H-2B Certification for Temporary Nonagricultural Work

New H-2B Notices

December 12, 2007, H-2B Frequently Asked Questions

Round Two of H-2B Frequently Asked Questions are now available. Read about them here.

Important Announcement: On April 4, 2007, the Department of Labor issued TEGL 21-06, which updated procedures for State Workforce Agencies (SWAs) and ETA National Processing Centers (NPCs) to use in the processing of temporary labor certification applications under the H-2B program. The Department then held two public briefing sessions in Chicago and Atlanta on May 1 and May 4, 2007, respectively. Employers and other stakeholders who attended those public briefing sessions raised important questions and concerns with regard to the effective implementation of TEGL 21-06, and the purpose of this document is to outline certain modifications to TEGL 21-06 as a formal response to those issues and concerns. Attachment A: Procedures for H-2B Certification of Temporary Non-Agricultural Occupations (Revised June 2007) of TEGL 21-06, Change 1, replaces and supersedes the prior corresponding operating procedures issued under TEGL 21-06. To obtain a copy of TEGL 21-06, Change 1, please click here. (accessible version can be found here.)

June 13, 2007, H-2B Program Guidance Update

The Department of Labor has released updated guidance for State Workforce Agencies and ETA National Processing Centers to process H-2B applications in non-agricultural occupations. TEGL 27-06 — Special Guidelines for Processing H-2B Temporary Labor Certification in Tree Planting and Related Reforestation Occupations (accessible version can be found here) replaces and supersedes prior operating procedures issued under General Administrative Letter (GAL) 01-95, GAL 01-95, Change 1, and Field Memorandum (FM) 25-98.

June 7, 2007, H-2B

The Department of Labor has released updated information for employers filing H-2B applications in non-agricultural occupations. Employers seeking to obtain information regarding the status of their H-2B applications or information about other technical assistance materials, click here.

May 9, 2007, H-2B Stakeholder Briefings

On May 1, 2007 and May 4, 2007 , the Department of Labor held two national briefing sessions in Chicago and Atlanta, respectively, to discuss recently updated guidance for State Workforce Agencies and ETA National Processing Centers (NPCs) to process H-2B labor condition applications in non-agricultural occupations. The purpose of the briefing sessions was to inform the user community of the processing protocols implemented at the NPCs in Chicago and Atlanta. Click here (pdf version here) to view the presentation for the employers filing H-2B applications. To ensure that all employers/stakeholders are fully aware of the filing requirements, and to ensure that applications for H-2B visas are processed in the most time efficient manner, the Department of Labor has released filing tips for employers submitting H-2B applications. Click here to download a copy of the H-2B Stakeholder Filing Tips. Additionally, the Department of Labor delivered presentations on the procedures for processing H-2B applications for occupations involved in entertaining and tree planting and forestry related activities. Click here (pdf version here) to view the presentation for the employers in the Entertainment industry filing H-2B applications. Click here (pdf version here) to view the presentation for the employers in the Forestry industry filing H-2B applications.

April 10, 2007, H-2B Program Guidance.

The Department of Labor has released updated guidance for State Workforce Agencies and ETA National Processing Centers to process H-2B labor condition applications in non-agricultural occupations. Training and Employment Guidance Letter (TEGL) 21-06: Procedures for H-2B Temporary Labor Certification in Non-Agricultural Occupations replaces and supersedes prior operating procedures issued under General Administrative Letter (GAL) 01-95, GAL 01-95, Change 1, and Field Memorandum (FM) 25-98. This guidance was also published in the Federal Register on April 20, 2007. It works in concert with the new centralized filing process at the NPCs to ensure greater consistency in the processing of H-2B applications. Special handling procedures for certain non-agricultural occupations, such as forestry workers and boilermakers, will be issued through separate guidance letters by the National Office of Foreign Labor Certification.

H-2B Stakeholder Briefing

On April 10, 2007, the Department of Labor published a Notice in the Federal Register inviting H-2B employers/stakeholders to one of two national briefing sessions in Chicago and Atlanta on May 1st and May 4th, respectively. The purpose of these sessions is to ensure the H-2B user community is fully briefed on the contents of the Department's new H-2B Training and Employment Guidance Letter, 21-06, issued on April 4, 2007. Because space is hotel space is limited, the Department requests that company and attorney/agency representation be limited to three per site. Click www.dtiassociates.com/H2Bstakeholdersmeeting to register for either Chicago or Atlanta.

General Information

The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peakload or intermittent basis. The H-2B visa classification requires the Secretary of Homeland Security to consult with appropriate agencies before admitting H-2B non-immigrants. Homeland Security regulations require the intending employer first to apply for a temporary labor certification from the Secretary of Labor advising the Department of Homeland Security's United States Citizenship and Immigration Services (USCIS) as to whether qualified U.S. workers are available and whether the alien's employment will adversely affect the wages and working conditions of similarly employed U.S. workers, or a notice that such certification cannot be made, prior to filing an H-2B visa petition with USCIS. There is currently a 66,000 visa cap on the number of foreign workers who may receive initial H-2B status during each government fiscal year (October 1 through September 30).The Department of Labor will continue to review and process all H-2B applications on a first in, first out basis, regardless of whether the 66,000 visa cap has been reached.

Employers seeking to employ temporary H-2B workers must file two (2) originals of the Form ETA 750, Part A, directly with the State Workforce Agency (SWA) serving the areas of intended employment. Once reviewed, the SWA will send the complete application to the appropriate National Processing Center (NPC). This process, however, does not apply to employer applications for boilermakers, entertainers, logging and professional team sports, who must abide by special filing instructions. When filing an application with the SWA, it is not necessary for the employer to name each temporary foreign worker it wishes to employ. An employer may submit a request for multiple unnamed alien workers as long as each worker is to perform the same type of work on the same terms and conditions, in the same occupation, in the same area(s) of intended employment during the same period of time. Certification is issued to the employer, not the worker, and is not transferable from one employer to another or from one worker to another. To allow time for processing delays and correction of application errors, the employer should file the labor certification application at least 60 days before the worker is needed, but cannot file more than 120 days before the worker is needed in order to ensure a timely test of the labor market.

An H-2B temporary labor certification is advisory to USCIS and, where the employer is notified by the NPC Certifying Officer that certification is denied or cannot be made, the employer may elect to re-file the application with additional information with the SWA, or may submit countervailing evidence directly to USCIS. There is no provision for reconsideration or appeal of the determination made by the DOL through the NPC Certifying Officer.

Qualifying Criteria

The applicant must be a U.S. employer with a job opportunity located within the U.S. The job opportunity must be temporary. A job opportunity is considered temporary under the H-2B classification if the employer's need for the duties to be performed is temporary, whether or not the underlying job is permanent or temporary. It is the nature of the employer's need, not the nature of the duties, that is controlling.

Part-time employment does not qualify as employment for temporary labor certification under the H-2B program. Only full-time employment can be certified. The period of the petitioner's need must be a year or less, although there may be extraordinary circumstances where the temporary services or labor might last longer than one year. If there are unforeseen circumstances where the employer's need exceeds one year, a new application for temporary labor certification is required for each period beyond one year. However, an employer's seasonal or peakload need of longer than 10 months, which is of a recurring nature, will not be accepted.

Process for Filing

The following is a general outline for filing an H-2B application for alien labor certification. For additional instructions, please review the Training and Employment Guidance Letter 21-06, and Training and Employment Guidance Letter 21-06, Change 1, Procedures for H-2B Temporary Labor Certification in Non-Agricultural Occupations.

Special instructions exist for temporary labor certification in Tree Planting and Related Reforestation Occupations and the Entertainment Industry. For additional filing instructions, please review TEGL 27-06, Special Guidelines for Processing H-2B Temporary Labor Certification in Tree Planting and Related Reforestation Occupations and TEGL 31-05, Special Guidelines for Processing H-2B Temporary Labor Certification in the Entertainment Industry section.

An employer desiring to use foreign workers for temporary non-agricultural employment must file a complete ETA Form 750, Part A, offer of Employment portion of the Application for Alien Employment Certification with the SWA serving the area of intended employment. An association or other organization of employers is not permitted to file master applications on behalf of its members under the H-2B program. Every H-2B application must include the following documentation:
- Two (2) originals of ETA Form 750, Part A, Offer of Employment portion of the Application for Alien Employment Certification, signed and dated by the employer and double-sided. ETA Form, Part B, Statement of Qualifications of the Alien, is not required to be completed;
- Documentation of any efforts to advertise and recruit U.S. workers prior to filing the application with the SWA;
- A detailed statement explaining (a) why the job opportunity and number of workers being requested reflect a temporary need, and (b) how the employer’s request for the services or labor meets one of the standards of a one-time occurrence, a seasonal need, a peakload need, or an intermittent need. This statement of temporary need must be submitted separately on the employer's letterhead with signature. A labor shortage, however severe, does not alone establish a temporary need. One of the four temporary needs standards must be satisfied; and
- Supporting evidence and documentation that justifies the chosen standard of temporary need.
If the employer's representative files the application, the employer must sign the "Authorization of Agent of Employer" statement on the ETA Form 750, which authorizes the agent to act on the employer's behalf. An attorney must file a Notice of Appearance (Form G-28) naming the attorney's client(s). The employer is fully responsible for the accuracy of all representations made by the agent on the employer's behalf.

When the job opportunity requires work to be done at multiple locations either within the jurisdiction of the SWA or within a MSA that covers multiple SWAs, the application must include the names and physical addresses of each location. This requirement also applies to job contractors filing H-2B applications.

The SWA will review each application for completeness. If the job offer is less than full-time, offers to pay a wage below the prevailing wage, contains unduly restrictive job requirements or a combination of duties not normal to the occupation, or has terms and conditions of employment which otherwise inhibit the effective recruitment and consideration of U.S. workers for the job, or is otherwise unacceptable, the SWA shall advise the employer to correct the deficiencies before commencing the recruitment.

If deficiencies exist, the SWA will communicate deficiencies to the employer or the employer's authorized representative. Failure to respond to the SWA notification, or failure to correct all of the deficiencies set forth in the notification for the application will result in the case being closed and processing discontinued.

When commencing recruitment, the SWA shall prepare a job order, using the information on the application, and place it into the SWA job bank system for 10 calendar days. During this period, the SWA should refer qualified applicants who contact the local offices and those in its active job files.

During the 10-day posting of the job order, the employer shall advertise the job opportunity in a newspaper of general circulation for 3 consecutive calendar days or in a readily available professional, trade or ethnic publication, whichever the SWA determines is most appropriate for the occupation and most likely to bring responses from U.S. workers. The employer advertisement must:
- Identify the employer's name and direct applicants to report or send resumes to the SWA for referral to the employer;
- Describe the job opportunity with particularity, including duties to be performed, work hours and days, rate of pay, and the duration of the employment;
- State the employer’s minimum job requirements;
- Offer wages, terms and conditions of employment which are not less favorable than those offered to the alien and are consistent with the nature of the occupation, activity, and industry; and
- State the total number of job openings the employer intends to fill.
The employer shall document that union and other recruitment sources, appropriate for the occupation and customary to the industry, were contacted and either unable to refer qualified U.S. workers or non-responsive to the employer's request. Such documentation must be signed by the employer.

The employer will provide the SWA with copies of newspaper pages (e.g., tear sheets) or other proof of publication (e.g., affidavit of publication, invoices or other electronic verification) furnished by the newspaper for each day the advertisement was published. In addition, the employer will submit to the SWA a written, detailed recruitment report that is signed by the employer. The written recruitment report must:
- Identify of each recruitment source by name;
- State the name, address, telephone number, and resume (if submitted to the employer) of each U.S. worker who applied for the job; and
- Explain the lawful job-related reason(s) for not hiring each U.S. worker
After the recruitment period, the SWA will send the application, results of recruitment, prevailing wage findings, and all other supporting documentation to the appropriate NPC Certifying Officer.

Based on the results of the employer's and SWA recruitment efforts, the NPC Certifying Officer will determine whether there are other appropriate sources of workers from which the employer should have recruited in order to obtain qualified U.S. workers. If further recruitment is warranted, the NPC Certifying Officer will return the application to the SWA with specific instructions for additional recruitment.

The NPC Certifying Officer will determine whether to grant or deny the temporary labor certification or to issue that such certification cannot be made based on whether or not:
- The nature of the employer's need is temporary and justified based on a one-time occurrence, seasonal, peakload, or intermittent need. To determine this, the NPC Certifying Officer will take into account the duration of the employment opportunity identified on the ETA Form 750, Part A, the employer's statement of temporary need, and all evidence and documentation submitted with the application intended to substantiate the chosen standard of temporary need.
- Qualified U.S. workers are available for the temporary job opportunity.
  
  To determine if a U.S. worker is available, the NPC Certifying Officer will consider U.S. workers living or working in the area of intended employment, and may also consider U.S. workers who are willing to move from elsewhere to take the job at their own expense, or at the employer’s expense, if the prevailing practice among employers who employ workers in the occupation is to pay such relocation expenses.
  
  The NPC Certifying Officer will consider a U.S. worker able and qualified for the job opportunity if the worker by education, training, experience, or a combination thereof, can perform the duties involved in the occupation as customarily performed by other U.S. workers similarly employed and is willing to accept the specific job opportunity.
  
  To determine if U.S. workers are available for job opportunities that will be performed in more than one location, workers must be available in each location on the dates specified by the employer.
- The employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. To determine this, the NPC Certifying Officer will consider such factors as local or regional labor market information, special circumstances of the industry, organization, and/or occupation, the prevailing wage rate for the occupation in the area of intended employment, and prevailing working conditions, such as hours of work.
- The job opportunity contains requirements or conditions which preclude consideration of U.S. workers or which otherwise prevent their effective recruitment, such as:
  1. The job opportunity is vacant because the former occupant is on strike or locked out in the course of a labor dispute involving a work stoppage or the job is at issue in a labor dispute involving a work stoppage;
  2. The job opportunity's terms, conditions, and/or occupational environment are contrary to Federal, state, or local law;
  3. The employer has no location within the U.S. to which domestic workers can be referred and hired for employment;
  4. The employer will not pay a wage or salary for the job to be performed;
  5. The job's requirements are unduly restrictive or represent a combination of duties not normal to the occupation; or
  6. The employer has not recruited U.S. workers according to the DOL policies and procedures.
In situations where the application appears to be ineligible for temporary labor certification because the employer has not met its burden of providing adequate documentation/evidence or where a specific DOL policy was not complied with by the employer, the NPC Certifying Officer has the authority to issue one Request for Information, in writing, to the employer or the employer's authorized representative. The employer will have seven (7) calendars days from the date it received the RFI to respond to the NPC Certifying Officer.

If the NPC Certifying Officer issues a temporary labor certification, it shall be for the entire duration of the temporary employment opportunity identified on the ETA Form 750, Part A. The date on the temporary labor certification shall be the beginning and ending dates of certified employment and the date certification was granted. The beginning date of certified employment may be no earlier than the date certification was granted.

The certification or notice of denial thereof is to be used by the employer to support its visa petition filed with USCIS. To obtain the H-2B work visa, the employer uses the USCIS Form I-129, Petition for Nonimmigrant Worker. The Labor Certification Determination and the Form I-129 are submitted to the USCIS along with the appropriate filing fees. A candidate outside the U.S. must apply for a visa at the U.S. Consulate and the employer must provide copies of the above forms to the local USCIS service center.

Special Guidelines for Processing H-2B Temporary Labor Certification in Tree Planting and Related Reforestation Occupations

Why Do Special Guidelines Exist?

Due to a number of complexities, special guidelines for processing H-2B applications for tree planting and related reforestation occupations are required.

Although the occupations of Tree Planter, Forest Worker and Laborer, and Brush Clearer have many similarities to agriculture, they are not so classified under the Internal Revenue Code or the Fair Labor Standards Act (FLSA). Therefore, under the Immigration and Nationality Act (INA), they are not authorized for the H-2A visa and must be processed as H-2B occupations. However, two court decisions, Bresgal v. Brock, 833 F. 2d 763 (9th Cir. 1987), and Bracamantes v. Weyerhauser Co., 840 F.2d 271 (5th Cir. 1983) directed the Department to cover migrant seasonal forestry workers under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). In addition, because forestry occupations may have elements of both agricultural and non-agricultural occupations or involve multi-state itineraries, these applications cannot be solely processed according to the general procedures for H-2B in TEGL 21-06, Change 1.

Unless otherwise specified in TEGL 27-06, applications submitted for tree planting and related reforestation occupations must comply with the requirements for H-2B applications contained in TEGL 21-06 issued on April 4, 2007.

Application of Temporary Needs Standards Involving Tree Planting and Related Reforestation Occupations

The employer's need for temporary non-agricultural services or labor in tree planting and related reforestation occupations must be justified to the NPC Certifying Officer under one of the following standard: (1) a one-time occurrence, (2) a seasonal need, (3) a peakload need, or (4) an intermittent need.

According to the Migrant and Seasonal Agricultural Worker Protection Act (MSPA),

[l]abor is performed on a seasonal basis, where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year. A worker, who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he may continue to be employed during a major portion of the year.

The term "other temporary basis" refers to employment where a worker is employed for a limited time only or where performance is contemplated for a particular piece of work, usually of short duration. Generally, employment which is contemplated to continue indefinitely is not temporary.

Special Filing Procedures for Farm Labor Contractors

An employer requesting temporary labor certification who meets the MSPA definition of a Farm Labor Contractor (FLC) must:

Register as a FLC with the Department of Labor's Employment Standards Administration (ESA) before filing an H-2B application for workers who will be performing predominantly manual work, which includes, but is not limited to, tree planting, brush clearing, and precommercial tree thinning; and

Provide proof of current registration, including proof of the registration of any Farm Labor Contractor Employees at the time of filing. The FLC and FLCE certificate(s) of registration must be valid for the entire period of need.

If the expiration date of the FLC or the FLCE certificate(s) falls at any point during the period of need, the employer must submit a signed written assurance that an application for renewing FLC and FLCE certificate(s) will be submitted timely to ESA in order to attempt to ensure that the certificate(s) are valid during the entire period of need.

Each facility or real property used to house and each vehicle used to transport workers must be described in the application. Housing and transport vehicles for MSPA-covered workers must be authorized for use on the FLC's certificate of registration prior to use. Each driver of a vehicle transporting MSPA-covered workers must have an FLC or FLCE certificate of registration that specifically authorized driving.

The employer must submit a signed, written assurance that all registrations, permits, and/or other required licenses for vehicles, housing, or drivers will remain valid during the entire period of use.

In situations where the employer is not properly registered as a FLC, the SWA will promptly return the application with a notification that the SWA cannot accept a job opportunity for a reforestation related occupation when the employer is not registered as a FLC.

A FLC means 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.

FLC activities include recruiting, soliciting, hiring, employing, furnishing, and/or transporting workers.

Agricultural employer includes any person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed, or nursery, or who produces or conditions seeds.

Agricultural association means any nonprofit or cooperative association of farmer, growers, or ranchers incorporated or qualified under applicable State law.

A FLCE is a person who performs a farm labor contracting activity solely on behalf of a farm labor contractor holding a valid Certificate of Registration and who is not an independent farm labor contractor who would be required to register under the Act in his own right.

Filing with multiple Itineraries

Employers may file a single master application covering multiple itineraries or separate applications for each itinerary where the tree planting or related reforestation work will begin. Alaska, Hawaii, and the U.S. territories may not be included in multi-state itineraries.

Employers are permitted to develop and file an itinerary under the following conditions:

If the itinerary includes worksite locations covering multiple SWAs, the employer may submit a single application to the SWA where the itinerant employment will begin.

In situations where the worksite locations cover multiple SWAs, the states listed in the itinerary must be contiguous or located within close geographic proximity to one another.

The employer must submit a signed and dated itinerary to the SWA with its application and include the following information:
- The names, physical addresses, telephone numbers and wages offered in each worksite location;
- The total number of crews and total number of workers in each crew; and
- The estimated start and end dates of work in each worksite location.

Employers are permitted to file a single master application for multiple itineraries under the following conditions:

When examining the starting locations of each itinerary, the master application must be filed with the SWA where the largest number of job opportunities is being requested on the itineraries included in the master application;

The application must consist only of crews working for a single employer; and

The total range of the crews' start dates cannot be more than 14 calendar days apart.

Special SWA Review

SWAs will review all itineraries to ensure each is normal to tree planting and related reforestation occupations (i.e., it is prevailing practice to start in a particular area; what type of itineraries are normal for contracts and the H-2B program) and will contact the NPC Certifying Officer when they receive an itinerary that may not reflect prevailing practice.

A job opportunity containing a wage offer below the prevailing wage will not be accepted. A job opportunity specifying that workers are to be paid on a piece rate basis must also guarantee the required hourly wage rate per pay period. The required hourly wage rate will be the prevailing wage determined by the SWA. If the piece rate does not result in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the hourly rate, the worker's pay must be supplemented to increase the earnings to the equivalent hourly level. In situations where workers will be paid on a piece rate basis, the job offer must identify the piece rate, the length of the pay period and the ending day of the week of the payroll period and date, and the minimum productivity required for job retention.

If the application indicates that work will be performed in other states in the itinerary, the SWA will clear the job order for 10 calendar days with the appropriate state(s) where the work is to be performed and accept for referral to the employer qualified applicants from the state(s).

During the 10-day posting of the job order, the employer will advertise the job opportunity in a newspaper of general circulation for 3 consecutive calendar days or in a readily available professional, trade or ethnic publication, whichever the SWA determines is most appropriate for the occupation and most likely to bring responses from U.S. workers.

The SWA intrastate and interstate job postings and employer advertisements must include the following information:

Identify the employer's name and direct applicants to report or send resumes to the SWA for referral to the employer;

Address of the SWA local office and job order number;

Description of the job opportunity with particularity, including a summary of the itinerary, duties to be performed, work hours and days, and if applicable, benefits (e.g., housing and free transportation) and incentive wages (e.g., piece rates);

Starting locations and wages at each crew's starting location;

Notice if employees must purchase or rent tools;

Offer wages, terms, and conditions of employment which are not less favorable than those offered to the alien and are prevailing for the occupation, activity, and industry;

State the total number of job openings the employer intends to fill; and

Notice that the job opportunity is temporary.

The SWA will examine all deductions (including housing, transportation, meals, tools, safety equipment, etc.) to determine if they are allowable in accordance with the Fair Labor Standards Act.

Special Instructions for Completing the ETA Form 750, Part A

To ensure consistency in completing applications, employers and SWAs should use the following annotations:

Item #7 – Employers should write "See Attached Itinerary" and follow the instructions for submitting itineraries.

Item #10b – Employers should note the maximum number of hours required for overtime.

Item #12b - Employers should note "rate of pay" which shall be time and a half.

Item #13 – Production standards must be disclosed, and the employer must provide documentation to the SWA substantiating any standard higher then the prevailing practice in the industry.

Item #15 – Specific requirements such as requiring employees to purchase tools or housing accommodations should be noted.

Special Guidelines for Processing H-2B Temporary Labor Certification in the Entertainment Industry

Why Do Special Guidelines Exist?

Due to the unique characteristics of the entertainment industry, special procedures exist for filing H-2B applications. The Certifying Officer at the Chicago National Processing Center will issue determinations on applications for temporary employment of foreign workers in the entertainment industry. Offices of the SWAs in New York, Texas, and California are designated state Offices Specializing in Entertainment OSE). These offices exclusively receive and process applications for certification of temporary positions in the entertainment industry.

Canadian musicians who enter the U.S. to perform within a 50-mile area adjacent to the Canadian border for a period of 30 days or less are pre-certified and not subject to these procedures. In these cases, employers may file nonimmigrant worker petitions directly with USCIS in accordance with USCIS regulations.

The Virgin Islands Nonimmigrant Alien Adjustment Act of 1981 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.

Occupations in the entertainment industry shall include performers and all technical and support personnel involved with a performance.

Filing Procedures

Temporary labor certification applications for foreign workers in the entertainment industry will be filed by the employer with the OSE serving the area of intended employment. The application must include:

A completed ETA Form 750, Part A, signed by the employer;

An itinerary of locations and duration of work in each location, when there is more than one worksite;

Documentation of the employer's efforts, if any, to recruit U.S. workers and the results of those efforts.

The employer must specify a wage which meets or exceeds the prevailing hourly, daily, or weekly rate and covers each day of the workweek that the foreign worker is in the U.S. for the duration of the employment, regardless of hours worked. The employer must be willing to pay the applicable wage for each location listed on the itinerary for work performed in that location.

Employer Advertisement

The employer may advertise the job opportunity, before or after filing the application, in a national publication that is likely to bring responses from U.S. workers. The advertisement must:

Identify the employer's name, address, and the location of the employment, if other than the employer's location;

Describe the job opportunity in detail;

State the rate of pay, which shall not be below the prevailing wage for the occupation;

Offer prevailing working conditions;

State the employer's minimum job requirements; and

Offer wages, terms and conditions of employment which are no less favorable than those offered to the foreign workers.

The employer must provide the OSE a copy of the advertisement and written recruitment results which must:

Identify each recruitment source by name;

State the name, address, and telephone number of each U.S. worker who applied for the job; and

Explain the lawful job-related reason for not hiring each U.S. worker.

Contacting Unions

The OSE will write to the appropriate national union(s) for U.S. worker availability information that abides by the following guidelines:

The letter to the union will not identify the employer, but will describe the type of establishment, the job duties, and dates of employment, hours of work, wages and working conditions;
The OSE will allow five working days from the date the letter to the union is mailed to receive a written response. If no response is received after five working days, the union should be contacted by telephone to verify if the request was received. If the union asserts that U.S. workers are available for the job, five additional workdays should be allowed for a written response before making a determination based on the information available in the application file;
Acceptable availability information from unions will include names, addresses, and telephone numbers of U.S. workers who meet the employer's requirements for the job opportunity;
If the union(s) provide names of qualified U.S. workers, the OSE will refer the list to the employer for direct contact with the workers;
For each application, the name of the union, the union representative contacted, and the date of contact must be included on the transmittal form to the Chicago NPC.

At the discretion of the Chicago Certifying Officer, the employer may be required to recruit through additional sources which are appropriate for the occupation and customary in the industry, such as talent agencies, agents and casting directors.

Determinations

Decisions on applications by employers seeking temporary admission of non-immigrant foreign workers for temporary employment in entertainment occupations require special consideration, such as:

An assessment of requirements of the role or the act to be performed;

The need to keep the unity of a group or company and support personnel;

The role of labor unions and their impact on employment opportunities;

The willingness of available U.S. workers to fulfill the employer's prescribed itinerary.

In determining whether to grant or deny a temporary labor certification, the Chicago Certifying Officer will base the decision on whether or not:

U.S. workers are available for the temporary employment opportunity;

The job opportunity contains requirements or conditions which preclude consideration of U.S. workers or which otherwise would prevent their effective recruitment.

Appeal of Notice that Certification Cannot be Made

The finding by the NPC Certifying Officer, that labor certification cannot be made, is the final decision of the Secretary of Labor, and is advisory to the USCIS. There is no provision for reconsideration or appeal of the decision within the DOL.

An employer may elect to re-file the application with additional information with the SWA, or, in accordance with the USCIS regulations at 8 CFR Part 214(h)(6)(iv)(E), the employer may submit countervailing evidence directly to the USCIS that qualified persons in the U.S. are not available, that the employer's need for the duties to be performed is represented as temporary, that wages and working conditions of U.S. workers will not be adversely affected, and that the DOL's employment policies were observed.

Validity of Temporary Labor Certifications

A temporary labor certification is valid only for the number of aliens, the occupation, the area of employment, the specific occupation and duties, the period of time, and the employer specified on the Application for Alien Employment Certification, ETA Form 750.