New H-2B Notices

"August 21, 2009 Notice Announcing H-2B Stakeholder Briefings in Boston and Chicago: The Department has published in the Federal Register a Notice announcing that it will hold public stakeholder briefing sessions in September in Boston and Chicago. The briefings will address changes to the H-2B temporary worker program and specifically focus on the full implementation stage of the new H-2B regulations that were published on December 19, 2008. To read the full text of the Notice, please click here."
June 19, 2009: H-2B Entertainer FAQs: The Department has released FAQs for H-2Bs in the entertainment industry. To read them, click here
April 20, 2009: H-2B FAQs The Office of Foreign Labor Certification (OFLC) has posted the first round of Frequently Asked Questions (FAQs) for the H-2B program under the new regulations, which took effect January 18, 2009. To see the FAQs click here. The questions deal with the new forms ETA-9141 and ETA-9142, including where to find the NAICS and SOC codes, where and when to file, and other useful information. The FAQs for the old H-2B program are still available through the link located in the right margin on the OFLC home page.
New Prevailing Wage Form: In conjunction with the regulations going into effect on January 18, 2009 for the H-2B program, the Department has created and received approval from OMB for a new form to collect the necessary information from employers in order to provide a prevailing wage so that employers may begin the recruitment process. Employers must begin using the Form ETA-9141 for wage requests for H-2B work that is to commence on or after October 1, 2009. For instructions on how to complete the form and appendices see the instructions.
January 12, 2009
New Forms: In conjunction with the regulations going into effect on January 17 and 18 for the H-2A and H-2B programs, the Department has created new forms to collect the necessary information from employers applying for labor certifications. Employers must begin using the Form ETA-9142 on the effective date of the new regulations. In addition, for the H-2A program employers must fill out and submit Appendix A.1 and Appendix A.2. For the H-2B program employers must fill out and submit Appendix B.1. For instructions on how to complete the form and appendices see the instructions. The H-2B Final Rule requires the use of the new Form ETA-9141 for prevailing wage determinations. However, the use of this form will only begin after the transition period outlined in the rule is completed. Therefore, Form ETA-9141 will be posted towards the end of the transition period.

January 5, 2009
OFLC Performance Report: The Employment and Training Administration's (ETA's) Office of Foreign Labor Certification today posted its FY 2007 performance report Foreign Labor Certification: International Talent Helping Meet Employer Demand. This report includes key facts about the variety of occupations certified in the permanent and temporary labor certification programs and the number of jobs filled, employers that request foreign workers, and the countries from which those workers come. The report also contains important information for the public on labor market trends and occupational opportunities for Americans. Read the report here.
H-2B Final Rule: On December 19, 2008, the Office of the Federal Register published the Department's Final Rule on H-2B Temporary Non-agricultural Employment. Click here for the Final Rule. The Final Rule is effective January 18, 2009, although certain aspects of the Rule will be subject to transition provisions. The application form accompanying this rule, ETA Form 9142, was published in the Federal Register on December 18, 2008, in conjunction with the Department's H-2A Final Rule. The Department will shortly post an ETA Form 9142 that is fillable on line. We strongly encourage program users to complete the fillable form. Employers with questions are encouraged to submit those questions to OFLC at H-2B.Regulation@dol.gov. Due to a high volume of calls, we will be unable to respond individually to inquiries.

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 that, except for Guam, the petitioning employer first apply for a temporary labor certification from the Secretary of Labor indicating that: (1) there are not sufficient U.S. workers who are capable of performing the temporary services or labor at the time of filing the petition for H-2B classification and at the place where the foreign worker is to perform the work; and (2) the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The Department of Labor will review and process all H-2B applications on a first in, first out basis.

Employers seeking to employ temporary H-2B workers must file an Application for Temporary Employment Certification, Appendix B.1, and its recruitment report to the Chicago National Processing Center (NPC). When filing an application with the Chicago NPC, 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 foreign workers as long as each worker is to perform the same services or labor, on the same terms and conditions, in the same occupation, in the same area of intended employment during the same period of employment. Certification is issued to the employer, not the worker, and is not transferable from one employer to another or from one worker to another.

Special Procedures

The OFLC Administrator has the authority to establish or to devise, continue, revise, or revoke special procedures in the form of variances for the processing of certain H-2B applications when employers can demonstrate, upon written application to the OFLC Administrator, that special procedures are necessary. Special instructions currently exist for temporary labor certification in Tree Planting and Related Reforestation Occupations and the Entertainment Industry. For additional filing instructions, please review Training and Employment Guidance Letter 27-06, Special Guidelines for Processing H-2B Temporary Labor Certification in Tree Planting and Related Reforestation Occupations and Training and Employment Guidance Letter 31-05, Procedures for Temporary Labor Certification in the Entertainment Industry Under the H-2B Visa Program.

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. Except where the employer’s need is based on a one-time occurrence, the Secretary of Labor will, absent extenuating circumstances, deny an Application for Temporary Employment Certification where the employer has a recurring seasonal or peakload need lasting longer than 10 months.

Part-time employment does not qualify as employment for temporary labor certification under the H-2B program. Only full-time employment can be certified.

Process for Filing

Prior to filing an H-2B application with the Chicago NPC, the employer must first obtain a prevailing wage determination from the Chicago NPC, submit a job order to the State Workforce Agency (SWA) serving the area of intended employment, and publish two print advertisements for the position(s), one of which must be on a Sunday. For requirements on obtaining a prevailing wage determination on the occupation, employers are encouraged to refer to 20 Code of Federal Regulations (CFR) 655.10 and 655.11. For pre-filing advertising requirements, employers are encouraged to refer to 20 CFR 655.15 and 655.17. The following is a general outline for filing an H-2B application for alien labor certification. For additional instructions, please review the regulations at 20 CFR 655, Subpart A, Labor Certification Process and Enforcement of Attestations for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers).

An employer desiring to use foreign workers for temporary non-agricultural employment must file a complete ETA Form 9142, Application for Temporary Employment Certification, with the Chicago NPc. The ETA Form 9142 must bear the employer’s original signature, and, if applicable, the original signature of the employer’s authorized attorney or agent if the employer is represented by an attorney or agent. An association or other organization of employers is not permitted to file master applications on behalf of its members under the H-2B program. Certification of more than one position may be requested on the application as long as all H-2B workers will perform the same services or labor on the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment. Only one Application for Temporary Employment Certification may be filed for worksite(s) within one area of intended employment for each job opportunity with an employer. Every H-2B application must include the following documentation:
- A completed ETA Form 9142, Application for Temporary Employment Certification;
- ETA Form 9142 – Appendix B.1; and
- A completed recruitment report that must:
1. Identify each recruitment source by name;
2. State the name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker, including any applicable laid-off workers;
3. If applicable, explain the lawful job-related reason(s) for not hiring any U.S. workers who applied or were referred to the position.
- Each application must include a detailed statement of temporary need in Item B.9. of the ETA Form 9142. The statement of temporary need must contain the following:
1. A description of the employer’s business history and activities (e.g. primary products or services) and schedule of operations throughout the year;
2. An explanation regarding why the nature of the employer’s job opportunity and number of foreign workers being requested for certification reflect a temporary need;
3. An explanation regarding how the request for temporary labor certification meets one of the regulatory standards of a one-time occurrence, seasonal, peakload or intermittent need; and
4. If applicable, a statement justifying any increase or decrease in the number of H-2B positions being requested for certification from the previous year.
- An employer seeking H-2B temporary labor certification must attest as part of the Application for Temporary Employment Certification that it will abide by the following conditions:
1. The employer is offering terms and working conditions normal to U.S. workers similarly employed in the area of intended employment. The terms and conditions must not be unusual for workers performing the same activity in the area of intended employment, are not less favorable than those offered to the H-2B worker(s), and are not less than the minimum terms and conditions;
2. The specific job opportunity for which the employer is requesting H-2B certification is not vacant because the former occupant(s) is on strike or locked out in the course of a labor dispute involving a work stoppage.
3. The job opportunity is open to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, handicap, or citizenship, and the employer conducted the required recruitment and has been unsuccessful in locating sufficient numbers of qualified U.S. applicants for the job opportunity for which labor certification is sought. Any U.S. worker applicants were rejected only for lawful, job-related reasons.
4. During the period of employment, the employer will comply with applicable Federal, State and local employment-related laws and regulations, including employment-related heath and safety laws.
5. The offered wage equals or exceeds the highest of the prevailing wage, the applicable Federal minimum wage, the State minimum wage, and local minimum wage and the employer will pay the offered wage during the entire period of the approved H-2B labor certification.
6. Upon separation from employment of H-2B worker(s) employed under the labor certification application, if such separation occurs prior to the end date of the employment specified in the application, the employer will notify the Departments of Labor and Homeland Security in writing of the separation from employment no later than 2 work days after the separation is discovered by the employer. An abandonment or abscondment is deemed to begin after a worker fails to report for work at the regularly scheduled time for 5 consecutive working days without the consent of the employer.
7. The offered wage is not based on commissions, bonuses, or other incentives unless the employer guarantees a wage paid on a weekly, bi-weekly or monthly basis that equals or exceeds the prevailing wage, the legal Federal, State or local minimum wage, whichever is highest. The employer must make all deductions to the worker’s paycheck required by law. The job offer must specify all deductions by law that the employer will make from the worker’s paycheck.
  The employer must attest that it has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2B workers to seek or receive payments from prospective employees.
8. The job opportunity is a bona fide, full-time temporary position, the qualifications for which are consistent with the normal and accepted qualifications required by non-H-2B employers in the same or comparable occupations.
9. The employer has not laid off and will not lay off any similarly employed U.S. worker in the occupation that is subject to the Application for Temporary Employment Certification in the area of intended employment within 120 calendar days before the date of need through 120 calendar days after the date of need, except where the employer also attests that it offered the job opportunity that is the subject of the application, that the laid off U.S. workers either refused the job opportunity or was rejected for the job opportunity only for lawful, job-related reasons.
10. The employer and its attorney or agent have not sought or received payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer’s attorney’s or agent fees, Application for Temporary Employment Certification, or recruitment costs.
11. If the employer is a job contractor, the employer must attest that it will not place any H-2B workers with any other employer or at another employer’s worksite unless the employer makes a written bona fide inquiry as to whether the employer’s client has displaced or intends to displace any similarly employed U.S. workers in the area of intended employment within 120 days before or after the date of need and all worksites are listed on the certified Application for Temporary Employment Certification.
12. The employer will not place any H-2B workers employed outside of the area of intended employment listed on the Application for Temporary Employment Certification unless the employer has obtained a new temporary labor certification from the Department of Labor.
13. Unless the H-2B worker will be sponsored by another subsequent employer, the employer will inform H-2B workers of the requirement that they leave the U.S. at the end of the authorized period of stay and that if the worker is dismissed by the employer prior to the ending of the period, the employer is liable for return transportation.
14. The dates of temporary need, reason for temporary need, and number of positions being requested for certification have been truly and accurately stated on the application
The Chicago NPC Certifying Officer (CO) will review complete applications for an absence of errors that would prevent certification and for compliance with the criteria for certification. Incomplete applications will not be accepted for processing and assigned a receipt date. Rather, incomplete applications will be retuned to the employer or the employer’s representatives as incomplete.

The CO will make a determination to certify, deny or issue a Request for Further Information (RFI) prior to making a final determination on the application. The criteria for certification is whether the employer has:

Established the need for nonagricultural services or labor to be performed is temporary in nature;

Established that the number of worker positions being requested for certification is justified and represent bona fide job opportunities;

Established that there are not sufficient U.S. workers available;

Employment of the foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers;

Made all the assurances and met all the obligations required in 20 CFR 655.22; and

Complied with all requirements of the H-2B Program.

If the CO determines that the application fails to comply with one or more of the criteria for certification, the CO will issue a written RFI to the employer within seven (7) calendar days of receipt of the application. The RFI will:

Specify the reason(s) why the application is not sufficient to grant temporary labor certification;

Specify a date by which the supplemental information and documentation must be received by the CO to be considered; and

State that, upon receipt of a response to the RFI, or expiration of the stated deadline for receipt of the response, the CO will review the existing applications as well as any supplemental materials submitted by the employer and issue a Final Determination.

The CO will make a determination to either grant or deny the Application for Temporary Labor Certification. The CO will grant the application if the employer has met all requirements of the H-2B regulations at 20 CFR 655, Subpart A. If an application is certified, the CO will send the certified Application for Temporary Employment Certification and a Final Determination letter to the employer or the employer’s agent or attorney.

If an application is denied, the final determination letter will:
- State the reason(s) certification is denied;
- If applicable, address the availability of U.S. workers in the occupation as well as the prevailing benefits, wages, and working conditions of similarly employed U.S. workers in the occupation and/or any applicable special procedures;
- Offer the employer an opportunity to request administrative review of the denial under 20 CFR 655.33; and
- State that if the employer does not request administrative review, the denial is final and the Department of Labor will not consider the application any further.
The CO may issue a partial certification by reducing either the period of need, the number of H-2B positions being requested or, both, based upon information the CO receives in the course of processing the temporary labor certification application. If a partial labor certification is issued, the Final Determination letter will:
- State the reason(s) for which either the period of need and/or the number of H-2B positions requested has been reduced;
- If applicable, address the availability of U.S. workers in the occupation;
- Offer the employer an opportunity to request administrative review of the partial labor certification under 20 CFR 655.33; and
- State that if the employer does not request administrative review, the partial labor certification is final and the Department will not consider the application any further.
The date on the temporary labor certification shall be the beginning and ending dates of certified employment with the beginning date of certified employment not 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.

Audit and Debarment

The OFLC will conduct audits of H-2B temporary labor certification applications within its sole discretion and authority under 20

CFR 655.24. For information regarding the H-2B audit process, employers are encouraged to review the regulations at 20 CFR 655.24.

The OFLC may debar an employer from the H-2B program if it is determined that the employer substantially violated a material term or condition of its temporary labor certification. Similarly, the OFLC may debar an agent or attorney if it is determined that the agent or attorney participated in, had knowledge of, or had reason to know of, the employer’s substantial violation. For information regarding the H-2B debarment process, employers are encouraged to review the regulations at 20 CFR 655.31.

Appeals

If a temporary labor certification is denied, in whole or in part, the employer may request review of the denial by the Board of Alien Labor Certification Appeals (BALCA) within 10 calendar days of the determination date. For information regarding the H-2B appeal process, employers are encouraged to review the regulations at 20 CFR 655.33

Validity of Temporary Labor Certifications

A temporary labor certification is valid only for the number of workers, the occupation, the area of employment, the specific occupation and duties, the period of time, and the employer specified on the Application for Temporary Employment Certification, ETA Form 9142.