  7. Is it true that the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination is not acceptable as a means of obtaining a labor certification for professional nurses under Schedule A?

    Yes, the passage of the examination alone is not acceptable; the foreign worker is required to have a CGFNS Certificate. A CGFNS Certificate documents that, in addition to having passed the nursing skills examination, the foreign worker has demonstrated English language proficiency and CGFNS has made a favorable evaluation of the individual's nursing credentials.
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  8. What documentation must the employer file when seeking a Schedule A labor certification for a professional nurse?

    The employer must file, as part of its labor certification application, documentation the foreign worker meets one of three requirements: the foreign worker has a Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate, the foreign worker has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or the foreign worker holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.

    NOTE: Unlike the filing requirements under other PERM provisions, for Schedule A occupations, the employer is required to submit the applicable documentation when the employer files the application with the appropriate Department of Homeland Security office.
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header HOUSEHOLD DOMESTIC SERVICE WORKERS
BOOKKEEPERS, LABORERS, ETC.
  1. Does PERM have a provision similar to, or the same as, the Schedule B provision in the regulation in effect prior to March 28, 2005?

    No, the former regulation's Schedule B provision has been eliminated; there is no similar provision in PERM.

  2. If Schedule B under the regulation in effect prior to March 28, 2005, has been eliminated and there is no longer a waiver provision for those occupations listed in Schedule B such as household domestic service workers, bookkeepers, laborers, etc., does that mean employers are not permitted to obtain a labor certification for those occupations?

    No, the elimination of the former regulation's Schedule B and its waiver provision does not prevent employers from seeking labor certifications for the occupations listed in Schedule B. To the contrary, employers are free to file applications under the provisions of PERM, as appropriate, for occupations found in the former regulation's Schedule B and are not required to obtain a waiver in order to do so.
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header PERFORMING ARTS
  1. What are the procedures to be followed in filing applications on behalf of aliens of exceptional ability in the performing arts formerly processed under the special handling procedures in the former regulations?

    Aliens of exceptional ability in the performing arts are now included in § 656.5, Schedule A, under Group II. Accordingly, such applications must be filed in duplicate with the appropriate office of the Department of Homeland Security. The documentation that must be filed in support of such applications is listed in § 656.15, Applications for labor certification for Schedule A occupations.
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header AUDIT
  1. Will there be certain responses to questions on the Application for Permanent Employment Certification, ETA Form 9089, that will automatically trigger an audit?

    Questions regarding audit criteria will not be addressed. The criteria was purposely not included in the regulation in order to retain the flexibility to change audit criteria, as needed, for example, to focus on certain occupations or industries when information indicates program abuse may be occurring. The regulation grants authority to increase the number of random audits or change the criteria for targeted audits. Making the audit process predictable would defeat the purpose of the audits and undermine the program's integrity.

  2. When, during an audit, is there a 90 day suspension of the audit?

    Under § 656.31(a), Department of Labor processing of an application, including audit procedures, may be suspended in certain circumstances. Specifically; "If possible fraud or willful misrepresentation involving a labor certification is discovered before a final labor certification determination; the Certifying Officer will refer the matter to the Department of Homeland Security (DHS) for investigation, and must send a copy of the referral to the Department of Labor's Office of Inspector General (DOL OIG). If 90 days pass without the filing of a criminal indictment or information, or receipt of a notification from DHS, DOL OIG, or other appropriate authority that an investigation is being conducted, the Certifying Officer may continue to process the application."

  3. In the event of an audit, can an application be withdrawn?

    An application can not be withdrawn once it has been selected for audit. If circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. If an application is selected for audit, the employer can not forego the audit by claiming the application is no longer valid or applicable. The employer will be held to the audit provision standards and possible resulting consequences.
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  4. Can the employer submit alternative evidence in the absence of primary evidence in response to an audit request?

    Under the procedures outlined in 20 CFR 656.20, in response to an audit, employers must present the required documentation. The documentary evidence the regulations require the employer to maintain in its compliance file is what is sought in an audit request. For example, the use of an employer's web site is to be documented by dated copies of pages from that site advertising the occupation involved in the application. However, if the employer does not have the primary evidence suggested by the regulation, it may attempt to satisfy the request through the use of alternative evidence not specifically listed in 656.17. In the case of the employer's web site, in the absence of a copy of the posting, the employer may provide an affidavit from the official within the employer's organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job. Whether such evidence will be accepted depends upon the nature of the submission and the presence of other primary documentation. The more primary evidence is not provided, the more likely the audit response will be found to be non-responsive.
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  5. The United States Citizenship and Immigration Services (USCIS) has posted a sample of a Notice of Filing for a Schedule A permanent labor certification on their website. Will the Department of Labor accept/honor such a posting as sufficient proof of the Notice of Filing for a non-Schedule A permanent labor certification?

    An employer may use the posting sample of a Notice of Filing issued by the USCIS and such a posting will be honored by the Department of Labor (DOL) provided that the Notice of Filing includes the employer's name when filing under the basic labor certification process. DOL will honor the use of the sample form, but is not endorsing or requiring its use. Employers may use other forms, as long as they comply with the PERM regulation. Please note that, while the USCIS sample does not include an employer name field, the Notice must contain the name of the employer if the application is filed under 20 CFR 656.17.
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header CERTIFICATION
  1. Procedure for requesting a Duplicate Labor Certificate. ETA-9089.

    Requests for a duplicate ETA-9089 can be made by contacting the Department of Labor or by requesting that USCIS assist with obtaining a duplicate labor certificate ETA-9089 from DOL. The following steps are suggested when requesting a duplicate ETA-9089 through USCIS. Please include on the top of the I-140, Petition for Alien Immigrant Worker, a cover sheet (preferably highlighted with colored paper) stating the following:

    LOST OR MISPLACED LABOR CERTIFICATION, REQUEST FOR DUPLICATE, DO NOT REJECT

    On the same sheet, the following information should also be included:

    1. Attorney name;
    2. Petitioner's name;
    3. Beneficiary's name;
    4. ETA case number;
    5. Priority Date;
    6. Specify whether you want USCIS to initiate the request for duplicate certificate ETA-9089 or you have contacted DOL to initiate the request for duplicate;
    7. Proper fee, signature and all required supporting documents;
    8. A print screen showing that the case has been certified.
    9. Provide the reason(s) for requesting that the Service Center secure a duplicate, approved labor certificate from DOL, e.g. "Case was certified, original approved labor certificate was never received in the mail."

    Once the duplicate certificate ETA-9089 is received by USCIS, the petitioner and/or his representative will be contacted via a Request For Evidence (RFE) notice in order to secure the petitioner's signature on the duplicate certificate. The certificate must be signed by the petitioner before USCIS can accept it for filing purposes.

    1. Petitioners must send the signed duplicate ETA-9089, along with a copy of the RFE notice requesting the signature. Failure to do so may result in significant delays in processing or denial.

    2. Petitioners are reminded not to submit concurrent I-140 and I-485, Application for Permanent Residence, when submitting petitions without the labor certificate, and with a request that USCIS secures a duplicate ETA-9089 from DOL or evidence of having requested the duplicate from DOL.

    3. If Forms I-140 and I-485 are concurrently filed without the ETA-9089, but with a request for duplicate labor certificate, the I-140 may be accepted and the I-485 rejected. However, if the fees for both forms are remitted with a single check, both forms will be rejected.

    4. Applicants who have submitted a Form I-140 with a request for duplicate labor certificate ETA-9089 are encouraged to wait until approval of the Form I-140 before submitting Form I-485. When submitting the Form I-485 subsequent to approval of the Form I-140, the approval notice of the Form I-140 must be submitted as well, along with appropriate fees and supporting documents.
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header VALIDITY OF CERTIFICATION
  1. When does an approved labor certification expire?

    The expiration date of an approved labor certification depends on when it was approved. For labor certifications approved prior to July 16, 2007, the labor certification expires 180 days after July 16, 2007 - that is, January 12, 2008 - unless filed prior to its expiration with the Department of Homeland Security in support of a Form I-140 Immigrant Petition for Alien Worker. Labor certifications approved on or after July 16, 2007, will expire 180 days from their date of issue, unless filed prior to expiration with the Department of Homeland Security in support of a Form I-140 Immigrant Petition for Alien Worker.
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header REVOCATION
  1. What is revocation?

    If the granting of a labor certification is found not to be justified, whether based on unintentional or willful conduct of the employer, a previously approved labor certification will be revoked.

  2. What are the criteria for revoking approved labor certifications?

    Certifying Officers have the authority to revoke an approved labor certification for fraud and willful misrepresentation, obvious errors, or for grounds or issues associated with the labor certification process.

  3. Is there a time limitation for revocations?

    No, a time limit has not been imposed on the authority of Certifying Officers to revoke labor certifications.
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header INVALIDATION
  1. What is invalidation?

    The Department of Homeland Security and a Consul of the Department of State have the authority to invalidate an issued labor certification if a determination is made, either in accordance with the agencies' procedures or by a court, that fraud or willful misrepresentation of a material fact involving the labor certification application exists.
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header CERTIFYING OFFICER REVIEW AND BOARD OF ALIEN LABOR CERTIFICATION
    APPEALS (BALCA)
  1. Is the employer permitted to request a review by the Certifying Officer of a State Workforce Agency (SWA) prevailing wage determination?

    Yes, the employer may request a review by the Certifying Officer of a SWA prevailing wage determination by sending a request for review to the SWA that issued the prevailing wage determination within 30 days of the date of the determination.

  2. Is the employer permitted to request a review of the Certifying Officer's prevailing wage determination?

    Yes, the employer is permitted to request a review by the Board of Alien Labor Certification of the Certifying Officer's prevailing wage determination by submitting, in writing and within 30 days of the date of the decision of the Certifying Officer, a request to the Certifying Officer who made the determination.
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  3. What recourse does the employer have in the event a labor certification is denied or revoked?

    If a labor certification is denied or revoked, the employer may make a request for review to the Board of Alien Labor Certification Appeals (BALCA) by submitting, in writing and within 30 days of the date of the determination, a request to the Certifying Officer who denied or revoked the application.

  4. For prevailing wage appeals, when does the 30 day clock start running to file an appeal of the State Workforce Agency (SWA) determination?

    The 30 days to file an appeal to the Certifying Officer begins on the date that the SWA makes a final decision on the case. If the employer submits supplemental information (as permitted one time), the 30 days begins after the SWA considers and makes a decision on the supplemental information.
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  5. If my application for certification is denied, how long do I have to wait before I can re-apply?

    Upon receipt of the denial notification via U.S. mail, a new application may be filed at any time unless a request for review by the Board of Alien Labor Certification Appeals (BALCA) has been submitted. While a request for BALCA review is pending, a new application for the same occupation and the same foreign worker cannot be filed. See 20 CFR 656.24(e)(6). (For more information, please see the FAQ "When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?")

  6. When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?

    The Department of Labor considers a request for review to be pending with BALCA under 20 CFR 656.24(e)(6) at the time either a request for BALCA review or a request for reconsideration is submitted to the Certifying Officer.
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headerPERM APPEALS BEST PRACTICES

Permanent Labor Certification Frequently Asked Questions: Appeals December 1, 2009

The following "Frequently Asked Questions" (FAQs) are to clarify best practices for filing a PERM appeal request with the National Processing Center (NPC). The Department of Labor (the Department) has created three distinct appeals queues. Distinguishing the type of review being sought by the employer ensures the appeal enters the correct processing appeals queue. Employers are encouraged to follow these FAQs as guidance for future appeal filings.

  1. I received a decision on my labor certification. I want to appeal the Department's decision. What are my options for filing an appeal?
  2. I would like the NPC to reconsider its decision on my labor certification application.  What should I include in my appeal to receive NPC reconsideration on my application?"
  3. I filed an application that was denied based on incorrect or missing information on the ETA Form 9089.  I would like to correct the errors and appeal the denial. How should I file this appeal to notify the NPC of my request?
  4. If I file a request for reconsideration and the NPC upholds its decision, what happens to my appeal request?
  5. May I concurrently file a request for reconsideration before the NPC and request for review before BALCA?
  6. For future cases, how will I know if my case was forwarded to BALCA?
  7. I do not want the NPC to reconsider its decision. I would like only BALCA to review my appeal. How do I file a request for review solely before BALCA?
  8. I previously submitted a request for reconsideration before the NPC. Now I only want BALCA review.  Can I now change my case's appeal classification from a request for reconsideration to a request for BALCA review?
  9. I received a decision of my labor certification application for what I believe is a Department error. How should I file an appeal claiming a Department error?
  10. What happens to my Department error appeal if the Department does not agree that it made an error in its decision?
  11. Prior to the issuance of this FAQ I submitted an appeal with the NPC. How can I find out in which queue my appeal request is?
  1. I received a decision on my labor certification. I want to appeal the Department's decision. What are my options for filing an appeal?
    An employer currently has three options for appealing the Department's decision:
    • Request for Reconsideration, pursuant to 20 CFR 656.24(g)(1)
    • Request for Review before the Board of Alien Labor Certification Appeals (BALCA), pursuant to 20 CFR 656.26(a)
    • Request for Reconsideration based on alleged Department Error Depending on the specific language used in the cover letter of the employer's appeal, the Department will assign the appeal request to the appropriate appeals queue.
  2. I would like the NPC to reconsider its decision on my labor certification application. What should I include in my appeal to receive NPC reconsideration on my application?

    An employer's cover letter should make the reconsideration request by explicitly using the term "reconsideration" to ensure proper classification of the appeal.
    If an employer's appeal request does not indicate which type of appeal is being sought,
    the NPC will assume the appeal is a request for reconsideration and the appeal will
    enter the request for reconsideration appeals queue.

  3. I filed an application that was denied based on incorrect or missing information on the ETA Form 9089. I would like to correct the errors and appeal the denial. How should I file this appeal to notify the NPC of my request?

    An employer may, in limited circumstances as outlined below, make corrections to the denied application and appeal the denial by requesting reconsideration within 30 days from the date of issuance of the denial. An employer only may make corrections to a denied application and appeal the decision if the incorrect or missing information is the result of a typographical error or oversight and the correction is supported by documentation that existed at the time the Application for Permanent Labor Certification was filed (e.g., tear sheet or other advertisements, notice of filing, prevailing wage determination, etc.). This documentation will be accepted for reconsideration only if the employer did not have an opportunity to present the documentation previously (e.g., in response to an audit notification letter or other such request by the Certifying Officer). Requests for reconsideration will be adjudicated in the reconsideration appeals queue. If the CO chooses to uphold the decision the application will be forwarded to BALCA. If the CO chooses to overturn the decision the application will be processed according to Department procedures.

  4. If I file a request for reconsideration and the NPC upholds its decision, what happens to my appeal request?

    If the NPC upholds its decision, the appeal is automatically forwarded to BALCA for review. The NPC will create an appeal file for BALCA and will send a copy of the appeal file to the employer.

  5. May I concurrently file a request for reconsideration before the NPC and request for review before BALCA?

    If an employer files a cover letter requesting multiple forms of appeal, the
    NPC will first process the appeal as a request for reconsideration. If the NPC upholds
    its decision, the appeal file will be sent to BALCA for review.

  6. For future cases, how will I know if my case was forwarded to BALCA?

    An employer will receive a copy of the appeal file from the Department, which
    will serve as notification to the employer that the NPC has upheld its decision and the
    case has been forwarded to BALCA for review.

  7. I do not want the NPC to reconsider its decision. I would like only BALCA to review my appeal. How do I file a request for review solely before BALCA?

    An employer's cover letter should expressly include the terms "request for review" to notify the NPC of the desired request for only BALCA review. Upon receipt of
    the request for review, the NPC will assemble and send the appeal file to BALCA. A
    copy of the NPC assembled appeal file will be sent to the employer, as well.

  8. I previously submitted a request for reconsideration before the NPC. Now I only want BALCA review. Can I now change my case's appeal classification from a request for reconsideration to a request for BALCA review?

    No. Once the appeal request enters the request for reconsideration appeal
    queue, the case may not be reclassified. If the NPC upholds its decision, the appeal
    case will be forwarded to BALCA for review.

  9. I received a decision of my labor certification application for what I believe is a Department error. How should I file an appeal claiming a Department error?

    In general, a Department error may be a denial due to a data entry error or a
    denial for failure to respond to an audit where the employer has proof of its audit
    response or proof it never received an audit request letter. If you believe your
    application was inadvertently denied on this type of basis, the employer's cover letter
    must clearly state that the basis for the appeal is an alleged Department error. The
    Department suggests a brightly colored cover sheet stating that the appeal is being filed
    because the employer believes that the Department error is the sole reason for the
    denial. If accepted as a Department error, the appeal will go to the Department error
    appeals queue and be processed accordingly.

  10. What happens to my Department error appeal if the Department does not agree that it made an error in its decision?

    The Department determines what constitutes a Department error. It is
    possible that the Department denial will list several reasons for a denial, with only one
    that is based on a Department error. Each ground for appeal is viewed by the
    Department individually. If the decision contains additional grounds that are not based
    on Department error, or if the Department does not agree there is a Department error,
    the Department will process the appeal as a request for reconsideration and place the
    appeal in the NPC reconsideration appeals queue.

  11. Prior to the issuance of this FAQ I submitted an appeal with the NPC. How can I find out in which queue my appeal request is?

    An employer may inquire about the status of an appeal through the Help Desk
    either via email at PLC.Atlanta@dol.gov or mailing a letter requesting the status of the
    appeal to the Atlanta National Processing Center at: U.S. Department of Labor,
    Employment & Training Administration, Atlanta National Processing Center, Harris
    Tower, 233 Peachtree Street, Suite 410, Atlanta, GA 30303.

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header PROHIBITION ON SUBSTITUTION
  1. What is the effective date for the prohibition on substitution?

    Section 656.11(a) of 20 CFR part 656 prohibits any request to change the identity of an foreign worker beneficiary on any application for permanent labor certification that is submitted after July 16, 2007.

  2. What is the scope of validity of a permanent labor certification for which a substitution request has been made?

    As revised, §656.30(c)(2) states that a permanent labor certification is valid only for the particular job opportunity, the foreign worker named on the original application (unless a substitution was approved prior to July 16, 2007), and the area of intended employment stated on the application (either Form ETA 750 or Form ETA 9089). As the Department made clear in the Supplementary Information that accompanied the Final Rule, 'approved' for purposes of the substitution request means approved by DOL at the DOL stage in processing such a request. Pursuant to §656.11(a), the Department will consider a request for substitution made prior to July 16, 2007, even if it does not make a determination or complete action on that request until after the Final Rule's effective date.
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header PROHIBITION ON IMPROPER PAYMENTS AND TRANSACTIONS
  1. How does the Department define "sale, barter, or purchase" of a labor certification?

    No application for labor certification or approved labor certification may be sold, bartered, or purchased as of July 16, 2007. A "sale" means an agreement between a seller and a buyer to transfer ownership of a labor certification in consideration of monetary payment or promise of monetary payment. "Barter" means the transfer of ownership of a labor certification from one person to another by voluntary act or agreement in exchange for a commodity, service, property, or other valuable consideration. "Purchase" means the voluntary agreement to transfer ownership of a labor certification from one person to another based on valuable consideration. The Final Rule adds these definitions to §656.3.

  2. How does the Department define prohibited payments for "activity related to obtaining permanent labor certification?"

    Pursuant to §656.12(b), an employer may not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the foreign worker will benefit that party. "Payment" includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other "in kind" payments; and free labor. This includes the prohibition against the foreign worker paying the employer's attorneys' fees in connection with the labor certification application.
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  3. What are activities relating to obtaining permanent labor certification?

    "Activity related to obtaining permanent labor certification," for purposes of §656.12(b), includes, but is not limited to, recruitment activity, the use of legal services, and any other action associated with the preparation, filing, or pursuit of an application. This section prohibits any such payment. A foreign worker may pay his/her own costs, including attorneys' fees for representation of the foreign worker, except that when the same attorney represents both the foreign worker and the employer, all costs related to preparing, filing, and obtaining the permanent labor certification must be borne by the employer.

  4. Does the rule prohibit reimbursement agreements?

    The regulation prohibits payment by the foreign worker or others of employer-incurred costs related to labor certification, including attorneys' fees. If, for example, a reimbursement agreement would require the employee to reimburse the employer for some or all of the attorneys' fees it incurred associated with preparing, filing and obtaining the labor certification, such reimbursement agreement would violate the Final Rule.
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  5. What should employers do who have entered into contracts where payments from foreign workers are either owed after July 16, or owed prior to July 16 but not paid until after July 16?

    Section 656.12(b) prohibits an employer from seeking or receiving payment of any kind for activity related to obtaining permanent labor certification, including the employer's attorneys' fees. If the payment obligation, however, accrued prior to July 16, the employer has the right to seek the payment after the effective date.

    For applications filed on or after July 16, 2007, an employer who has sought this type of payment from the foreign worker beneficiary of the application must answer "yes" to Question I-23 on ETA Form 9089 ("Has the employer received payment of any kind for the submission of this application?"), even if the employer has not yet received payment from the foreign worker. Employers should describe the payment and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (ie, July 16, 2007). Employers answering "yes" to Question I-23 must be prepared, if requested by the Certifying Officer, to explain and support the details of such payment.
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  6. What should attorneys do who have entered into contracts where payments from foreign workers for labor certification preparation and filing are either owed after July 16, or owed prior to July 16 but not paid until after July 16?

    Both because the Final Rule governs the payment or reimbursement of an employer's attorneys' fees, and because an attorney is the employer's legal representative (and so stands in the place of the employer), the rule prohibits payments to an attorney for the employer's legal fees when such payments would not be permissible directly to the employer. If the payment obligation accrued, however, prior to July 16, the attorney has the right to seek the payment after the effective date and should note on the application, for the record, when the obligation accrued.

    For applications filed on or after July 16, 2007, if an attorney or firm completing the application represents the employer, or the employer and foreign worker jointly, and has either sought or received a payment from the foreign worker that is directly related to the employer's labor certification costs as outlined in the regulation, the attorney must answer "yes" to Question I-23.

    Attorneys answering "yes" to Question I-23 must be prepared to explain and support the details of such payments. The attorney should describe the payment, explain that the payment was to the attorney and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (ie, July 16, 2007).
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  7. Do the regulations require attorneys to modify contracts for dual representation entered into before July 16, 2007?

    The regulations state that an employer may not seek or receive payment from the employee (or a third party except in specific circumstances) after July 16 2007. Attorneys may represent employers in the preparation, filing and obtaining of a labor certification and may be paid for that activity by the employer. Attorneys may represent foreign workers in their own interests in the review of a labor certification (but not in the preparation, filing and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the foreign worker for that activity. To the extent, however, that a contract exists between the attorney and the employee, which calls for the receipt on or after July 16 of payment for services rendered on or after July 16 in connection with the preparation, filing or obtaining of a labor certification, such services are to be paid for, under the regulation, by the employer.

  8. Do the regulations permit counsel for the foreign worker to voluntarily represent the employers on a pro bono basis?

    No. But for the attorney's representation of the foreign worker, the attorney would not be furnishing such services to the employer. This is prohibited by the regulations.
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headerDEBARMENT
  1. When may the Department debar an employer, attorney, or agent?

    Pursuant to §656.31(f), the Department may debar an employer, attorney, and/or agent from the permanent labor certification program for up to three years, when it determines such employer, attorney, and/or agent has facilitated or participated in one or more of the following actions, if such action was prohibited at the time it occurred:

    1. Sale, barter, or purchase of an application for labor certification or approved labor certification;

    2. Prohibited payment for an activity related to obtaining permanent labor certification;

    3. Willful provision or assistance in the provision of false or inaccurate information for an application for labor certification;

    4. Pattern or practice of failure to comply with the terms of Form ETA 9089, Application for Permanent Employment Certification, or Form ETA 750, Application for Alien Employment Certification;

    5. Pattern or practice of failure to comply with the Permanent Labor Certification audit process;

    6. Pattern or practice of failure to comply with the Permanent Labor Certification supervised recruitment process; or

    7. Fraud or willful misrepresentation involving a Permanent Labor Certification, as determined by a court, the Department of Homeland Security, or the Department of State.

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header FAQS ON SUPERVISED RECRUITMENT
Permanent Labor Certification Frequently Asked Questions: Supervised Recruitment January 5, 2009
  1. Under what authority can the Department of Labor's Office of Foreign Labor Certification select an employer's application for supervised recruitment?
  2. How will the employer know it has been selected for Supervised Recruitment?
  3. What does the Supervised Recruitment process entail?
  4. What will happen if the employer fails to timely respond or request an extension of time at any point in the Supervised Recruitment process?
  5. When should an employer undergoing Supervised Recruitment provide notice that it has changed its attorney/agent?
  6. What documentation and/or notice is needed when an employer undergoing Supervised Recruitment changes its attorney/agent?
  7. Can the employer list a wage range in its advertisement(s)?
  8. Must the employer advertise at the prevailing wage it listed at the time of filing the ETA Form 9089 OR, if different, the current prevailing wage?
  9. What is the extent to which the employer must provide any additional information requested in the notification of Supervised Recruitment Letter?
  10. To whom will the Office of Foreign Labor Certification send any resumes received in response to the advertisement(s)?
  11. What are the consequences of an employer requesting to withdraw an application undergoing Supervised Recruitment?
  1. Under what authority can the Department of Labor's Office of Foreign Labor Certification select an employer's application for supervised recruitment?

    20 CFR 656.21 provides, "Where the Certifying Officer determines it appropriate, post-filing supervised recruitment may be required of the employer for the pending application or future applications pursuant to 20 CFR 656.20(b)," and 20 CFR 656.24(f) provides, in part, "If the Certifying Officer determines the employer substantially failed to produce required documentation, or the documentation was inadequate, or determines a material misrepresentation was made with respect to the application, or if the Certifying Officer determines it appropriate for other reasons, the employer may be required to conduct supervised recruitment pursuant to §656.21 in future filings of labor certification applications for up to two years from the date of the Final Determination.
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  2. How will the employer know it has been selected for Supervised Recruitment?

    The employer will be notified by the Office of Foreign Labor Certification/Atlanta National Processing Center (OFLC/ANPC).

  3. What does the Supervised Recruitment process entail?

  4. The supervised recruitment process generally consists of the following steps:

    1. The employer will receive a Notification of Supervised Recruitment letter. Using the advertisement's general content requirements outlined in the Notification of Supervised Recruitment letter, the employer must supply a draft advertisement of the job opportunity to the Certifying Officer for review within 30 calendar days from the date of the notification letter. The employer may submit a request for one extension (for good cause) of the 30-day timeframe, to be granted at the Certifying Officer's discretion. In drafting the advertisement, the employer cannot substantively deviate from the job opportunity's requirements as listed in Section H of the submitted ETA Form 9089.

    2. Upon receipt and review of the draft advertisement, the Certifying Officer may issue an Assessment/Correction Letter to the employer, identifying any changes/additions that must be made before recruitment can begin.

    3. Once the draft advertisement is approved, the Certifying Officer will send the employer a Recruitment Instructions letter identifying in what sources or publications, as well as when, the employer's advertisement(s) must be placed. The employer must not initiate recruitment for U.S. workers until it receives this letter.

    4. The employer's advertising will direct applicants to send resumes and or applications to an OFLC or ANPC post office box address as outlined in the Recruitment Instructions letter. The Certifying Officer will send all resumes and applications received in response to the employer's advertisement(s) along with a cover letter listing the resumes/applications to the employer's attorney or agent of record, if any, with a copy of the cover letter to the employer. If the employer is not represented by an attorney or agent, the resumes and or applications will be sent directly to the employer. The employer will be required to consider all U.S. applicants for this job opportunity and any rejections must be made only for lawful reasons.

    5. A Recruitment Report Letter outlining the requirements set forth under 20 CFR 656.21(e) will be sent to the employer requiring it to submit a written recruitment report to the OFLC/ANPC within 30 calendar days of the request. The employer may request one extension (for good cause) of the 30-day timeframe, to be granted at the OFLC/ANPC's discretion.

    6. The Certifying Officer will utilize all recruitment information and supporting documentation to determine whether to grant or deny the employer's application.
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  5. What will happen if the employer fails to timely respond or request an extension of time at any point in the Supervised Recruitment process?

    In accordance with the regulation, failure to adhere to any timeframe throughout the supervised recruitment process will result in a denial of the employer's application. A pattern or practice of failing to comply in the supervised recruitment process is a ground for debarment of an employer, attorney, agent, or any combination thereof from the permanent labor certification program for a reasonable period of up to three years.
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  6. When should an employer undergoing Supervised Recruitment provide notice that it has changed its attorney/agent?

    The employer must provide notification of a change of representation as soon as the decision to hire the attorney or agent is finalized. The notification may be included with other correspondence or communication with the OFLC/ANPC. If the employer's communication with OFLC/ANPC is via e-mail, a copy of the notification, in PDF format, must be attached to the email and, thereafter, the signed original must be mailed to the OFLC/ANPC. Please note: Communication will not be held with an attorney or agent who is not listed on the ETA Form 9089 and for whom no notification establishing employer representation is provided to the OFLC/ANPC.

  7. What documentation and/or notice is needed when an employer undergoing Supervised Recruitment changes its attorney/agent?

    The employer and/or the newly retained attorney or agent must provide documentation signed by the employer establishing that it intends to be represented by the attorney or agent named, providing all applicable information as requested in Section E, Agent or Attorney Information, of the ETA Form 9089, and containing the statement, "I hereby designate the agent or attorney identified in this letter to represent me for the purpose of labor certification. I take full responsibility for the accuracy of any representations made by the agent or attorney identified above."
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  8. Can the employer list a wage range in its advertisement(s)?

    Yes, If the employer wishes to state a wage range in the advertisement, the bottom of the range must not be lower than the prevailing wage or the wage being offered to the foreign worker named on the ETA Form 9089, whichever is higher.

  9. Must the employer advertise at the prevailing wage it listed at the time of filing the ETA Form 9089 OR, if different, the current prevailing wage?

    Where the employer includes a wage in its advertisement, the wage must be equal to or greater than the current prevailing wage for the job opportunity. Where necessary, the OFLC/ANPC will provide the employer with the new prevailing wage applicable to the job opportunity. If the employer chooses to use a source other than the Occupational Employment Statistics (OES) survey, the employer must provide an acceptable survey, as outlined in 20 CFR 656.40(g), to the Certifying Officer.
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  10. What is the extent to which the employer must provide any additional information requested in the notification of Supervised Recruitment Letter?

    All documentation required by the OFLC/ANPC as part of the supervised recruitment process must be provided in full. Where one form of documentation lends itself more readily for submission to the OFLC/ANPC, e.g., electronic versus hardcopy, arrangements can possibly be made to accommodate the one form over the other.

  11. To whom will the Office of Foreign Labor Certification send any resumes received in response to the advertisement(s)?

    Resumes and or applications received by the OFLC/ANPC in response to the employer's advertisement(s) will be sent to the employer's attorney or agent of record, if any, with a copy to the employer. If the employer is not represented by an attorney or agent, the resumes and or applications received by the OFLC/ANPC in response to the employer's advertisement(s) will be sent directly to the employer.
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  12. What are the consequences of an employer requesting to withdraw an application undergoing Supervised Recruitment?

    While OFLC/ANPC may grant an employer's request to withdraw an application undergoing supervised recruitment and the employer then files a new application meeting all regulatory requirements, the future application for the same foreign worker as in the withdrawn application will be subject to supervised recruitment pursuant to 20 CFR 656.21. Additionally, where the OFLC/ANPC determines it appropriate, all other applications filed by the employer for any foreign worker or job opportunity may also be subject to supervised recruitment.

    An employer that wishes to file a future application for the same foreign worker as in an application withdrawn while undergoing supervised recruitment must do so by completing the ETA Form 9089, except Section I, Recruitment Information, which will be completed after submission at the instruction of the OFLC/ANPC. The employer must file the above referenced application by mail to the Atlanta National Processing Center at the following address:

    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification
    Attention: Supervised Recruitment Certifying Officer
    P.O. Box 56625
    Atlanta, Georgia 30343
    Repeated requests to withdraw different applications undergoing supervised recruitment will be carefully reviewed and may evidence a pattern or practice of the employer's failure to comply with the supervised recruitment process, and may subject the employer to debarment from the permanent labor certification program for a reasonable period of no more than three years pursuant to 20 CFR 656.31(f)(1)(v).
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header CHANGE OF ADDRESS/REPRESENTATION UPDATE
Permanent Labor Certification Frequently Asked Questions: Change of Address/Representation Update December 1, 2009
  1. I am an employer, and my company recently changed its mailing address. How do I notify the DOL of the new mailing address so that notices related to applications filed by my company are mailed to the proper address?
  2. I am an employer and I am preparing to file an application with the DOL. I have completed the required recruitment. My company anticipates moving to a new area of intended employment before filing the application with the DOL. Does this move affect the filing of the application?
  3. I am an attorney and I recently changed my mailing address. How do I notify the DOL of my new address so that decisions on pending applications and appeals are mailed to the new address?
  4. I am an attorney and I recently changed law firms. I continue to represent some of the employers for which I filed PERM applications. How do I notify the DOL of my new address so that decisions on pending applications and appeals that I continue to represent are mailed to the new address?
  5. I am an attorney and the company I represent recently acquired another company and has asked me to enter my appearance on cases filed by the acquired company's previous legal counsel. How do I notify the DOL that I now represent an employer with pending applications?
  6. The employer is changing its address. If the employer is represented by an attorney or agent does the employer need to notify the DOL directly of its new address?
  7. May an attorney file a change of address request on behalf of the employer?
  8. If my case has been sent up to BALCA do I still need to notify the ANPC of my change of address or change in representation for cases pending with BALCA?
  9. If I notify the ANPC of my change of address for a case pending at BALCA do I still need to notify BALCA directly?
  10. Which email address should be used to notify the DOL of a change in address and / or change in representation?
  11. What is the mailing address for the Atlanta National Processing Center where I should send notice of the change in address or representation?

  1. I am an employer, and my company recently changed its mailing address.
    How do I notify the DOL of the new mailing address so that notices related to applications filed by my company are mailed to the proper address?

    The employer should email the DOL Helpdesk at PLC.Atlanta@dol.gov as
    soon as possible to notify the DOL of the new address. The email should include the
    following:

    1. Subject line of the email should state "Employer Change of Address."
    2. Body of email should include:
    a. The reason for the change of address request (i.e. moved office location);
    b. Employer's FEIN;
    c. Mailing address the employer listed on pending application(s);
    d. Employer's new mailing address;
    e. Effective date of the new mailing address; and
    f. Each PERM case number(s) and/or name(s) of the foreign workers for which the applications were filed that currently are pending with the DOL.

    In the alternative, the employer may mail a letter to the Atlanta National Processing
    Center (ANPC) in lieu of an email that includes all of the information listed above to
    notify the DOL of employer's the change of address.
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  2. I am an employer and I am preparing to file an application with the DOL. I have completed the required recruitment. My company anticipates moving to a new area of intended employment before filing the application with the DOL. Does this move affect the filing of the application?
    Yes. If the company's move will change the area of intended employment for
    the beneficiary of the application the employer must complete recruitment for the new area of intended employment before filing the application with the DOL. An employer must recruit within the area of intended employment (defined in 20 CFR 656.3), in accordance with 20 CFR 656.17.

  3. I am an attorney and I recently changed my mailing address. How do I
    notify the DOL of my new address so that decisions on pending applications and appeals are mailed to the new address?

    An attorney should send an email to the DOL Helpdesk at
    PLC.Atlanta@dol.gov as soon as possible stating the following:

    1. Subject line of the email should state "Attorney/Agent Change of Address."
    2. Body of email should include:
    a. The reason for the change of address request (i.e. moved to new location);
    b. Employer's FEIN;
    c. Mailing address the attorney/agent listed on pending application(s);
    d. Attorney's/Agent's new mailing address;
    e. Effective date of the new mailing address; and
    f. Each PERM case number(s) and/or name(s) of the foreign workers for
    which the applications were filed that currently are pending with the DOL.

    In the alternative, the attorney may mail a letter to the ANPC in lieu of an email that
    includes the information listed above to notify the DOL of the attorney's change of
    address.
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  4. I am an attorney and I recently changed law firms. I continue to represent
    some of the employers for which I filed PERM applications. How do I notify the DOL of my new address so that decisions on pending applications and appeals that I continue to represent are mailed to the new address?

    An attorney should send an email to the DOL Helpdesk at PLC.Atlanta@dol.gov as soon as possible to notify the DOL that he or she has changed firms. The email should provide the following:

    1. Subject line of each email should state "Attorney/Agent Change of Address"
    2. Body of email should include:
    a. Employer's FEIN;
    b. The reason for the change of address request (i.e. moved to new law firm);
    c. Mailing address the attorney/agent listed on pending application(s);
    d. Attorney's/Agent's new mailing address;
    e. Effective date of the new mailing address; and
    f. PERM case number(s) and/or name(s) of the foreign workers for which the applications were filed that currently are pending with the DOL.

    Since the attorney is not continuing to represent all applications he or she originally
    filed, it is imperative to provide case numbers of the cases that the attorney will continue to represent. If the case numbers are unavailable then the attorney must provide the full name(s) of the foreign worker(s) for whom the application(s) were filed. In the alternative, the attorney may mail a letter to the ANPC in lieu of an email that includes the information listed above to notify the DOL of the attorney's change of address.

  5. I am an attorney and the company I represent recently acquired another company and has asked me to enter my appearance on cases filed by the acquired company's previous legal counsel. How do I notify the DOL that I now represent an employer with pending applications?
    The attorney should send an email to the DOL Helpdesk at PLC.Atlanta@dol.gov to notify the DOL of a change in address and a change in representation.
    1. Subject line of the email should state "Attorney/Agent Change in Representation"
    2. Body of email should include:
    a. The nature of the corporate change;
    b. Name, address and FEIN of the employer listed on the pending application;
    c. Name, address and FEIN of the new entity, if applicable;
    d. Mailing address of the attorney/agent listed on pending application(s);
    e. Attorney's/Agent's new mailing address, if applicable;
    f. Effective date of the corporate change;
    g. Effective date of the new mailing address, if applicable; and
    h. PERM case number(s) and/or name(s) of the foreign workers for which the applications were filed that currently are pending with the DOL.

    If the case numbers are unavailable then the attorney must provide the full names of the foreign workers for whom applications were filed. In the alternative, the employer may mail a letter to the ANPC in lieu of an email that includes the information listed above to notify the DOL of the change in representation and/or the change in corporate entity and address, if applicable.
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  6. The employer is changing its address. If the employer is represented by an
    attorney or agent does the employer need to notify the DOL directly of its new address?

    Yes. An employer with pending applications must notify the DOL of the
    employer's new address.

  7. May an attorney file a change of address request on behalf of the employer?
    Yes. The attorney may notify the DOL of a change of address, change in
    representation and/or corporate change on behalf of a client. The attorney should send an email to the DOL Helpdesk at PLC.Atlanta@dol.gov to notify the DOL of a change in address and a change in representation. The email should include the following:

    1. Subject line of the email should state "Employer Change of Address."
    2. Body of email should include:
    a. The reason for the change of address request (i.e. moved office location);
    b. Employer's FEIN;
    c. Mailing address the employer listed on pending application(s);
    d. Employer's new mailing address;
    e. Effective date of the new mailing address; and
    f. Each PERM case number(s) and/or name(s) of the foreign workers for which the applications were filed that currently are pending with the DOL.

    In the alternative, the employer may mail a letter to the ANPC in lieu of an email that
    includes all of the information listed above to notify the Department of employer's the change of address.
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  8. If my case has been sent up to BALCA do I still need to notify the ANPC of
    my change of address or change in representation for cases pending with BALCA?

    Yes. You must notify BALCA and the ANPC separately.

  9. If I notify the ANPC of my change of address for a case pending at BALCA
    do I still need to notify BALCA directly?

    Yes. Please notify BALCA of your change of address following BALCA's change of address procedures.

  10. Which email address should be used to notify the DOL of a change in address and / or change in representation?
    PLC.Atlanta@dol.gov

  11. What is the mailing address for the Atlanta National Processing Center
    where I should send notice of the change in address or representation?

    U.S. Department of Labor, Employment & Training Administration, Atlanta
    National Processing Center, Harris Tower, 233 Peachtree Street, Suite 410, Atlanta, GA 30303.  Please state clearly on the cover letter that the request is for a notice of the change in address or representation.
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Temporary Programs
header D-1 CREWMEMBERS CERTIFICATION
  1. What is a D-1 crewmember certification?

    Performance of longshore work at U.S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exceptions. One such exception requires an employer to 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.

  2. Are there other exceptions?

    Another exception requires that, before using alien crewmen to perform longshore activities in the State of Alaska, the employer will make a bona fide request for and employ 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.
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H-1B, H-1B1 and E-3 Programs
header GENERAL INFORMATION
  1. Which visa classifications require the filing of a Labor Condition Application (LCA)?
    An employer seeking to file an H-1B, H-1B1, or E-3 visa application must first file an LCA with the Department. The H-1B visa classification includes workers in specialty occupations and fashion models of distinguished merit and ability. The H-1B1 visa classification includes workers in specialty occupations and is limited to nationals of Singapore and Chile. The E-3 visa classification includes workers in specialty occupations and is limited to nationals of Australia.

    Posted February 17, 2011


  2. What is the definition of a "specialty occupation"?
    For purposes of the H-1B, H-1B1 and E-3 programs, the Department's regulations define a specialty occupation as an occupation that requires theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor's degree or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States.

    Posted February 17, 2011


  3. Can I file the LCA by fax?
    No. The Department does not accept LCAs filed by fax.

    Posted February 17, 2011


  4. How do I obtain H-1B Disclosure Information?
    You can access H-1B disclosure information from our website at http://www.flcdatacenter.com.

    Posted February 17, 2011

  5. How do I file an H-1B complaint?
    Complaints should be filed with the Wage and Hour Division local office which has jurisdiction over the physical location of the employer. Check the 'blue pages' in the local telephone book or http://www.dol.gov/whd/america2.htm#Map.

    The form to file a complaint (Form WH-4) can be downloaded at http://www.dol.gov/whd/forms/fts_wh4.htm

    Complaints on not fulfilling the attestations and pay go to the Wage and Hour Division, while complaints of fraudulent or misrepresented applications (e.g. the company does not exist or never employs the individuals, or someone who is not a representative of the employer signs the application) go to the Office of Inspector General (OIG) which then generally works with the Department of Justice (DOJ) to investigate. The Wage and Hour Division will forward fraud cases appropriately.

    Posted February 17, 2011

  6. Is there a fee to file a Labor Condition Application (LCA) with the Department of Labor for the H-1B, H-1B1 or E-3 programs?
    No. There is no fee to the employer or worker to file an LCA with the Department of Labor.

    Posted March 27, 2012

  7. As an employer, attorney or agent how do I change my iCERT System account access information?

    To change your iCERT System account access information, the OFLC Portal Technical Help Desk will need the following information on the business letterhead of the account holder:

    1. action to be taken on the account
    2. reason for the account change
    3. account username
    4. full name of the original contact person on the account (if different from the requestor)
    5. full name of the new contact person on the account (if applicable)
    6. name of the business
    7. current business phone number to contact
    8. current business e-mail address to contact
    9. Federal Employer Identification Number (FEIN)
    10. effective date of the change

     

    This request and any other technical assistance questions related to your iCERT System account may be e-mailed to the OFLC Portal Technical Help Desk at oflc.portal@dol.gov.Account change requests that cannot be e-mailed as PDFs may be sent to us via fax on (202) 693-2768 or U.S. mail to the following address:

    Office of Foreign Labor Certification
    Employment and Training Administration
    200 Constitution Avenue, NW, Room C-4312
    Washington, DC 20210
    Attn: LCA Program iCERT Account


    Posted March 27, 2012

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header APPLICATION FILING
  1. How does an employer initiate the process to hire an H-1B, H-1B1 or E-3 worker?
    In order to employ a nonimmigrant worker in H-1B, H-1B1 or E-3 status, an employer must complete and file electronically the Labor Condition Application (LCA), through the iCERT Portal System no more than 6 months before the initial date of intended employment. Employers with physical disabilities or those who lack Internet access may file by mail but must first receive permission from the Office of Foreign Labor Certification (OFLC) to do so.

    Posted February 17, 2011


  2. How does an employer petition to file an LCA by mail?
    Employers with physical disabilities or those who lack Internet access and cannot electronically file the ETA Form 9035E through the iCERT Portal System must petition the Administrator of OFLC for approval to file an LCA on the ETA Form 9035 in paper format by mail. The employer must send the written request to:

    Administrator, Office of Foreign Labor Certification
    Employment & Training Administration
    U.S. Department of Labor
    Room C-4312
    200 Constitution Avenue, NW
    Washington, DC 20210

    The employer's written request must establish the need to file by mail, and include an explanation of physical disability or lack of Internet access. The employer should be prepared to submit supporting documentation if requested by the OFLC.  The OFLC Administrator must approve the request before the employer may file by mail.

    Posted February 17, 2011



  3. May I use the same LCA to request multiple positions?
    Yes. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification, and are either all part-time or all full-time positions. However, an employer must file separate LCAs for:

    1. Workers in different visa categories, e.g. an H-1B position and an E-3 position may not be requested on the same ETA Form 9035/9035E;
    2. Nonimmigrant workers in different job classifications, e.g. a computer systems analyst (Standard Occupational Code [SOC] 15-0051.00) and a software engineer (SOC 15-0032.00) must be listed on separate applications;
    3. Full-time or part-time positions; and/or
    4. Exempt and non-exempt nonimmigrant workers for H-1B dependent employers and/or willful violators as indicated in Item I of the LCA.

    Posted February 17, 2011



  4. May one LCA list multiple places of employment?
    Yes. An employer's ETA Form 9035/9035E must list all of the places of intended employment that are identified at the time of filing.  The ETA Form 9035E (electronic format) can accommodate up to three places of intended employment.  For employers who have received pre-approval to submit an LCA by mail, since the ETA Form 9035 (paper format) can only accommodate one place of intended employment, the employer may submit an attachment identifying up to two additional worksites. An employer may file additional LCAs to identify additional places of employment beyond the three places listed on the original application.

    Employers should note that the LCA must reflect an appropriate prevailing wage that corresponds to each place of intended employment; i.e. it must be the prevailing wage for the area of intended employment as defined by the Department's regulations.

    Posted February 17, 2011



  5. How does an employer in the Commonwealth of Northern Mariana Islands (CNMI) initiate the process to hire an H-1B, H-1B1 or E-3 nonimmigrant worker?
    The LCA filing process for an employer in the CNMI is the same as the LCA process outlined above.

    Posted February 17, 2011

Top
header FILING AN LCA THROUGH THE iCERT PORTAL SYSTEM
  1. When I submit an LCA through the iCERT Portal System, will I receive notification of the status of my application?

    Yes. When you submit an LCA through the iCERT Portal System at https://icert.doleta.gov, you will receive a courtesy email confirming that your application has been submitted. You will also receive an email when your application has been processed, providing you with the final determination on your application. If you do not receive email notification of the final determination after seven (7) working days, you may check the status of your LCA by logging onto the iCERT Portal System. If you cannot obtain status of your LCA from the iCERT Portal System, please contact the LCA Help Desk at LCA.Chicago@dol.gov. For technical or system problems concerning the iCERT Portal System or submission of your LCA, please contact the iCERT Portal System Help Desk at OFLC.Portal@dol.gov.

    Please note: You may check the status of your LCA at any time after submission by logging onto the iCERT Portal System.

    Posted February 17, 2011

  2. I just received a denial of an LCA giving the reason of an invalid Federal Employer Identification Number (FEIN) as assigned by the Internal Revenue Service (IRS). How do I correct this?

    Denial for the FEIN value means that the FEIN entered in Section C.12 of the ETA
    Form 9035E by the employer could not be currently verified by the OFLC as a valid nine digit FEIN assigned by the IRS. When the employer receives a denial of an LCA on this ground, it also receives additional instructions from Chicago National Processing Center (CNPC) on how to resubmit an LCA. In order for the employer to overcome the issue identified on the denial determination for any future LCAs submitted using the denied FEIN, the employer will first need to submit at least one document that clearly displays the FEIN and the name of the employer associated with the unique identification number. Such documents may include:

    • Documentation from IRS noting assignment of FEIN
    • Federal or State tax return (only acceptable with a preprinted label) or a preprinted tax coupon
    • Documentation from employer's financial institution showing employer's FEIN
    • Articles of incorporation, business license, or other certifications of business existence
    • Secretary of State or Corporation Commission registration documents
    • Official and/or government documents
    • Other documentation showing the FEIN and name of the employer

    In order to expedite the process, you may either fax, email as a PDF attachment, or mail the requested information to the following:

    FAX: (312) 353-6757. On the cover page of the fax, please write "LCA Business
    Verification Team Proof of Valid FEIN", or

    EMAIL: LCA.Chicago@dol.gov. In the Subject Line, please write "LCA Business Verification Team Proof of Valid FEIN", or

    MAIL: Attn: LCA Business Verification Team Proof of Valid FEIN
    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification,
    Chicago National Processing Center
    11 West Quincy Court
    Chicago, IL 60604-2105

    The employer will be notified via email after the requested information has been reviewed. Only then should the employer submit a new LCA.

    Posted June 17, 2010


  3. I am filing on behalf of a new company, created through a recent merger. How do I get the information to DOL to avoid a denial?
    The employer who is a "new" company (created through a merger, acquisition, sale, etc.) may submit the documentation described above to establish its new FEIN. It may then file an LCA.

    Posted June 17, 2010


  4. What contact information should I enter in Section D (Employer Point of Contact Information) of the LCA Form ETA 9035 & 9035E?
    The employer must enter the contact information of the employee who is authorized to act on behalf of the employer. This cannot be an agent or attorney, unless the agent or attorney is a direct employee of the employer.

    Posted June 17, 2010

Top
header LCA REQUIREMENTS
  1. What are the LCA requirements?
    In order to prevent an adverse effect on the U.S. workforce, an employer applying to temporarily hire a nonimmigrant worker in H-1B, H-1B1 or E-3 status must attest that it has met or will meet the following requirements:

    • Wages: Pay the required wage to the workers for whom it will file a petition supported by the LCA for the duration of the authorized period of employment;
    • Working Conditions: Provide the nonimmigrant workers working conditions that will not adversely affect the working conditions of U.S. workers similarly employed, such as hours, shifts, vacation periods, and benefits based on the same criteria as those the employer offers to its U.S. workers;
    • No Strike/Lockout: Ensure that there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment at the time of filing the ETA Form 9035/9035E; and
    • Notice: Notify its U.S. workers that it intends to hire an H-1B, H-1B1 or E-3 nonimmigrant worker by either providing notice of the LCA to the bargaining representative (representing the workers of the employer in the same job classification and area of intended employment as the nonimmigrant worker), or where there is no bargaining representative, providing electronic notice of the filing of the LCA or by posting notice of the LCA in at least two conspicuous locations in the employer's place(s) of business in the area of intended employment. The notice must contain specific information about the nonimmigrant workers sought and the process for submitting allegations of misrepresentation or non-compliance related to the LCA. Since the ETA Form 9035/9035E contains this information, employers may choose to comply with the notice requirement by providing or posting a copy of the ETA Form 9035/9035E.

    In addition, the employer must provide the nonimmigrant worker(s) with a copy of the certified ETA Form 9035/9035E no later than the first day on which the foreign worker begins to work for the employer.

    An employer who is H-1B dependent or a willful violator must also attest that it has met or will meet the following requirements:

    • Displacement: Non-displacement of the U.S. workers in the employer's workforce;
    • Secondary Displacement: Non-displacement of the U.S. workers in another employer's workforce; and
    • Recruitment and Hiring: Recruitment of U.S. workers and hiring of U.S. workers applicant(s) who are equally or better qualified than the H-1B non-immigrant(s).

    Posted February 17, 2011



  2. H-1B1

    Under the Department's regulations, what are the employer's obligations with respect to hiring a national of Chile or Singapore?
    For the most part, the obligations of an employer filing an LCA with the Department where the beneficiary is either a national of Chile or a national of Singapore in the H-1B1 visa category are virtually the same as those applicable to employers hiring H-1B workers.

    However, there are some differences in the H-1B1 visa category. The employer filing an LCA to hire a national of Chile or Singapore in the H-1B1 visa category must make one of the following appropriate notations on its ETA 9035: "H-1B1-Chile" or "H-1B1-Singapore".

    In addition, Section 20 CFR 655.700(d) of the Department's regulations provides a list of regulatory provisions that do not apply to the H-1B1 visa category, including: numerical visa cap provisions (note: the H-1B1 visa category is subject to a separate cap of 6,800 (1,400 for Chile and 5,400 for Singapore) initial visas annually); the provisions regarding the North American Free Trade Agreement; certain provisions for filing complaints; certain provisions regarding the H-1B dependent employers or willful violators; provisions regarding changes in the employer's corporate structure or identity; provisions regarding short-term placement of H-1B foreign workers outside the area of intended employment; the provision defining H-1B dependent employers and willful violators; provisions regarding exempt H-1B workers; certain non-displacement provisions applicable to H-1B dependent employers and willful violators; provisions regarding recruitment of U.S. workers applicable to H-1B dependent employers and willful violators; and certain public examination of records requirements. This section also includes specific filing procedures for employers applying to hire foreign workers in the H-1B1 visa category with paragraphs (5) and (6) of the section applying to Chile and Singapore, respectively.

    Posted February 17, 2011



  3. E-3

    Under the Department's regulations, what are the employer's obligations with respect to hiring an Australian national?
    For the most part, the obligations of an employer filing an LCA with the Department where the beneficiary is an Australian national in the E-3 visa category are virtually the same as those applicable to employers hiring H-1B foreign workers.

    However, there are some differences for the E-3 visa category. The employer filing an LCA to hire an Australian national in the E-3 visa category must make the following notation on its ETA Form 9035/9035E - "E-3 Australia".

    In addition, Section 20 CFR 655.700(d) of the Department's regulations provides a list of regulatory provisions that do not apply to the E-3 visa category including: numerical visa cap provisions (note: the E-3 visa category is subject to a separate cap of 10,500 initial visas annually); the provisions regarding the North American Free Trade Agreement; certain provisions for filing complaints; certain provisions regarding the H-1B dependent employers or willful violators; provisions regarding changes in the employer's corporate structure or identity provisions regarding short-term placement of H-1B foreign workers outside the area of intended employment; the provision defining H-1B dependent employers and willful violators; provisions regarding exempt H-1B workers; certain non-displacement provisions applicable to H-1B dependent employers and willful violators; provisions regarding recruitment of U.S. workers applicable to H-1B dependent employers and willful violators; and certain public examination of records requirements. This section also includes specific filing procedures for employers applying to hire foreign workers in the E-3 visa category.

    Posted February 17, 2011


Top
header WAGES
  1. What is the required wage for purposes of the LCA program?
  2. How does an employer determine the prevailing wage for purposes of the LCA program?
  3. Why might an employer want to obtain a PWD from the National Prevailing Wage Center (NPWC)?
  4. If an employer requests a PWD from the National Prevailing Wage Center (NPWC), does it have to obtain a determination from the NPWC before filing the LCA?
  5. If an employer has received a prevailing wage determination from the NPWC how should the employer enter the PWD on the LCA?
  6. When should an employer mark the box for "Other" in Item G.11 (prevailing wage source) of the ETA Form 9035/9035E?
  7. What wage sources qualify as "independent authoritative sources" for purposes of determining the prevailing wage in the LCA program?
  8. How should an employer identify a prevailing wage survey on the LCA?
  9. What should the employer list as the prevailing wage if its elected wage source provides a wage that is lower than the applicable Federal, State or local minimum wage?
  10. May an employer list the prevailing wage on the LCA in the form of an annual salary?
  11. How should the employer list wage rates on the ETA 9035/9035E if the nonimmigrant is employed in a part-time capacity?
  12. What are an H-1B employer's pay obligations with respect to a nonimmigrant worker in nonproductive status?
  13. How can an employer enter an untitled custom survey on the LCA?
  14. As an employer filing an LCA, where can I obtain a list of acceptable prevailing wage source surveys for Section G of the ETA Form 9035/9035E?
  1. What is the required wage for purposes of the LCA program?
    The required wage is the wage the employer must pay to its foreign workers in the H-1B, H-1B1 and E-3 visa categories for the entire period of authorized employment, as approved by the Department. The required wage rate must be the higher of the actual wage rate (the rate the employer pays to all other individuals with similar experience and qualifications who are performing the same job), or the prevailing wage (a wage that is predominantly paid to workers in the same occupational classification in the area of intended employment at the time the application is filed). In addition, an employer is not permitted to pay a wage that is lower than a wage required under any other applicable Federal, State or local law.

    Posted February 17, 2011


  2. How does an employer determine the prevailing wage for purposes of the LCA program?
    Although the Department's regulations governing the LCA process do not require an employer to use any specific wage methodology to determine the prevailing wage, they do require that the prevailing wage be based on the best information available at the time the employer files an application. An employer filing an LCA may, but is not required to, request a prevailing wage determination (PWD) from the OFLC's National Prevailing Wage Center (NPWC) by U.S. mail or through the iCERT Portal System. In the absence of a PWD issued by the NPWC, the employer may consider the following wage sources in determining the prevailing wage:
      1. A wage rate set forth in a collective bargaining agreement (CBA), or
      2. If the job opportunity is in an occupation which is not covered by a CBA:
        • A wage rate for the occupation and area of intended employment under the Davis-Bacon Act (DBA);
        • A wage rate for the occupation and area of intended employment issued under the McNamara-O'Hara Service Contract Act (SCA);
        • A wage rate produced by a survey conducted by an independent authoritative source that meets the requirements set forth in 20 CFR 655.731; or
        • A wage rate produced by another legitimate source of information, including the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) data available through the iCERT Portal System and the FLC Data Center.
    Under the American Competitiveness and Workforce Improvement Act (ACWIA), as implemented by the Department's regulations, the prevailing wage for employees of an institution of higher education, an affiliated or related nonprofit entity, a nonprofit research organization, or a governmental research organization must be based only on the wages of similarly employed employees of such institutions in the area of intended employment. The ACWIA wages may be accessed through the iCERT Portal System and the FLC Data Center.

    For more information on the process of obtaining a PWD from the NPWC, please consult the Prevailing Wage Determination Policy Guidance and the Prevailing Wage FAQs on the OFLC web site.

    Posted February 17, 2011

  3. Why might an employer want to obtain a PWD from the National Prevailing Wage Center (NPWC)?
    Under the Department's regulations, the Department will deem the PWD from the NPWC as correct as to the amount of the wage in the event of an investigation by the Wage and Hour Division. However, this "safe harbor" does not protect an employer who has failed to pay the higher of the actual wage or the prevailing wage, and/or who has paid a wage that is lower than a wage required under any other applicable Federal, State or local law.

    Posted February 17, 2011

  4. If an employer requests a PWD from the National Prevailing Wage Center (NPWC), does it have to obtain a determination from the NPWC before filing the LCA?
    No. The employer does not need to obtain the PWD from the NPWC prior to filing the LCA. However, if the employer requests a PWD, but does not wait to obtain the PWD before submitting the LCA, the employer must consider the following:
    • The employer may list the PWD from the NPWC as its prevailing wage source in Section G of the ETA Form 9035/9035E only if it has a PWD issued and valid on the day it submits the LCA. If the employer intends to file an LCA listing the NPWC-issued PWD as the source of the prevailing wage, it must wait until the NPWC actually issues the final PWD before submitting the LCA. The employer may not use iCERT tracking numbers and wage rates requested on the ETA 9141, in lieu of an actual final NPWC prevailing wage determination. Listing an NPWC-issued prevailing wage on an LCA operates as an endorsement of that wage and forecloses the employer's ability to appeal the PWD after filing the LCA.
    • If the employer wishes to qualify for the "safe harbor" discussed in the previous FAQ, the employer must request a PWD from the NPWC and file an LCA during the prevailing wage validity period specified on the ETA Form 9141. If the employer cannot wait for the NPWC to issue the PWD before filing its LCA, the employer may instead rely on another legitimate source of available wages so long as the employer retroactively compensates the H-1B, H-1B1 or E-3 nonimmigrant for the difference between the wage the employer paid in reliance on the other legitimate wage source and the prevailing wage, if higher. Please see 20 CFR 655.731(a)(2)(ii)(A)(2).

    Posted February 17, 2011

  5. If an employer has received a prevailing wage determination from the NPWC how should the employer enter the prevailing wage determination on the LCA?
    ETA Form 9035/9035E instructions for Item G.7 require the employer to identify either the State, district or territory where the prevailing wage was issued or the agency which issued the prevailing wage. However, as of January 1, 2010, prevailing wage determinations are only provided by the NPWC. Accordingly, an employer who has received a prevailing wage determination from the NPWC by mail or through the iCERT Portal System must enter under item G.7 either "District of Columbia" (for the State/district/territory) or "NPWC" (for the National Prevailing Wage Center) or both. An employer who has received a PWD from the NPWC must also enter the prevailing wage tracking number under Item G.7a.

    Posted February 17, 2011

  6. When should an employer mark the box for "Other" in Item G.11 (prevailing wage source) of the ETA Form 9035/9035E?

    Item G.11 of the ETA Form 9035/9035E specifically lists four prevailing wage sources: Occupational Employment Statistics (OES), Collective Bargaining Agreement (CBA), Davis-Bacon Act (DBA), and McNamara-O'Hara Service Contract Act (SCA). When an employer uses one of these sources, it must mark the box next to the prevailing wage source it used. When the employer uses a prevailing wage source not specifically listed in Item G.11, it must mark the box for "Other," and list the specific prevailing wage source used in item G.11b.

    Important note: Pursuant to the instructions accompanying the ETA Form 9035/9035E, if an employer obtained a prevailing wage using OES data from the Foreign Labor Certification Data Center Online Wage Library at http://www.flcdatacenter.com (not the National Prevailing Wage Center), then the employer must specify "OFLC Online Data Center" in item G.11b of the ETA Form 9035/9035E. Additionally, if the employer obtained a prevailing wage using the same OES data available from the iCERT Portal System, the employer should likewise specify "OFLC Online Data Center" in item G.11b of the ETA Form 9035/9035E.

    Posted February 17, 2011

  7. What wage sources qualify as "independent authoritative sources" for purposes of determining the prevailing wage in the LCA program?
    The term "independent authoritative source" (defined in 20 CFR 655.715) refers to any professional, business, trade, educational or governmental association, organization, or other similar entity, which is not owned or controlled by the employer and which has recognized expertise in a particular occupational field. As explained above, for purposes of prevailing wage determinations, an employer may use or request the consideration (by the NPWC) of a published survey of wages produced by an independent authoritative source. The independent authoritative source survey must meet three main requirements:
    1. It must reflect the average wage (i.e. the weighted average or, if the survey provides a median rather than a weighted average, the median) paid to U.S. workers who are similarly employed in the area of intended employment;
    2. It must be based on recently collected data, e.g. data that was collected during the 24-month period before the date on which the survey was published; and
    3. The survey must be the most recent survey published by that independent authoritative source for the occupation in the area of intended employment.
    Please see 20 CFR 655.715. The Department published a non-comprehensive sample list of generally acceptable wage surveys applicable to LCA program on its Web site in the form of the ETA Form 9035CP - General Instructions for 9035 & 9035E; Appendix II: Sample of Acceptable Wage Survey Sources. Employers should note that the acceptability of a particular wage source is a determination that is made on a case-by-case basis.

    Posted February 17, 2011

  8. How should an employer identify a prevailing wage survey on the LCA?
    An employer using an independent authoritative source survey or another legitimate source of wages (a prevailing wage survey) must mark "Other" in Item G.11 and specifically identify the prevailing wage source in Item G.11b of the ETA Form 9035/9035E. Where the employer is relying on a private survey as the source of the prevailing wage, the employer must enter both the company name and the survey title in Item G.11b. If the complete survey company name and the complete survey title do not fit into the available space in Item G.11b, the employer should enter as much information as possible to clearly identify the survey company name and the survey title.

    While an employer may abbreviate words contained in the survey company name and title where necessary to fit into the space provided in item G.11b, the information provided by the employer must be sufficient to ensure that both the survey company name and the survey title are obviously identifiable. If the title of a survey includes the year the survey was conducted, the employer should not include the year in the survey title entry in Item G.11.b but should only enter the year in Item G.11.a.



    Example: In 2009, Watson Wyatt published a survey entitled Survey Report on Top Management Compensation, May 29, 2009. The survey should have appeared in Section G under Items 11, 11.a and 11.b as follows:

    *Item 11. Prevailing wage source (Choose only one): Other
    *Item 11a. Year source published: 2009
    §Item 11b. If "OES" and SWA did not issue prevailing wage OR "Other" in question
    11, specify source: Watson Wyatt: Survey Report on Top Management
    Compensation

    (*)indicates the field response is required

    (§)indicates the field response is conditionally based on a response provided in a required field

    For additional information about prevailing wage survey entries, please refer to the ETA Form 9035CP - General Instructions for 9035 & 9035E; Appendix II: Sample of Acceptable Wage Survey Sources.

    Posted February 17, 2011

  9. What should the employer list as the prevailing wage if its elected wage source provides a wage that is lower than the applicable Federal, State or local minimum wage?
    The Department's regulations require that the employer pay the H-1B nonimmigrant the greater of the actual wage (rate of pay) or the prevailing wage and prohibit an employer from paying less than a wage required by any applicable Federal, State or local law. Where the employer's elected wage source provides a wage that is lower than the applicable Federal, State or local minimum wage, the employer must list the highest applicable minimum wage in Section G of the ETA Form 9035/9035E as the prevailing wage. Please refer to the example below (based on the current Federal minimum wage):

    Example:

    *Item 9. Prevailing wage: $7.25
    *Item 11. Prevailing wage source (Choose only one): Other
    *Item 11.a Year source published: 2009
    §Item 11b. If "OES", and SWA/NPC did not issue prevailing wage OR "Other" in
    question 11, specify source: Federal Minimum Wage

    Important note: Employers may only list the most recent source of minimum wage information. In addition, an employer must retain documentation of the applicable minimum wage source consistent with the Department's regulations.

    (*)indicates the field response is required

    (§)indicates the field response is conditionally based on a response provided in a required field

    Posted February 17, 2011

  10. May an employer list the prevailing wage on the LCA in the form of an annual salary?
    Yes. An employer may list the prevailing wage on the LCA in the form in which the employer intends to pay the wage, except where the job opportunity is for part-time employment, in which case the employer must list the prevailing wage as an hourly rate.

    Posted February 17, 2011

  11. How should the employer list wage rates on the ETA 9035/9035E if the nonimmigrant is employed in a part-time capacity?
    Since the number of work hours for part-time employment may vary, the employer should enter the wage rates in both Item F.1 (Rate of Pay) and Item G.9 (Prevailing Wage) on the ETA 9035/9035E in the form of an hourly wage. The employer may use the example below as a model for converting annual wage rates into hourly wage rates. Employers may also use prevailing wage sources which provide hourly prevailing wage rates.

    Example: If the Rate of Pay minimum wage rate for a worker to be paid is $50,000 annually at 40 hours per week, the calculation is as follows:

    52 weeks x 40 hours per week= 2080 hours per year
    $50,000 per year/ 2080 hours per year= $24.04 per hour

    If the Rate of Pay minimum wage rate for a worker to be paid is $50,000 annually at 30 hours per week, the calculation is as follows:

    52 weeks x 30 hours per week= 1560 hours per year
    $50,000 per year/ 1560 hours per year = $32.05 per hour

    Posted February 17, 2011

  12. What are an H-1B employer's pay obligations with respect to a nonimmigrant worker in nonproductive status?
    An H-1B employer is required to pay a nonimmigrant H-1B worker who is not working and is in nonproductive (not producing income for the employer) status as follows:
    • As to full-time salaried nonimmigrant workers, the employer must pay that worker the full pro-rata amount due.
    • As to full-time hourly wage nonimmigrant workers, the employer must pay that worker for a full-time workweek (40 hours, unless the employer can demonstrate that a different number of hours constitutes full-time employment).
    • Part-time nonimmigrant workers must be paid for at least the number of hours indicated on the USCIS petition, and where that number is represented by a range, the employer is required to pay for at least the average number of hours within the range normally worked by the nonimmigrant worker. The employer may not pay the nonimmigrant worker less than the amount corresponding to the minimum number of hours in the range.
    • An employer is not required to pay a nonimmigrant work for nonproductive status if it is based on a decision by the nonimmigrant worker to make him/herself unavailable to work (provided the worker's unavailability is due to conditions unrelated to employment which take the worker away from his/her duties at that worker's voluntary request or convenience or render the nonimmigrant unable to work in accordance with 20 CFR 655.731(c)(7)(ii), and the time is not subject to payment under the employer's benefit plan or other statutes).

    Posted February 17, 2011

  13. How can an employer enter an untitled custom survey on the LCA?

    If an employer obtains and uses a custom-made survey that conforms to the prevailing wage source requirements contained at 20 CFR 655.731, the employer must mark “Other” in Item G.11 and specifically identify the prevailing wage source in Item G.11b of the ETA Form 9035/9035E. In Item G.11b, the employer must enter both the name of the company that provided the wage source, and the words “custom survey” to identify an untitled custom survey source. An employer may use acronyms and abbreviations to identify the company name so long as the employer includes sufficient information in Item G.11b to ensure that the company name is obviously recognizable and the words “custom survey” appear.

    Important Note:The words “custom survey” may only be entered on the ETA Form 9035/9035E when the employer is identifying a custom-made wage survey it has obtained for the occupation.

    Example: If the employer obtains and uses a custom-made wage survey conducted in 2012 from a company called “XYZ Wage Surveys, Incorporated”, the ETA Form 9035/9035E Section G.11 should be completed in the following manner:

    Item

    Form Item Name

    Example Entry on
    ETA Form 9035/9035E

    G.11

    Prevailing wage source (choose only one)

    Other

    G.11a

    Year source published

    2012

    G.11b

    If “OES” and NPC did not issue prevailing wage OR “Other” in question 11, specify source:

    XYZ Wage Surveys: Custom Survey


    Posted March 27, 2012

  14. As an employer filing an LCA, where can I obtain a list of acceptable prevailing wage source surveys for Section G of the ETA Form 9035/9035E?

    The OFLC does not maintain a list of acceptable wage source survey instruments for purposes of processing the ETA Form 9035/9035E. An employer preparing an LCA must select a wage source that complies with the Department's regulations at 20 CFR 655.731 and identify that wage source on the ETA Form 9035/9035E. This information must be obviously recognizable from a revie w only of the information entered on the ETA Form 9035/9035E. When completing the application, the survey entry in Item G.11b must contain the name of the survey company and the exact title of the survey used. The survey title entered must be for the most recent applicable survey published.

    While the OFLC does not maintain a separate list of acceptable wage source survey instruments, the OFLC publishes on our web site LCA Disclosure Data on a quarterly and annual basis which includes certified LCAs with their Item G.11b wage source entries. The LCA Disclosure Data can be found here, and a table listing examples of commonly used prevailing wage surveys from FY 2011 LCAs is provided below. LCA Disclosure Data may be helpful to an employer as a list of potentially acceptable wage sources; however, the OFLC does not endorse specific wage source surveys or otherwise guarantee that wage source entries appearing in LCA Disclosure Data meet all regulatory requirements or will be approved in future-filedLCAs.

    Each employer must ensure that the wage source it relies on meets the regulatory requirements. For example, a wage source entry that was acceptable in a previous year may no longer reflect the current title of the latest wage survey publication or may no longer meet the requirements under 20 CFR 655.731. Wage survey source entries in Item G.11b must correspond to survey instruments ava ilable in the year entered in Item G.11a; the OFLC will deny an LCA where the wage survey source entry in Item G.11b does not match the year in Item G.11a. Moreover, wage survey source entries in Item G.11b must reflect the most recent publication of the specific survey at the time of LCA submission. The OFLC will deny an LCA with an otherwise acceptable wage survey source entry where, in Items G.11a and G.11b, the LCA identifies a version of the survey other than the most recent publication.

    Important Reminder: Acceptability of wage source entries in Item G.11b may vary due to abbreviations, spacing and special characters, since the OFLC's review of Item G.11b of the ETA Form 9035/9035E, the prevailing wage source, is limited to the information entered by an employer on the application. Upon submission of the application, employers attest that the prevailing wage information entered on the application complies with the Department's regulations at 20 CFR 655.731.

    Table: Examples of Commonly Used Prevailing Wage Surveys on FY 2011 LCAs
    from the LCA Disclosure Data*

     

    Item G.11a

     

    Item G.11b

    2011

    AAMC Survey of Resident Fellow Stipends & Benefits

    2011

    Pearl Meyer & Partners CHIPS One Survey

    2011

    Radford Global Technology Survey

    2011

    Towers Watson General Industry Specialized Professional Compensation Survey Report

    2011

    Dietrich Associates Inc. Fall Engineering Salary Survey

    2011

    Human Resource Association of the National Capital Area Compensation Survey Report

    2011

    CUPA Mid Level Administrative and Professional Salary Survey

    2011

    Mercer US - Mercer Benchmark Database Finance, Accounting & Legal

    2011

    The Survey Group: Software and Technology Survey

    2011

    Culpepper Compensation Surveys & Services: Life Sciences Compensation Report

    * Note: The Department does not endorse specific wage source surveys or otherwise guarantee that wage source entries appearing in the examples will be approved in future LCAs.

  15. Posted March 27, 2012

Top
header NOTICE
  1. What must an employer do to comply with the notice requirement when there is no bargaining representative?
    Where there is no bargaining representative, the employer must post a notice meeting the requirements of 20 CFR 655.734. A copy of the completed ETA Form 9035 /9035E can serve as the notice, but is not required to be posted as long as all of the required information set forth at 20 CFR 655.734(a)(1)(ii) is in fact posted The notice must be posted on or within 30 days before the filing date. Each notice must remain posted for a total of 10 days.

    Posting may occur through one of two methods: hard copy notice or electronic notice. The hard copy notice must be posted in at least two conspicuous locations in each employment location where an H-1B, H-1B1, or E-3 nonimmigrant worker will be employed. Appropriate locations for posting notice include, but are not limited to, near Wage and Hour Division notices or Occupational Safety and Health Administration notices. If the employer is providing electronic notice, it must notify employees in the occupational classification for which the H-1B nonimmigrant is sought (including both the direct employees of the H-1B employer and employees of a secondary/downstream employer where the H-1B worker will actually be placed). Electronic notification may be provided by whatever means the H-1B employer and/or secondary employer normally uses to communicate with its workers including electronic postings (e.g., e-mail, bulletin board, and home web page). The same time frames that apply to electronic notice apply to hard copy notice.

    Posted February 17, 2011

Top
header WORKING CONDITIONS
  1. Is an employer required to offer a certain minimum number of hours to an H-1B, H-1B1 or E-3 nonimmigrant worker?
    The employer must offer the nonimmigrant worker the number of hours specified in the USCIS petition (incorporating the LCA) and which constitute either full-time or part-time employment.

    Posted February 17, 2011

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header POST APPROVAL CHANGES
  1. Is an employer who has already filed an LCA required to submit a new LCA if it changes its permanent business location, but remains within the same Metropolitan Statistical Area (MSA), i.e. within the same area of intended employment?
  2. What are the employer's obligations when the employer transfers and/or assigns a nonimmigrant worker to a worksite listed on an approved LCA within the area of intended employment?
  3. May an employer who previously filed an LCA file a subsequent LCA for the same beneficiary(ies) if the new LCA reflects a different period of employment than that listed on the initial application
  4. What are the employer's obligations with respect to its nonimmigrant workers when there is a change in the employer's corporate structure or identity?
  5. What is required with respect to a sworn statement when there is a change in an employer's corporate structure or identity?
  6. How do I withdraw a certified LCA (ETA 9035/9035E) after receiving certification from the Department of Labor through the iCERT Portal System?

  1. Is an employer who has already filed an LCA required to submit a new LCA if it changes its permanent business location, but remains within the same Metropolitan Statistical Area (MSA), i.e. within the same area of intended employment?
    If the new permanent business location is a place of employment within the meaning of 20 CFR 655.715 that was not contemplated at the time of filing, and the employer permanently relocates its nonimmigrant worker(s) to the new business location, the employer must post electronic or hard-copy notice(s) at those worksites on or before the date the H-1B nonimmigrant begins work. In addition, the employer may file a new LCA to reflect the new place of employment.

    Posted February 17, 2011

  2. What are the employer's obligations when the employer transfers and/or assigns a nonimmigrant worker to a worksite listed on an approved LCA within the area of intended employment?
    The employer must ensure that there is no strike or lockout in the course of a labor dispute in the new place of employment in the same job classification before transferring the nonimmigrant worker to the new worksite that was previously identified on the approved LCA.
    Important note: H-1B-dependent employers and willful violators placing a non-exempt H-1B nonimmigrant worker(s) at a new place of employment also have an obligation to ensure that they are not displacing any U.S. worker(s) directly (in their own workforce) or secondarily (in the workforce of another employer at the place of employment). H-1B dependent employers and willful violators are defined in 20 CFR 655.736. Exempt H-1B nonimmigrants are defined in 20 CFR 655.737. Non-displacement obligations are described in 20 CFR 655.738.

    Posted February 17, 2011

  3. May an employer who previously filed an LCA file a subsequent LCA for the same beneficiary(ies) if the new LCA reflects a different period of employment than that listed on the initial application?
    Yes. In addition, under the Department's regulations, employers who do not wish to be bound by the terms and conditions of an obsolete LCA may withdraw that LCA at any time before the expiration of its validity so long as the nonimmigrants covered by that LCA are not employed at the place of employment pursuant to that LCA, and the Department's Wage and Hour Division has not commenced an investigation of that particular LCA.

    Posted February 17, 2011

  4. What are the employer's obligations with respect to its nonimmigrant workers when there is a change in the employer's corporate structure or identity?
    If an employing entity receives nonimmigrant workers under a valid and certified LCA from a previous employer as a result of a change in corporate structure or identity, the new employing entity is not required to file a new LCA (in order to continue to employ the nonimmigrant worker(s)), regardless of whether the new entity has the same Federal Employer Identification Number (FEIN), so long as the new employing entity:
    • Maintains a list of transferred nonimmigrant workers in its public access file(s); and
    • Maintains in a public access file a document containing all of the following:
      • The number of each affected LCA and date of certification;
      • A description of the new employing entity's actual wage system applicable to the transferred nonimmigrant workers;
      • The FEIN of the new employing entity (even if it is the same as the previous employer's);
      • A sworn Statement by the new employer or its authorized representative in which the new employing entity explicitly accepts all obligations and responsibilities inherent in the attestations of all affected (and valid) LCAs with respect to the transferred nonimmigrant workers. This statement must also include the new employing entity's acknowledgement of assuming all obligations, liabilities, and undertakings arising from or under attestations made in each certified and still effective LCA filed by the predecessor entity.

    No employing entity may use a transferred LCA to either hire new nonimmigrant workers or extend the status of any nonimmigrant worker. Instead, the new employing entity must initiate a new LCA process.

    Posted February 17, 2011

  5. What is required with respect to a sworn statement when there is a change in an employer's corporate structure or identity?
    Any sworn statement made to the Department in connection with an approved LCA must be signed by the employer and, as listed on the LCA instructions (ETA Form 9035CP), should indicate that the employer is making such statement under penalty of perjury and understands that knowingly and willingly furnishing any false information, or aiding, abetting, or counseling another to do so is committing a federal offense, punishable by fine or imprisonment up to five years or both. The employer must maintain the sworn statement in its public access file.

    Posted February 17, 2011

  6. How do I withdraw a certified LCA (ETA 9035/9035E) after receiving certification from the Department of Labor through the iCERT Portal System?

    An employer who received a certified LCA filed through the iCERT Portal System may withdraw a certified labor condition application (LCA) electronically through the iCERT Portal System, via email or written notice.

    A certified labor condition application (LCA) may be withdrawn at any time, provided the employee benefiting from the LCA is not currently working for the employer and the Administrator has not commenced an investigation. If an investigation has commenced, the LCA will remain pending until the investigation is complete.

    To withdraw a certified LCA using the iCERT Portal System, a Master account holder (Attorney/Employer) or Associate account holder (a subaccount user granted permission by the Master account holder) must login to the iCERT Portal System, select the certified LCA he or she wishes to withdraw and click the withdraw button. The user is required to select a withdrawal reason from a dropdown list and enter a case note explaining the reason for withdrawal. The system will ask the user to verify the request to withdraw the selected certified LCA. The user must click the verification button. Once the verification is made, the employer contact and the attorney contact, as listed on the LCA, will receive an email indicating the withdrawal was successful. If the user does not have the authority to withdraw the certified LCA, either because of LCA status or account status, the iCERT Portal System will not allow completion of the withdrawal. Withdrawing an LCA through the iCERT Portal System is the only option that guarantees confirmation once the withdrawal is complete.

    To withdraw a certified LCA via email, the employer must send the request to the LCA Help Center at: LCA.Chicago@dol.gov. The email subject line must include: Certified LCA Withdrawal Request. Please scan the certified LCA and attach it to the body of the email.

    In the body of the email, please provide: the employer's name and Federal Employer Identification Number (FEIN) if available, the LCA number, an explanation for why you are withdrawing the certified LCA, and provide a statement that no employee is working on the LCA pursuant to it being withdrawn. The user must access the iCERT Portal System to verify if the certified LCA was successfully withdrawn.

    To withdraw a certified LCA through written notice, the employer must send the written request to:
    Attn: LCA Withdrawal
    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification,
    Chicago National Processing Center
    11 West Quincy Court
    Chicago, IL 60604-2105

    Written notice must include: the employer's name and FEIN if available, the LCA case number, an explanation for why you are withdrawing the LCA, and verification that no employee is working on the LCA pursuant to it being withdrawn. The user must access the iCERT Portal System to verify if the certified LCA was successfully withdrawn.

    Please reference 20 Code of Federal Regulations 655.750(b) for further explanation of the requirements for withdrawing a certified LCA with the Department of Labor ETA.

    Posted June 17, 2010

Top
header TERMINATION OF EMPLOYMENT
  1. What are an H-1B employer's obligations with respect to a nonimmigrant worker whose employment ends (e.g. termination, resignation, or move to another employer) prior to the end of the LCA validity period?
    Under the Department's regulations, the employer is prohibited from charging a nonimmigrant worker a penalty fee outright or in the form of a deduction for ceasing employment early. However, in some circumstances, the employer may contract with the worker to receive liquidated damages in the event of a premature termination on the part of the worker. Employers should refer to DHS regulations for additional obligations.


    Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation.

    Posted February 17, 2011

Top
H-2A Temporary Labor Certification Program (Agricultural)
header GENERAL
  1. I filed an application for temporary labor certification before the 2010 Final Rule was effective. What rule will apply?

    1. Employers who filed with DOL before March 15, 2010, and have a start date of need before June 1, 2010, will be processed in accordance with the 2008 Final Rule's
      transition procedures.
    2. Employers who filed with DOL on or after March 15, 2010, and have a start date of need before June 1, 2010, will be processed in accordance with the 2010 Final Rule's emergency procedures.
    3. Employers with a start date of need on or after June 1, 2010, will be processed in accordance with the 2010 Final Rule's normal procedures.

    March 29, 2010

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header LABOR CERTIFICATION DETERMINATIONS
  1. Are dairy farmers who perform milking operations able to qualify for an H-2A labor certification?

    No. To qualify for an H-2A labor certification an employer must establish a need for the agricultural services or labor to be performed on a seasonal basis. Although the Department considers each employer's specific circumstances on a case-by-case basis, the Department's program experience has consistently shown that the majority of dairy activities, and milk production in particular, are year-round and therefore cannot be classified as either temporary or seasonal.

    February 4, 2013

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header SPECIAL PROCEDURES
  1. Will the current special procedures for sheepherders, custom harvesters, and other unique agricultural occupations continue under this Final Rule?

    Yes. The regulation explicitly states that such special procedures will continue.

    March 29, 2010



  2. Are employers engaged in itinerant custom combine activities exempt from any of the additional documentation requirements for H-2A Labor Contractors (H-2ALCs) beyond Migrant and Seasonal Agricultural Worker Protection Act (MSPA) registration?

    The Training and Employment Guidance Letter (TEGL) No. 16-06, Change 1, establishes special procedures applicable to itinerant custom combine employers seeking H-2A certifications. The TEGL permits them to file one Application for Temporary Employment Certification covering one or more areas of intended employment based on a planned itinerary. As the TEGL notes, custom combine activities are exempt from MSPA registration and therefore are not required to provide a MSPA Farm Labor Contractor (FLC) Certificate of Registration. An itinerant custom combine employer, however, meets the definition of an "H-2A Labor Contractor" (H-2ALC) and must submit all of the other documentation required of H-2ALCs by regulation.

    February 13, 2013



  3. How can an itinerant custom combine employer comply with the requirement that it submit fully executed work contracts with its Application for Temporary Employment Certification?

    We recognize that, due to the unique nature of custom combine activities, a custom combine employer operating on a planned itinerary may not have fully executed work contracts for all worksites before filing an Application for Temporary Employment Certification. Custom combine employers typically travel across vast distances bringing heavy machinery not available locally to meet the needs of fixed-sited agricultural business owners. Weather, crop growth, and other factors that cannot be anticipated on such long itineraries (e.g., across multiple states) may cause an employer's anticipated work to change during the course of the season. Moreover, when the unique custom combine machinery arrives in a local area, additional local fixed-site agricultural business owners may seek the employer's custom combine services. Nevertheless, the employer must have sufficient evidence of the work it expects to perform across the itinerary at the time it submits its application in support of its request for temporary workers.

    Given the unique characteristics of custom combine activities, the Department will consider an employer to have effectively satisfied the intent of the H-2A Labor Contractor (H-2ALC) work contract documentation requirement if it provides alternative evidence of agreements to perform custom combine work for fixed-site agricultural business owners, such as letters of intent. Therefore, at the time of filing its Application for Temporary Employment Certification, the employer must provide copies of work contracts or similar agreements (e.g., letters of intent) with the agricultural business owners listed on the itinerary submitted with the application for which the custom combine employer intends to perform work. If an employer meets all other certification requirements, but is unable to substantiate the period of need requested or itinerary provided, the certification will be limited to the portion of the itinerary substantiated through work contracts or similar agreements.

    Under certain circumstances, such as when weather conditions prevent completing the custom combine activities approved on the itinerary during the period of need certified, an employer may request a short or long-term extension. The post-certification extension regulatory provision and request process is discussed in more detail in a separate Frequently Asked Question.

    Important Note: An employer augmenting its scheduled work within the approved areas of intended employment after certification should maintain an updated itinerary and retain copies of work contracts or similar agreements to ensure that accurate documentation is available in the event of a post-certification audit or upon request by authorized representatives of the Department.

    February 13, 2013

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header PRE-FILING
    Wage Determinations
  1. Will we be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?

  2. Pre-Filing Recruitment
  3. Does the 2010 Final Rule require employers to begin recruiting U.S. workers before filing their applications with the Department?

  4. ETA Form 790
  5. What form should I use to submit my job order to the SWA?
  6. Can we put "n/a" on the ETA Form 790 if something doesn't apply?
  7. Under the 2010 Final Rule I will be submitting my job order to the SWA for intrastate clearance. What documentation should I include with the Agricultural and Food Processing Clearance Order, the ETA Form 790?
  8. When the employer submits the ETA Form 790 to the State Workforce Agency (SWA) during the requisite 60-75 day timeframe, what should the employer include along with it?
  9. Is there information which must be listed in the ETA Form 790 and the ETA Form 790 Attachments that some employers may not realize is essential?
  10. What assurance must I make regarding the wage rate paid to my workers and how should I list the assurance on the ETA Form 790 or Attachments?
  11. How often must workers receive their paychecks? Do I have to identify the frequency of pay on the ETA Form 790 or Attachments?
  12. May an agent or attorney sign the ETA 790 on the employer's behalf?

  13. Wage Disclosure
  14. What wage rate should I list on my job order?
  15. What wage should I list on my work contracts?

  16. SWA Acceptance of Job Order
  17. What do I do if the SWA doesn't accept my job order in time or I cannot reach an agreement with the SWA on the necessary changes to the job order?
  18. If there are no deficiencies on the ETA Form 790, when will the SWA notify the employer?

  19. Housing
  20. When should I contact the State Workforce Agency (SWA) to inspect the housing I plan to provide to my workers?
    Wage Determinations

  1. Will we be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?

    No. The 2010 Final Rule does not require employers participating in the H-2A program to obtain a wage rate separate from completing and submitting a job order to the SWA.

    March 29, 2010



  2. Pre-Filing Recruitment

  3. Does the 2010 Final Rule require employers to begin recruiting U.S. workers before filing their applications with the Department?

    Yes. An employer participating in the H-2A program will be required to initiate pre-filing recruitment 75 to 60 days before the employer's first date of need by 2 submitting its job order to a SWA serving the area of intended employment as required under 20 CFR 655.121.

    March 29, 2010

  4. Top


    ETA Form 790

  5. What form should I use to submit my job order to the SWA?

    The employer should use the Agricultural and Food Processing Clearance Order, ETA Form 790 (the job order). Employers may download a PDF copy of the form from the Office of Foreign Labor Certification (OFLC) web site:
    http://www.foreignlaborcert.doleta.gov/form.cfm

    March 29, 2010



  6. Can we put "n/a" on the ETA Form 790 if something doesn't apply?

    Yes. Employers are encouraged to submit a complete application containing as much detail as possible, including entering "n/a" where appropriate, so as to facilitate the adjudication of the application and minimize the chances of the application package being returned due to incomplete information.

    September 15, 2010



  7. Under the 2010 Final Rule I will be submitting my job order to the SWA for intrastate clearance. What documentation should I include with the Agricultural and Food Processing Clearance Order, the ETA Form 790?

    An employer filing on its own behalf will only need to submit the ETA Form 790 and the attachments required by the form, as explained in the instructions. Thereafter, the SWA and/or the Certifying Officer may require the employer to submit documentation substantiating the appropriateness of any qualification(s) contained in the ETA Form 790. For example, if the employer is a Farm Labor Contractor, it must be prepared to submit a copy of a valid FLC Certificate of Registration, if requested.

    September 15, 2010



  8. When the employer submits the ETA Form 790 to the State Workforce Agency (SWA) during the requisite 60-75 day timeframe, what should the employer include along with it?

    The employer is required to submit to the SWA the original ETA Form 790 along with all required attachments, as specified in the instructions to the form. The required attachments include, if applicable, an attachment describing special work schedule situations, an attachment describing in detail the job tasks and duties, and an attachment explaining the employer's handling of wage rate for each activity. The employer should also submit any additional attachments it creates to complete its response to one of the question(s) on the form or otherwise document its compliance with the required assurances described in 20 CFR 653.501 and 655.122. Upon receiving the ETA Form 790, the SWA may require the employer to submit documentation substantiating the appropriateness of any qualification(s) contained in the ETA Form 790.
    Please note:
    The employer must also send a copy of the ETA Form 790 submitted to the SWA with its Application for Temporary Employment Certification to the Chicago National Processing Center.

    September 15, 2011


  9. Is there information which must be listed in the ETA Form 790 and the ETA Form 790 Attachments that some employers may not realize is essential?

    We frequently see problems in the following areas and would like to remind employers to include the information noted below in the ETA Form 790:

    • Item 2 - Worksite location(s) and directions must be clear and complete
    • Item 3 - Housing location(s) and directions must be clear and complete. If the employer is providing rental or public accommodations, an assurance must be submitted stating that all rental or public accommodations will meet all local, State or Federal housing standards
    • Item 14 - Referral instructions must include the name of the employer's point of contact, phone number and the hours when the person can be contacted regarding an application or interview
    • Item 15 - Job specifications must include as much detail as possible
    • Item 16 - Indicate all deductions to be made from the worker's paycheck. Note that while employers are required by law to deduct Federal and Social Security taxes in all States, in some States employers are not required to deduct for State taxes.

    February 29, 2012

  10. What assurance must I make regarding the wage rate paid to my workers and how should I list the assurance on the ETA Form 790 or Attachments?

    The employer must identify the specific wage rate offered in Item 16 of the ETA Form 790. In addition, in almost all cases, the employer must specifically state the following assurance in Item 16 of the ETA Form 790 or the ETA Form 790 Attachments: "The employer will pay the highest of the Adverse Effect Wage Rate (AEWR), the prevailing hourly wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage, in effect at the time work is performed." Only an employer subject to an approved special procedure for an occupation or specific class of agricultural employment may be required to provide a different assurance.

    Simply stating a regulatory citation is not acceptable, as the ETA Form 790 and Attachments serve to fully apprise a worker of the job offered. The worker should not have to look up a regulatory provision to understand the terms and conditions of employment.

    February 29, 2012

  11. How often must workers receive their paychecks? Do I have to identify the frequency of pay on the ETA Form 790 or Attachments?

    By regulation, the employer must pay workers at least twice monthly, or according to the prevailing practice in the area of intended employment, whichever is more frequent. The Office of Foreign Labor Certification (OFLC) has established the Agricultural Employment Practice Survey Library, which makes prevailing practice information available to employers. This library is available on our website at http://www.foreignlaborcert.doleta.gov/aowl_survey_pdf.cfm.
    The employer must identify the specific frequency of pay applicable to the job opportunity in Item 16 of the ETA Form 790, or in the ETA Form 790 Attachments. Simply stating the regulatory citation or the general rule is unacceptable, as the ETA Form 790 and Attachments serve to fully apprise a worker of the terms and conditions of employment.

    February 29, 2012

  12. May an agent or attorney sign the ETA 790 on the employer's behalf?

    No. Departmental regulations, prohibit the State Workforce Agency (SWA) from placing a job order seeking workers to perform agricultural or food processing work unless the employer has signed the job order (i.e., the Agricultural and Food Processing Clearance Order (ETA Form 790)). 20 CFR 653.50(d)(2). The plain language of the regulation requires the employer's own signature on the ETA Form 790. An employer may not delegate its responsibility to sign the ETA Form 790 to a representative acting on its behalf (e.g., an agent who has obtained a specific power of attorney from the employer).

    Important Note: An association submitting an Agricultural and Food Processing Clearance Order (ETA Form 790) as a joint employer with its employer-members may sign the ETA Form 790, as the association is an employer on the application. An association acting as an agent of the employer-members, however, may not sign the ETA Form 790, as the association is not an employer on the application. An association of employers shall be considered an employer only if the association has an employer relationship with respect to hiring, paying, firing, supervising, or otherwise controlling the work of the workers sought through the ETA Form 790. Such an association, however, shall be considered a joint employer with the employer member(s) when it shares in exercising one or more of the definitional indicia.

    February 4, 2013

  13. Wage Disclosure

  14. What wage rate should I list on my job order?

    Under the 2010 Final Rule, an employer in the H-2A program is required to offer, advertise, recruit at and pay the highest of the AEWR, the prevailing hourly wage rate, the prevailing piece rate, the agreed-upon collective bargaining rate (if an employer is subject to a collective bargaining agreement (CBA)), or the Federal or State minimum wage rate, in effect at the time work is performed, for every hour or portion of an hour worked during a pay period, except where a special procedure is approved for an occupation or specific class of agricultural employment. Therefore, the employer must list the highest of these applicable rates. If an employer lists the AEWR and the SWA, before accepting the job order for intrastate clearance, determines that another applicable wage rate is higher, the SWA will issue to the employer a Notice of Deficiency directing the employer to modify its job order to reflect the higher applicable wage rate. Each employer who is subject to a CBA must attach a copy of the CBA to its job order. Employers should note that if they pay workers on a piece rate basis and at the end of the pay period the worker's earnings for that pay period, if re-calculated on an hourly basis, would result in an hourly wage that is below the required hourly wage, the employer must guarantee to pay the worker an additional amount bringing the worker's wages for that pay period up to the amount the worker would have been paid at the required hourly wage rate.

    March 29, 2010



  15. What wage should I list on my work contracts?

    The wage rate listed on the work contract must be the same wage rate as the rate listed on the job order and approved by the SWA. If the employer intends to sign work contracts before the SWA accepts the job order for intrastate clearance and the SWA subsequently directs the employer to modify the wage rate listed on the job order, the employer will be required to also modify its work contracts to reflect the approved wage rate. The employer may contact its local SWA to inquire whether a wage rate higher than the AEWR is applicable to its job order.

    March 29, 2010

  16. Top


    SWA Acceptance of Job Order

  17. What do I do if the SWA doesn't accept my job order in time or I cannot reach an agreement with the SWA on the necessary changes to the job order?

    Under the 2010 Final Rule, the SWA has 7 calendar days after receiving an employer's job order to accept the job order for intrastate clearance or to notify the employer that the job order is deficient. If, after receiving a timely-filed job order, the SWA determines that the job order does not meet all of the regulatory and program requirements, the SWA must issue a Notice of Deficiency listing the job order deficiencies that must be corrected before the job order can be accepted. The employer will have 5 calendar days to respond to the SWA and correct the noted deficiencies. If the employer timely corrects the deficiencies, the SWA will send the employer a Notice of Acceptance within 3 calendar days after receiving the employer's response, and promptly place the job order in intrastate clearance. If the employer does not adequately correct the deficiencies, or fails to submit a timely response to the SWA, the SWA will issue a Notice of Denial.

    Where the employer has not been able to resolve the deficiencies regarding the job order with the SWA, the employer will be able to use the emergency filing procedures under 20 CFR 655.134 to submit its application and job order directly to the Chicago NPC so long as:

    1. The employer timely submitted the job order and after documented efforts to solicit a response from the SWA received no response by the 46th day before the employer's first date of need; or
    2. The employer timely submitted the job order and after receiving a Notice of Deficiency timely and in good faith submitted information aimed to correct the noted deficiencies, but the SWA did not respond to the employer's submission within 3 days of the receipt of the employer's submission, or by the 46th day before the employer's first date of need, whichever is later; or
    3. The employer timely submitted the job order and after receiving a Notice of Deficiency timely and in good faith submitted information aimed to correct the noted deficiencies, but the SWA did not consider the employer's timely submission sufficient to accept the job order and issued a Notice of Denial within 3 days after receipt of the employer's submission or by the 46th day before the employer's first date of need, whichever is later.

    March 29, 2010



  18. If there are no deficiencies on the ETA Form 790, when will the SWA notify the employer?

    Under the regulations, the SWA is only required to send the employer a Notice of Deficiency, if applicable, within seven days of the date of submission. However, as a courtesy, the SWA will send the employer a Notice of Acceptance verifying placement of the job order and providing a copy of the approved job order. If seven days have passed and the employer has not received a Notice of Deficiency or Notice of Acceptance from the SWA, the employer may contact the SWA to inquire into the status of its submitted ETA Form 790.

    September 15, 2010



  19. Housing

  20. When should I contact the State Workforce Agency (SWA) to inspect the housing I plan to provide to my workers?

    An employer may request a pre-occupancy housing inspection well in advance of its date of need. Early contact with the SWA will provide the employer with time to resolve potential housing compliance issues without impacting the issuance of the temporary labor certification. The statute provides that an employer is not required to submit proof that its housing complies with applicable program requirements at the time of filing its Application for Temporary Employment Certification (ETA Form 9142). However, the Department cannot grant a temporary labor certification without proof, which is typically provided in the form of a confirmation from the SWA that the employer-provided housing has sufficient capacity and is in compliance with applicable requirements.

    We encourage an employer who has not already obtained the SWA's approval of its housing to contact the SWA to schedule the required pre-occupancy housing inspection as part of its initial preparations to submit an Application for Temporary Employment Certification. At the latest, the employer must request the housing inspection when submitting its job order (ETA Form 790) to the SWA.

    Note that where special procedures permit an employer to use mobile housing on a multi-State itinerary, the employer may contact the SWA with jurisdiction over the initial pre-occupancy location of the mobile housing to conduct the inspection. That SWA's inspection and approval serves to certify the mobile housing for the entire itinerary.

    February 13, 2013

Top
header TIME FRAMES
  1. What is the required time frame for filing an H-2A temporary labor certification application?

    An employer must submit an application no later than 45 days before the employer's first date of need.

    March 29, 2010



  2. For purposes of the H-2A program, is the employer bound by the date on which the job order and/or application was postmarked, or the date on which it was received by the Department?

    The relevant date for purposes of any time calculation or submission in connection with the filing of an Application for Temporary Employment Certification, including the application and the job order, is the date on which the Department receives the submission.

    September 15, 2010



  3. Under the H-2A program, how does the National Processing Center determine whether an application has been filed 45 days prior to the employer's date of need?

    When determining whether an application has been filed "no less than 45 calendar before employer's date of need," as required by 20 CFR 655.130(b), the National Processing Center does not include the day the application was received in its calculation. Instead, the next day is counted as day one. For example, if an application is received at the National Processing Center on Tuesday, June 1, 2010, that date is not counted. Instead, Wednesday, June 2nd, is counted as day 1 of the timeframe and Thursday, June 3rd, as day 2; etc., up until Friday, July 16th, which is day 45. In this instance, provided the employer lists its date of need on its submitted application as July 16, 2010, or after, the employer has complied with 20 CFR 655.130(b).

    September 15, 2010

Top
header FILING
  1. How do I file an application for a temporary labor certification in the H-2A program?
  2. What form should I use to file my application?
  3. How can I ensure that my application is processed as quickly as possible?


  4. ETA Form 9142
  5. Where do I find the NAICS Code requested in Section C, question 13 of the ETA Form 9142, and what is it?
  6. Where do I find the SOC Code and SOC Occupation Title requested in Section B, questions 2 and 3 of the ETA Form 9142?
  7. You added several new questions to the ETA Form 9142, including the year the company started, its gross annual revenue, and the number of non-family full-time equivalent (FTE) employees. Will applications be rejected if this information is not included? Should temporary/seasonal employees be included in the non-family FTE count?
  8. What supporting documentation do I have to submit with my Application?
  9. Can I file one H-2A application for work that will take place in multiple work locations?
  10. Must an employer list the location of the worksite if it is already listed in the ETA Form 790?
  11. I represent an association whose members are applying for H-2A workers. One member has the same start date of need as all other members, but has a different end date for the work contract. Can that member be included on the master application or must it file an individual application?
  12. Can I file one H-2A application which involves an itinerary?
  13. May an agent or attorney sign the Application for Temporary Employment Certification (ETA Form 9142) or recruitment report on the employer's behalf?
  14. May I use correction tape or fluid ("white-out") to fix typographical errors on the ETA Form 9142?
  15. Can a farm that has operations in two States with the same crop and period of need submit one Application for Temporary Employment Certification including both worksite locations?
  16. Can an association that has members in two States with the same crop and period of need submit one Application for Temporary Employment Certification including all members?
  1. How do I file an application for a temporary labor certification in the H-2A program?

    Employers may now submit their H-2A application either electronically OR via mail directly to the Chicago National Processing Center (NPC). The employer must choose only one method of submission. Duplicate applications, where the employer or authorized representative files electronically and submits that same application via U.S. mail, will be rejected.

    • Electronic Filing:

    Employers may submit their H-2A application electronically via the Department's iCERT Visa Portal System at https://icert.doleta.gov/. It is important to read the H-2A iCert Quick Start Guide and H-2A iCERT User Manual before completing and submitting an H-2A application. The online help provides step-by-step instructions for completing and submitting the H-2A application electronically. For more resources and information, please visit the iCERT implementation web page at http://www.foreignlaborcert.doleta.gov/h2ah2b_icert_rollout.cfm.

    • Mail Filing:

    The employer may mail the application package to the Chicago NPC at the following address:
    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification
    Chicago National Processing Center
    11 West Quincy Court
    Chicago, IL 60604- 2105
    ATTN: H-2A Program Unit

    December 10, 2012



  2. What form should I use to file my application?
    An employer must use the Application for Temporary Employment Certification ETA Form 9142 and Appendix A.2. Employers may download the required forms in PDF format from the OFLC web site: http://www.foreignlaborcert.doleta.gov/form.cfm.

    March 29, 2010

  3. How can I ensure that my application is processed as quickly as possible?
    An employer can minimize processing time by ensuring that its job order and Application for Temporary Employment Certification are complete and accurate, and by responding promptly to any request(s) from the State Workforce Agency (SWA) or Chicago NPC during job order and application processing.

    In addition, an employer should begin the temporary labor certification application process as early as the regulations permit. Absent an emergency situation, an employer may begin the process by submitting a job order to the SWA serving the area of intended employment as early as 75 calendar days before the date of need (but must submit its job order no fewer than 60 days before the date of need). As soon as the SWA approves the employer's job order, the employer may submit its completed Application for Temporary Employment Certification and a copy of the SWA-approved job order to the Chicago NPC. This non-emergency submission must occur no less than 45 days before the employer's date of need. Note that under certain circumstances (i.e., the SWA does not provide notice of acceptance or deficiencies within 7 calendar days after job order submission or the SWA and employer try but are unable to resolve a dispute about regulatory compliance of job order content), an employer may submit a copy of an unapproved job order to the Chicago NPC with its Application for Temporary Employment Certification.

    After reviewing the Application for Temporary Employment Certification and job order, the Chicago NPC will issue either a Notice of Acceptance or a Notice of Deficiency. An employer receiving a Notice of Acceptance should follow the recruitment instructions provided by the Certifying Officer (CO) and may submit the recruitment report and any other required documentation identified in the Notice of Acceptance to the Chicago NPC as soon as the employer has that documentation but must submit this documentation no later than the date specified by the CO. An employer receiving a Notice of Deficiency minimizes delay when it responds to the Notice of Deficiency quickly and completely. As soon as all certification requirements are met, the Chicago NPC can issue a certification.

    Important Note: We encourage employers to register for our e-mail notification program by contacting TLC.Chicago@dol.gov. Participation in our e-mail notification program is an effective way for employers or, if applicable, their authorized attorney or agent to receive information about deficiencies more quickly, enabling them to more quickly respond.

    February 13, 2013

  4. Top


    ETA Form 9142

  5. Where do I find the NAICS Code requested in Section C, question 13 of the ETA Form 9142, and what is it?

    The North American Industry Classification System (NAICS) is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy. The NAICS coding system is maintained by the U.S. Census Bureau. A listing of NAICS codes can be found at http://www.census.gov/epcd/www/naics.html. The code selected by the employer should reflect the nature of the employer's business, not the job for which certification is sought.

    September 15, 2010



  6. Where do I find the SOC Code and SOC Occupation Title requested in Section B, questions 2 and 3 of the ETA Form 9142?

  7. The Standard Occupational Classification (SOC) system is a numerical code that classifies job opportunities into occupational categories for the purpose of collecting, calculating, or disseminating data. An employer may search the Bureau of Labor Statistics' 2010 SOC list, which lists occupations in alphabetical order (http://www.bls.gov/soc/2010/soc_alph.htm#F), or may search theDepartment's wage wizard at http://www.flcdatacenter.com/OesQuick.aspx to obtain the appropriate code. The code and occupation title selected by the employer should reflect the nature of the position for which certification is sought.
    The SOC categories of occupations that are most likely to be identified with H-2A agricultural workers are:

    45-2092.01 Nursery Workers
    45-2092.02 Farmworkers and Laborers, Crop
    45-2041.00 Graders and Sorters
    45-2091.00 Agricultural Equipment Operators
    45-2093.00 Farm Workers, Farm and Ranch Animals
    45-2099.00 Agricultural Workers, All Other

    September 15, 2011



  8. You added several new questions to the ETA Form 9142, including the year the company started, its gross annual revenue, and the number of non-family full-time equivalent (FTE) employees. Will applications be rejected if this information is not included? Should temporary/seasonal employees be included in the non-family FTE count?

    Applications will not be rejected if questions, such as those listed above, are not answered as long as they are not required fields/items containing an asterisk(*). Additionally, temporary and/or seasonal workers should not be included in the non-family FTE count.

    September 15, 2010



  9. Top


  10. What supporting documentation do I have to submit with my Application?

    As a general matter, the employer must submit along with its Application the SWA-approved job order (ETA Form 790), unless a specific exception applies.
    In addition, the employer is required to submit several documents prior to certification these documents may be submitted at the time the application is filed. If the employer does not have the documentation ready at the time it submits the application, the employer will be directed by the Notice of Acceptance to submit each of these documents before certification may be granted.
    1. Proof that the employer's housing is in compliance with applicable program requirements. See 20 CFR 655.122(d);
    2. Proof of workers' compensation insurance coverage as required under new section 20 CFR 655.122(e);
    3. A written and signed recruitment report on the date specified by the CO in the Notice of Acceptance.
    In addition, employers should note that if an employer is listing specific job qualifications on its job order and/or application, the CO has the authority, through a Notice of Deficiency, to request that the employer provide documentation evidencing the appropriateness of these job qualifications. See 20 CFR 655.122(b). However, an employer may choose to submit the justification for any qualifications required for the position at the time it files the application.
    Additional requirements apply to associations, H-2ALCs and agents, as explained below:

    Associations.If filing a master application, associations must list on the Application (or attachment to the Application) the names, addresses, total number of workers needed, crops and agricultural work performed for each employer who will employ H-2A workers under the master application. See 20 CFR 655.131 (b). If the association is filing as an agent (instead of as a joint employer), the association must obtain and submit each member's signature for the particular Application.

    H-2A Labor Contractors. Labor contractors seeking to file H-2A applications (H2ALCs)
    must submit the name and location of each fixed-site agricultural business to which the H-2ALC will provide H-2A workers, the expected beginning and ending dates of employment on each fixed site and a description of the crops and activities the workers will be performing on each site. The H-2ALC must submit copies of signed contracts with each fixed-site agricultural business to which it is providing H-2A workers and If those fixed-site businesses are providing housing and transportation to the workers, proof that the housing and transportation are in compliance with program
    regulations. See 20 CFR 655.132.

    The H-2ALCs must also provide a copy of a valid Farm Labor Contractor (FLC) Certificate of Registration, If the H-2ALC is considered an FLC within the meaning of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). In addition, an H2ALC must provide proof that it is able to meet its financial obligations under the H-2A program by submitting an original surety bond as required by 29 CFR 501.9.

    Agents. In addition, an agent must provide a copy of the agent agreement or other document demonstrating the agent's authority to represent the employer. This required document must be submitted with the application and is in addition to Sections E and I on ETA Form 9142 and Appendix A.2. Finally, an agent must submit a copy of a valid FLC Certificate of Registration, if required under MSPA. See 20 CFR 655.133.

    March 29, 2010

  11. Top


  12. Can I file one H-2A application for work that will take place in multiple work locations?

    Yes. An employer's application may cover multiple work locations within an area of intended employment so long as they are within reasonable commuting distance from a place of the job opportunity for which the employer is seeking certification. If an employer belongs to an association, under the 2010 Final Rule the association may file a master application on behalf of the employer and its other members. A master application may cover multiple areas of intended employment and multiple work locations so long as: all workers covered by the application belong to the same occupation or will perform comparable work for the employer-members; the application reflects a single date of need for all workers; and all employer-members covered by the application are located in at most two contiguous states. Master Applications can only be filed by Associations acting as joint employers with their members. Finally, if the employer is an H-2A Labor Contractor (H-2ALC), the employer may file a single application covering multiple work locations within one area of intended employment.

    March 29, 2010



  13. Must an employer list the location of the worksite if it is already listed in the ETA Form 790?

    Yes. Both the job order and the ETA Form 9142 must list each worksite where the workers will be working so that they may be apprised of the locations prior to applying for the job opportunity.

    September 15, 2010

  14. Top


  15. I represent an association whose members are applying for H-2A workers. One member has the same start date of need as all other members, but has a different end date for the work contract. Can that member be included on the master application or must it file an individual application?

    Only associations filing as joint employers with their employer-members may file master applications. An employer who receives workers through a master application filed by an association must have the same initial date of need, i.e. the same start date, as all other employers listed in the master application. However, the employers' end dates may contain slight variances depending on their need for workers. Regardless of whether the employers covered by a master application have the same or different end dates of need, an association filing a master application must specify each employer's period of need on: the job order, i.e. the Agricultural and Food Processing Clearance Order ETA Form 790; the Application for Temporary Employment Certification, ETA Form 9142, and/or any attachments thereto; and the newspaper advertisements.

    March 29, 2010



  16. Can I file one H-2A application which involves an itinerary?

    Unless an employer belongs to a group or occupation to which special procedures apply, itineraries involving work in more than one area of intended employment are not permitted.

    March 29, 2010



  17. May an agent or attorney sign the Application for Temporary Employment Certification (ETA Form 9142) or recruitment report on the employer's behalf?

    No. The H-2A regulation requires the employer itself to sign the Application for Temporary Employment Certification (ETA Form 9142) as well as the recruitment report. The plain language of the regulation requires the employer's original signature on the ETA Form 9142 in addition to, and separately from, the original signature of the employer's attorney or agent, if the employer is represented by an attorney or agent. The plain language of the recruitment report provision conveys the importance of the employer's direct involvement in the recruitment process and validation of the recruitment results reflected in the recruitment report. An employer may not delegate its responsibility to sign the ETA Form 9142 or recruitment report to a representative acting on its behalf (e.g., an agent who has obtained a specific power of attorney from the employer).

    Important Note: An association filing an Application for Temporary Employment Certification as a joint employer with its employer-members may sign the ETA Form 9142 and recruitment report, as the association is an employer on the application. An association acting as an agent of the employer-members, however, may not sign the ETA Form 9142 or recruitment report, as the association is not an employer on the application.

    February 4, 2013



  18. May I use correction tape or fluid ("white-out") to fix typographical errors on the ETA Form 9142?

    An employer may use correction tape or fluid to fix typographical errors on the Application for Temporary Employment Certification (ETA Form 9142), provided that its use of correction tape or fluid does not render the text illegible or ambiguous.

    In all fields of the Application for Temporary Employment Certification, employers may make any necessary corrections using a pen and striking a line through unwanted text directly on the ETA Form 9142. Pen-and-ink corrections that are initialed and dated by the employer are acceptable.

    Important Note: We encourage employers to use the fillable ETA Form 9142 and Appendix A.2 available on our Web site. Completing the form electronically enables the preparer to resolve typographical errors before printing the final document.

    February 13, 2013



  19. Can a farm that has operations in two States with the same crop and period of need submit one Application for Temporary Employment Certification including both worksite locations?

    An Application for Temporary Employment Certification is limited to a single area of intended employment, unless the job opportunity is covered by an approved special procedure that permits work in multiple areas of intended employment. The H-2A regulation defines an area of intended employment as the geographic area within normal commuting distance of where the job opportunity is located. An employer may include multiple worksite locations, including worksites on different sides of State lines, on a single Application for Temporary Employment Certification as long as each worksite is within a single area of intended employment (i.e., within normal commuting distance). If the worksites are beyond a reasonable commuting distance, then a separate application must be filed for those worksites.

    There is no specific distance that constitutes a maximum normal commuting distance because various factors specific to the worksite area determine what length of commute is normal. For example, the quality of the public transportation network impacts the length of commute considered normal. To provide an employer with some measure of normal commuting distance, the Department has determined that any place within a Metropolitan Statistical Area (MSA) (including a multistate MSA) is within normal commuting distance. The borders of an MSA are not controlling, however, for identifying normal commuting distance; a location outside of an MSA may be within normal commuting distance of a location inside the MSA (e.g., close to the border of the MSA).

    The Chicago National Processing Center (NPC) will consult with the applicable State Workforce Agency in determining what constitutes the maximum normal commuting distance for a given geographic area.

    February 13, 2013



  20. Can an association that has members in two States with the same crop and period of need submit one Application for Temporary Employment Certification including all members?

    In most cases, an Application for Temporary Employment Certification is limited to a single area of intended employment. However, provided that certain conditions are met, an association may file a Master Application on behalf of its employer-members in multiple areas of intended employment:
    • The association must file as a joint employer with its employer-members;
    • All employer-members must be located in no more than two contiguous States;
    • The application covers the same occupation or comparable work with employermembers; and
    • A single date of need is provided for all workers requested in the application.

    February 13, 2013

Top
header JOB OFFERS, ASSURANCES AND OBLIGATIONS
      Housing
  1. Is the H-2A employer required to provide housing to U.S. workers who live within normal commuting distance from the worksite, but live in a homeless shelter or no longer want to pay rent?
  2. What if the SWA refuses to do housing inspections?
  3. Does public rental housing need to be inspected by the SWA?


  4.   Workers' Compensation
  5. When do I need to submit proof of workers' compensation insurance coverage?
  6. What documentation should I submit as evidence of workers' compensation insurance coverage?
  7. My workers' compensation insurance coverage expires prior to my end date of need. What documentation should I submit as proof of coverage for the entire period of need requested on the application?


  8.   Meals
  9. Under the 2010 Final Rule the employer is required to provide to its workers either three meals a day or free and convenient cooking and kitchen facilities. What constitutes a meal for purposes of the 2010 Final Rule?


  10.   Transportation and Daily Subsistence
  11. What is the definition of daily subsistence for purposes of travel payments/reimbursement?
  12. For the purposes of travel-related payments/reimbursements, what costs are the employer's responsibility?


  13.   Rates of Pay
  14. Will I have to pay for the worker's daily subsistence before the worker begins his or her inbound trip to my worksite?
  15. Will the employer be required to pay the AEWR?
  16. May an employer require productivity standards if the work is paid on a piece-rate basis?
  17. Will employers subject to the 2010 Final Rule be obligated to adjust the approved wage rate if the wage rates increase during the contract period?
  18. What federal tax withholdings are applicable to H-2A workers?
  19. For agricultural occupations other than open range production of livestock, sheepherding and goatherding, and itinerant animal shearing occupations, how are prevailing wage rates determined in a State where there is insufficient wage data?
  20. What is the required wage for H-2A sheepherders? Can they be paid more than the prevailing wage rate?


  21. Adverse Effect Wage Rate
  22. The new annual Adverse Effect Wage Rate (AEWR) has been published and the AEWR applicable to my job opportunity has gone down. What am I required to pay?


  23. No Strike or Lockout
  24. Under the 2010 Final Rule I am not allowed to import H-2A workers if my domestic workers are on strike or if they are being locked out. Is there a threshold number of workers that must be on strike for this prohibition to apply?
  25. What if my domestic workers go on strike after I've already applied to bring in the foreign workers?
  26. What happens if my domestic workers go on strike or are being locked out after I have received a labor certification and my H-2A workers are on their way to the worksite or are already working on the farm?


  27. Fifty Percent Rule
  28. I am applying for a temporary employment certification to import H-2A workers to work on my farm and I understand that under the 2010 Final Rule, there is a different requirement regarding the duration of the period during which I have to receive referrals of U.S. workers. How does the new requirement work?
  29. Am I required to hire every U.S. worker who applies, or is referred to me by the SWA, during the first 50 percent of the contract period?
  30. What are my options if the newly hired U.S. workers under the 50 percent rule become unavailable after I have displaced some or all of my H-2A workers?
  31. What is meant by an employer not being "otherwise associated with" other employers applying to import H-2A workers?
  32. Should an employer who wishes to claim the small business exemption submit documentation substantiating eligibility with its application and/or job order?
  33. What is a small business exemption to the 50 percent rule?


  34. Job Qualifications and Requirements
  35. Last year the CO asked me to reduce the experience requirement I listed on my Application for Temporary Employment Certification. How can I tell whether my proposed experience requirement is acceptable?
  36. Can an employer require that workers who apply for the job opportunity pass a background check (such as a credit or criminal background check) and/or a drug test as a condition of employment?
  37. Why does the Department view my job qualification preferences as requirements?
  38. May I include my job qualification preferences in my job order and newspaper advertisements?


  39. Contract Impossibility Provision
  40. What is the minimum acceptable language I need to include in my job order submitted to the State Workforce Agency (SWA) as well as other work contracts with employees to address situations where fulfillment of the contract is impossible due to reasons beyond my control?


  41. Reimbursements
  42. When is an employer that has not advanced transportation and subsistence costs to a worker required to reimburse the worker for those costs?
  43. What pre-employment costs are required to be reimbursed by the Fair Labor Standards Act (FLSA), other than inbound transportation?
  44. Is the employer required to reimburse the worker for the worker's passport?


      Housing
  1. Is the H-2A employer required to provide housing to U.S. workers who live within normal commuting distance from the worksite, but live in a homeless shelter or no longer want to pay rent?

    The regulations require the employer to provide housing only for those workers who are not reasonably able to return to their residence the same day. A homeless shelter does not qualify as a person's "residence" because a shelter, by its very nature, is temporary. Therefore, in an instance where a worker is living in a homeless shelter, the employer must offer such worker housing. However, the employer is not required under the regulations to provide housing to a worker who is able to return to his or her residence within the same day but who no longer wants to incur the price of rent.

    September 15, 2010

  2. Top


  3. What if the SWA refuses to do housing inspections?

    SWAs receive grants from the Employment and Training Administration to perform all of the duties necessary under the Office of Foreign Labor Certification's (OFLC) programs, including conducting housing inspections in a timely manner. The regulations now permit employers to request the housing inspections well in advance of the date of need. If a SWA refuses to conduct the housing inspection, employers should contact the Chicago National Processing Center.

    September 15, 2010



  4. Does public rental housing need to be inspected by the SWA?

    No, as long as the public rental housing meets applicable local, state or federal standards. The employer must provide documentation to the satisfaction of the Certifying Officer that the housing complies with the applicable standard. At a minimum, the employer must provide a written assurance that the public rental housing provided meets all local, State, and Federal standards for such accommodations.


    September 15, 2011


  5.   Workers' Compensation
  6. When do I need to submit proof of workers' compensation insurance coverage?

    Pursuant to 20 CFR 655.122(e)(2), the employer is required to submit proof of workers' compensation insurance coverage before certification. The employer is encouraged to include the documentation when submitting its application. If the employer does not have the documentation ready at the time it submits the application, the employer will be directed by a Notice of Acceptance to submit the documentation by a specific date before certification may be granted.

    September 15, 2010

  7. Top


  8. What documentation should I submit as evidence of workers' compensation insurance coverage?

    The employer must submit documentation that adequately demonstrates that it has the required workers' compensation insurance coverage for the entire period of need requested on the application. (See 20 CFR 655.122(e))

    The documentation submitted must demonstrate that the employer's workers' compensation insurance coverage is in compliance with State law and covers injury and disease arising out of and in the course of the worker's employment. In addition, the documentation submitted must contain the name of the insurance carrier, the insurance policy number, and proof of insurance for the period of need stated on the application, or, if appropriate, proof of State law coverage.

    Examples of acceptable documentation of workers' compensation insurance coverage include, but are not limited to, the following:
    • Association for Cooperative Operations Research and Development (ACORD) Certificate of Insurance
    • State Workers' Compensation Fund Certificate or equivalent
    • Certificate of Insurance indicating worker's compensation coverage (copy of policy)

    September 15, 2010

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  10. My workers' compensation insurance coverage expires prior to my end date of need. What documentation should I submit as proof of coverage for the entire period of need requested on the application?

    If the employer's current workers' compensation insurance coverage will expire before the end date of need requested on the application, the employer must submit a signed and dated written statement showing its intent to renew and maintain coverage for entire period of need requested on the application. The written statement must be submitted in addition to the documentation of the employer's current coverage described above. Also, the employer must retain the proof of renewed coverage in its file and be prepared to submit such documentation if requested.

    September 15, 2010

  11. Top


      Meals
  12. Under the 2010 Final Rule the employer is required to provide to its workers either three meals a day or free and convenient cooking and kitchen facilities. What constitutes a meal for purposes of the 2010 Final Rule?

    An employer providing three meals a day to its workers must provide a reasonable balance of food groups and nutrients intended to supply sufficient nutrition to the workers three times a day. The Department advises employers to consult the United States Department of Agriculture's Dietary Guidelines for Americans 2005 report (in effect until the publication of the new report in 2010) that may be accessed or downloaded through the following web site: http://www.cnpp.usda.gov/Publications/DietaryGuidelines/2005/2005DGPolicyDocument.pdf
    In addition, the employer may only charge the workers for the actual cost of the meals and may not profit from the provision of food. This amount may not exceed the amount specified in 20 CFR 655.173, currently set at $10.64 for three meals a day, absent a successful petition for a higher meal charge.

    September 15, 2010

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      Transportation and Daily Subsistence
  14. What is the definition of daily subsistence for purposes of travel payments/reimbursement?

    Daily subsistence includes, but is not limited to, the reasonable cost of food and lodging incurred during the worker's inbound trip from the point of recruitment to the employer's worksite, notwithstanding any unauthorized detours, and during the worker's outbound trip from the employer's worksite to the worker's home or subsequent employment, notwithstanding any unauthorized detours, whichever is applicable.

    September 15, 2010

  15. For the purposes of travel-related payments/reimbursements, what costs are the employer's responsibility?

    When an employer is unable to find sufficient workers locally to perform the work it requires, bringing a worker to the employer's worksite benefits the employer and, therefore, the costs associated with the worker's travel to the employer's worksite are the employer's responsibility. By regulation, an employer is responsible for providing, paying in advance, or reimbursing a worker for the reasonable costs of transportation and daily subsistence between the employer's worksite and the place from which the worker comes to work for the employer, if the worker completes 50 percent of the work contract period, and upon the worker completing the contract, return costs.  Where a worker must travel to obtain a visa so that the worker may enter the U.S. to come to work for the employer, the employer must pay for the transportation and daily subsistence costs of that part of the travel as well. The Department has interpreted the regulation to require the employer to assume responsibility for the reasonable costs associated with the worker's travel, including transportation, food, and, in those cases where it is necessary, lodging.

    If not provided by the employer, the amount an employer must pay for transportation and, where required, lodging must be no less than (and is not required to be more than) the most economical and reasonable costs. Moreover, the employer is responsible for those costs necessary for the worker to travel to the worksite if the worker completes 50 percent of the work contract period, but is not responsible for unauthorized detours or unnecessary costs, and if the worker completes the contract, return transportation and subsistence costs. For example:

    • The employer is not responsible for the cost of a worker's lodging when the worker chooses to arrive earlier than required for a visa appointment at the U.S. Consulate. If the appointment is so early in the morning, that the worker could not reasonably be expected to travel to the consulate that same day, the employer will be liable for the cost of lodging the night before the appointment.

    • The employer is responsible for the cost of a worker's lodging where, after the worker attends a required appointment at the U.S. Consulate, the worker must remain nearby overnight while waiting for the U.S. Consulate to issue the visa.

    • The employer is responsible for the cost of aworker's lodging from the time the worker leaves the U.S. Consulate to the time he arrives at the worksite. The employer is also responsible for the worker's return transportation and subsistence costs upon the worker completing the work contract.

    The amount an employer must pay for food is at least as much as the employer would charge the worker for providing the worker with three meals a day during employment and no more than a maximum amount established annually based on the standard rate for the Continental United States (CONUS) for meals and incidental expenses as published by General Services Administration (GSA). The current minimum and maximum amounts for meals and incidental expenses are available on the OFLC website at http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm.

    Please note that the FLSA applies independently of H-2A and imposes obligations on employers regarding the payment of wages.

    February 29, 2012

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      Rates of Pay
  17. Will I have to pay for the worker's daily subsistence before the worker begins his or her inbound trip to my worksite?

    No. The employer is only responsible for the cost of the worker's daily subsistence from the time the worker departs the place from which the worker has come to work for the employer (generally, the worker's home or place from which the worker was recruited) until the time the worker arrives at the employer's worksite.

    September 15, 2011

  18. Will the employer be required to pay the AEWR?

    Yes, if the AEWR is the highest applicable wage rate. In most cases the published AEWR will be the correct baseline wage. However, sometimes the prevailing wage for the crop and location or the CBA wage rate or the Federal or State minimum wage rates will be higher than the AEWR, in which case the employer must pay the higher rate. If an employer wishes to pay a piece-rate, it must nevertheless guarantee that workers will be paid a minimum equal to the appropriate hourly wage.

    March 29, 2010

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  20. May an employer require productivity standards if the work is paid on a piece-rate basis?

    Yes. If the employer pays by the piece rate and specifies the productivity standard in the job offer. Any productivity standard required by an employer may be no more than those required by the employer in 1977, unless the OFLC Administrator approves a higher minimum, or, if the employer first applied for an H-2 temporary labor certification after 1977, such standards must be no more than those normally required by other employers for the activity in the area of intended employment at the time the employer filed its first application.

    March 29, 2010

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  22. Will employers subject to the 2010 Final Rule be obligated to adjust the approved wage rate if the wage rates increase during the contract period?

    Yes. All employers in the H-2A program are required to offer, recruit at and pay the highest applicable wage rate. An H-2A employer who has filed an application under the 2010 Final Rule will be required to adjust to a higher wage at any time between the date on which it submits its job order to the SWA and/or signs a work contract (whichever is earlier) until the end of the contract period. This applies only to applications filed under the 2010 Final Rule. Employers who filed applications under the 2008 Final Rule will continue to apply that rule's wage rates and principles (i.e. must pay the wage rate at the time of recruitment). If the Department publishes a new AEWR and the new AEWR is higher than the approved wage rate listed on the employer's job order and/or work contract, the employer will be required to adjust the offered wage to the higher AEWR. Similarly, if an applicable prevailing wage is increased during the contract period and the Department notifies employers of the increase, all employers whose approved wage rate (listed on the job order and/or work contract) is lower than the new prevailing wage will be required to adjust to the higher prevailing wage rate. The Department's notification will state the effective date of the wage increase upon which all affected employers will be required to adjust to the higher wage.

    March 29, 2010

  23. What federal tax withholdings are applicable to H-2A workers?

    Questions regarding the taxation and Federal withholding from H-2A workers fall under the jurisdiction of the Internal Revenue Service (IRS). IRS guidance states that foreign agricultural workers temporarily admitted into the United States on H-2A visas are exempt from Federal Unemployment Tax, U.S. Social Security and Medicare taxes on compensation paid to them for services performed in connection with the H-2A visa. Additionally, IRS guidance states that compensation paid to H-2A workers for services performed in connection with the H-2A visa is not considered to be “wages” for purposes of Federal income tax withholding, and is therefore not subject to mandatory withholding.

    The IRS requires an employer to begin backup withholding if the H-2A worker does not have a Social Security Number or Individual Taxpayer Identification Number and the aggregate annual payments made to the worker are $600 or more. For more information on Federal withholdings for H-2A workers, see the IRS website at http://www.irs.gov/businesses/small/international/article/0,,id=96422,00.html. Employers should consult the IRS website to ensure that the IRS has not updated their guidance in regards to this issue.

    An H-2A worker may request voluntary Federal income tax withholding. Such a request must be evidenced by a signed form W-4 provided by the worker to the employer. Note: Only Federal income tax is to be withheld. Withholding for Social Security or Medicare is not permitted, and the employer may be held responsible for reimbursement of improperly withheld amounts (see below).

    Since State income tax law varies, the employer should consult with the appropriate State tax authorities to determine whether the wages of H-2A workers are subject to state income taxes.

    It is important to remember that the H-2A regulations at 20 CFR 655.122(m) and 655.122(p) require the H-2A employer to pay wages when due and to ensure that all wage payments to H-2A workers are received free and clear of any improper deductions. Wages either improperly withheld or withheld based on a voluntary agreement but not remitted to the appropriate agency may be considered improper deductions.

    If Federal income tax or U.S. Social Security and Medicare taxes have been improperly withheld from H-2A workers and remitted to the appropriate government agency, the Wage and Hour Division will take into consideration employer reimbursement or assistance provided to the workers to recapture such amounts in determining violations and potential penalties. The employer can evidence reimbursement to H-2A workers and the employer may seek a refund of over reported amounts using Form 941-X, Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund (see http://www.irs.gov/pub/irs-pdf/f941x.pdf). An alternate method exists in which the employer provides documented assistance to H-2A workers in completing Form 843, Claim for Refund and Request for Abatement (see www.irs.gov/pub/irs-pdf/f843.pdf); however, the IRS indicates that workers will need to provide copies of their W-2, H-2A visa, I-94 (indicating date of arrival/departure), and a statement indicating that the withheld taxes need to be returned (either from the employer or employee, who would indicate that this was requested of the employer but not provided).

    Additionally, the National Taxpayer Advocate and Low Income Taxpayer Clinics are potential sources of targeted assistance to the worker regarding proper tax withholding, as indicated per http://www.irs.gov/advocate/index.html?portlet=110

    May 15, 2012

  24. For agricultural occupations other than open range production of livestock, sheepherding and goatherding, and itinerant animal shearing occupations, how are prevailing wage rates determined in a State where there is insufficient wage data?

    Prevailing wage rates are established through surveys conducted by State Workforce Agencies (SWAs) in accordance with the ET Handbook 385 wage finding process. Where the SWA is unable to reach a prevailing wage rate finding (e.g., due to insufficient numbers of domestic workers and/or employers employing domestic workers), the SWA will recommend a No Finding for the occupation or crop activity surveyed to the Office of Foreign Labor Certification (OFLC). The OFLC will post a No Finding to the Agricultural On-Line Wage Library and will require that the employer offer and pay the worker(s) the legal state or Federal minimum wage, the agreed-upon collective bargaining wage, or the Adverse Effect Wage Rate (AEWR) for that State, whichever is highest.

    This procedure does not apply to wage findings for open range production of livestock, sheepherding and goatherding, and itinerant animal shearing occupations, which are subject to special procedures. These occupations involve atypical work schedules, for which an hourly wage cannot be used for a default, or piece rate work performed along a planned itinerary. In those cases where a SWA's survey results are insufficient to establish a prevailing wage rate for an occupation, due to inadequate sample size or another valid reason, the wage setting procedures allow the Department to issue a prevailing wage or piece rate for that State based on the wage rate findings submitted by an adjoining or proximate SWA or using a regional approach (e.g., U.S. Department of Agriculture farm production regions) for the same or similar agricultural activity.

    February 4, 2013

  25. What is the required wage for H-2A sheepherders? Can they be paid more than the prevailing wage rate?

    The Agricultural Online Wage Library, available at http://www.foreignlaborcert.doleta.gov/aowl.cfm, reflects the current prevailing wage rate for agricultural occupations, including sheepherders. A sheepherding employer is required to pay at least the prevailing wage rate which for occupations that are characterized by other than a reasonably regular workday, such as sheepherding, is deemed to be the Adverse Effect Wage Rate. The employer must also comply with any mandatory state monthly minimum wage rates for the occupation. The employer may but is not required to pay the workers more than the required wage rate.

    February 13, 2013

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    Adverse Effect Wage Rate
  27. The new annual Adverse Effect Wage Rate (AEWR) has been published and the AEWR applicable to my job opportunity has gone down. What am I required to pay?

    The employer is required under the regulations to offer, advertise, and pay a wage that is the highest of the AEWR, the prevailing hourly wage or piece rate, the agreed upon collective bargaining wage, or the Federal or state minimum wage, in effect at the time the work is performed. Where the new AEWR is still the highest rate, an employer may pay the new, lower AEWR. If, however, the new AEWR is lower than the prevailing hourly wage or piece rate, the agreed upon collective bargaining wage, or the Federal or State minimum wage in effect, the highest of the those wage rates will become the employer's new minimum wage rate requirement.

    February 29, 2012

  28. No Strike or Lockout
  29. Under the 2010 Final Rule I am not allowed to import H-2A workers if my domestic workers are on strike or if they are being locked out. Is there a threshold number of workers that must be on strike for this prohibition to apply?

    Yes. The prohibition against importing foreign workers when the employer's domestic workers are on strike or are being locked out applies to any labor dispute involving two or more domestic workers. Any employer engaged in such a dispute at the time the employer seeks to apply for the labor certification may not apply to import H-2A foreign workers.

    September 15, 2010

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  31. What if my domestic workers go on strike after I've already applied to bring in the foreign workers?

    Section 218(b) of the Immigration and Nationality Act (INA) requires the Secretary to deny a labor certification if there is a strike or lockout in the course of a labor dispute. An employer seeking to employ H-2A workers must agree that it will abide by the requirements and assurances outlined in 20 CFR 655.135, including that the worksite does not have workers on strike or being locked out in the course of a labor dispute. Therefore, if the employer's workers go on strike after the employer filed its application but before the labor certification is granted, the employer must notify the Department of the strike or lockout and/or withdraw its application until such a time as the labor dispute is resolved.

    September 15, 2010

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  33. What happens if my domestic workers go on strike or are being locked out after I have received a labor certification and my H-2A workers are on their way to the worksite or are already working on the farm?

    Absent material misrepresentation or fraud in connection with the application within the meaning of the 2010 Final Rule, the employer may continue to employ H-2A workers notwithstanding a strike by its non-H-2A workers. Lock-outs resulting from a labor dispute will be analyzed on a case by case basis to determine whether they warrant debarment under 20 CFR 655.182(d). Also, if a lock-out meets the definition of a layoff and if it occurs within 60 days of the first date of need, section 20 CFR 655.135(g) requires that the U.S. workers be offered the job opportunity listed in the Application for Temporary Employment Certification before the H-2A workers. Therefore, unless the employer has sufficient work to be performed by all the laid-off U.S. workers and the H-2A workers, the employer will need to dismiss the H-2A workers.

    September 15, 2010

  34. Top

    Fifty Percent Rule
  35. I am applying for a temporary employment certification to import H-2A workers to work on my farm and I understand that under the 2010 Final Rule, there is a different requirement regarding the duration of the period during which I have to receive referrals of U.S. workers. How does the new requirement work?

    Under the 2010 Final Rule, the Department reinstated a long-standing H-2A program component from the 1987 Final Rule that requires employers to continue to consider for employment and hire any qualified and eligible U.S. worker who applies for the position up until the end of the first half of the contract period, as identified on the Agricultural and Food Processing Clearance Order, ETA Form 790, as well as on the Application for Temporary Employment Certification, ETA Form 9142. This program component is referred to as the 50 percent rule. Previously, under the 2008 Final Rule, employers were only required to accept U.S. applicants for the first 30 days of the contract period.

    September 15, 2010

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  37. Am I required to hire every U.S. worker who applies, or is referred to me by the SWA, during the first 50 percent of the contract period?

    For as long as an H-2A worker is employed in a certified position during the first 50 percent of the contract period, the employer must provide employment to any able, willing, qualified and available U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed, regardless of the number of H-2A workers covered by the employer's certification. The start of the work contract timeline is calculated from the first date of need stated on the Application for Temporary Employment Certification under which the foreign worker who is in the job was hired.

    An employer may continue to employ its H-2A workers under the work contract so long as it complies with all requirements of the H-2A program with respect to the H-2A workers and workers in corresponding employment. The employer may also choose to displace its H-2A workers with the newly hired U.S. workers so long as it pays for the H-2A workers' return transportation and subsistence in accordance with 20 CFR 655.122(h)(2). In the event the employer decides to displace its H-2A employees as a result of hiring U.S. workers, the employer is not liable for the payment of the three-fourths guarantee to the displaced H-2A workers.

    October 1, 2010



  38. What are my options if the newly hired U.S. workers under the 50 percent rule become unavailable after I have displaced some or all of my H-2A workers?

    If all of the H-2A workers have been displaced, and some or all of the U.S. workers hired as a result of the 50 percent rule become unavailable, i.e., abandon the position or are terminated for cause, during the first 50 percent of the work contract period, the employer is under no obligation, but may continue, to hire any able, willing, qualified and available U.S. workers. However, so long as the employer continues to employ at least one H-2A worker in a certified position during the first 50 percent of the contract period, the employer must continue to hire any able, willing, qualified and available U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed, regardless of the number of U.S. workers hired under the 50 percent rule who become unavailable.

    If some or all of the newly hired U.S. workers become unavailable after the first 50 percent of the work contract period, the employer may, but is not obligated to, hire additional able, willing, qualified and available U.S. workers and/or engage in additional recruitment of U.S. workers.

    Note: An employer whose Application for Temporary Employment Certification is approved for the full number of workers requested may not apply to the National Processing Center for a redetermination of its need based on the unavailability of U.S. workers. Pursuant to the Department's regulations at 20 CFR 655.166, this option is only available to employers whose certifications were initially denied or whose applications were partially certified.

    October 1, 2010

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  40. What is meant by an employer not being "otherwise associated with" other employers applying to import H-2A workers?
    As discussed above, an employer who is a member of an association which has applied for a labor certification on behalf of its members is not exempt from the 50 percent rule. Similarly, an employer who technically is not a member of an association but otherwise maintains a relationship with other employers who are either members of an association that has applied for a labor certification and/or who have individually applied for a labor certification, such that this employer together with the other employers forms an informal group that effectively operates as an association - i.e., shares employees - would be considered to have "otherwise associated with other employers" and thus would not be exempt from the 50 percent rule.

    September 15, 2010


  41. Should an employer who wishes to claim the small business exemption submit documentation substantiating eligibility with its application and/or job order?
    The Department is not requiring that an employer submit supporting documentation with its application at the time of filing, but the employer must in the application certify to the Certifying Officer that the small business exemption applies and be prepared to provide documentation in support of such a claim if requested through an audit or investigation. However, the employer should notify the SWA if it wishes to claim the exemption at the time it submits the job order for intrastate clearance and include such documentation as the SWA requires. This will ensure that the SWA will not refer applicants to that employer for the duration of the 50 percent of the contract period.

    September 15, 2010

  42. What is a small business exemption to the 50 percent rule?
    The small business exemption allows certain employers to forgo compliance with the requirement to consider for employment and hire qualified and eligible U.S. workers during the first half of the contract period. The exemption is available to an employer who 1) did not use more than 500 man-days (defined at 29 U.S.C.§203(u)) of agricultural labor during each calendar quarter of the preceding calendar year, 2) is not a member of an association that is applying for temporary employment certifications under the H-2A program on behalf of its members, and 3) has not otherwise associate

    September 15, 2011

  43. Job Qualifications and Requirements
  44. Last year the CO asked me to reduce the experience requirement I listed on my Application for Temporary Employment Certification. How can I tell whether my proposed experience requirement is acceptable?
    Each job qualification and requirement listed on the Application for Temporary Employment Certification and used to recruit U.S. workers must be bona fide and consistent with the normal and accepted qualifications required by employers that do not use H-2A workers in the same or comparable occupations and crops. The Office of Foreign Labor Certification (OFLC) has established the Agricultural Employment Practice Survey Library, which makes acceptable experience requirements available to employers. This library is available on our website at http://www.foreignlaborcert.doleta.gov/aowl_survey_pdf.cfm. The information provided in the library is collected through the State Workforce Agencies (SWAs), typically through surveys of employers to determine current practices. Surveyed employers are asked to report the basic acceptable experience necessary to perform the job, as this is consistent with the standard applied to employers seeking H-2A workers for testing the U.S. labor market.

    SWAs conduct employer surveys on the acceptability of job requirements during the course of each year. Employers are strongly encouraged to check this webpage for any updates prior to preparing and submitting an agricultural job offer under the H-2A program.

    February 29, 2012


  45. Can an employer require that workers who apply for the job opportunity pass a background check (such as a credit or criminal background check) and/or a drug test as a condition of employment?

    Employers are not prohibited from including a requirement in the job opportunity that the applicant must pass a specific background check and/or drug test. However, the requirement that the worker pass a particular background check or drug test will be reviewed on a case-specific basis against the regulatory standard of review that all job requirements must be bona fide and consistent with the normal and accepted qualifications required by non-H-2A employers in the same or comparable occupations and crops. The State Workforce Agency (SWA) receiving the employer’s job offer assists the OFLC Certifying Officer in making determinations as to what are normal and accepted job qualifications and requirements required by non-H-2A employers in that area in the same or comparable occupations or crops.

    The results of a background check or drug test may not be used to automatically reject a U.S. worker for agricultural work. Rather, the results of the background check or drug test may be used to reject a worker only if they provide a lawful job-related reason to do so. For example, while a sex offense conviction may be a lawful job-related reason to reject a worker who is applying to work at a “pick-your-own” fruit farm, a Driving Under the Influence (DUI) conviction is very unlikely to be. An employer requiring a background check or drug test should be prepared to provide documentation, if requested by the SWA or the OFLC Certifying Officer, establishing the nexus between the background check or drug test to be conducted and the nature of the job opportunity.

    If an employer chooses to disclose in the job order that it will be conducting a criminal background check, the employer’s job order must also identify the specific criminal issue(s) for which the employer could lawfully reject an applicant due to the nature of the job opportunity. A general statement about conducting a criminal background check without any further explanation is unacceptable, as it fails to adequately apprise U.S. workers of the job opportunity and applicable conditions of employment.

    December 6, 2011

  46. Why does the Department view my job qualification preferences as requirements?

    It has long been the Department's position that an employer's job qualification preferences, in effect, serve as requirements. The Department's program experience, supported by a number of decisions issued by the Board of Alien Labor Certification Appeals involving job qualification preferences and requirements is that prospective applicants perceive employer job qualification preferences as the employer's hiring criteria, resulting in qualified applicants being less likely to apply. The Department, therefore, treats an employer's listed job qualification preferences as the employer's job qualification requirements, which must meet the regulatory requirement that each job qualification and requirement listed on the employer's Application for Temporary Employment Certification (ETA Form 9142) and in its recruitment must be bona fide and consistent with normal and accepted qualifications required by non-H-2A employers in the same or comparable occupations and crops.

    February 4, 2013

  47. May I include my job qualification preferences in my job order and newspaper advertisements?

    An employer may only include in its recruitment (e.g., job order and newspaper advertisements) those minimum job qualifications and requirements necessary to perform the services or labor, so that the job opportunity is clearly open to any qualified U.S. worker. In order to comply with the statute, 8 U.S.C. 1188(a), (c)(3)(A), and H-2A program regulations, 20 CFR 655.103(a), 655.122(b), and consistent with its other visa programs involving a test of the U.S. labor market, a job opportunity that is clearly open to U.S. workers is one in which the recruitment lists only the minimum job qualification requirements against which prospective applicants will be screened. Where an employer believes its job qualification is necessary to perform the job, the preference is, in fact, a requirement and must be disclosed in the job order and newspaper advertisements.

    Conversely, where an employer does not believe the job qualification is necessary to perform the job (e.g., one month of experience is necessary to perform the job, but the employer prefers to hire workers with more experience, when possible), the job qualification preference for workers with more than the minimum qualifications necessary (e.g., more than one month of experience) must not be disclosed in the job order and newspaper advertisements. Identifying such a job qualification preference in its recruitment efforts implies to prospective applicants that the employer will use the job qualification preference as a screening mechanism, discouraging prospective applicants who meet the actual minimum job requirements, but not the preference, from applying. As such, job qualification preferences that are not, in fact, actual minimum requirements necessary to perform the job, must not be included in the employer's recruitment efforts and may not be used to screen applicants.

    Important Reminder: Each job qualification and requirement listed on the employer's Application for Temporary Employment Certification (ETA Form 9142) and in its recruitment must be bona fide and consistent with normal and accepted qualifications required by non-H-2A employers in the same or comparable occupations and crops.

    February 4, 2013


  48. Contract Impossibility Provision
  49. What is the minimum acceptable language I need to include in my job order submitted to the State Workforce Agency (SWA) as well as other work contracts with employees to address situations where fulfillment of the contract is impossible due to reasons beyond my control?

    The employer, upon receiving approval from the Chicago National Processing Center Certifying Officer, may terminate its work contract before the end date if the services of the worker are no longer required for reasons beyond the control of the employer due to fire, weather, or other Act of God that makes the fulfillment of the contract impossible. The regulations refer to this as the “contract impossibility” provision. Since the contract impossibility provision obligates the employer to certain actions and affects the wages and working conditions of the workers it employs, the employer must disclose this provision in the job order that is submitted to the SWA as well as work contracts to prospective applicants.

    To help employers appropriately disclose the contract impossibility provision, the following suggested language can be included in the job order as well as work contracts with its employees:

    Contract Impossibility: The work contract may be terminated before the end date of work specified in the work contract if the services of the workers are no longer required for reasons beyond the control of the employer due to fire, weather, or other Act of God that makes fulfillment of the contract impossible, as determined by the U.S. Department of Labor. In the event that the work contract is terminated, the employer assures that the three-fourths guarantee will be fulfilled for the time that has elapsed from the start date of work specified in the work contract to the date of termination. The employer also assures that it will make efforts to transfer the worker to other comparable employment acceptable to the worker and, where applicable, consistent with existing immigration laws.

    In situations where a transfer is not affected, the employer will return the workers at the employer’s expense to the place from which the worker, disregarding intervening employment, came to work for the employer or transport the worker to his/her next certified H-2A employer, whichever the worker prefers. The employer will also reimburse the worker the full amount of any deductions made by the employer from the worker’s pay for transportation and subsistence expenses to the place of employment, and pay the worker for any transportation and subsistence expenses incurred by the worker to that employer’s place of employment.

    The amounts the employer will pay for subsistence expenses shall be a minimum of $______ per day and a maximum of $______ per day for workers with documentation of actual expenses. The amount of the transportation payment must not be less (and is not required to be more) than the most economical and reasonable common carrier transportation charges for the distances involved. The requirement will be nullified if the worker has contracted with a subsequent employer who has agreed to provide or pay for the worker's transportation and subsistence expenses from the present employer’s worksite to the subsequent employer’s worksite.”

    For the minimum and maximum amounts for subsistence expenses, the employer can find the current amounts to be included in the job order on the OFLC website at http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm

    December 6, 2011


    Reimbursements
  50. When is an employer that has not advanced transportation and subsistence costs to a worker required to reimburse the worker for those costs?
    Under section 655.122(h)(1) and (p) of the H-2A regulations, consistent with the Fair Labor Standards Act (FLSA), a covered employer must reimburse a worker for inbound transportation costs by the first payday to the extent that those costs effectively bring a worker's wages below the FLSA minimum wage during the first workweek of employment.

    After that, when the worker completes 50 percent of the work contract period, an employer is obligated to fully reimburse the worker for the reasonable costs incurred by the worker for transportation and daily subsistence from the place from which the worker came to work for the employer. Some employers may choose to fully reimburse workers before they have a regulatory obligation to do so, i.e., upon the worker's arrival. Those employers may, through reasonable deductions that do not bring the worker's wages below the FLSA minimum wage, recoup the cost until obligated, by regulation, to fully reimburse the workers when 50 percent of the contract period has elapsed. As with all deductions not required by law, this must be disclosed in the job offer.

    February 13, 2013


  51. What pre-employment costs are required to be reimbursed by the Fair Labor Standards Act (FLSA), other than inbound transportation?
    Under the FLSA, covered employers may not require workers to pay for expenses that are for the primary benefit of the employer, through deductions or otherwise, when doing so would effectively bring a worker's wages below the FLSA minimum wage during the first workweek of employment. Therefore, any pre-employment costs found to be primarily for the benefit of the employer must be reimbursed to the extent that they bring a worker's wages below the FLSA minimum wage.

    The Department's view on costs that are primarily for the benefit of the employer in the context of the H-2B non-agricultural program is discussed in detail in the Wage and Hour Division's Field Assistance Bulletin No. 2009-2, which is available at http://www.dol.gov/whd/FieldBulletins/FieldAssistanceBulletin2009_2.htm. The Department will view costs the same way in the H-2A program.

    February 13, 2013


  52. Is the employer required to reimburse the worker for the worker's passport?
    No. The employer is not required to reimburse workers for fees associated with obtaining or maintaining a worker's passport. Employers are not responsible for costs that are for the primary benefit of the worker. Government-required passport fees are considered costs primarily for the benefit of the worker as the worker may use the passport for purposes other than employment.

    February 13, 2013

Top
header H-2A LABOR CONTRACTORS
  1. What is the difference between an H-2A Labor Contractor and a Farm Labor Contractor?

  2. Are employers who are engaged in certain occupations exempt from the H-2A Labor Contractor designation and obligations?

  3. I am an employer needing to file an H-2A application as a labor contractor with the Chicago National Processing Center. What are the minimum requirements of obtaining a surety bond in order for it to be accepted?

  4. How do I determine the amount of coverage for the surety bond?

  5. Surety Bonds
  6. May an H-2A Labor Contractor use the same surety bond to support Applications for Temporary Employment Certification in different years?

  7. Can I ask the Chicago National Processing Center (NPC) to return my original surety bond after my Application for Temporary Labor Certification is denied or withdrawn?
  8. Why are separate surety bonds required for H-2A Labor Contractors (H-2ALCs) to support each Application for Temporary Employment Certification?
  1. What is the difference between an H-2A Labor Contractor and a Farm Labor Contractor?

    An H-2A Labor Contractor (H-2ALC) is any person who meets the definition of employer under 20 CFR 655.103(b) and is not a fixed-site employer, an agricultural association, or an employee of a fixed-site employer or agricultural association, who recruits, solicits, hires, employs, furnishes, houses, or transports any worker(s) subject to section 218 of the Immigration and Nationality Act.

    A Farm Labor Contractor (FLC), as defined under the Migrant and Seasonal Worker Protection Act (MSPA), is any person, other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association, who, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity.

    MSPA applies separately from the Department's H-2A regulations at 20 CFR part 655, Subpart B.Under the requirements of MSPA, FLCs (and any employee who performs farm labor contracting functions) must register with the Department before recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.Agricultural employers and associations (and their employees) need not register as FLCs.

    September 15, 2010

  2. Are employers who are engaged in certain occupations exempt from the H-2A Labor Contractor designation and obligations?

    No. Any employer who fits the definition of an H-2ALC must identify itself as such on both the ETA Form 790 and the ETA Form 9142 and meet all of the obligations and requirements applicable to H-2ALCs, as set out in 20 CFR 655.132. Employers who are H-2ALCs and who belong to occupations for which special procedures have been established will continue to submit their applications in accordance with those special procedures. However, the H-2ALC must comply with all the requirements set forth in §655.132, unless the particular requirement is superseded by the special procedures.
  3. September 15, 2011

  4. I am an employer needing to file an H-2A application as a labor contractor with the Chicago National Processing Center. What are the minimum requirements of obtaining a surety bond in order for it to be accepted?

    As a prospective employer filing as an H-2A Labor Contractor (H-2ALC), you are required to obtain a surety bond demonstrating your ability to meet payroll and other financial obligations to your employees contained in the terms and conditions of the agricultural job order and the Application for Temporary Employment Certification (ETA Form 9142). The original bond instrument issued to you by the surety must be submitted with the ETA Form 9142to the Chicago National Processing Center. Copies of the original bond instrument will not be accepted.

    At a minimum, the bond instrument issued to you by the surety must:

    1. Identify the surety’s name, address, phone number, and contact person;
    2. Specify the amount of the bond based on the number of workers to be employed;
    3. State that the aggregate liability of the surety shall not exceed the amount of the bond;
    4. State that the bond must be payable to the “Administrator, Wage and Hour Division, United States Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210“;
    5. Obligate the surety to pay any sums for (a) wages and benefits owed to an H-2A worker or worker engaged in corresponding employment, or (b) to a U.S. worker improperly rejected or improperly laid off or displaced, based on a final decision finding a violation(s) of the regulation relating to the certified ETA Form 9142 the bond is intended to cover;
    6. Specify the date of issuance and expiration covering liability incurred during the period of employment listed on the certified ETA Form 9142. The bond may be amended to cover any extensions requested by the H-2ALC employer and approved by DHS and/or the Chicago NPC;
    7. Contain a designation or company seal used by the surety for the bond;
    8. State that the bond will remain in force for a period of no less than 2 years from the date on which the certified ETA Form 9142 expires; and
    9. State that the bond may not be canceled or terminated unless 45 days notice is provided by the surety, in writing, to the Administrator, Wage and Hour Division, using the same address provided in Item 3 above.

    Important Reminder: If the Wage and Hour Division commences any enforcement action under the regulations against an H-2ALC employer or any successor in interest within 2 years from the expiration date of the certified ETA Form 9142, the bond shall remain in force until the conclusion of such action and any related appeal or related litigation.

    December 6, 2011

  5. How do I determine the amount of coverage for the surety bond?

    The amount of coverage disclosed on the surety bond depends on the number of workers you plan to employ under the H-2A temporary labor certification. The table below provides the amount of coverage required in relation to the range of workers to be employed.


    Bond Amount

    Number of Workers
    to be Employed

    $5,000

    less than 25 workers

    $10,000

    25 to 49 workers

    $20,000

    50 to 74 workers

    $50,000

    75 to 99 workers

    $75,000

    100 or more workers


    Important Reminder: When it is shown based on objective criteria that the amount of the surety bond is insufficient to meet potential liabilities, the Administrator, Wage and Hour Division, may require that an H-2ALC employer obtain a surety bond with a higher amount of coverage after notice and an opportunity for a hearing.

    December 6, 2011

    Surety Bonds
  6. May an H-2A Labor Contractor use the same surety bond to support Applications for Temporary Employment Certification in different years?

    No. A new, separate bond is required for each Application for Temporary Employment Certification.

    The regulations governing the H-2A program require an H-2A Labor Contractor (H-2ALC) to submit an original surety bond, i.e. one with a raised seal or other indicator evidencing it is an original, for each Application for Temporary Employment Certification filed with the Department.

    Submitting a copy of a surety bond or a surety bond without an original indicator is not sufficient to satisfy the regulations. Also, submitting a rider or evidence of a "continuous" bond, even if an original document, is not sufficient to satisfy the regulations. Such documents provide evidence of an existing bond rather than a new bond specific to the application. The requirement of a new original surety bond to support each Application for Temporary Labor Certification allows the Chicago National Processing Center (NPC) to ensure that the amount of the bond coverage appropriately corresponds to the number of workers requested on the employer's ETA Form 9142. Additionally, in the event of a violation, a separate bond for each application is critical to the effective enforcement of the H-2ALC's wage obligations against the surety that agreed to be legally responsible.

    Each surety bond must comply with all requirements outlined in the regulations. These requirements include the bond: (1) identifying the issuer, the name, address, phone number, and contact person for the surety; (2) specifying the amount of the bond, the date of issuance and expiration and any identifying designation used by the surety for the bond; (3) being payable to the Administrator, Wage and Hour Division, United States Department of Labor; and (4) remaining in force for a period of no less than 2 years from the date on which the labor certification expires. Additional information about surety bonds may be found in other Frequently Asked Questions (FAQs) posted here.

    Important Reminder: The employer must submit the original surety bond to the Chicago NPC at the time of filing its Application for Temporary Employment Certification.

    February 29, 2012

  7. Can I ask the Chicago National Processing Center (NPC) to return my original surety bond after my Application for Temporary Labor Certification is denied or withdrawn?

    Yes. If an Application for Temporary Labor Certification is denied or withdrawn and the Chicago NPC receives a written request from the employer or the employer's authorized agent for the original surety bond that was submitted with the application, the Chicago NPC will return the original surety bond using regular mail.

    February 29, 2012

  8. Why are separate surety bonds required for H-2A Labor Contractors (H-2ALCs) to support each Application for Temporary Employment Certification?

    The requirement of a new original surety bond to support each Application for Temporary Employment Certification allows the Chicago National Processing Center (NPC) to ensure that the amount of the bond coverage appropriately corresponds to the number of workers requested on the employer's ETA Form 9142, as outlined in 29 CFR 501.9. Additionally, in the event there is a finding of a violation, the requirement that a separate bond meet the face value parameters specified in 29 CFR 501.9 for each application is critical to the effective enforcement of an H-2ALC's wage obligations against the surety that agreed to be legally responsible with regard to the wages owed to the workers under that particular application.

    February 13, 2013


Top
header POSITIVE RECRUITMENT AND HIRING OF U.S. WORKERS
    Interviews
  1. I have received referrals from the SWAs who know very little about the job opportunity. Under the Department's regulations, may I reject those workers for not being fully apprised of the job opportunity?

    No. Under the 2010 Final Rule and historically in the H-2A program, the employer has an affirmative obligation to apprise all workers, including H-2A workers and workers in corresponding employment of all material terms and conditions of employment. The Department's regulations, at 20 CFR 655.122(q), additionally require each employer to provide its H-2A workers and workers in corresponding employment with a copy of the work contract (or in the absence of a separate work contract, with a copy of the application and job order) in a language understood by the worker. Finally, rejections of U.S. workers who apply for the job must be only for lawful, job-related reasons - not being aware of all the terms and conditions of employment is not a lawful, job-related reason to not hire an otherwise qualified and eligible U.S. worker.

    September 15, 2010


  2. Some U.S. workers tell me during the pre start-date interview that they cannot commit to beginning work on the application's start date or may not be able to work for the entire period of need. Are these workers considered "willing and available"?

    No. A willing and available worker anticipates being available on the start date and throughout the period of need.

    February 13, 2013

  3. Employment Verification
  4. May I continue to rely on the SWA to verify the employment eligibility of the applicants it refers to my job opportunity?

    Under the Immigration and Nationality Act (INA), the employer is responsible for verifying the employment eligibility of all of its hires. Department of Homeland Security (DHS) regulations do not require State agencies to verify the employment eligibility of job applicants they refer to employers but do permit employers to rely on employment verification voluntarily performed by a State employment agency under certain limited circumstances. Under the 2008 Final Rule the Department required the SWAs to perform I-9 verification on all applicants being referred to job openings for which H-2A workers were sought. Under the 2010 Final Rule, the SWAs will no longer be required to conduct I-9 employment eligibility verification of job applicants referred to job opportunities for which H-2A workers are sought. Employers should carefully examine the requirements under the INA and the DHS regulations to ascertain their obligations and ensure compliance with respect to employment eligibility verification.

    March 29, 2010

  5. Recruitment/ Recruitment Report
  6. I do not have enough time to complete all of the required advertising listed in the Notice of Acceptance before the recruitment report due date. Do I submit the recruitment report before completing all of the required advertising, or do I wait to submit the recruitment report until all recruitment is complete?

    The Notice of Acceptance contains the recruitment instructions and the due date for the first recruitment report. The employer should begin recruitment when it receives the Notice of Acceptance and then submit the first recruitment report by the due date provided. We understand that an employer may not have time to complete the required recruitment before submitting its first recruitment report. The regulation provides for the employer to continue recruiting after submitting the first recruitment report. Specifically, an employer must continue to maintain and update its recruitment report during the first 50 percent of the contract period and be prepared to submit the updated recruitment report, if requested.

    February 29, 2012


  7. How does an employer determine whether a specific newspaper is appropriate for the two local newspaper advertisements required?

    When choosing where to place the two required newspaper advertisements in the area of intended employment, an employer must ensure that the publication it selects meets the following regulatory criteria:
    • It is a newspaper;
      Note: A newspaper contains news articles, editorials, feature articles and some advertising. A publication primarily consisting of advertising is not a newspaper.
    • It maintains general circulation;
      Note:A newspaper maintains general circulation when it is sold to the public in general.
    • It serves the area of intended employment; and
    • It is appropriate to the occupation and the workers likely to apply for the job opportunity.
    A newspaper that is circulated on a weekly basis, or less frequently than weekly (e.g., monthly), is not acceptable. Factors such as the cost of an advertisement or advertisement presentation format, however, do not necessarily indicate that a newspaper is more or less appropriate for the labor market test. The employer should be prepared, if asked, to explain how the publication it selected meets the regulatory criteria.

    In some cases the SWA may, but is not required by regulation to, include the name of appropriate newspaper(s) in its letter to the employer accepting the job order.

    Important Note: If an employer needs assistance identifying a newspaper of general circulation in the area of intended employment, the employer may direct an inquiry to the Chicago National Processing Center Help Desk: TLC.Chicago@dol.gov.

    February 13, 2013


  8. Newspaper Advertisement

  9. The Notice of Acceptance I received instructs me to place advertisements in other States. What job order number and State Workforce Agency (SWA) contact information should I put in the advertisements?

    All advertisements should contain the same job order number. The job order number in all advertisements is the job order number the SWA serving the area of intended employment (the order holding office) assigns to the employer's ETA Form 790. It has been our practice to accept a statement in out-of-state advertisements directing prospective applicants to apply for the job opportunity at the nearest local office of the SWA. This statement, combined with the employer's own contact information listed in the advertisement, provide sufficient contact information for an applicant to connect with the job opportunity. The employer is not required to research and identify in the advertisement the specific SWA name or contact information for the local out-of-state SWA office.

    February 29, 2012

  10. I am located in a rural area that does not have a newspaper with a Sunday edition. What are my advertising requirements?

    The Certifying Officer (CO) will outline the employer's recruitment requirements in the Notice of Acceptance. When a job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the CO may direct the employer, in place of a Sunday edition, to advertise in the regularly published daily edition with the widest circulation in the area of intended employment.

    February 29, 2012

Top
header POST-FILING
    Amendments

  1. If an employer or association of employers realizes that it needs either more or fewer H-2A workers than stated on the ETA Form 9142, how late in the process can it request a change?

    Employers may request to amend, i.e., to either increase or decrease, the number of workers requested in their initial application at any time before final determination. Employers may request an increase in the number of workers without additional recruitment as long as the increase is no more than 20 percent of the original number requested or 50 percent in the case of an employer requesting less than 10 workers. For requests for increases above the percentages prescribed, without additional recruitment, the employer must demonstrate that the need for additional workers could not have been foreseen, and the crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period.

    September 15, 2010



  2. Can I amend the period of employment or change the number of workers on my H-2A application before it is certified?

    Yes, the employer may request amendments to either the period of employment or change the number of workers before a certification decision is issued by the Chicago National Processing Center (NPC).
    Submit a written amendment request directly to the Chicago NPC.

    The employer may e-mail the request directly to the Chicago NPC using the address: TLC.Chicago@dol.gov, with the words "H-2A Amendment Request" contained in the subject line of the e-mail.

    Employers without internet access may send a written request by facsimile to (312) 886-1688 (ATTN: H-2A Amendment Request) or by U.S. mail to the following address:
    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification,
    Chicago National Processing Center
    11 West Quincy Court
    Chicago, IL 60604-2105
    ATTN: H-2A Amendment Request
  3. If you are requesting a change in the period of employment or an increase in the number of workers by more than 20% (more than 50% if you originally requested less than 10 workers), attach to the amendment request a statement and any other documentation (e.g., state/local weather reports, crop yield data) demonstrating how the need for the change in the period of employment or workers requested could not have been foreseen, and a description of how the crops or commodities will be in jeopardy if approval is not granted immediately.
  4. The employer will receive a courtesy notification from the Chicago NPC acknowledging receipt of the amendment request within 48 hours and providing a date on which a decision will be made on the request or stating whether additional information is needed from the employer.

    Important Reminders:

    1. The Chicago NPC may require additional recruitment for U.S. workers as a condition of approving your amendment request, particularly in circumstances where the request will increase in the number of workers by more than 20% or more than 50% if you originally requested less than 10 workers.

    2. If you are requesting a delay in the expected start date of work, please remember to include in your written notification to the Chicago NPC a statement indicating whether any U.S. workers have already departed for your place of work and, if so, an assurance that all workers who are already traveling will be provided housing and meals, without cost to the workers, until work begins.
  5. September 9, 2011



    September 9, 2011

    Top


    Withdrawals

  6. May I withdraw a job order I submitted to the SWA once it has been accepted into intrastate clearance?

    Yes. An employer who submitted a job order in connection with a future H-2A application may withdraw it once it has been accepted for intrastate clearance but before the employer files an Application for Temporary Employment Certification, ETA Form 9142 with the Chicago National Processing Center, but the employer's withdrawal of the job order does will not nullify existing obligations to workers who were recruited in connection with that job order. If the employer received SWA referrals pursuant to the withdrawn job order and successfully recruited U.S. workers, the employer will be bound by the terms and conditions of employment reflected in the job order with respect to those workers, including but not limited to wages, housing, and transportation.

    September 15, 2010

  7. Top


  8. May I withdraw my Application for Temporary Employment Certification and job order after filing an Application for Temporary Employment Certification with the Chicago NPC?

    Yes. An employer may withdraw its Application for Temporary Employment Certification and job order submitted in connection with the application, after the job order is accepted by the SWA and placed intrastate clearance, but before the Certifying Officer issues a Notice of Acceptance. However, the employer will be required to comply with the terms and conditions of employment contained in the job order with respect to workers recruited in connection with that application and job order.

    September 15, 2010



  9. May I withdraw my Application for Temporary Employment Certification and job order after I receive a Notice of Acceptance from the Chicago NPC?

    Yes. An employer may withdraw its Application for Temporary Employment Certification and job order submitted in connection with the application after the Certifying Officer issues a Notice of Acceptance. The employer will be required to comply with the terms and conditions of employment contained in the application and job order with respect to workers recruited in connection with that application and/or job order.

    September 15, 2010

Top
header POST-CERTIFICATION
    Duplicate 9142
  1. How can I obtain a duplicate certified ETA Form 9142?

  2. Amendments and Extensions
  3. Can I extend the end date of work on my certified H-2A application?
  4. Can I request a delay in the start date of work on my H-2A application after it is certified?
  5. May I withdraw my Application for Temporary Employment Certification and job order after I receive a certification from the Chicago NPC?
  6. After certification, can I amend my temporary labor certification to increase the number of H-2A workers requested?


  7. Contract Impossibility
  8. Due to recent weather events my crop can no longer be cultivated and, therefore, I no longer need my approved H-2A workers. What do I do?

    Abandonment/Termination.
  9. When is a worker considered to have abandoned the job?
  10. Can I replace workers who abandon the job with more H-2A workers?
  11. What happens if a worker abandons or is terminated for cause from the job?


  12. Partial Certifications
  13. I received a certification, but the number of workers certified is less than the number I requested. Why has this happened?

  14. Post-certification changes in required wage rates
  15. How will the Department notify me when the prevailing wage rate changes after I receive a certification?

  16. Labor Certification Fee
  17. Am I required to pay a fee in connection with filing an H-2A application for temporary labor certification?
  18. What is the amount of the H-2A labor certification filing fee?
  19. I am a member of an agricultural association. Am I responsible for paying the H-2A labor certification fee or is the association?
  20. What is the process for paying the H-2A labor certification fee?
  21. Is there a deadline for paying the H-2A labor certification fee, and if so, what will happen if my payment is late?
    Duplicate 9142
  1. How can I obtain a duplicate certified ETA Form 9142?

    An employer cannot obtain a duplicate certified ETA Form 9142. A request for a duplicate certified ETA Form 9142 may only be made by the U.S. Citizenship and Immigration Services (USCIS) to DOL at the discretion of USCIS. Generally, USCIS will not make a request for a duplicate certified ETA Form 9142 unless the employer can establish there are extenuating circumstances beyond its control which caused the initial certification to become unavailable. Employers requesting that USCIS obtain a duplicate certified ETA Form 9142, should include on the top of the I-129, Petition for Nonimmigrant Worker, a cover sheet (preferably highlighted with colored paper) stating the following: NO TEMPORARY LABOR CERTIFICATION, REQUEST FOR DUPLICATE, DO NOT REJECT.

    On the cover sheet, the following information should also be included:

    1. Attorney or agent name, if applicable;
    2. Employer's name; and
    3. ETA case number.

    In addition to the coversheet, proper fee, signature and all required supporting documents, the employer must provide the reason(s) that the original ETA Form 9142 cannot be submitted and evidence to support its claim. Once USCIS receives the duplicate certified ETA Form 9142, USCIS will contact the employer and/or his representative via a Request for Evidence (RFE) in order to secure the employer's signature on the duplicate certification.

    DOL WILL NOT SEND THE DUPLICATE CERTIFIED ETA FORM 9142 TO THE EMPLOYER. DOL WILL SEND IT ONLY TO USCIS.

    February 29, 2012

  2. Amendments and Extensions
  3. Can I extend the end date of work on my certified H-2A application?

    Yes, the employer may request either a short-term or long-term extension to the end date of work on a certified H-2A application.

    Short-term extension requests:
    • Employer needs to extend the end date of work for two (2) weeks or less;
    • DO NOT submit an extension request to the Chicago National Processing Center (NPC);
    • Submit an extension request directly to the Department of Homeland Security’s United States Citizenship and Immigration Services (USCIS) for approval. To obtain information on how to submit a short-term extension request to the USCIS, please visit www.uscis.gov.

      Important Reminder: When USCIS approves a short-term extension, the certified H-2A application will automatically be extended and the employer does not need to notify the Chicago NPC.

    Long-term extension requests:
    • Employer needs to extend the end date of work for more than two (2) weeks;
    • Submit an extension request and all supporting documentation directly to the Chicago NPC;

      To make requesting an extension simple and fast, the employer may e-mail the request directly to the Chicago NPC using TLC.Chicago@dol.gov with the words “H-2A Extension Request” contained in the subject line of the e-mail.

      Employers without internet access may also send written requests by facsimile to (312) 886-1688 (ATTN: H-2A Extension Request) or by U.S. mail to the following address:
      U.S. Department of Labor
      Employment and Training Administration
      Office of Foreign Labor Certification,
      Chicago National Processing Center
      11 West Quincy Court
      Chicago, IL 60604-2105
      ATTN: H-2A Extension Request

    • Attach to the extension request a statement and any other documentation (e.g., weather reports, crop yield data) demonstrating how the need for the long-term extension is related to weather conditions or other factors beyond the control of the employer that could not have been reasonably foreseen, which may include changes in market conditions.
    • The employer will receive a courtesy notification from the Chicago NPC acknowledging receipt of the extension request within 48 hours and a date on which a decision will be made on the request or whether additional information is needed from the employer.

      Important Reminder: Except in extraordinary circumstances, the Chicago NPC will not approve an extension request where the new certified period of employment will be 12 months or more.

    • DON’T FORGET! Where the employer receives approval for either a short-term or long-term extension, it must provide to all workers a copy of the approved extension to the period of work as soon as practical.

      September 9, 2011

  4. Can I request a delay in the start date of work on my H-2A application after it is certified?

    Yes, the employer may request a minor delay in the start date of work after a certification decision is issued by the Chicago National Processing Center (NPC).

    • Submit a written amendment request directly to the Chicago NPC.

      The employer may e-mail the request directly to the Chicago NPC using the address: TLC.Chicago@dol.gov, with the words “H-2A Start Date Amendment Request” contained in the subject line of the e-mail.

      Employers without internet access may send a written request by facsimile to (312) 886-1688 (ATTN: H-2A Start Date Amendment Request) or by U.S. mail to the following address:
      U.S. Department of Labor
      Employment and Training Administration
      Office of Foreign Labor Certification,
      Chicago National Processing Center
      11 West Quincy Court
      Chicago, IL 60604-2105
      ATTN: H-2A Start Date Amendment Request

    • Attach to the amendment request a statement and any other documentation (e.g., state/local weather reports, crop yield data) demonstrating how the need for the delay in the start date of work could not have been foreseen, and a description of how the crops or commodities will be in jeopardy if approval is not granted immediately.

    • The employer will receive a courtesy notification from the Chicago NPC acknowledging receipt of the amendment request within 48 hours and providing a date on which a decision will be made on the request or stating whether additional information is needed from the employer.

    • Important Reminder: Include in your written notification to the Chicago NPC a statement indicating whether U.S. and/or H-2A workers have already departed for your place of work and, if so, an assurance that all workers who are already traveling will be provided housing and meals, without cost to the workers, until work begins.

      September 9, 2011

  5. May I withdraw my Application for Temporary Employment Certification and job order after I receive a certification from the Chicago NPC?

    Yes. An employer may withdraw its Application for Temporary Employment Certification and job order submitted in connection with the application after the Certifying Officer grants the certification, as long as the employer returns the original certified ETA Form 9142. The employer, however, will be required to comply with the terms and conditions of employment contained in the application and job order with respect to workers recruited or offered employment in connection with that application and/or job order.

    September 15, 2011

  6. After certification, can I amend my temporary labor certification to increase the number of H-2A workers requested?

    No. At any time before certification, an employer may submit a request to increase the number of H-2A workers stated on the Application for Temporary Employment Certification to the Certifying Officer (CO) following the instructions in a separate Frequently Asked Question (FAQ) available in the “Post-Filing” FAQ section. After certification, however, the regulations do not allow the employer to request more H-2A workers than it stated on the Application for Temporary Employment Certification at the time of certification. An employer that needs additional workers after receiving a certification would need to conduct another test of the labor market by placing a new job order with the State Workforce Agency (SWA) serving the area of intended employment and filing a new Application for Temporary Employment Certification with the Chicago National Processing Center (NPC).

    When the employer needs the additional workers to begin work in less than 45 calendar days, the employer may seek a waiver of the regulatory filing time period requirement through the emergency filing procedures. An employer requesting this waiver must concurrently submit to the Chicago NPC and the SWA: the Application for Temporary Employment Certification; a completed job order on ETA Form 790; and a statement justifying the request for the waiver. The statement must include detailed information describing the good and substantial cause which necessitated the waiver request. Good and substantial cause may include, but is not limited to, the substantial loss of U.S. workers due to weather-related activities or other reasons, unforeseen events affecting the work activities to be performed, pandemic health issues, or similar conditions. The CO can only grant the request if the request is justified and there is sufficient time to test the local area for the availability of U.S. workers.

    February 29, 2012

  7. Contract Impossibility
  8. Due to recent weather events my crop can no longer be cultivated and, therefore, I no longer need my approved H-2A workers. What do I do?

    An employer may, upon receiving approval from the Chicago National Processing Center (NPC) Certifying Officer (CO), terminate work to be performed under the job order and/or work contracts with employees before the end date of work due to fire, weather, or other Act of God beyond its control that makes fulfillment of the contract impossible. An employer seeking the CO's "contract impossibility" determination must submit a written request directly to the Chicago NPC.

      The employer may e-mail its request for relief under the "Contract Impossibility" provision directly to the Chicago NPC using the address: TLC.Chicago@dol.gov with the words “H-2A Contract Impossibility Request” contained in the subject line of the e-mail.

      Employers without internet access may also fax a request to (312) 886-1688 (ATTN: H-2A Contract Impossibility Request) or by U.S. mail to the following address:
      U.S. Department of Labor
      Employment and Training Administration
      Office of Foreign Labor Certification,
      Chicago National Processing Center
      11 West Quincy Court
      Chicago, IL 60604-2105
      ATTN: H-2A Contract Impossibility Request

      Important Reminders:

      • An employer continues to be responsible for its obligations under the work contract until receiving a favorable "contract impossibility" determination from the CO.
      • In the event that the CO makes a finding of contract impossibility, the employer should document its efforts to comply with each aspect of the contract impossibility provision. Specifically, the employer should document that it:
        • Fulfilled the three-fourths guarantee for the time that has elapsed from the start date of work specified in the work contract to the date of termination;
        • Made efforts to transfer the worker to other comparable employment acceptable to the worker, consistent with existing immigration laws; and
        • In situations where a transfer did not occur:
          • Returned the workers at the employer's expense to the place from which the worker (disregarding intervening employment) came to work for the employer, or transport the worker to his/her next certified H-2A employer, whichever the worker prefers. Note: This requirement does not apply if the worker has contracted with a subsequent employer who has agreed to provide or pay for the worker's transportation and subsistence expenses from the present employer's worksite to the subsequent employer's worksite;
          • Reimbursed the worker the full amount of any deductions made by the employer from the worker's pay for transportation and subsistence expenses to the place of employment, and
          • Paid the worker for any transportation and subsistence expenses, including any lodging expenses incurred on the employer's behalf, incurred by the worker to that employer's place of employment.

    February 29, 2012

  9. Abandonment/Termination
  10. When is a worker considered to have abandoned the job?

    A worker who fails to report for work at the regularly scheduled time for five consecutive working days, without the employer's prior consent, is considered to have abandoned the job. This includes a worker who fails to report for employment for the first five consecutive working days of the contract period. When a worker does not appear on the first day of the contract period, we suggest that the employer contact the worker and, in the case of a U.S. worker, the State Workforce Agency (SWA) to resolve any confusion about the start date and confirm whether the worker will report to work or is no longer available for the job opportunity.

    Instructions for submitting the written notification of abandonment for those workers who fail to report to work, as scheduled, for five consecutive working days, are available in a separate H-2A Frequently Asked Question (FAQ).

    February 29, 2012

  11. Can I replace workers who abandon the job with more H-2A workers?

    After submitting the written notification of abandonment, if the workers who abandoned the job were in H-2A visa status, the employer may submit a request to USCIS to replace the workers. For more information please contact USCIS at www.uscis.govor at its National Customer Service Center at 1-800-375-5283.

    If, however, the workers who abandoned the job were U.S. workers and the employer's labor certification had been denied or reduced by the number of U.S. workers hired, the employer may submit a request for a new temporary labor certification determination to the Chicago National Processing Center (NPC). By regulation, the employer may contact the Certifying Officer by telephone (312-886-8000) or e-mail to request a new determination based on U.S. worker unavailability. The employer must also submit a signed written statement confirming its belief that U.S. workers are unavailable. Employers may submit the request and/or written statement by e-mail directly to the Chicago NPC using the address: TLC.Chicago@dol.gov, with the words "H-2A Redetermination Request" contained in the subject line of the e-mail. Employers without internet access may fax the request and/or written statement to (312) 886-1688 (ATTN: H-2A Redetermination Request) or by U.S. mail to the following address:
    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification,
    Chicago National Processing Center
    11 West Quincy Court
    Chicago, IL 60604-2105
    ATTN: H-2A Redetermination Request

    If the Certifying Officer (CO) does not receive the employer's signed written statement within 72 hours of the employer's initial request, the CO will deny the request.

    Upon receipt of the request, the CO will look to applicable sources, which may include the State Workforce Agency, to determine whether specific able, willing, eligible and qualified replacement U.S. workers are available or can be reasonably expected to report for the job within 72 hours of the employer's request. If the CO determines that U.S. workers are unavailable and cannot identify sufficient available replacement U.S. workers, the CO will issue a new determination, which the employer may use to seek additional workers in H-2A visa status with USCIS.

    February 29, 2012

  12. What happens if a worker abandons or is terminated for cause from the job?

    The employer must provide the Chicago National Processing Center (NPC) with written notification when any worker voluntarily abandons or is terminated for cause from the job before the end of the certified work period. A worker who fails to report for work at the regularly scheduled time for five (5) consecutive working days, without the employer’s consent, is considered to have abandoned the job.

    • Submit the written notification directly to the Chicago NPC within two(2) working days of the abandonment or termination from the job;

    To make compliance with this requirement simple and fast, the employer may e-mail the notification directly to the Chicago NPC using TLC.Chicago@dol.gov with the words “H-2A Abandonment/Termination Notice” contained in the subject line of the e-mail.

    Employers without internet access may also send written notification by facsimile to (312) 886-1688 (ATTN: H-2A Abandonment and Termination) or by U.S. mail to the following address:
    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification,
    Chicago National Processing Center
    11 West Quincy Court
    Chicago, IL 60604-2105
    ATTN: H-2A Abandonment and Termination

    To ensure prompt and effective processing, please make sure the signed notification includes the following information:

    • Case number(s) on the H-2A certification(s);
    • Employer’s name, address, telephone number, and Federal Employer Identification Number (FEIN);
    • Number of U.S. worker(s) and H-2A worker(s) who abandoned or was/were terminated from the job;
    • Name of each worker and last known physical address (other than employer-provided housing);
    • Date of abandonment or termination; and
    • Reason(s) for notification (for example, explain that the worker was either an “absconder” or “termination for cause”) or late notification, if applicable.
    • The employer will receive a courtesy notification from the Chicago NPC acknowledging receipt of the written notification within 48 hours and an indication as to whether additional information is needed from the employer.

    DON’T FORGET! If the worker who abandons or is terminated from the job is in H-2A visa status, the employer must also notify the Department of Homeland Security’s United States Citizenship and Immigration Services (USCIS) within 2 working days. To obtain information on how to submit notifications to the USCIS, please visit www.uscis.gov.

    September 9, 2011

  13. I received a certification, but the number of workers certified is less than the number I requested. Why has this happened?

    The Certifying Officer (CO) may issue a partial certification, reducing the number of H-2A workers, based upon information the CO receives during the course of processing the Application for Temporary Employment Certification. The number of requested workers will be reduced for each U.S. worker that is able, willing and qualified to fill the position and who was not rejected for a lawful job-related reason. The number of workers certified on the application will also be reduced when the number of requested workers exceeds the capacity of the pre-occupancy housing inspection conducted by the State Workforce Agency (SWA). When issuing a partial certification, the CO includes an enclosure that fully details the specific reason for the partial certification.

    February 29, 2012

  14. Post-certification changes in required wage rates
  15. How will the Department notify me when the prevailing wage rate changes after I receive a certification?

    When the prevailing wage rate for a specific crop in a specific State changes after a certification has been granted the Office of Foreign Labor Certification posts the new prevailing wage rate, including the effective date, on its Web site in the Agricultural On-Line Wage Library (AOWL), available at http://www.foreignlaborcert.doleta.gov/aowl.cfm. Also, the Chicago National Processing Center (NPC) sends a letter to all potentially affected employers notifying them of the change.

    Important Note: Because the Office of Foreign Labor Certification receives new wage findings from States for different crops/occupations on a rolling basis, employers are encouraged to periodically check the AOWL to ensure that they are paying the appropriate required wage throughout the certified period of employment. If needed, employers may direct their questions regarding the applicability of new wage determinations to TLC.Chicago@dol.gov.

    February 4, 2013

  16. Labor Certification Fee
  17. Am I required to pay a fee in connection with filing an H-2A application for temporary labor certification?

    Yes. Where the Department certifies an H-2A Application for Temporary Employment Certification in whole or in part, the employer will receive a bill for the required certification fee in the envelope delivering the original certification. The employer must timely pay the certification fee no more than 30 calendar days after the date of the certification.

    Important Note: An employer who is issued an H-2A labor certification but who requests post-certification withdrawal of that H-2A labor certification, and/or who decides not to proceed with the filing of a Petition for a Nonimmigrant Worker (Form I-129) with the United States Citizenship and Immigration Services is still required to pay the required labor certification fee in a timely manner. Failure to do so can result in debarment from the H-2A program.

    February 4, 2013

  18. What is the amount of the H-2A labor certification filing fee?

    The basic labor certification fee is $100.00 per application and $10.00 for each H-2A worker certified, up to a maximum labor certification fee of $1000.00 per employer. For example, an employer who received an H-2A labor certification to hire 15 temporary H-2A workers would pay a total fee of $250.00, which includes $100.00 for the temporary labor certification plus $10.00 for each certified worker position (15 x $10.00 = $150.00). No additional fee is assessed to an association filing jointly with its employer members.

    February 4, 2013


  19. I am a member of an agricultural association. Am I responsible for paying the H-2A labor certification fee or is the association?

    Each employer member is responsible for paying through its association the required fee related to the H-2A labor certification, where the association filed the Application for Temporary Employment Certification jointly with its employer members. At the time of certification, the Chicago National Processing Center (NPC) will issue an invoice directly to the association for the aggregate amount of labor certification fees owed by all employer members covered by the H-2A labor certification. For example, if employer member A is certified for 10 workers, employer member B is certified for 15 workers and employer member C is certified for 20 workers, the H-2A labor certification fee invoice would request the payment of $750.00 – employer A ($100.00 + 10 x $10.00 = $200.00) plus employer B ($100.00 + 15 x $10.00 = $250.00) plus employer C ($100 + 20 x $10.00 = $300.00). No additional fee would be assessed to an association filing jointly with its employer members. While the aggregate amount of labor certification fees appearing on an association's invoice may be greater than $1,000, no employer member will be billed for or assessed a fee of more than $1,000 (i.e., the maximum labor certification fee per employer).

    If, however, the association is representing the employer as an agent in the labor certification process, the Chicago NPC will direct the invoice for the labor certification fee to the individual employer, who will be responsible for paying the required fee directly to the Department. As with other correspondence, the Chicago NPC will send the invoice to the employer through its agent (i.e., the association).

    February 4, 2013


  20. What is the process for paying the H-2A labor certification fee?

    After receiving a bill for the required H-2A labor certification fee, the employer should send a money order payable in U.S. currency or a check from a U.S. bank payable to the "United States Department of Labor" to the Chicago National Processing Center (NPC) at the following address:

    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification
    Chicago National Processing Center
    P.O. Box A3804
    Chicago, IL 60690-A3804
    Attention: Director of Administration

    Employers should include with the payment the H-2A case number, and the employer's name, address, and phone number. The payment must be received by the Chicago NPC no more than 30 calendar days after the date of certification.

    Associations filing jointly with employer members should send a single money order payable in U.S. currency or a check from a U.S. bank covering the aggregated fees for all employer members covered by the single Application for Temporary Employment Certification.

    Questions related to the labor certification fee invoice should be directed to the Chicago NPC at TLC.Chicago@dol.gov with the e-mail subject line "H-2A Invoice Question".

    Important Note: Please note that some commercial express couriers will not deliver to a U.S. P.O. box; therefore, an employer choosing to use a commercial express courier should confirm that provider's services before submitting a payment. Also, all employers should allow for sufficient time to assure timely receipt of payment.

    February 4, 2013

  21. Is there a deadline for paying the H-2A labor certification fee, and if so, what will happen if my payment is late?

    The Chicago National Processing Center (NPC) must receive payment of H-2A labor certification fees no more than 30 calendar days after the date of certification. Payment that is received more than 30 calendar days after the date of certification will be considered untimely. Non-payment or untimely payment of the H-2A labor certification fees may be considered a substantial violation and subject the employer to debarment from the H-2A program, consistent with 20 CFR 655.182.

    Questions related to the labor certification fee invoice should be directed to the Chicago NPC at TLC.Chicago@dol.gov with the e-mail subject line "H-2A Invoice Question".

    February 4, 2013

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header DOCUMENT RETENTION
  1. Since I will be submitting supporting documentation before certification, will I still need to keep certain documents after I receive a labor certification?

    Yes. In addition to providing supporting documentation before certification, each employer participating in the H-2A program is required to retain certain documentation for a period of 3 years from the date of certification. The document retention requirements may be found under the new section 20 CFR 655.167.

    March 29, 2010

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header APPEALS
  1. How can I appeal a refusal to accept my application or a denial of my application?

    If an employer wishes to appeal the CO's issuance of a Notice of Deficiency before certification, the employer must within 5 days of the receipt of the Notice of Deficiency file by facsimile or other means normally assuring next day delivery a written request for an expedited administrative review or a de novo administrative hearing to the Chief Administrative Law Judge of the Department of Labor and simultaneously 9 serve the CO. If an employer wishes to appeal the CO's issuance of a Final Determination letter denying the temporary labor certification, the employer must within 7 calendar days of the receipt of the Final Determination letter file a written request by facsimile or other means normally assuring next day delivery with the Chief Administrative Law Judge of the Department of Labor and simultaneously serve the CO. See sections 20 CFR 655.141 and 655.164.

    March 29, 2010



  2. May an employer appeal a wage determination in the H-2A program?

    Not directly. The H-2A regulations do not contain a provision for appealing wage determinations. However, if the SWA and the employer do not agree on the correct wage that must be offered, and the employer complies with all requirements of the 2010 Final Rule (described more fully below) the Certifying Officer (CO) at the Chicago NPC ultimately may make the determination on the wage that must be offered. If the matter is not resolved with the CO, the employer may follow the appeal procedures in the 2010 Final Rule and request an appeal from either a Notice of Deficiency or a Final Determination denying the employer's application.

    March 29, 2010

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header VALIDITY PERIOD
  1. Can the H-2A labor certification be valid for more than one year under the new rule?

    Each H-2A labor certification is valid for the period of employment provided on the application. In order to qualify for a temporary labor certification, the employer's period of need, including any subsequently granted extensions, may not exceed one year except in extraordinary circumstances.

    March 29, 2010

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header STAGGERED DATES OF NEED
  1. Can an employer file a single Application for Temporary Employment Certification for staggered dates of need?

    No. An application must contain a single date of need for all workers under that application. Under the H-2A program, a date of need is defined as the first date the employer requires the services of H-2A and U.S workers as indicated in the Application for Temporary Employment Certification. The date is not an indication of the first date of need for some workers, but for all the workers that are the subject of the application. We expect that the filing of an Application indicates that the employer has full-time work available for all positions it is requesting for that single start date and that all information reflects the employer's true need. Changing the date of need for some or all workers invalidates the validity of the labor market test, which eliminates the Department's basis for granting the labor certification. A different date was not advertised to U.S. workers, in particular those who, if they had been apprised of the later date, could have made themselves available for the job opportunity, and therefore made the approval of the certification unnecessary. Where the employer has staggered dates of need, the employer must file a separate application for each date of need.

    July 22, 2011




  2. My workers currently inside the U.S. are able to start work on the start date listed on my certified Application for Temporary Labor Certification. Those workers coming to my place of employment from outside the U.S., however, may be delayed due to visa processing and travel time and may each arrive on different days, since they each have different travel schedules. Do I need to amend the start date on my Application for Temporary Labor Certification so that all workers start on the same date? Will the Department think I have staggered dates of need?

    As discussed further in a separate Frequently Asked Question (FAQ), where an employer requires workers to begin work on different dates, the employer has staggered dates of need and must file a separate Application for Temporary Employment Certification for each of the different start dates of need.

    An employer that intends for all of its workers to begin work on the same date, but finds that some workers are unable to arrive in time due to minor travel delays, is different from an employer that requires workers to begin work on different dates. We recognize that these employers make every effort to ensure that all workers arrive in time to be ready to work on the start date listed on the Application for Temporary Employment Certification. The regulatory provision for requesting a delayed start date applies when the employer wishes to delay the start date of all workers covered by the Application for Temporary Employment Certification. It does not cover minor travel delays or slower than expected processing times at USCIS or a U.S. Consulate for workers coming from outside the U.S.; however, these delays should not delay any other worker's start date or the employer's start date of work.

    The employer's application also does not need to be amended when minor differences in worker travel schedules, such as those described above, mean workers will arrive within a few days of each other or the start date of need.

    Important Reminder: The employer's positive recruitment obligations continue through the date the H-2A workers depart for the employer's place of work. Unless the SWA is informed in writing of a different date, the date that is the third day before the employer's start date will be considered the date the H-2A workers depart for the employer's place of work.

    February 29, 2012

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H-2B Temporary Labor Certification Program (Non-Agricultural)
header GENERAL
  1. I am an employer in the entertainment industry.  In filing my Application for Temporary Employment Certification, should I follow the special procedures contained in the Training and Employment Guidance Letter 31-05 for entertainers, or should I follow the 2008 H-2B regulations?

    The 2008 H-2B regulations contain a provision that permits the continuation of special procedures that were in place prior to the regulations' effective date of January 18, 2009. The Department continues to honor special procedures contained in Training and Employment Guidance Letter (TEGL) 31-05 to the extent they are consistent with the 2008 H-2B regulations.  The Department is not, however, able to honor the special procedures in areas in which they are in direct contravention of the 2008 H-2B regulations, as outlined in these FAQs.

    September 16, 2010

  2. What defines a Metropolitan Statistical Area (MSA)?

    MSAs are geographic entities defined by the U.S. Office of Management and Budget for use by Federal statistical agencies in collecting, tabulating, and publishing Federal statistics. A metro area contains a core urban area of 50,000 or more population, and a micro area contains an urban core of at least 10,000 (but less than 50,000) population. Each metro or micro area consists of one or more counties and includes the counties containing the core urban area, as well as any adjacent counties that have a high degree of social and economic integration (as measures by commuting to work) with the urban core. For more information on MSAs, please visit the U.S. Census Bureau at http://www.census.gov/population/www/estimates/metroarea.html
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header FORM
  1. Where do I find the NAICS Code that the ETA 9142 asks for on page 2, Section C, Item 13 and what is it?

    "NAICS" stands for the North American Industry Classification System, which is a coding system that classifies all businesses into specific categories enabling statisticians and others in the government and in the private sector to identify trends and keep track of information based on industries. The accompanying instructions to the Form ETA9142 provide the web address for the Census Bureau, which maintains the NAICS coding system. The code selected by the employer should reflect the nature of the employer's business, not the job for which certification is sought. A listing of NAICS codes can be found at http://www.census.gov/epcd/www/naics.html

    April 2009

  2. Where do I find the SOC (ONET/OES) Code and SOC (ONET/OES) Occupation Title requested on page 1, Section B questions 2 and 3 of the new ETA Form 9142?

    Link to http://www.flcdatacenter.com/OesQuick.aspx and click on the drop down box under "OR Select an occupation from the list:" The number on the left is the SOC code and the title to the right is the Occupation Title.

    April 2009

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  4. The employer completes a narrative statement regarding item 9 of ETA Form 9142, but must retain the supporting documents.  Can these 3 documents be submitted with the application instead of in response to the National Processing Center (NPC)'s Request for Information (RFI)?

    No. These documents will be requested under the RFI process outlined in 20 CFR 655.23(c) if the employer has made all necessary attestations and assurances but failed to comply with one or more of the certification criteria set forth in 20 CFR 655.23(b). If the regulatory requirements for certification are met, the petition will be certified and the employer should keep any supporting documents demonstrating temporary need for three years from the date of certification in case of a post certification audit. Supporting evidence is not defined by the regulations, but the Department has historically considered charts of permanent and temporary employees, payroll records, and signed contracts setting forth the dates of employment to demonstrate temporary need.

    April 2009

  5. Where do we send the completed Application for Temporary Employment Certification?

    The completed application must be sent directly to the Chicago National Processing Center. The address is:
    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification,
    Chicago National Processing Center
    11 West Quincy Court
    Chicago, IL 60604-2105

    April 2009

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header RECRUITMENT OF U.S. WORKERS

    Recruitment Obligations

  1. What is my prefiling recruitment obligation and when must I place the first ad?
  2. When can I begin my recruitment activities?
  3. Can I combine several H-2B job opportunities into one advertisement?
  4. How long must my recruitment run?
  5. When is the deadline for submitting the Recruitment Report and the Application for Temporary Employment Certification (ETA 9142) along with Appendix B.1?
  6. The SWA says they will not place my job order but that I must place it myself, is that right?
  7. The SWA states that I must keep my job order active for 30 days, must I?
  8. What should the Recruitment Report contain?
  9. Do I submit newspaper ad tear sheets with the Recruitment Report which is now filed directly with your office?
  10. Do I need to submit copies of resumes or applications with my Application for Temporary Employment Certification?
  11. Do I need to submit copies of resumes or applications with my Application for Temporary Employment Certification?
  12. What are the SWA obligations with respect to contacting labor unions?
  13. Pursuant to the Final Rule, employers and their attorneys or agents are prohibited form seeking or receiving "payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer's attorneys' or agent fees,... or recruitment costs."  This includes any monetary payments, wage concessions, kickbacks, bribes, tributes, in kind payments, and free labor. Does this prohibition apply to petitions that were filed prior to January 18, 2009 and does it apply only to workers abroad or in country as well?
  1. What is my prefiling recruitment obligation and when must I place the first ad?

    An employer may not place a newspaper advertisement until it has received a prevailing wage (from the State Workforce Agency (SWA) during the transition period or from the Chicago NPC after the transition period). Once an employer has received a prevailing wage it can submit a job order to the SWA serving the area of intended employment and then publish two print advertisements, one of which should be on a Sunday unless no Sunday edition exists (see 20 CFR 655.15(f) for exceptions) during the time the job order is posted with the SWA. The job order cannot be placed more than 120 days prior to the date of need. In addition, if the employer is a party to a collective bargaining agreement governing the job classification that is subject of the H2B application, then the employer must formally contact the local union and maintain copies of 4 correspondence and/or dated logs demonstrating contact with the union, result of such contact, and the number of qualified referrals received from the union. Likewise, if the employer laid off any employees in the same job occupation within 120 days of the first date of need, the employer must document that it has notified or will notify each laid off worker of the job opportunity and has considered or will consider each laid off worker who has expressed interest in the opportunity, and the result of the notification and consideration. Finally, the employer must prepare a Recruitment Report and submit it with the Application for Temporary Employment Certification. The Recruitment Report cannot be prepared any earlier than 2 calendar days after the last date on which the job order was posted and no earlier than 5 calendar days after the last newspaper advertisement was published.

    April 2009

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  3. When can I begin my recruitment activities?

    No earlier than 120 days prior to the first date of need.

    April 2009

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  5. Can I combine several H-2B job opportunities into one advertisement?

    No. Each job opportunity must have its own advertisement in order to sufficiently apprise potential workers of the job duties.

    April 2009

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  7. How long must my recruitment run?

    The job order must be posted with the State Workforce Agency in the area of intended employment for no less than 10 full days. The newspaper advertisements must be published while the job order is posted.

    April 2009

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  9. When is the deadline for submitting the Recruitment Report and the Application for Temporary Employmen Certification (ETA 9142) along with Appendix B.1?

    The regulations do not specify the last date an employer can submit an application. The regulations do, however, specify the earliest an employer can begin recruitment (120 days prior to first date of need) and the earliest that a Recruitment Report can be created (2 calendar days after the last date on which the job order was posted and 5 calendar days after the last newspaper advertisement was published). The Recruitment Report is necessary to filing a completed Application for Temporary Employment Certification; therefore, an application may not be filed until at least that time that a recruitment report can 5 be completed. The Recruitment Report and Application for Temporary Employment Certification should not be submitted to the Chicago National Processing Center until all qualified U.S. worker applicants have been considered.

    April 2009

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  11. The SWA says they will not place my job order but that I must place it myself, is that right?

    Many SWAs now have automated self service systems. In those instances, you will be required to place the order yourself, however, you must contact the SWA immediately upon placing the job order and let them know that you have placed an H2B job order. Your job order must state that it is being filed in support of a future H2B application.

    April 2009

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  13. The SWA states that I must keep my job order active for 30 days, must I?

    The Department of Labor requires that employers post their job orders and keep them active for at least 10 days. If a SWA requires a longer period, then the employer must comply with this requirement and continue to accept referrals. In such an instance, the employer cannot submit its application to the Department until the earliest that a Recruitment Report can be created, i.e. 2 calendar days after the last date on which the job order was posted and 5 calendar days after the last newspaper advertisement is published. The Recruitment Report is necessary to filing a completed Application for Temporary Employment Certification; therefore, an application may not be filed until at least 2 days after the end of the required posting period. Employers seeking to file applications for temporary labor certification for H2B workers should therefore determine the requirements for posting in the applicable SWA well in advance of the intended employment to ensure compliance. Employers are also reminded that they must keep the job order active until all print advertisements have been published.

    April 2009

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  15. What should the Recruitment Report contain?

    The Recruitment Report must identify each recruitment source by name; list the name and contact information for each U.S. worker who applied or was referred, and the disposition of each worker, including any applicable laid off workers; indicate whether the worker was hired or not and if the worker was not hired, list the lawful job related reasons for not hiring the worker. There is no required format or form for a recruitment report other than it contain these elements.

    April 2009

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  17. Do I submit newspaper ad tear sheets with the Recruitment Report which is now filed directly with your office?

    An employer is not required to submit evidence of the placement of such advertisements, such as newspaper tear sheets, with the Application for Temporary Employment Certification. The employer must attest to the dates on which the advertisements were placed, and must maintain copies of the newspaper pages, tear sheets, or other proof of publication containing the text of the advertisement and dates of publication for 3 years from the date of certification, to be presented to the Department in the event of a request for additional information prior to adjudication, an audit or other investigation.

    April 2009

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  19. Do I need to submit copies of resumes or applications with my Application for Temporary Employment Certification?

    No. An employer is not required to submit copies of resumes or job application forms completed by job applicants with its Application for Temporary Employment Certification. However, the employer must maintain for 3 years resumes and evidence of contact with each U.S. worker who applied or was referred to the job opportunity, to be provided to the Department in response to an RFI, audit, or other investigation.

    April 2009

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  21. What are the employer's obligations with respect to contacting labor unions?

    The H2B regulations at 20 CFR 655.15(g) require an employer that is a party to a collective bargaining agreement (CBA) covering the job classification that is the subject of the H2B labor certification application to formally contact the local union that is a party to the CBA. Such contact may be by U.S. mail or other effective means during the same period of time that the SWA is circulating a copy of the employer's job offer within the state. After contact, the employer must maintain dated logs demonstrating: (1) that the union was contacted and notified timely of the position openings; (2) whether the union referred qualified U.S. worker(s); (3) the number of U.S. workers that were referred, if applicable; and (4) whether or not the union was responsive to the employer's request.

    April 2009

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  23. What are the SWA obligations with respect to contacting labor unions?

    The Department strongly recommends that a SWA, which has knowledge that the employer's job opportunity is in an occupation that is traditionally unionized, circulate a copy of the intrastate job order to all applicable unions and other sources of recruitment and apprise these sources of the available position(s) within the area of intended employment. To ensure that the labor unions and other sources of recruitment will have a sufficient amount of time to apprise their members to apply for the available position(s), we strongly recommend that the SWA contact the union on the first day that it places the intrastate job order on its active file for recruitment and request that referrals of applicants be made to the SWA within the active recruitment period. Last, the SWA should allow a reasonable period of time, e.g., 3 calendar days after the close of the job order, for referrals sent the day the order closed to be received and considered by the SWA. In accordance with 20 CFR 655.15(e)(1), the SWA must place the job order no more than 120 calendar days before the employer's date of need for H2B workers for a period of not less than 10 calendar days.

    April 2009

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    Recruitment Fees

  25. Pursuant to the Final Rule, employers and their attorneys or agents are prohibited form seeking or receiving "payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer's attorneys' or agent fees, or recruitment costs." This includes any monetary payments, wage concessions, kickbacks, bribes, tributes, in kind payments, and free labor. Does this prohibition apply to petitions that were filed prior to January 18, 2009 and does it apply only to workers abroad or in country as well?

    Applications that were filed before January 18, 2009 are being adjudicated under the regulations in effect at the time of filing. The prohibition on seeking or receiving payment from the employee for any activity relating to the obtaining of the labor certification therefore does not apply to them. For those applications filed on or after January 18, 2009, the prohibition applies to recruiter and other fees charged to any foreign workers, whether in the U.S. or abroad, relating to the obtaining of the labor certification.

    April 2009

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header SPECIAL PROCEDURES

Entertainers
  1. Who qualifies as an entertainer for H-2B status?
  2. As an employer of entertainers who enter the US in H-2B status, where do I file?
  3. I hire musicians from Canada. Has how their recruitment changed?
  4. I hire workers in the Virgin Islands. There used to be special procedures for them. Are they still in place?
  5. My workers appear in several places. I used to be able to file one application and submit an itinerary. Can I still do that?
  6. Has when I may file an H-2B application changed?
  7. How do I begin the filing process?
  8. How do I get a prevailing wage if I have multiple worksites?
  9. I have just received my prevailing wage from the NPC. Can I offer that salary only to my H-2B workers?
  10. Do I follow the regulations and recruit before I file the application?
  11. When do I recruit?
  12. How do I recruit?
  13. How long will the SWA job order be open?
  14. Can I reject workers who are not willing to join the itinerary? For example, I have worksites in 6 states. If a worker sees the recruitment in the third state, can he join for just that state?
  15. Where do I file my application?
  16. How do I include my itinerary with the application?
  17. Once the CNPC has my application, what can I expect?
  1. Who qualifies as an entertainer for H-2B status?

    Occupations in the entertainment industry, for purposes of applying for a labor certification for H-2B workers, shall include performers and all technical and support personnel involved with a performance, including carnival workers.

    June 2009

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  3. As an employer of entertainers who enter the US in H-2B status, where do I file?

    All H-2B applications are filed with the Certifying Officer at the Chicago National Processing Center (CNPC). Employers are no longer required to submit applications for H-2B temporary employment of foreign workers to one of the Offices Specializing in Entertainment (OSEs) in New York, New York; Austin, Texas; or Sacramento, California.

    June 2009

  4. I hire musicians from Canada. Has how their recruitment changed?

    It has not changed.  As discussed in TEGL 31-05, where you recruit depends on where the musicians appear. Canadian musicians who enter the US to perform within a 50-mile area adjacent to the Canadian border for a period of 30 days or less are pre-certified and are not subject to these procedures. In such cases, employers may file petitions to employ nonimmigrant workers (I-129) directly with USCIS in accordance with that agency's guidelines; no pre-recruitment is necessary. If the entertainers you seek to bring to the US in H-2B status are not able to fall within this limited exemption, you must follow the procedures outlined in the H-2B regulations, subject only to special procedures outlined in TEGL 31-05 (such as an itinerary).

    June 2009

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  6. I hire workers in the Virgin Islands. There used to be special procedures for them. Are they still in place?

    Yes. There continue to be in place the special procedures with respect to the amount of time that an H-2B worker in the entertainment industry may enter the U.S. Virgin Islands. The Virgin Islands Nonimmigrant Alien Adjustment Act of 1981, Pub. L. 97-271, limits temporary employment of entertainers in the U.S. Virgin Islands to periods not to exceed 45 days. Therefore, the period of labor certification for such applications may not exceed 45 days.

    June 2009

  7. My workers appear in several places.  I used to be able to file one application and submit an itinerary.  Can I still do that?

    An employer seeking H-2B workers in the entertainment industry may still utilize an itinerary when filing an application.  The application must include an itinerary of locations and duration of work in each location.

    June 2009

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  9. Has when I may file an H-2B application changed?

    Yes. The final regulation requires employers, including those seeking H-2B workers in the entertainment industry, to file their H-2B application after completion of the recruitment report detailing their efforts and the outcome of U.S. worker applicants. The creation of the required recruitment report cannot occur, pursuant to 20 CFR 655.15(j)(1), until after the completion of the US worker recruitment, specifically no earlier than 2 days after the last date on which the job order was posted and at least 5 days after the last date on which the newspaper or journal ad was placed. Recruitment may not start until 120 days prior to the employer's date of need.

    June 2009

  10. How do I begin the filing process?

    Before recruiting US workers, the employer must request and obtain a prevailing wage determination from the CNPC, in accordance with the procedures specified at 20 CFR 655.10. The rate must be valid either on the date recruitment begins or on the date of filing a complete ETA Form 9142. The employer will request a prevailing wage determination by completing the ETA Form 9141, Application for Prevailing Wage Determination, and including a listing of all worksites covered by the job opportunity. The CNPC will enter its wage determination on the ETA Form 9141, indicate the sources, and return the form with its endorsement to the employer within 30 days of receipt of the request. The validity period of the wage determination may be for no more than 1 year or less than 3 months from the wage determination date.

    June 2009

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  12. How do I get a prevailing wage if I have multiple worksites?

    The employer must list all worksites within an area of intended employment on its ETA Form 9141 when requesting a prevailing wage. If the job opportunity involves multiple worksites within an area of intended employment and different prevailing wage rates exist for the same opportunity within the area of intended employment, the prevailing wage shall be the highest wage among all relevant worksites. Employers submitting a prevailing wage determination covering itinerary locations will receive a wage determination for each location listed on the itinerary for work to be performed in that location.

    June 2009

  13. I have just received my prevailing wage from the NPC. Can I offer that salary only to my H-2B workers?

    Pursuant to statute and regulation, the employer must offer the wage determination from the NPC (or higher) to both its H-2B workers and any similarly employed U.S. worker hired in response to the recruitment required by the regulations and these special handling procedures.

    June 2009

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  15. Do I follow the regulations and recruit before I file the application?

    All H-2B recruitment is undertaken prior to submission of the application. Employers file with the CNPC only after completing the recruitment report detailing their efforts and the outcome of U.S. workers who applied, or on whose behalf an application was made, for the job opportunity.

    June 2009

  16. When do I recruit?

    Recruitment of US workers may not commence more than 120 days before the employer's start date of need for the H-2B workers. An employer seeking H-2B workers may file with the CNPC only after completing the recruitment report as noted above. The creation of a recruitment report cannot occur, pursuant to 20 CFR 655.15(j)(1), until after the completion of the recruitment period, specifically no earlier than 2 days after the last date on which the state job order was posted and at least 5 days after the last date on which the newspaper or journal ad was placed.

    June 2009

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  18. How do I recruit?

    An employer seeking certification for H-2B job opportunities, including opportunities in the entertainment industry, must undertake the following recruitment steps:

    1. Submit a job order to the SWA serving the area of intended employment as specified in 20 CFR 655.15(e). Where the job opportunity requires the work to be performed in more than one state based on an itinerary, the job order should be submitted to the SWA having jurisdiction over the area where the employment will begin. The SWA receiving the job order shall promptly transmit, on behalf of the employer, a copy of the active job order to all states listed as anticipated worksites. When submitting the job order to the SWA, the employer must clearly identify it as a job order to be placed in connection with a future application for H-2B workers.

    2. Publish advertisements on 2 separate days, which may be consecutive, one of which must be a Sunday advertisement, in a newspaper of general circulation serving the area of intended employment as specified in 20 CFR 655.15(f). The employer may satisfy this requirement by advertising the job opportunity in a national publication that is likely to bring responses from U.S. workers.

    3. Where the employer is a party to a collective bargaining agreement governing the job classification that is subject of the H-2B labor certification, the employer must contact the local union that is party to the agreement as specified in 20 CFR 655.15(g)

      At the conclusion of the recruitment period, the employer shall prepare a written recruitment report as specified in 20 CFR 655.15(j), to be submitted with the application.

      June 2009

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  20. How long will the SWA job order be open?

    The SWA must keep the job order open for a period of not less than 10 calendar days. If the SWA requires a longer period in order to adequately recruit US workers for the job opportunity (e.g., 30 calendar days), the employer must comply with the requirement and continue to accept referrals of US workers until the end of the recruitment period.

    June 2009

  21. Can I reject workers who are not willing to join the itinerary? For example, I have worksites in 6 states. If a worker sees the recruitment in the third state, can he join for just that state?

    He can if you are willing to have him join in only that state, and the certification will be reduced accordingly for the entire itinerary. If you prefer, you may reject that worker, unless he is in fact willing to work for the rest of the itinerary.

    June 2009

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  23. Where do I file my application?

    Temporary labor certification applications for foreign workers in the entertainment industry shall be filed by employer with the CNPC at the following address:
    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification,
    Chicago National Processing Center
    11 West Quincy Court
    Chicago, IL 60604-2105
    Attn: CNPC Certifying Officer, H-2B Application for Entertainers

    June 2009

  24. How do I include my itinerary with the application?

    When filed, the application must include: A completed ETA Form 9142, Application for Temporary Employment Certification signed by the employer; an itinerary of locations and duration of work in each location, where there is more than one worksite, and a wage offer for each location listed on the itinerary for work performed in that location which can submitted as an attachment to the ETA Form 9142. The completed application must also include a copy of the recruitment report completed in accordance with 20 CFR 655.15(j).

    June 2009

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  26. Once the CNPC has my application, what can I expect?

    The CNPC will make a determination to either grant or deny the Application for Temporary Employment Certification. The CNPC will notify the employer in writing (either electronically or by US Mail) of the labor certification determination. The CNPC will review complete applications for an absence of errors that would prevent certification and for compliance with the criteria for certification. Criteria for certification include whether the employer has established the need for the nonagricultural services or labor to be performed is temporary in nature; established that the number of worker positions being requested is justified and represent bona fide job opportunities; made all the assurances and met all the obligations required by § 655.22; and complied with all requirements of the program. If the CNPC determines that the employer has made all necessary attestations and assurances, but the application fails to comply with one or more of the criteria for certification, the CNPC will issue a Request for Information (RFI) to the employer. The CNPC will issue the written (RFI) within 7 calendar days of the receipt of the application, and send it by means normally assuring next-day delivery.

    June 2009

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header JOB CONTRACTORS

  1. What did the U.S. District Court for the Eastern District of Pennsylvania (the Court) decide in Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Solis related to the H-2B regulations and job contractors?
  2. After receiving the Court's August 30, 2010 decision, what action did the Department take related to H-2B Applications for Temporary Employment Certification filed by job contractors?
  3. How can a job contractor file Applications for Temporary Employment Certification consistent with the Court's August 30, 2010 decision?
  4. When should a job contractor and its employer-client file as joint employers?
  5. Can a job contractor file an Application for Temporary Employment Certification as joint employers with two or more of its employer-clients?
  6. When a job contractor intends to file an Application for Temporary Employment Certification as a joint employer with its employer-client, is the job contractor or the employer-client responsible for obtaining the prevailing wage determination?
  7. When a job contractor intends to file an Application for Temporary Employment Certification as a joint employer with its employer-client, is the job contractor or the employer-client responsible for conducting the required pre-filing recruitment activities?
  8. When a job contractor intends to file an Application for Temporary Employment Certification as a joint employer with its employer-client, what content is required in the job order and newspaper advertisements?
  9. When a job contractor intends to file an Application for Temporary Employment Certification as a joint employer with its employer-client, does the job contractor need to send a written inquiry to its employer-client regarding U.S. worker displacement as described in 20 CFR 655.22(k)?
  10. When a job contractor intends to file an Application for Temporary Employment Certification as a joint employer with its employer-client, what must the job contractor submit to the NPC in order to file a complete application?
  11. When a job contractor files an Application for Temporary Employment Certification as a joint employer with its employer-client, will the job contractor or the employer-client receive the certification if the application is approved?
  12. Can a job contractor combine job opportunities with several of its joint employer employer-clients in a newspaper advertisement?

  1. What did the U.S. District Court for the Eastern District of Pennsylvania (the Court) decide in Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Solis related to the H-2B regulations and job contractors?

    On August 30, 2010, the Court CATA v. Solis, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010) issued a decision invalidating various provisions of the Department's 2008 H-2B Final Rule, 73 Fed. Reg. 78020 (Dec. 19, 2008). Among the provisions that the Court invalidated and vacated was 20 CFR 655.22(k), insofar as that provision permits the clients of job contractors to use the services of H-2B workers without each client submitting its own Application for Temporary Employment Certification to the Department. In particular, the Court found that the Department of Homeland Security's (DHS) regulatory provisions at 8 CFR 214.2(h)(2)(i)(C) and 8 CFR 214.2(h)(6)(iii)(A), when read together, "mandate that (1) every employer must file a petition with DHS, and (2) before doing so, the employer must also file a certification application with DOL. By allowing certain employers not to file certification applications, DOL's regulations unambiguously contradict this mandate." See CATA v. Solis, 2010 WL 3431761 *16 (E.D. Pa. Aug. 30, 2010) (emphasis added). Accordingly, the Court decided that these provisions prohibited the Department's existing practice of allowing only job contractors to file Applications for Temporary Employment Certification.

    April 5, 2011

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  3. After receiving the Court's August 30, 2010 decision, what action did the Department take related to H-2B Applications for Temporary Employment Certification filed by job contractors?

    As a result of this order, the Department determined that it could no longer accept H-2B Applications for Temporary Employment Certification from applicants that meet the definition of job contractor at 20 CFR 655.4 if the job contractor's employer-client(s) also did not submit an application. Accordingly, in September, 2010, the Department began issuing Requests for Further Information (RFIs) to all employers who marked in Section C-17 of the ETA Form 9142 that they were job contractors or otherwise indicated in the application that they were job contractors. The RFI clearly provided notice of the Court's August 30, 2010 decision and the impact of the decision on applications filed by job contractors.

    April 5, 2011

  4. How can a job contractor file Applications for Temporary Employment Certification consistent with the Court's August 30, 2010 decision?

    The Court's decision unambiguously prohibits the Department from approving Applications for Temporary Employment Certification that are filed solely by the job contractor. After thorough consideration, the Department does not believe that the H-2B regulations, as written, can accommodate a situation where both a job contractor and employer-client each file their own applications for a single job opportunity where there is no joint employment agreed to between the job contractor and the employer-client. The regulations at 20 CFR 655.20 only allow for one H-2B labor certification application to be filed for worksite(s) within one area of intended employment for each job opportunity with an employer. Additionally, if both the job contractor and employer-client were to file separate applications for the same job opportunity, it is unclear which entity would receive the certification.

    Provided that a job contractor and any employer-client are joint employers, as defined in the 2008 H-2B Final Rule, a job contractor may submit an Application for Temporary Employment Certification on behalf of itself and that employer-client. The application must clearly identify the job contractor and its employer-client and their joint employment relationship. Also, the application must comply with all regulatory requirements related to submitting an application (e.g. prevailing wage determination obtained and pre-filing recruitment conducted). Additionally, both employers (the job contractor and the employer-client) must sign the Appendix B.1 to ETA Form 9142, attesting to the conditions of employment required of employers participating in the H-2B program.

    April 5, 2011

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  6. When should a job contractor and its employer-client file as joint employers?

    In deciding whether to file as joint employers, the job contractor and its employer-client should understand that according to the H-2B regulations, employers are considered to jointly employ an employee when they each, individually, have sufficient definitional indicia of employment with respect to that employee. As described in the definition of employee in 20 CFR 655.4, some factors relevant to the determination of employment status include, but are not limited to, the following: the right to control the manner and means by which work is accomplished; the skill required to perform the work; the source of the instrumentalities and tools for accomplishing the work; the location of the work; discretion over when and how long to work; and whether the work is part of the regular business of the employer or employers. Whenever a job contractor and its employer client file applications, each employer is responsible for compliance with H-2B program assurances and obligations. In the event a violation is determined to have occurred, either or both employers can be found to be responsible for remedying the violation and attendant penalties

    April 5, 2011

  7. Can a job contractor file an Application for Temporary Employment Certification as joint employers with two or more of its employer-clients?

    A job contractor may have many separate contracts or agreements, each with a different employer-client. Each contract or agreement may support only one Application for Temporary Employment Certification for each employer-client job opportunity within a single area of intended employment. While a job contractor may have multiple employer-clients, these employer-clients do not have joint employment agreements among themselves. Therefore, in order to be considered joint employers, each employer-client and job contractor must file a separate application with the Department.

    April 5, 2011

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  9. When a job contractor intends to file an Application for Temporary Employment Certification as a joint employer with its employer-client, is the job contractor or the employer-client responsible for obtaining the prevailing wage determination?

    Either the job contractor or its employer-client may submit an ETA Form 9141, Application for Prevailing Wage Determination, describing the job opportunity to the National Prevailing Wage Center (NPWC). Both of the joint employers are, however, responsible for ensuring that the wage offer listed on the Application for Temporary Employment Certification, ETA Form 9142, and related recruitment at least equals the prevailing wage rate determined by the NPWC and that all other wage obligations are met.

    April 5, 2011

  10. When a job contractor intends to file an Application for Temporary Employment Certification as a joint employer with its employer-client, is the job contractor or the employer-client responsible for conducting the required pre-filing recruitment activities?

    Either the job contractor or its employer-client may place the required job order and newspaper advertisements, as described in 20 CFR 655.15. Also, either one of the joint employers may assume responsibility for interviewing applicants. However, both of the joint employers must sign the recruitment report that is submitted to the National Processing Center (NPC) with the Application for Temporary Employment Certification, ETA Form 9142.

    April 5, 2011

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  12. When a job contractor intends to file an Application for Temporary Employment Certification as a joint employer with its employer-client, what content is required in the job order and newspaper advertisements?

    The job order and newspaper advertisements placed by joint employers must satisfy the advertising content requirements required for all H-2B-related advertisements, as identified in 20 CFR 655.17. Additionally, in order to fully apprise applicants of the job opportunity and avoid potential confusion inherent in a job opportunity involving two employers, joint employer recruitment must clearly identify both employers (the job contractor and its employer-client) by name and must clearly identify the worksite location(s) where workers will perform labor or services.

    Any employer who files a job order or advertisement after the publication date of this FAQ will be expected to comply with the requirements set forth in the previous paragraph, and the Department will consider the publication date of this FAQ when evaluating recruitment conducted by joint employers. The Department considers the name of both employers and the worksite location as essential content for joint employment recruitment to appropriately test the U.S. labor market.

    April 5, 2011

  13. When a job contractor intends to file an Application for Temporary Employment Certification as a joint employer with its employer-client, does the job contractor need to send a written inquiry to its employer-client regarding U.S. worker displacement as described in 20 CFR 655.22(k)?

    No. As joint employers, both the job contractor and its employer-client independently attest to the conditions of employment required of employers participating in the H-2B program, including non-displacement of U.S. workers as specified in 20 CFR 655.22(i). Accordingly, the employer-client already must attest that it has not laid off and will not lay off any similarly employed U.S. worker in the occupation for which certification is sought within the area of intended employment within the period beginning 120 calendar days before the date of need through 120 calendar days after the date of need, except where the employer-client also attests that it offered the job opportunity to those laid off U.S. worker(s) and the U.S. worker(s) either refused the job opportunity or was rejected for the job opportunity for lawful, job-related reasons. Therefore, an additional written inquiry from the job contractor to its employer-client regarding U.S. worker displacements would be redundant.

    Employers make the required attestation regarding non-displacement of U.S. workers when signing ETA Form 9142 Appendix B.1, through Item B.8. As described in the paragraph above, the employer-client's Item B.8 attestation renders the Item B.14(i) attestation, describing a job contractor's written inquiry to its employer-client regarding displacement, redundant. Also, the job contractor and employer-client both attest through the Item B.14(ii) that all worksites are listed on the ETA Form 9142.

    April 5, 2011

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  15. When a job contractor intends to file an Application for Temporary Employment Certification as a joint employer with its employer-client, what must the job contractor submit to the NPC in order to file a complete application?

    A job contractor that is filing as a joint employer with its employer-client must submit the following to the NPC:
    • A completed Application for Temporary Employment Certification, ETA Form 9142, that clearly identifies the joint employers (the job contractor and its employer-client) and the employment relationship (including the actual worksite), in the attachment (see below);
      • Section B (Temporary Need Information), Item 9 (Statement of Temporary Need), must contain information reflecting each joint employer's individual temporary need, described separately, and identifying the joint employment relationship;
      • Section C (Employer Information) and Section D (Employer Point of Contact Information) should contain only job contractor information;
      • In the field within Section C for "Type of employer application", "H-2A Labor Contractor or Job Contractor" should be selected; and
      • In Section F (Job Offer Information), subsection c (Place of Employment), the actual worksite or multiple worksites within an area of intended employment where the labor or services will be performed and the name of the employer who owns or controls each worksite should be identified.
    • An attachment containing the employer-client's name, mailing address, and total worker positions needed and a description of the employment relationship between the joint employers;
    • One Appendix B.1, bearing the original signature of the job contractor;
    • One Appendix B.1, bearing the original signature of the employer-client;
    • A recruitment report bearing both joint employers' signatures; and
    • The contract or agreement establishing the employers' relationship related to the workers sought.
    The information and documentation described above is necessary for the Department to appropriately evaluate an Application for Temporary Employment Certification for joint employment. A job contractor who submits an application without this basic information or documentation will receive a Request for Further Information (RFI) requesting this basic information for review. Failure to provide this basic information will result in denial of the application. Also, submitting an application identifying more than one employer-client will result in denial of the application.

    By signing Appendix B.1, each employer independently attests to the conditions of employment required of employers participating in the H-2B program and assumes full responsibility for the accuracy of the representations made in the application. Also, each employer is individually responsible for complying with the document retention provisions contained in the 2008 H-2B Final Rule and providing such documentation in the event of an RFI, an audit examination, or investigation.

    April 5, 2011

  16. When a job contractor files an Application for Temporary Employment Certification as a joint employer with its employer-client, will the job contractor or the employer-client receive the certification if the application is approved?

    If an application for joint employers is approved, the NPC will issue one certification and send it to the job contractor named in Section C of the ETA Form 9142. In order to ensure notice to both employers, a courtesy copy of the certification cover letter will be sent to the employer-client using the mailing address information provided in the attachment to the ETA Form 9142.

    When submitting a certified Application for Employment Certification to U.S. Citizenship and Immigration Services, the job contractor should submit the complete ETA Form 9142 and both originally signed Appendix B.1 forms.

    April 5, 2011

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  18. Can a job contractor combine job opportunities with several of its joint employer employer-clients in a newspaper advertisement?

    The Department has identified a newspaper advertisement containing a single job opportunity for a single pair of joint employers as the clearest method of apprising potential workers of the job opportunity available. However, the Department recognizes that placing separate ads may prove burdensome and, under certain circumstances, a job contractor may successfully apprise potential workers of the job opportunities it shares with various employer-clients without creating confusion. Accordingly, provided that all of the employer-clients' job opportunities are in the same occupation and area of intended employment and have the same requirements and terms and conditions of employment, including dates of employment, a job contractor may combine more than one of its joint employer employer-clients' job opportunities in a single newspaper advertisement.

    Each advertisement must fully apprise potential workers of the job opportunity available with each employer-client and otherwise satisfy the advertising content requirements required for all H-2B-related advertisements, as identified in 20 CFR 655.17. Such a shared newspaper advertisement must clearly identify the job contractor by name, the joint employment relationship, and the number of workers sought for each job opportunity, identified by employer-client name and location (e.g. 5 openings with Employer-Client 1 (worksite location), 3 openings with Employer-Client 2 (worksite location)).

    In addition, the newspaper advertisement must contain the following statement: "Applicants may apply for any of the jobs listed. When applying, please identify the job(s) (by company and work location) you are applying to for the entire period of employment specified." This statement is intended to inform potential workers of their choice to apply to any of the job opportunities listed. If an applicant fails to identify one or more specific work location(s), that applicant is presumed to have applied to all work locations listed in the advertisement.

    July 26, 2011

Top
header  FAQ SEAFOOD STAGGERING 2014 APPROP
Prevailing Wage (PERM, H-2B, H-1B, H-1B1 and E-3)
header GENERAL
  1. What labor certification programs are affected by the new prevailing wage process administered by the NPWHC?

    As described in the Department's December 4, 2009, Federal Register Notice (74 FR 63796), the National Prevailing Wage and Helpdesk Center (NPWHC) will process Prevailing Wage Determination (PWD) requests for H-1B, H-1B1 (Chile/Singapore), H-1C (if reauthorized by Congress), H-2B, E-3 (Australia) programs, and the permanent labor certification program (PERM).
  2. March 24, 2010


  3. How can I check the status of a prevailing wage application I filed using the iCERT System?

    You can check the status of your case through your iCERT System account at https://icert.doleta.gov.

March 15, 2011

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header REQUESTING A PREVAILING WAGE DETERMINATION (PWD)
  1. Will employers seeking H-2A labor certifications be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?

    No. The NPWHC is not set up to receive walk-in applications from the public. Requests for PWDs should be filed either electronically using the iCERT system or mailed to the NPWHC.

    March 24, 2010

  2. Will the NPWHC accept PWD requests via electronic means?

    Electronic filing is strongly recommended.  The Department's iCert Portal has been updated to allow users to electronically submit ETA Form 9141, requests for PWDs, to the NPWHC.  To access the iCert Portal go to: https://icert.doleta.gov/.

    March 24, 2010

  3. I submitted a prevailing wage request via the iCERT System. Should I also mail a copy of the ETA 9141 to the NPWC?

    No. Please submit only one ETA 9141 per prevailing wage request. In order to reduce the number of duplicate PWDs, employers must not mail copies of ETA 9141s that were submitted via the iCERT System. In addition, employers should not submit multiple requests, via the iCERT System or mail, for the same PWD request.

    March 15, 2011

  4. I want to mail in a request for a PWD, where do I send it? What is the correct address and zip code?

    To mail a request for a PWD, an employer must send a completed ETA Form 9141 to the NPWHC. The complete address and zip code for the NPWHC is:

    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification
    National Prevailing Wage and Helpdesk Center
    Attn: PWD Request
    1341 G Street, NW
    Suite 201
    Washington, DC 20005-3105
  5. March 24, 2010

  6. My office is located in Washington, DC. Can I bring my PWD request to the NPWHC?

    No The NPWHC is not set up to receive walk-in applications from the public. Requests for PWDs should be filed either electronically using the iCERT system or mailed to the NPWHC.

March 24, 2010

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header PWD FORM (ETA FORM 9141)
  1. What form should I use to request a Prevailing Wage Determination?
    An employer must use ETA Form 9141 to request a PWD from the NPWHC. This form is available in the Forms and Instructions section of the OFLC website: http://www.foreignlaborcert.doleta.gov/form.cfm
  2. March 24, 2010



  3. Will suggestions for changes to the ETA Form 9141 be considered?

    The current ETA Form 9141 was approved by OMB through November 30, 2011. Any modifications to the form would be subject to the procedures mandated by the Paperwork Reduction Act (PRA), which provides for notice and comment on such modifications.  Any changes to the form would not go into effect until after the PRA process was complete.
  4. March 24, 2010



  5. Are there any items on the ETA 9141 that requestors are routinely leaving incomplete and may cause a delay in processing or result in the request being voided?

    Yes. As a general rule, requestors must complete all required items on the ETA 9141. Although entries may vary based on the visa classification supported by the application, there are items on the ETA 9141 that requestors are routinely leaving incomplete or incorrect. Such items include:
    • Item D.a.6, job duties. In item D.a.6., the employer must provide a description that details the duties with enough specificity to issue a prevailing wage determination under a relevant Standard Occupational Code (SOC). To do this, the employer must specify the field(s) and/or product(s)/industry(ies) involved, any equipment the employee will use, and pertinent working conditions.
    • Items D.b.1-1b, education. In item D.b.1, mark only one U.S. diploma or degree as the employer's minimum requirement. If you choose "Other degree", indicate in item D.b.1a the specific U.S. diploma or degree (e.g., JD, MD, DDS, etc.). If the position requires a degree, in item D.b.1b indicate the major(s) and/or field(s) of study for the required degree.
    • Items D.b.4-4b, employment experience. If the employer checks 'No' to the experience question or leaves it blank, but indicates the number of months of experience required, we will consider that as a 'Yes'. In addition, if the job duties (item D.a.6) or the special requirements (item D.b.5) indicate that the position requires employment experience, the requestor must ensure it corresponds with the answers to items D.b.4-4b.
    • Items D.c.1-6, place of employment. "N/A" is not an acceptable answer for place of employment, and the ETA 9141 will be voided and returned to the requestor. The employer must provide the complete street address, city, county, and state for the location where the work will be performed.
    • Item D.c.3, the city of the place of employment. Enter the appropriate city for the worksite address. For Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, enter the city or town, as appropriate.
    • Item D.c.4, the county of the place of employment. Enter the appropriate county, not country (USA), for the worksite address. For Alaska, enter the appropriate borough or census area. For Louisiana, enter the appropriate parish. If the city is not part of any county, enter the city as the county.
    • The NPWC finds that Items D.c.7 and D.c.7a, which ask for information about multiple worksites, routinely cannot be used because they are too general. For instance, listing "the San Francisco area" is an inadequate response because the San Francisco area has nine counties. The employer must provide enough geographic detail about each area of intended employment to cover all known worksite locations by indicating each county (or independent city/town/township/borough/parish, as appropriate) and the corresponding state where the employee will work. However, the NPWC does not require employers to list the physical address for each worksite to receive a prevailing wage determination for that worksite. For the New England states, the county and the town are needed. If you are unsure about how to list the area, both the Online Wage Library (http://flcdatacenter.com/) and iCert wage lookup section list the geographic areas by the names used by the NPWC. The FLC Data Center (http://flcdatacenter.com/) has the geographic area data table from OES available in the Download Data Files section, while iCert provides the county or BLS area lookup. Below are examples of recommended forms of entries:

       

      Alexandria City, VA
      Frederick, VA
      Trujillo Alto, PR
      Fairfield (Sherman), CT
      Fairbanks North Star, AK
      Kenai Peninsula, AK
      Caddo, LA

      Revised February 6, 2013

  6. Rather than entering the job duties in Item D.a.6 on the ETA Form 9141, can I just enter "see attached" and then upload job duties and/or requirements?

    No. In order for information to be considered for a PWD, an employer must begin entering the answer on the ETA Form 9141 in the appropriate field, including the employer's job duties. The iCert portal allows for a total of 4,000 characters, or 15 lines, for the employer's job duties. When the employer enters more than the allotted characters or lines in Item D.a.6, iCert will automatically create an addendum page and insert "See Addendum" in Item D.a.6. The employer's entire job duties will then appear on the iCert Addendum page.

    Job duties and/or requirements that are uploaded by the employer as separate attachments will not appear on the ETA Form 9141, and the application will be determined to be insufficient. If the insufficient application was mailed to ETA, it will be returned to the employer. If the insufficient application was filed electronically, it will be voided in iCert, and ETA will send an email notification to the employer.

    Posted February 6, 2013

  7. Rather than entering multiple worksite locations in Item D.c.7a on the ETA Form 9141, can I attach or upload a list of worksite locations?

    No. For information to be considered for a PWD, an employer must begin entering the answer on the ETA Form 9141 in the appropriate field, including multiple worksite locations. The iCert portal allows for up to 200 locations to be entered in Item D.c.7a. The employer must provide enough geographic detail about each area of intended employment to cover all the known worksite locations. The NPWC does not require employers to list every worksite's physical address in order to receive a prevailing wage determination for that worksite. For multiple worksites, the employer must enter at least the appropriate counties (or independent city(ies)/township(s)/borough(s)/parish(es) as appropriate) and the corresponding state(s) where the employee will work.

    If the employer has more than 200 worksite locations for one job description, the employer must submit a second ETA Form 9141. The employer may use the "re-use" function in iCert to pre-populate the form and replace the multiple worksite locations with additional worksites.

    Additional worksite locations that are uploaded by the employer as separate attachments will not appear on the ETA Form 9141 and will not be reviewed or provided wage determinations. If the employer does not list any of the worksite locations on the ETA Form 9141, the application will be deemed insufficient. If the insufficient application was mailed to the NPWC, it will be returned to the employer. If the insufficient application was submitted electronically, it will be voided in iCert and the NPWC will send an email notification to the employer. If the employer lists some additional worksite locations on the ETA Form 9141 but uploads a separate attachment for the remaining worksite locations, the NPWC will only provide wages for the worksite locations actually listed on the ETA Form 9141.

    Posted February 6, 2013

  8. I have job openings for the same position in multiple locations. Can I request one PWD for the same job being performed in many locations?

    Yes. The employer may submit one PWD request for the same job to be performed in multiple locations, up to 200 locations. The employer must indicate it is requesting PWDs for multiple locations on the ETA Form 9141 in item D.c.7 and list all of the locations in item D.c.7a. For more information on entering multiple locations in Item D.c.7a, see FAQ #5.

    Posted February 6, 2013

Top
header  ISSUANCE AND RECEIPT OF A PWD
  1. Once I submit a PWD request, how long will it take to receive a determination?

    The NPWHC is working to provide Prevailing Wage Determinations as quickly as possible, in a first in, first out order.   However, determination times may fluctuate as the Department works to centralize processing of PWD requests at the NPWHC.  Therefore, we continue to encourage requestors to submit their ETA Forms 9141 at least 60 days in advance of the employers' initial recruitment efforts.
  2. March 24, 2010


  3. How can I request that the National Prevailing Wage Center issue me an hourly wage instead of an annual wage?

    The employer may request an hourly wage by entering "Request Hourly Wage" in the Job Duties block (D.a.6) of the ETA Form 9141.
    Please note: Due to the nature of some occupations where the norm for the occupation is not the standard 2080 hour work year, the Occupational Employment Statistics (OES) survey does not provide an hourly wage. In such instances, the NPWC will not be able to issue the requested hourly wage, as will be indicated in a note on the prevailing wage determination.
  4. Revised June 21, 2012


  5. Once the NPWHC makes a PWD, how will I receive it?

    The Department's strong preference is for the electronic transmittal of PWDs. Therefore, we encourage all requestors to include their email addresses on the ETA Form 9141, under item B15. Once a determination is made, the NPWHC will email the requestor an electronic copy of the PWD.  In order to receive emails from the NPWHC, requestors should ensure that the domain@dol.gov is not blocked by their internet email provider.

    If the requestor does not provide an email address on its ETA Form 9141, item B15, the NPWHC will send the PWD to the requestor's mailing address by regular mail.

    March 24, 2010

  6. I received a PWD from the NPWHC, but I misplaced it. How can I get a duplicate copy of the PWD?

    To request a duplicate PWD, send an email to FLC.PWD@dol.gov. The NPWHC will send an exact duplicate of the PWD to the requestor named on the ETA Form 9141.

    March 24, 2010

  7. What do I do once I receive my PWD?

    Once an employer receives a PWD, the employer may begin recruitment or file an application for foreign labor certification, depending on the program.  The employer must follow program specific rules and regulations for filing foreign labor certification applications. In addition, employers may refer to OFLC's website: www.foreignlaborcert.doleta.gov for more information on labor certification programs.

    March 24, 2010

  8. Why did the PWD I received have a different SOC than the one I suggested on the ETA 9141 item D.a.2. and 2a.?

    The NPWC assigns a SOC based on a review of the job duties (item D.a.6.) and special requirements (item D.b.5.) listed on the ETA 9141. In addition, we may consider other items on the ETA 9141 such as the education requirements (D.b.1-1b.) or employment experience (D.b.4-4b).

    March 15, 2011



  9. I included multiple worksites on the ETA Form 9141 and I received wages for all of the worksites. Is the wage listed on page 4 of the ETA Form 9141 (Item E.4) the required prevailing wage?

    The wage entered on page 4 of the ETA Form 9141 corresponds to the worksite location listed in D.c.1 to 6. The NPWC must provide wages for each location listed in the application. However, the NPWC does not dictate how the employer should use those wages to comply with the applicable program regulations and guidance. The employer, therefore, must ensure that it offers a wage that complies with the appropriate regulation and program specific guidance.

    March 15, 2011


  10. Does a prevailing wage determination expire?

    Yes. Each prevailing wage determination issued by the NPWC has a validity period which can range from no less than 90 days to one year. The validity period of a PWD is the period between the determination date and the expiration date, as listed in Items E.8 and E.9 of the approved Application for Prevailing Wage Determination (ETA Form 9141).

    March 15, 2011

Top
header  ALTERNATE WAGE SOURCES
  1. How do I request a PWD based upon a source other than OES?
  2. What supporting documentation should I submit with my ETA Form 9141 to request the use of a McNamara-O'Hara Service Contract Act (SCA) or Davis Bacon Act (DBA) wage?
  3. What documentation should I submit in addition to ETA Form 9141 when the job opportunity is covered by a collective bargaining agreement (CBA)?
  4. How do I request that the NPWC use a Higher Education American Competitiveness and Workforce Improvement Act (ACWIA) wage in determining the prevailing wage?
  5. I am an institution covered by ACWIA, but there is no ACWIA wage for the suggested SOC I want to use. How will the NPWC apply an ACWIA wage?
  6. What documents do I need to send with a request to use an employer provided/published or employer conducted/commissioned survey?
  7. I submitted a survey with a request for a prevailing wage determination, but the determination I received had an OES wage? Why was the survey not used?
  8. I submitted a 9141 using iCERT and requested the use of a survey. If I mail in a survey, should I also include a copy of the 9141?
  9. Can the employer provide a survey with a redetermination request after the NPWC has issued a prevailing wage determination?
  10. Can an employer provide a survey, even if the employer's job description has restrictive or atypical requirements for the job opportunity, such as extensive travel?
  1. How do I request a PWD based upon a source other than OES?
    On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties, the employer should include a sentence surrounded by asterisks (***) requesting the use of a specific source, with the name, edition, revision and publication date as appropriate.  Additionally, the employer may also need to provide supporting documentation, as explained in the questions and answers immediately following.

    In addition, after entering the employers' job title in item D.a.1, enter the title or occupation name and code, as appropriate in square brackets.

    Example
    D.a.6: *** Request SCA WD 950221 (Rev.23)
    Emergency Incident/Fire Safety Services ***
    D.a.1: Site Sample Technician [30210 Laboratory Technician]
  2. March 24, 2010

    Top


  3. What supporting documentation should I submit with my ETA Form 9141 to request the use of a McNamara-O'Hara Service Contract Act (SCA) or Davis Bacon Act (DBA) wage?

    No supporting documentation is required to request the use of a SCA or DBA wage. If we need additional information to make a PWD, we will send a letter to the requestor asking for specific information.
  4. March 24, 2010



  5. What documentation should I submit in addition to ETA Form 9141 when the job opportunity is covered by a collective bargaining agreement (CBA)?

    When a job opportunity is covered by a collective bargaining agreement, the employer must submit the following at the time it submits the ETA Form 9141:
    1. A copy of the relevant portion of the CBA;
    2. A letter, on letterhead, from the employer, stating the relevant section of the CBA, the CBA job title, and the appropriate wage; and
    3. A letter, on letterhead, from the collective bargaining unit's (union) authorized representative, stating the relevant section of the CBA, the CBA job title, and the appropriate wage.
  6. March 24, 2010

    Top


  7. How do I request that the NPWC use a Higher Education American Competitiveness and Workforce Improvement Act (ACWIA) wage in determining the prevailing wage?

    ACWIA wages provide a prevailing wage based on a sample of similar institutions apply to occupations in institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research agencies. On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties, include the following statement surrounded by asterisks: "***This employer is an institution of higher education or a research entity under 20 CFR 656.40(e). ***"
  8. March 15, 2011



  9. I am an institution covered by ACWIA, but there is no ACWIA wage for the suggested SOC I want to use. How will the NPWC apply an ACWIA wage?

    The NPWC must issue an ACWIA wage for all institutions covered by ACWIA. When a SOC is assigned to an occupation that does not have an ACWIA wage, the NPWC will use wages for the closest occupation where an ACWIA Higher Education wage is available. The NPWC will enter an explanation of the assigned wage into the Additional Notes section of the PWD.
  10. March 15, 2011

    Top


  11. What documents do I need to send with a request to use an employer provided/published or employer conducted/commissioned survey?

    The NPWHC will consider wage information provided by the employer in making a PWD.  An employer must provide the following information pertaining to the survey:
    1. The full name of the published survey (acronyms are not acceptable);
    2. The publication schedule for the survey. This should include the publication date of the requested survey, the date of the previous version of the survey and the date of the next anticipated release of the survey;
    3. When the data was collected;
    4. A description of the job duties or activities used in the survey; and
    5. The methodology used in the survey:
      1. How the universe was defined;
      2. How the sample size was determined;
      3. How the participants were selected; and
        1. The number of employers surveyed for the occupation in the area;
        2. The number of wage value responses (employees) for the occupation in the area;
      4. A list of employer participants or explanation of how the cross industry nature of the survey was maintained;
        1. How the presented wage was determined and if it is the "mean" or "median";
        2. Any other appropriate information on the survey's methodology;
        3. The area covered by the survey or relevant portion thereof and an explanation of any expansion of the area beyond normal commuting distance, when applicable.

    March 24, 2010



  12. I submitted a survey with a request for a prevailing wage determination, but the determination I received had an OES wage? Why was the survey not used?

    When the NPWC does not accept a survey, the NPWC includes an explanation in the Additional Notes section of the ETA Form 9141 as to why the survey does not meet the requirements. If the requestor did not include a notation on the ETA Form 9141 requesting the use of survey, the PWD may have been processed prior to the survey being matched with the record. If the survey was referenced on the ETA Form 9141 and the PWD did not include an explanation for non-acceptance, send an email to FLC.PWD@dol.gov with the subject line: Request for Review of Survey: Wage Source P-xxx-xxxxx-xxxxxx.

    To ensure that the NPWC matches the submitted surveys with the appropriate PWD request, requestors must clearly indicate in the job duties section of the ETA Form 9141 the request for an alternative wage source. For prevailing wage determination requests submitted via the iCERT system, employers must submit the supporting wage documentation to the NPWC along with the iCERT case number. The NPWC will accept copies of surveys by email at FLC.PWD@dol.gov.

    March 15, 2011

    Top


  13. I submitted a 9141 using iCERT and requested the use of a survey. If I mail in a survey, should I also include a copy of the 9141?

    No. Include a cover letter that includes reference to the iCERT prevailing wage case number. The NPWC will accept copies of surveys by email at FLC.PWD@dol.gov. Please reference the prevailing wage case number in the email along with the survey.

    March 15, 2011



  14. Can the employer provide a survey with a redetermination request after the NPWC has issued a prevailing wage determination?

    No. If the employer seeks to utilize a wage survey, the employer must submit the survey with the original prevailing wage request. The NPWC will reject redetermination requests to consider surveys that were not submitted with the original prevailing wage and the NPWC will require the employer to submit a new prevailing wage determination request with the wage survey included.
  15. March 15, 2011

  16. Can an employer provide a survey, even if the employer's job description has restrictive or atypical requirements for the job opportunity, such as extensive travel?


  17. The employer may provide a survey for use in the H-1B (H-1B1 and E-3), H-2B or PERM programs that meets the requirements in the Department's regulation 20 CFR §§655.731(b)(3)(iii)(B), 655.10(f), or 656.40(g), as applicable. The NPWC's acceptance of a survey is governed by the regulations and the Prevailing Wage Determination Policy Guidance - Nonagricultural Immigration Program (Revised November 2009) (PWD Policy Guidance), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. The survey's position description must generally match the job being offered and not have differences that would place the job into a different occupation. The job opportunity described on the application may not differ from the position described by the survey, such as requiring extra or unusual duties, skills, or conditions of employment. The survey must provide data for the most specific occupation available and cannot provide only data for summary or group occupations when data for the specific occupation is available. In addition, if the employer's job opportunity combines two or more positions in the survey and the survey documentation does not provide a method for the assignment of wages in such circumstances, the survey will not be accepted for that application. When the NPWC does not accept a survey, the NPWC includes an explanation on the ETA Form 9141 clarifying the reasons the survey does not meet the requirements.

    To avoid rejection of a survey because it does not match a job description with restrictive or non-normal requirements, the employer should ensure that if the survey only has a single wage tier, the job description in the survey also contains the restrictive or non-normal requirement of the employer's job opportunity. A survey that does not contain the restrictive or non-normal requirement in the job description and provides only a single wage tier will be rejected. If the restrictive or atypical requirement is not included in the job description of the survey, the survey should have multi-tiered wages. In the case of a multi-tiered survey, the NPWC will use the same methodology currently used in determining wages in OES, and increase the wage level by one level for each restrictive or atypical requirement.

    A wage determination issued by the NPWC for job duties, requirements, and conditions of employment for a particular job opportunity does not signify that those job duties, requirements, and conditions of employment have been found substantively appropriate to the occupation. Nor should the addition of wage levels be construed as a determination that a particular element of the job opportunity is or is not acceptable. The wage determination is not a determination as to the appropriateness of the requirements or conditions; it is an acknowledgement of the value of the requirements or conditions in terms of compensation. A wage determination does not replace the subsequent substantive evaluation of the appropriateness of those job duties and requirements for the purposes of labor certification or labor condition application process.

    Posted February 6, 2013

    Top
header  PWDs FOR SPECIFIC OCCUPATIONS
  1. Does the NPWHC provide Prevailing Wage Determinations for high paying professional occupations, e.g. physicians?
  2. I see a new SOC user guide was issued by BLS in February 2010 and that it contains some new occupations. How are PWDs for these new occupations affected by this guide?
  3. I suggested an "All Other" SOC on the PWD request I submitted, but the determination I received had a different SOC? When are "All Other" SOCs used?
  4. Are all Postdoctoral Fellow positions considered entry level?
  5. In order to issue a Prevailing Wage Determination (PWD), how does the NPWC decide between Research & Development (R&D) and non-R&D occupations under the American Competitiveness and Workforce Improvement Act (ACWIA)?
  6. For Ski Instructors and Snowboard Instructors, does the adoption of the 2010 SOC change the occupation the NPWC will use to determine the wage?
  7. For Oyster Shuckers, does the adoption of the 2010 SOC change the occupation the NPWC will use to determine the wage?

  8. AFFILIATED OR RELATED ENTITY
  9. What documentation does the NPWC require in order to show an employer meets the definition of an affiliated or related nonprofit entity under the Department's regulations at 20 CFR §656.40(e)(1)(ii)?

  10. Combination of Occupations
  11. What does the NPWC use to determine appropriate skill sets for an occupation?
  12. When does the NPWC consider a position to include a combination of occupations?

  13. Special Skills
  14. How does the NPWC decide when to assign a "Special Skills and Other Requirements" point when determining the wage level?
  1. Does the NPWHC provide Prevailing Wage Determinations for high paying professional occupations, e.g. physicians?

    Yes. However, some prevailing wages are higher than what the Occupational Employment Statistics (OES) accommodates because of its methods of data analysis.  In some occupations and areas, OES provides a footnote that "This wage is equal to or greater than $70.00 per hour or $145,600 per year.  In other situations, the OES footnote states "this wage is equal to or greater than $80.00 per hour or $166,400 per year. This means the actual wage for the occupation is an amount equal to or above the stated hourly wage. Thus, some locations and occupations do not have specific wages listed in the Online Wage Library (OWL) that the NPWHC uses to determine prevailing wages.  This includes some physicians, dentists, and Chief Executives. Where the NPWHC does not have the information from OES to determine the actual prevailing wage for certain high paying occupations in the area of employment, the NPWHC will issue the prevailing wage as either $70.00 or $80.00 per hour as indicated in the OES data and will include the OES note in the Additional Notes on Prevailing Wage.
  2. March 24, 2010

    Top

  3. I see a new SOC user guide was issued by BLS in February 2010 and that it contains some new occupations. How are PWDs for these new occupations affected by this guide?

    BLS conducts wage surveys once a year using current SOCs. Therefore, BLS may release wage information for new occupations in their July 2011 data release. Questions regarding when the new SOC will be implemented by BLS should be directed to BLS. In the meantime, the NPWC will issue PWDs using the closest SOC for which data is available.
  4. March 15, 2011

    Top

  5. I suggested an "All Other" SOC on the PWD request I submitted, but the determination I received had a different SOC? When are "All Other" SOCs used?

    The NPWC assigns the most applicable SOC based on the job duties provided in the prevailing wage request. The NPWC only uses "All Other" SOCs (e.g., Biologists, All Other) when it cannot identify a more specific SOC.
  6. March 15, 2011


  7. Are all Postdoctoral Fellow positions considered entry level?

    No. The NPWC considers a Postdoctoral Fellow position as entry level unless the position requires significant experience. If the employer requires significant experience and/or training for a Postdoctoral Fellow position, the NPWC may issue a wage higher than a level one. Additionally, if the position requires supervising other postdoctoral fellows or has other significant special requirements or duties, the wage issued may be higher than a level one.
  8. March 15, 2011

  9. In order to issue a Prevailing Wage Determination (PWD), how does the NPWC decide between Research & Development (R&D) and non-R&D occupations under the American Competitiveness and Workforce Improvement Act (ACWIA)?

    R&D positions directly conduct or support a research effort. Non-R&D positions support administrative functions such as finance and technical facilities support. Employers should provide clear job duties that explain if the position supports R&D or non-R&D.

    When the position combines elements from both R&D and non-R&D occupations, the NPWC will select the occupation with the highest wage in the same manner as other combinations of occupations. The PWD will only show the occupation with the highest wage.

    There are nine standard occupations with wage data reported into the categories of R&D and non-R&D:

     SOC Code  

    Soc Title

    ACWIA Code

    ACWIA Title Non R&D

    ACWIA Code

    ACWIA Title R&D

    17-2141

    Mechanical Engineers

    17-2143

    Mechanical Engineers, Non R&D

    17-2144

    Mechanical Engineers, R&D

    17-2072

    Electronics Engineers, Except Computer

    17-2075

    Electronics Engineers, Except Computer, Non R&D

    17-2076

    Electronics Engineers, Except Computer, R&D

    17-2071

    Electrical Engineers

    17-2073

    Electrical Engineers, Non R&D

    17-2074

    Electrical Engineers, R&D

    17-2061

    Computer Hardware Engineers

    17-2062

    Computer Hardware Engineers, Non R&D

    17-2063

    Computer Hardware Engineers, R&D

    17-2051

    Civil Engineers

    17-2052

    Civil Engineers, Non R&D

    17-2053

    Civil Engineers, R&D

    15-1121

    Computer Systems Analysts

    15-1052

    Computer Systems Analysts, Non R&D

    15-1053

    Computer Systems Analysts, R&D

    15-1133

    Software Developers, Systems Software

    15-1036

    Software Developers, Systems Software, Non R&D

    15-1037

    Software Developers, Systems Software, R&D

    15-1132

    Software Developers, Applications

    15-1034

    Software Developers, Applications, Non R&D

    15-1035

    Software Developers, Applications, R&D

    15-1131

    Computer Programmers

    15-1022

    Computer Programmers, Non R&D

    15-1023

    Computer Programmers, R&D

  10. June 21, 2012

  11. For Ski Instructors and Snowboard Instructors, does the adoption of the 2010 SOC change the occupation the NPWC will use to determine the wage?

    In the 2000 iteration of the Standard Occupational Classification (SOC) codes used by the Bureau of Labor Statistics in the Occupational Employment Statistics wage surveys, the job opportunity of "Ski Instructors and Snowboard Instructors" was categorized under SOC classification 39-9031, Fitness Trainers and Aerobics Instructors. However, the SOC reclassification that was finalized in 2010 updated this occupation. The new SOC for this position is 25-3021, Self-Enrichment Education Teachers, which now encompasses most sports instructors.
  12. June 21, 2012

  13. For Oyster Shuckers, does the adoption of the 2010 SOC change the occupation the NPWC will use to determine the wage?

    In the 2000 iteration of the Standard Occupational Classification (SOC) codes used by the Bureau of Labor Statistics in the Occupational Employment Statistics wage surveys, the job opportunity of "Oyster Shuckers" was categorized under SOC classification 51-9198 - Helpers - Production workers. However, the SOC reclassification that was finalized in 2010 clarifies the occupation to be used by listing Oyster Shucker as a sample title under the revised SOC of 51-3022, Meat, Poultry, and Fish Cutters and Trimmers. The O*Net crosswalk has not been updated to incorporate changes from the 2010 SOC and continues to provide the old code.
  14. June 21, 2012

    AFFILIATED OR RELATED ENTITY
  15. What documentation does the NPWC require in order to show an employer meets the definition of an affiliated or related nonprofit entity under the Department's regulations at 20 CFR §656.40(e)(1)(ii)?

    The NPWC researches entities that may be covered by the wage provisions of ACWIA. When a definitive decision cannot be reached, the NPWC will send a Request for Information (RFI) for documentation demonstrating how the employer meets the definition of an affiliated or related nonprofit entity.

    The first element is the non-profit status of the employer. A letter issued from the Internal Revenue Service stating the employer, under the FEIN on the application, has an appropriate non-profit status, will typically be sufficient for this purpose.

    The second element is affiliation with the institution of higher education, which may be demonstrated through any of the following:

    1) Shared ownership of the nonprofit entity and the institution of higher education either directly or by a parent entity. This includes branch, subsidiary and cooperative relationships.
    2) An oversight group (board, committee, et al) with the authority to direct the members of both the nonprofit entity and the institution of higher education.
    3) An agreement requiring a position to have decision making authority in both entities. For example, the position of Chief of Radiology at the Hospital will also be the Chair of the Radiology Department at the Medical School.
    4) Shared responsibility for conducting the qualifying activity. For example, the Medical School and the Hospital jointly establish the curricula for medical resident and fellowship programs. This includes situations involving several entities, such as a residency program where specific portions take place at separate hospitals and/or medical schools. In such a situation, all of the non-profit entities involved in the residency program would be considered affiliated or related nonprofit entities and covered by the ACWIA wage provisions.

    Examples where an institution does not meet ACWIA wage coverage include:

    1) Agreements where the institution of higher education is in essence 'renting space' from the requesting entity. Example statement: The Hospital will allow access to its facilities at the reimbursement rate negotiated each year and will remit appropriate charges for medical services provided to the Medical School.
    2) Conferring of unpaid faculty status upon a person in the employ of the requesting nonprofit entity by an institution of higher education.

    Additionally, the number of cross-designated employees in relation to the total number of employees in the particular program is a relevant factor in establishing affiliation. When a requesting employer has a notable number of employees cross-designated with an institution of higher education, especially when combined with a notable number of participants, then ACWIA wage coverage is indicated. For example, a large hospital employs 80 physicians and 200 nurses. 40 of those physicians and 100 of those nurses participate in the clinical training of 120 medical residents and 200 nursing students from a particular institution of higher education; the ratio is notable and ACWIA wage coverage is appropriate. Conversely, when the numbers of cross-designated employees are low, then coverage may not be indicated. For example, a mid-sized hospital has a single surgeon with part time faculty status at a particular medical school and a single fellow in training. The number of cross-designated employees and the number of participants are so small that ACWIA wage coverage is not appropriate.
  16. June 21, 2012

    Combination of Occupations
  17. What does the NPWC use to determine appropriate skill sets for an occupation?

    The NPWC uses the SOC description in O*NET to identify the skills normally associated with an occupation. Any required skills in addition to those listed in O*NET are considered atypical for the occupation and the analyst looks to see if they match another occupation. In either case, a point is added to the worksheet in Appendix C of the Prevailing Wage Determination Policy Guidance - Nonagricultural Immigration Program (Revised November 2009) that will raise the wage level by one level either because it contains a combination of occupations or because it contains job requirements not normal to the occupation.

    The Occupational Outlook Handbook (OOH) is a DOL publication used by many to determine characteristics of occupations. It is often broad in its descriptions and may include many SOC codes within one general category. As such, when any contradiction between the O*NET information and the OOH occurs the O*NET information will take precedence.

    Posted February 6, 2013

  18. When does the NPWC consider a position to include a combination of occupations?

    While there are common skill sets that may be applied to more than one occupation, the NPWC looks to the job duties, the employer's requirements, and conditions of employment to determine the occupational SOC code and assess a wage level in that occupation. In principle, when skill sets cross disciplines a point is added on the worksheet in Appendix C of the Prevailing Wage Determination Policy Guidance - Nonagricultural Immigration Program (Revised November 2009) (PWD Policy Guidance), which will raise the wage level by one level. For example, when a computer programmer is also required to market his or her program, the NPWC will view this as two distinct occupations. Therefore, a worksheet in Appendix C of the Prevailing Wage Guidance is created for each occupation, and the wage level for each occupation is raised by one level. Moreover, as described in the PWD Policy Guidance, the NPWC will assign the SOC code for the occupation that has the higher wage.

    Occupations with overlapping skills in such fields as computers, mathematics, or business operations will usually not be seen as a combination of occupations as long as they do not require two distinct skill sets. However, the NPWC will assign the SOC based on the occupation with the higher wage and will issue a wage based on the appropriate level without adding an additional point for a combination of occupations.

    Additionally, when skill sets are not normal to either occupation, an additional point is added. Using the example above, in the instances where a computer programmer who is required to market his/her program also is required to have knowledge of a foreign language, a point is added, separate from the point for combination of occupation.

    Posted February 6, 2013

  19. Special Skills
  20. How does the NPWC decide when to assign a "Special Skills and Other Requirements" point when determining the wage level?

    When determining a wage level the NPWC uses the worksheet from Appendix C of the Prevailing Wage Determination Policy Guidance - Nonagricultural Immigration Program (Revised November 2009). Some of the elements considered for the "Special Skills and Other Requirements" assessment are discussed below.

    The primary basis upon which the NPWC determines a wage level is the comparison of the employer's requirements and the typical requirements of the occupation at the entry level. Many employer requirements receive an additional point because they are considered to be special skills or other requirements. Some examples include professional or other certifications that are not required for entry into the occupation, frequency and extent of travel, job duties/skills representing a combination of occupations, and foreign language skills, each of which is discussed further below.

    Certifications and licenses not required for entry into the occupation are assessed an additional point in wage level determinations. The level-one wage is focused on entry level workers, who do not typically require any kind of certification. Thus, where an employer requires a certification although certification is not normally required for the position, the NPWC will conclude that the position is not entry level. For instance, if the employer's position requires that it be filled by a Certified Public Accountant (CPA), the NPWC will not issue a level one wage for an accountant because the certification is not required to begin employment, and in many cases persons employed in the occupation never receive a CPA. Similarly, the NPWC will not issue a level one wage determination for a licensed engineer but will consider a level one wage for a non-licensed engineer who is working under the auspices of a licensed engineer. In contrast, all physicians must have a medical license for any physician occupations, entry level or otherwise, so the requirement of a medical license is considered typical for the occupation at any level.

    A travel requirement can occasionally lead to an additional point for wage level determinations. Almost all occupations have some expectation of incidental travel associated with them. Incidental travel for training and development is considered normal for all occupations depending on the geographic scope of the travel. Typically, those in professional occupations attend these types of events nationally, but other occupations may be limited to local and regional events. Therefore, a point may be added, depending on the occupation and the scope of the travel. In addition, some occupations have travel outside of training and development in performance of the job duties. However, extensive travel outside the local area is not normal to most occupations and a point is almost always added in such circumstances. For instance, a house painter typically travels to various buildings in the same city, but if he or she is required to travel nationally to perform the job, an additional point will be added to the wage determination. Similarly, a sales manager typically travels to various offices in the region in order to provide oversight and monitor performance, but more extensive travel may be considered atypical. Also considered atypical is a physician who travels to various cities in the state on a rotational basis to provide services.

    A combination of occupations, where the tasks and skills listed in the job description are outside the norm of a single occupation and instead are appropriate to a different occupation, may result in an additional point added to the worksheet. It is reasonable for a U.S. worker to expect additional compensation for skills that are outside the skill set required for his or her job. While there are common skill sets that may be applied to more than one occupation, the NPWC considers the job duties, the employer's requirements, and conditions of employment when determining the occupation and assessing wage levels. If the NPC finds a combination of occupations, it will add an additional point to the worksheet and assign the SOC code for the occupation that has the higher wage.

    Foreign language requirements also may result in a one-level increase in the wage. By its very nature, communicating in more than one language makes a job more complex, except in the few occupations in which it is inherent to the occupation, such as a foreign language teacher or a translator. Any requirement for proficiency in a foreign language is assessed a special skill point for each foreign language required by the employer. The exceptions are foreign language teachers, interpreters, translators, and caption writers (a specialized translator), in which the nature of the occupations include knowledge of the foreign language and have, therefore, been factored into the wage.

    Specialization in teaching a foreign language is recognized in the occupation description for the OES occupations 25-1124.00 - Foreign Language and Literature Teachers, Postsecondary; 25-2022.00 - Middle School Teachers, Except Special and Career/Technical Education; and 25-2031.00 - Secondary School Teachers, Except Special and Career/Technical Education. Thus, the wages for these occupations include the language skill.

    The additional skills and requirements listed above are the most common instances in which the NPWC adds a point in the "Special Skills and Other Requirements" section of the worksheet. The list is not exhaustive and is presented for illustrative purposes only. Other skills and requirements may be found to be atypical in a specific application. Finally, a wage determination issued by the NPWC for job duties, requirements, and conditions of employment for a particular job opportunity does not signify that those terms and conditions will satisfy review at later stages in the labor certification or labor condition application process. Nor is the addition of wage levels to be construed as a judgment that a particular element of the job opportunity is or is not acceptable for purposes of adjudicating the subsequent labor certification.

    Posted February 6, 2013

Top
header  RETURNED OR VOIDED PWD REQUESTS
  1. I submitted an ETA Form 9141 to the NPWHC, but it was returned with a letter stating that the form was incomplete. Should I submit a new ETA Form 9141?

    Yes. The employer should complete a new ETA Form 9141 with all of the fields filled in completely and submit it to the NPWHC. It is recommended that the employer submit the request via the iCERT Portal: https://icert.doleta.gov/.
  2. March 24, 2010



  3. I submitted an ETA Form 9141 to the NPWHC, but it was returned with a letter stating that the job duties on the 9141 (item D.a.6) were not specific enough to assign an occupation and wage. When I submit a new 9141 can I use the same wording from a job description I found on O*Net for the job duties on the 9141?

    Yes, assuming that the O*Net job description accurately reflects the offered job. Employers may use the O*NET (Occupational Information Network) system when preparing the job duties on the ETA Form 9141 (item D.a.6).  Since the NPWHC uses the O*NET description that corresponds to the employer's offered job to identify the appropriate SOC (Standard Occupational Classification), it is acceptable for the employer to use the O*NET language for the job duties (ETA Form 9141, item D.a.6).  The O*NET system can be found at: http://online.onetcenter.org/.  For more information on the determination process, please refer to the Prevailing Wage Determination Policy Guidance:
    http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf.
  4. March 24, 2010



  5. I submitted a request for a PWD via the iCERT portal, but I received a response that my request was voided due to missing information. What can I do to correct my request?

    All fields on the ETA Form 9141 must be completed prior to submitting a request for a PWD via iCERT.  When a request is processed, if any fields are missing the request is returned to the requestor and is voided in iCERT.  The requestor should complete a new ETA Form 9141 and submit it via iCERT.

    In addition, PWD requests submitted via mail to the NPWHC will be returned to the requestor as unprocessed if there is missing information on the ETA Form 9141.

March 24, 2010

Top
header  HELP WITH PWDs
  1. How can I obtain assistance in preparing a PWD request?
    Persons with questions regarding the preparation of PWD should consult the OFLC website: www.foreignlaborcert.doleta.gov. Information is located in the Prevailing Wage section of the FAQs and the iCERT Portal System.
  2. March 24, 2010



  3. What do I do if I have a problem or issue with a PWD request I submitted to the NPWHC prior to receiving a determination?

    For issues with PWD requests prior to determinations being issued, please email the NPWHC at FLC.PWD@dol.gov.
  4. March 24, 2010

    Top

  5. How can I contact the National Prevailing Wage Center (NPWC)?

    You may contact the NPWC by sending an e-mail to FLC.PWD@dol.gov. You may also contact the NPWC by phone at (202) 693-8200 between the hours of 8:00 a.m. and 5:00 p.m., Eastern Time. However, the phone representative only provides basic information and will direct most inquirers to send their inquiries to the NPWC's mailing address and the NPWC's e-mail box at FLC.PWD@dol.gov.
  6. March 15, 2011



  7. To whom will the NPWC provide information regarding a submitted prevailing wage request? If I have a question or issue regarding a submitted request for a prevailing wage determination, can I or my representative receive information from the NPWC?

    The NPWC will only provide application specific information to individuals named as the Requestor Point-of-Contact on the ETA Form 9141, Section B. The NPWC cannot provide information to persons not named as the point-of-contact.
  8. March 15, 2011

    Top
header  iCERT PORTAL
  1. Will suggestions for changes to the PWD module on the iCERT portal be considered?

    We are documenting requests for enhancements to the iCERT PWD module. The Department will entertain the implementation of enhancements based upon program priorities and resources.
  2. March 24, 2010

  3. I am having technical problems completing my application in iCERT. Whom should I contact?

    If you are experiencing technical problems with iCERT, please contact the OFLC iCERT helpdesk at OFLC.PORTAL@dol.gov.

March 15, 2011

Top
header  CORRECTIONS
  1. I received a PWD from the NPWC, but then realized I wanted to change or correct some information I had originally submitted on the 9141. Whom do I contact at the NPWC to make the changes?

    All PWDs issued by the NPWC are final. The only exception is when the PWD contains an inaccuracy caused by the NPWC. If the employer wants a PWD with different entries, the employer must submit a new request.
  2. March 15, 2011


  3. How can I request a correction to a prevailing wage determination?

    An employer who receives a PWD that contains one or more government generated errors (i.e., that are not the result of preparer errors on the ETA Form 9141), must request a correction of the PWD by sending an email to FLC.PWD@dol.gov. The subject line should read: Request for Correction: P-xxx-xxxxx-xxxxxx. Examples where an employer may request a correction include, but are not limited to, the following: a mismatch between the wage level and the wage amount; an incorrect validity period; or a non-American Competitiveness and Workforce Improvement Act (ACWIA) wage for an ACWIA institution. Please note: employers must not use the correction process to request a redetermination of an NPWC-issued PWD.

March 15, 2011

Top
header  REDETERMINATIONS
  1. I disagree with the PWD. How can I request a redetermination?
    An employer may request a redetermination by filing supplemental information as provided under 20 CFR 655.10(g) and 656.40(h). If the employer submitted the original prevailing wage request via iCERT, the employer should use the redetermination request option in iCERT to submit the redetermination request within 30 days from the date of the prevailing wage determination and provide any supplemental information via email to FLC.PWD@dol.gov. For prevailing wage requests originally submitted via mail, the employer must send their request for redetermination and supplemental information within 30 days from the date of the prevailing wage determination to the following address:

    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification
    National Prevailing Wage Center
    Attn: PW Redetermination
    1341 G Street, NW
    Suite 201
    Washington, DC 20005-3105
  2. March 15, 2011


  3. When should I use the redetermination request option in the iCERT system?

    In iCERT, employers must use the redetermination request option for redeterminations of the prevailing wage issued by the NPWC. Employers must not use it for iCERT issues or other questions. For questions or issues regarding a PWD, including corrections, please email the NPWC at FLC.PWD@dol.gov. For issues with the iCERT system, please send an email to OFLC.PORTAL@dol.gov
  4. March 15, 2011

    Top
  5. How will submitting a redetermination request impact the validity period of my existing prevailing wage determination?

    If the NPWC affirms the employer's redetermination request, the prevailing wage validity period remains the same. If the employer's redetermination request is modified, the NPWC will update the prevailing wage validity period to reflect the redetermination decision date. If the employer requests a redetermination based on a PWD issued before the release of new OES wage data that is available at the time of the redetermination, the NPWC will use the new OES wage data and establish a new validity period.
  6. March 15, 2011


  7. Can the employer provide a survey after the NPWC has issued a prevailing wage determination with a redetermination request?

    No. If the employer seeks to utilize a wage survey, the employer must submit it with the original prevailing wage request. The NPWC will reject requests to consider surveys upon redetermination when the employer did not include a survey with its original wage request. Instead, the NPWC will require the employer to submit a new prevailing wage determination request with the wage survey included.
  8. March 15, 2011

Top
header  CENTER DIRECTOR REVIEWS / CHALLENGES / CO REVIEWS
  1. I disagree with the PWD redetermination issued. How can I file a request for Center Director Review/Challenge under the H-1B or PERM programs or a request for CO Review under the H-2B program?

    For the H-1B and PERM programs, employers must submit requests for Center Director Review/Challenge in writing no more than 30 days after determination. Employers must send their requests for Center Director Review/Challenge to the following address:

    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification
    National Prevailing Wage Center
    Attn: PW Center Director Review
    1341 G Street, NW
    Suite 201
    Washington, DC 20005-3105

    For the H-2B program, employers must submit requests for CO Review in writing no more than 10 days after determination. Employers must send their requests for CO Review to the following address:

    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification
    National Prevailing Wage Center
    Attn: PW CO Review
    1341 G Street, NW
    Suite 201
    Washington, DC 20005-3105

March 15, 2011

Top
header  APPEALS
  1. I disagree with the final CO Review, Director Challenge or Director Review. How can I file an appeal with BALCA?

    For all programs, employers must submit requests for review by the Board of Alien Labor Certification Appeals (BALCA) in writing no more than 30 days after determination. Employers must send their requests for BALCA review to the following address:

    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification
    National Prevailing Wage Center
    Attn: PWD Appeal
    1341 G Street, NW
    Suite 201
    Washington, DC 20005-3105
  2. March 15, 2011


  3. Can I submit additional information on appeal?

    No. Appellate review is completed based solely on the record up to the date of the final CO determination. Only the information that was submitted under § 655.10(g) or 656.40(h) will be included in the appeal file.

March 15, 2011

Top
header  WITHDRAWALS
  1. I submitted a PW request using iCERT, but now I want to withdraw the request. Whom do I contact at the NPWC to request a withdrawal?

    Employers/attorneys can withdraw a case themselves using the Withdrawal feature in their iCERT account.

    March 15, 2011

  2. How can I withdraw a Redetermination Request or Center Director Review Request?

    An employer/requestor may withdraw a PWD request at any point prior to the redetermination or issuance of the CDR by sending an e-mail to the NPWC Help Desk at FLC.PWD@dol.gov. The email subject line should include the ETA case number and the specific withdrawal requested. For example:
    • To withdraw a redetermination request the subject line should read "[Case Number] Withdraw Redetermination."
    • To withdraw a Center Director Review Request the subject line should read "[Case Number] Withdraw CDR".

    Posted February 6, 2013

  3. How can I withdraw a BALCA Appeal Request?

    An application docketed by BALCA must be withdrawn through the appropriate BALCA procedures. Those procedures can be found on the BALCA's website at http://www.oalj.dol.gov/LIBINA.HTM.

    Posted February 6, 2013

Top
header  CNMI PREVAILING WAGE DETERMINATIONS
  1. How does the NPWC calculate the prevailing wage for nonagricultural (permanent, H-2B, H-1B, H-1B1, E-3) positions in the Commonwealth of the Northern Mariana Islands?

    The NPWC follows the appropriate program's regulations with respect to determining prevailing wages in CNMI. As with all prevailing wage determinations, if the job opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at arms-length between the bargaining representative and the employer, the wage rate will be set by the agreement. If the job opportunity is not covered by a CBA, the employer may provide a survey that complies with the regulations for the specific visa classification at: 20 CFR 655.10(f) (for H-2B positions), 655.731(2)(A) (for H-1B, H-1B1, E-3 positions), or 656.40(g) (for H-1B, H-1B1, E-3 or permanent positions). If the job opportunity is not covered by a CBA and the employer does not provide a survey or provides one that does not meet regulatory standards, the employer may request that the NPWC use a prevailing wage determined under the Davis Bacon Act (DBA) or the Service Contract Act (SCA), as appropriate. See http://www.wdol.gov/. If none of these sources provide a CNMI wage for the occupation listed by the employer or for an occupation requiring a substantially similar level of skills within the CNMI area of intended employment, then the NPWC will use the Occupational Employment Statistics (OES) wages of similarly employed workers having substantially comparable jobs with employers outside of the area of intended employment. The Department has determined that Guam is the most similar area of intended employment where OES wages are available, due to its close physical and economic proximity to the CNMI. Accordingly, for prevailing wage determinations based on the OES survey, Guam OES wages are used to determine prevailing wages in the CNMI.

March 15, 2011

Top
header  H-2B PREVAILING WAGES
  1. What information should I include to get PWDs for the various locations under the H-2B special procedures for itineraries?
  2. I filed an H-2B application for work that starts in 2011, and continues into 2012. Which rule applies to my wages
  3. I'm an H-2B employer, and I currently have workers in the U.S. who will be working for me beyond September 30, 2011. I understand that as of September 30, 2011, my H-2B workers and workers recruited in connection with the H-2B application must be paid new wage rates. How do I get that new PWD? Can't I just look at the Online Wage Library?
  4. If an H-2B employer received a prevailing wage from the NPWC prior to August 1, 2011 and wants to advertise now for work which will be performed after September 30th, but does not have a new wage determination, must it wait for the new H-2B wage determination before starting recruitment?
  5. What if I have already conducted my recruitment using a prevailing wage determination I received before July, but have not as yet filed my H-2B application?
  6. I received a prevailing wage determination using a McNamara-O'Hara Service Contract Act wage rate. However, I am not an employer engaged in government contract work. Why did the National Prevailing Wage Center (NPWC) issue me such a prevailing wage determination?
  7. I am an employer who has been participating in the H-2B program for a number of years. I understand the Department has published a new wage regulation for the H-2B program. Does the new wage apply to me?
  8. Why isn't the Department continuing to use four-level OES wage rates when issuing prevailing wage determinations?
  9. Why are DOL and DHS jointly issuing this rule?
  1. What information should I include to get PWDs for the various locations under the H-2B special procedures for itineraries?

    Employers are no longer required to submit their entire itineraries to the NPWC for a wage determination. The NPWC will only provide wages for the worksite locations listed on the ETA Form 9141. The iCert portal allows for a total of 200 locations to be entered in Item D.c.7a on ETA Form 9141. The employer must provide enough geographic detail to cover all the known worksite locations of intended employment. The NPWC does not require employers to input every worksite's physical address for the prevailing wage determination. For multiple worksites, the employer only needs to enter the appropriate counties (or independent city(ies)/township(s)/borough(s)/parish(es) as appropriate) and the corresponding state(s) where the employee will work.

    If the employer has more than 200 counties, or their equivalent, where the employee(s) will work in one occupation, the employer must submit a second ETA Form 9141. The employer may use the "re-use" function in iCert to pre-populate the form in order to submit the additional ETA Form 9141.

    Additional worksite locations that are uploaded by the employer as separate attachments will not appear on the ETA Form 9141 and will not be reviewed or provided wage determinations. If the employer does not list any of the worksite locations on the ETA Form 9141, the application will be deemed insufficient. If the insufficient application was mailed in, it will be returned to the employer. If the insufficient application was filed electronically, it will be voided in iCert and an email notification will be sent to the employer. If the employer lists some worksite locations on the ETA Form 9141 but uploads a separate attachment for the remaining worksite locations, the NPWC will only provide wages for the worksite locations actually listed on the ETA Form 9141.

    Revised February 6, 2013

  2. I filed an H-2B application for work that starts in 2011, and continues into 2012. Which rule applies to my wages?

    As indicated in the Preamble of the H-2B Wage Methodology Final Rule, the new wage methodology will apply to all work performed on or after January 1, 2012. Therefore, if an employer's certified period of employment begins in 2011, and continues past January 1, 2012, the employer will initially be required to pay the prevailing wage consistent with a prevailing wage determination (PWD) issued by the National Prevailing Wage Center under the old prevailing wage methodology for all work performed up to, but before, January 1, 2012. The employer will also be required to pay the prevailing wage consistent with a PWD issued under the new prevailing wage methodology for all work that occurs on and after January 1, 2012. The Department will issue guidance and provide details regarding the process for obtaining an updated PWD.

    March 28, 2011

  3. I'm an H-2B employer, and I currently have workers in the U.S. who will be working for me beyond September 30, 2011. I understand that as of September 30, 2011, my H-2B workers and workers recruited in connection with the H-2B application must be paid new wage rates. How do I get that new PWD? Can't I just look at the Online Wage Library?

    The H-2B Final Rule that was published on January 19, 2011 establishes a new prevailing wage methodology under the H-2B program. This new prevailing wage methodology will apply to wages for all work performed by H-2B workers and workers recruited in connection with the H-2B application on or after September 30, 2011.

    An employer with a Prevailing Wage Determination (PWD) issued before July 1, 2011 will be provided a new PWD by the National Prevailing Wage Center (NPWC). The employer cannot rely on the OES mean wage on the Online Wage Library alone to determine the prevailing wage rate that would apply as of September 30, 2011. Because the prevailing wage will be based upon the highest of: the wage established under an agreed-upon collective bargaining agreement; a wage rate established under the Davis-Bacon Act or the Service Contract Act for that occupation in the area of intended employment; or the arithmetic mean wage rate established by the OES, the employer must be informed by the NPWC which of the wages is the highest based upon its analysis of the job duties and work location.

    August 15, 2011

  4. If an H-2B employer received a prevailing wage from the NPWC prior to August 1, 2011 and wants to advertise now for work which will be performed after September 30th, but does not have a new wage determination, must it wait for the new H-2B wage determination before starting recruitment?

    If an employer's most recent PWD from the NPWC was issued before August 1, 2011, the employer may recruit at that prevailing wage. The employer must, however, include in the ad that "the wage will change for work performed on and after September 30, 2011 based on new U.S. Department of Labor prevailing wage regulations."

    August 15, 2011

  5. What if I have already conducted my recruitment using a prevailing wage determination I received before July, but have not as yet filed my H-2B application?

    An employer that has already conducted the required recruitment based on a PWD that was issued before July, but has not yet filed its application, may rely on that recruitment to file its application. However, the NPWC will be issuing a new PWD, which the employer must use for work performed on or after September 30, 2011, regardless of the wage set forth in the recruitment and application.

    August 15, 2011

  6. I received a prevailing wage determination using a McNamara-O’Hara Service Contract Act wage rate. However, I am not an employer engaged in government contract work. Why did the National Prevailing Wage Center (NPWC) issue me such a prevailing wage determination?

    The prevailing wage methodology described in the H-2B Wage Methodology for the Temporary Non-agricultural Employment H-2B Program; Final Rule, 76 FR 3452 Jan. 19, 2011 (the Wage Final Rule) will apply to all work performed on or after September 30, 2011. Under the new methodology, the prevailing wage is the highest of: (1) The wage rate in a Collective Bargaining Agreement (CBA), if the job opportunity is covered by a CBA; (2) The wage rate established under the Davis-Bacon Act (DBA) or McNamara-O’Hara Service Contract Act (SCA), if there is a DBA or SCA wage rate for the occupation in the area of intended employment; or (3) The arithmetic mean of the wages of similarly employed workers as determined by the Occupational Employment Statistics (OES) wage survey.

    It has always been the Department’s intention under the Wage Final Rule that SCA wage rates would not be limited to work on projects subject to the SCA but rather to occupations in the area of intended employment where there is an SCA wage. As stated in the preamble to the Wage Final Rule, the allegation that an SCA wage is a “government wage” is unfounded, since SCA calculations incorporate workers and projects outside of government contracts. Accordingly, these rates are an appropriate source of prevailing wages for both job opportunities engaged in government contract work and those not engaged in government contract work. Therefore, when appropriate, the NPWC will issue a prevailing wage determination based upon the wage component of the SCA wage rate for the area of intended employment even where the employer is not engaged in government contract work. SCA wage rates can be found at http://www.wdol.gov.

    August 31, 2011

  7. I am an employer who has been participating in the H-2B program for a number of years. I understand the Department has published a new wage regulation for the H-2B program. Does the new wage apply to me?

    The new Interim Final Rule, Wage Methodology for the Temporary for the Temporary Non- Agricultural Employment H-2B Program, Part 2 (Wage Methodology IFR), published on April 24, 2013, and effective on the same date, revises the methodology the Department of Labor uses to calculate certain prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification. The Wage Methodology IFR eliminates the use of four-tier wage rates based on the Bureau of Labor Statistics' Occupational Employment Statistics (OES) survey and replaces them with the OES arithmetic mean.

    The Wage Methodology IFR continues to set the prevailing wage based on the applicable Collective Bargaining Agreement wage rates, or, at the employers request, the Service Contract Act or Davis-Bacon Act wage determinations, or appropriate private wage surveys. The Wage Methodology IFR applies to all requests for H-2B prevailing wage determinations and Applications for Temporary Employment Certification adjudicated or processed on or after April 24, 2013, and H-2B work being performed on or after the effective date of the Wage Methodology IFR. It also applies to employers who have already received a temporary employment certification and currently employ and pay H-2B workers based on the tiered OES survey. Employers currently employing and paying H-2B workers based on the tiered OES survey will be responsible for providing wages that comply with the new Wage Methodology IFR for all work performed on and after the date an employer receives a supplemental determination from the Department.

    April 25, 2013

  8. Why isn't the Department continuing to use four-level OES wage rates when issuing prevailing wage determinations?

    The district court in Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, ___ F. Supp. 2d ___, 2013 WL 1163426 (E.D. Pa. 2013), held that the provision of the 2008 wage rule, which used four-level OES wage rates, was invalid. The court vacated that provision of that rule and issued a permanent injunction prohibiting the Department from using four levels when issuing a prevailing wage determination based on the OES survey.

    The court stated that, because prevailing wage determinations issued based upon the four-level OES wage rates result in adverse effect upon the wages and working conditions of U.S. workers, it is outside the Department of Labor's authority to issue labor certifications based upon such prevailing wages. Accordingly, under the Wage Methodology IFR, the Department of Labor is using the OES mean wage rate when issuing prevailing wage determinations, in order to avoid adverse effect on U.S. workers. Using the OES mean rate for the Wage Methodology IFR rule allows the Department of Labor to operationalize the new rule at once and to issue prevailing wage determinations without delay, which allows for a smoothest transition following the court's order vacating the four-level OES wage in the 2008 final rule.

    April 25, 2013

  9. Why are DOL and DHS jointly issuing this rule?

    DOL and DHS believe that DOL possesses independent legislative rulemaking authority for the H-2B program. However, due to inconsistent court rulings on DOL's authority to issue independent legislative rules, DOL and DHS are promulgating this joint regulation revising the prevailing wage methodology in the H-2B program in order to respond to the CATA court order, as well as to dispel any questions regarding the respective roles of the two agencies and the validity of DOL's regulations as an appropriate way to implement the consultation mandate required by the Immigration and Nationality Act for the H-2B program.

    April 25, 2013

Top
header  PERM PREVAILING WAGES
  1. The questions on the 9141 do not match the questions on the 9089 PERM form. Can OFLC revise the 9141?

    No. The 9141 form is used to provide prevailing wage determinations for multiple OFLC programs. Some fields may not apply to all programs.

    March 15, 2011

  2. Must I list alternative job requirements on the ETA Form 9141? Is there a section on the ETA Form 9141 where I can list the alternative requirements?

    If an employer intends to accept alternative job requirements and to list such requirements on the ETA Form 9089, the employer must list its alternative job requirements on the ETA Form 9141. Specifically, the employer should list its alternative job requirements in either the Special Requirements block (D.b.5) or the Job Duties block (D.a.6) of the ETA Form 9141. This is to reflect a line of BALCA decisions affirming our ability to require the same information on the job opportunity on both forms.

    It should be noted, as will be indicated in a note on the prevailing wage determination, that the NPWC will not consider the alternative job requirements when making the wage determination; prevailing wage determinations will be based ONLY on the job requirements listed by the employer in the Minimum Requirements block (D.b) of the ETA Form 9141. Nor does the NPWC make any evaluation of the substantial equivalence of the alternative job requirements to the primary minimum job requirements listed. That evaluation will continue to be made in the adjudication of the Application for Permanent Employment Certification.

    Revised June 21, 2012

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header  H-1B PREVAILING WAGES
  1. Due to the National Prevailing Wage Center's (NPWC) focus on issuing H-2B prevailing wage redeterminations, what should an employer do if it is unable to receive a prevailing wage determination from the NPWC in a timely fashion so as to file its H-1B application?

    The Office of Foreign Labor Certification (OFLC) has reallocated significant staff resources within its organization to focus on completing the 3,500 H-2B wage redeterminations at the NPWC as expeditiously as possible. At the same time, OFLC has implemented plans to minimize delays in processing pending employer requests for H-1B and PERM prevailing wages. Despite the focus on H-2B prevailing wage redeterminations at the NPWC, employers continue to file H-1B applications for processing with the OFLC Chicago National Processing Center (NPC). Since July 1, 2011, the Chicago NPC has consistently received more than 7,600 new H-1B applications each week for processing, an average nearly identical to the same period last year.

    In the H-1B program an employer is not required to obtain a prevailing wage from the NPWC. The Department's regulations provide the employer with the following alternative sources for obtaining a prevailing wage in support of an H-1B application:

    • A wage rate set forth in a collective bargaining agreement (CBA);
    • A wage rate for the occupation and area of intended employment under either the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act (SCA), which are available at http://www.wdol.gov;
    • A wage rate produced by a survey conducted by an independent authoritative source that meets the requirements set forth in Departmental regulations at 20 CFR sec. 655.731; or
    • A wage rate produced by another legitimate source of information, including the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) data, which is available at http://www.flcdatacenter.com

      September 12, 2011

    • What are the consequences to a foreign worker when his or her H-1B employer is not able to receive a prevailing wage determination from the National Prevailing Wage Center in a timely fashion so as to file an H-1B Labor Condition Application?

      As stated in the previous response, an employer is not required to obtain a PWD from the NPWC in order to file an H-1B application. As long as the employer provides a prevailing wage in support of its H-1B application, whether through obtaining a PWD from the NPWC or through the other sources listed in the previous response, there should not be any consequences to the foreign worker on whose behalf the H-1B application was filed. However, should an employer choose to not use a wage from an alternative source, the issue of the foreign worker's immigration status becomes a matter between the worker, their counsel if represented, and the U.S. Department of Homeland Security.

      September 12, 2011

    • What happens to the Labor Condition Application if an H-1B employer who does not receive a PWD from the NPWC selects an incorrect wage?

      If the H-1B employer selects an incorrect prevailing wage, then the employer is responsible for that wage attestation in the event of an investigation or enforcement action. The Department's regulations at 20 CFR sec. 655.731(a)(2)(ii)(A)(3) state that when an employer obtains a prevailing wage determination from the National Prevailing Wage Center, the Department of Labor will accept that wage as correct and will not question its validity, i.e. the employer is granted "safe harbor".

      However, the Department can not grant this same "safe harbor" to employers who obtain their own prevailing wages under the regulations. Other legitimate wage sources need to meet the criteria set forth in the H-1B regulations, and the Department's regulations at 20 CFR sec. 655.731(a)(2)(ii)(C) which state that "the employer will be required to demonstrate the legitimacy of the wage in the event of an investigation".

      September 12, 2011

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