Temporary labor certification procedures for entertainment employers

Official letter (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2003/TEGL4-03.html):

Employment and Training Administration Advisory System
U.S. Department of Labor
Washington, D.C. 20210
CLASSIFICATION: Labor Cert./Entertainment Industry
CORRESPONDENCE SYMBOL: ONP
DATE: September 2, 2003

TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 4-03

TO: ALL STATE WORKFORCE AGENCIES
ALL STATE WORKFORCE LIAISONS

FROM: EMILY STOVER DeROCCO
Assistant Secretary

SUBJECT: Procedures for Temporary Labor Certification in the Entertainment Industry

1. Purpose. To provide policy clarification and guidance regarding the special procedures governing the temporary labor certification process for the entertainment industry.

2. References. 20 C.F.R. § 621 and 655.

3. Background. On December 1, 1983, the Employment and Training Administration issued GAL 5-84 which provided the procedures governing the labor certification process for the entertainment industry. The attached procedures have been updated and rescind those issued in GAL 5-84.

4. Action Required. State Workforce Agencies (SWAs) are instructed to:

a. Provide the attached procedures to appropriate staff.
b. Instruct staff to provide application forms and advise employers of procedures for filing temporary labor certification applications in the entertainment industry.

5. Inquiries. Address any questions or inquiries to the appropriate regional office.

6. Attachments.
I. Procedures for temporary labor certification in the entertainment industry.
II. List of responsible regional offices and offices specializing in entertainment (OSEs).
III. Map of OSEs and areas covered.
IV. List of unions in the entertainment industry.

RESCISSIONS: GAL No. 5-84
EXPIRATION DATE: Continuing

Official Attachment I (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2003/TEGL4-03_AttachI.html):

Procedures for Temporary Labor Certifications in the Entertainment Industry

I. Background

The H-2B visa classification applies to foreign workers coming temporarily to the U.S. to perform nonagricultural work of a temporary or seasonal nature. The H-2B visa classification requires a temporary labor certification from the Secretary of Labor advising the Bureau of Citizenship and Immigration Services (BCIS) whether or not U.S. workers capable of performing the temporary services or labor are available and whether or not the foreign workers’ 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 BCIS.

Due to the unique characteristics of the entertainment industry, the following procedures have been established for processing H-2B applications for that industry. These procedures centralize temporary labor certification authority in the entertainment industry in three regions, clarify processing requirements, and ensure uniformity among the responsible regions.

II. Operating Guidelines

A. Based on factors such as the need to develop expertise, the concentration of activities for requests for foreign workers in entertainment, and the proximity to sources that know about the availability of U.S. performers in various entertainment fields, regional certifying officers in New York City, Dallas, and San Francisco are designated as the appropriate officials for issuing determinations on applications for temporary employment of foreign workers in the entertainment industry.

B. Offices of the SWAs in New York City, Austin, and Sacramento are designated as Offices Specializing in Entertainment (OSEs). These offices shall receive temporary applications in the entertainment industry directly from employers within their jurisdiction for processing. Each SWA and all regional offices, however, process permanent applications in the entertainment industry.

C. 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.

D. Public Law 97-271 limits temporary employment of entertainers in the Virgin Islands to periods not to exceed 45 days. Therefore, the period of labor certification for such applications may not exceed 45 days.

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

F. When a job offer contains requirements or conditions which preclude effective recruitment of U.S. workers, i.e., there is no employer in the U.S., the OSE shall disregard recruitment procedures below and should immediately send the application to the regional certifying officer for determination.

III. Procedures

A. Temporary labor certification applications for foreign workers in the entertainment industry shall be filed by employers with the OSE serving the area of intended employment (see map of OSE jurisdiction). Note: When the job opportunity requires the work to be performed in more than one OSE jurisdiction, the application should be filed with the OSE having jurisdiction over the area where the employment will begin.

B. To allow for sufficient recruitment of U.S. workers and to give OSE and regional offices enough processing time, employers should be advised to file their applications at least 60 calendar days but no more than 120 days prior to the date labor certification is needed in order to receive a timely determination. The Department of Labor cannot assure a timely determination if the employer files an application for labor certification less than 60 days prior to their date of need. The OSE should return to the employer applications which are filed more than 120 days prior to the date of need.

C. When filed, the temporary application should include:

1. A completed Form ETA-750, Part A, the “Offer of Employment” for Alien Employment Certification form signed by the employer.

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

3. Documentation of the employer’s efforts, if any, to recruit U.S. workers, and the results of that effort.

D. The OSE shall review the application for completeness and determine the prevailing wage, guided by standards in regulations at 20 C.F.R. § 656.40 for each location listed in the itinerary.

E. The employer must specify a wage which meets or exceeds the 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.

F. 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 shall:

1. Identify the employer’s name, address, and the location of the employment, if other than the employer’s location;

2. Describe the job opportunity in detail;

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

4. Offer prevailing working conditions;

5. State the employer’s minimum job requirements; and

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

Note: Based on the judgment of the regional certifying officer, employers located in the Virgin Islands will be allowed to conduct local recruitment using local publications on the island rather than conducting recruitment in national publications found in the continental United States that may or may not be available in the Virgin Islands.

G. The employer must provide the OSE a copy of the advertisement showing the name of the publication, the dates published, and written results of all the recruitment, which must:

1. Identify each recruitment source by name;

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

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

H. The OSE shall write to the appropriate national union(s) (listing enclosed) for availability information. The following procedures and conditions shall apply to union contacts:

1. The letter to the union shall not identify the employer, but shall describe the type of establishment, the job duties, location, and dates of employment, hours of work, wages and working conditions.

2. From the date the letter to the union is mailed, five working days should be allowed 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 there is availability, five additional workdays should be allowed for a written response before making a determination based on available information in the application file.

3. Acceptable availability information from unions shall include names, addresses, and telephone numbers of U.S. workers who meet the employer’s requirements for the job opportunity.

4. If the union(s) provide names of qualified U.S. workers, the OSE shall refer the list to the employer for direct contact with the applicants.

5. The name of the union, the union representative contacted, and the date of contact must be included on the transmittal form to the regional office for each application.

I. A recruitment or information source which asserts the availability of qualified U.S. workers must provide specific information on the U.S. workers, including their names, addresses, and telephone numbers so that the employer may contact them.

J. When recruitment through all sources is completed, the OSE shall send the application, together with all pertinent information, to the appropriate regional certifying officer in New York City, Dallas, or San Francisco.

K. At the discretion of the regional certifying officer, the employer may be required to recruit through other sources which are appropriate for the occupation and customary in the industry, such as talent agencies, agents, and casting directors.

IV. Determinations

The regional certifying officer shall consider circumstances unique to the entertainment industry in making a final determination.

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

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

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

3. The role of labor unions in this highly unionized field and their impact on employment opportunities;

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

B. The regional certifying officer in determining whether to grant or deny the temporary labor certification will base the decision on whether or not:

1. U.S. workers are available for the temporary employment opportunity:

a. The regional certifying officer, in judging if a U.S. worker is available for the temporary employment opportunity, shall determine from documented results of the employer and the SWA recruitment efforts if there are other appropriate sources of workers, where the employer should have recruited or may recruit U.S. workers. If further recruitment is required, the application should be returned to the OSE with specific instructions for the additional recruitment.

b. To determine if a U.S. worker is available, the regional certifying officer shall 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.

c. The regional certifying officer shall 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.

d. 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 dates specified by the employer.

2. The job opportunity contains requirements or conditions which preclude consideration of U.S. workers or which otherwise would prevent their effective recruitment, e.g., there is no employer in the U.S. Such applications shall be denied on the basis that U.S. workers are generally available for employment in the entertainment industry and it was not shown that the employer made reasonable efforts to obtain U.S. workers for the job. Under these circumstances, the Department must assume that U.S. workers are available.

C. Dates on the temporary labor certification shall be the beginning and ending dates of the actual employment not to exceed 12 months. The beginning date of certified employment may not be earlier than the date certification was granted.

D. A denial of certification or a notice that certification cannot be made (non-determination) is not reviewed by the Department of Labor, but may be appealed to the BCIS. The petitioner may attach the decision to the nonimmigrant visa petition and present countervailing evidence that qualified persons in the United States are not available and that the employment policies of the Department of Labor were observed. The BCIS will consider all such evidence in adjudicating the petition. The denial of certification letter or the notice that certification cannot be made (non-determination) must set forth the specific reason(s) for denial of the request. The specific reason(s) for denial will enable the BCIS to better understand the basis for the Department of Labor’s denial of the request in the event the denial is appealed.

Official Attachment II (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2003/TEGL4-03_AttachII.html):

Temporary Labor Certification

Application in the Entertainment Industry

Regional Offices that | Offices Specializing in

Make Determinations | Entertainment (OSE)

Dolores DeHaan | Samuel Pam

Regional Certifying Officer | N.Y. State Dept. of Labor

Labor Certification Unit | P O Box 703

Employment and Training | New York, NY 10014-0703

Administration | Tel: (212) 621-9359

201 Varick St., Room 755

New York, NY 10014

Tel: (212) 337-2184

States Served

Connecticut | New York | Delaware | Mississippi

Maine | New Jersey | District of Columbia | North Carolina

Massachusetts | Puerto Rico | Maryland | South Carolina

New Hampshire | Virgin Islands | Pennsylvania | Tennessee

Rhode Island | West Virginia | Alabama

Vermont | Virginia | Kentucky

| Georgia

| Florida

____________________________________________________________________________________________

Regional Offices that | Offices Specializing in

Make Determinations | Entertainment (OSE)

John Bartlett | Norma Martinez

Regional Certifying Officer | Alien Labor Certification Unit

U.S. Department of Labor | Texas Workforce Commission

Alien Labor Certification Unit | TWC Building

525 Griffin St., Room 317 | 101 E. 15th, Rm. 424T

Dallas, TX 75202 | Austin, TX 78778

Tel: (214) 767-4989 | Tel: (512) 936-2016

States Served

Illinois | Arkansas | Iowa

Indiana | Louisiana | Kansas

Michigan | New Mexico | Missouri

Minnesota | Oklahoma | Nebraska

Ohio | Texas | Wisconsin

Official Attachment III (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2003/TEGL4-03_AttachIII.html):

Temporary Labor Certification

Application in the Entertainment Industry Continued

Regional Offices that | Offices Specializing in

Make Determinations | Entertainment (OSE)

Martin Rios | Cheryl DeMerritt and Maria Fagundes

Regional Certifying Officer | California Employment Development Dept.

Labor Certification Unit | Foreign Labor Certification Office

Employment and Training | P.O. Box 269070

Administration | Sacramento, CA 95826-9070

71 Stevenson St., Rm. 805 | Tel: (916) 464-3400

P.O. Box 193767

San Francisco, CA 94119-3767

Tel: (415) 975-4601

States Served

Colorado | Arizona | Alaska

Montana | California | Idaho

North Dakota | Guam | Oregon

South Dakota | Hawaii | Washington

Utah | Nevada

Wyoming

[Map image linked by the source is unavailable at its official URL.]

Official Attachment IV (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2003/TEGL4-03_AttachIV.html):

UNIONS WITH SUBSTANTIAL MEMBERSHIP

IN

THE ARTS, ENTERTAINMENT AND MEDIA INDUSTRY

Actors Equity Association Approx. Membership: 40,000

Alan Eisenberg, Executive Director

1560 Broadway

New York, New York 10036

PH: (212) 869-8530

www.actorsequity.org

Performers (other than musicians), stage-managers, assistant stage managers employed in the “live”, dramatic and musical theater.

American Federation of Musicians Approx. Membership: 110,000

Steve Young, President

1501 Broadway, Suite 600

New York, New York 10036

PH: (212) 869-1330

www.afm.org

Musicians, conductors, music librarians, arrangers, copyists, singers (night club and cabarets).

American Federation of Television and Radio Artists Approx. Membership: 80,000

Dick Moore, Communications

260 Madison Avenue

New York, New York 10016

PH: (212) 532-0800

www.aftra.com

Performers other than musicians who are employed by the broadcasting, cable and/or recorded media including disc and videotapes.

American Guild of Musical Artists Approx. Membership: 5,517

Linda Mays, President

1727 Broadway

New York, New York 10019

PH: (212) 265-3687

www.musicalartists.org

All performers (except musicians) stage managers and choreographers employed in opera, ballet and dance, also, concert (solo) artists, including musicians.

American Guild of Variety Artists Approx. Membership: 5,000

Rod McKuen, Executive President

184 Fifth Street

New York, New York 10010

PH: (212) 675-1003

Performers (except musicians) in ice shows and circuses and performing in hotels and cabarets as part of a variety show.

Associated Actors and Artistes of America Approx. Membership: 69,000

165 W 46th Street

New York, New York 10036

PH: (212) 869-0358

e-mail to [email protected]

Association of Theatrical Press Agents and Managers Approx. Membership: 1,000

Gordon Forbes, Secretary-Treasurer

165 West 46th Street, #1200

New York, New York 10036

PH: (212) 719-3666

e-mail to [email protected]

Theater and concert hall managers, company managers and press agents.

Communication Workers of America Approx. Membership: 490,621

Morton Bahr

501 Third Street, N.W.

Washington, D.C. 20001

PH: (202) 434-1100

www.cwa-union.org

Technical and craft personnel employed in broadcasting, telecasting, recording, filming and allied industries.

Director’s Guild of America Approx. Membership: 11,829

Jay D. Roth, National Executive Director

7920 Sunset Blvd.

Hollywood, California 90046

PH: (310) 289-2000

www.dga.org

In film, directors, production managers, and first and second assistant directors. In tape, directors, associate directors, stage managers, and production assistants.

Guild of Italian American Actors Approx. Membership: 70

Olga Barbato, Executive Secretary

352 W 44th Street-Ground Floor

New York, New York 10036

PH: (212) 262-7300

www.nygiaa.org

Hebrew Actors Union Approx. Membership: 200

Seymour Rexite, President

31 E. 7th Street

New York, New York 10003

PH: (212) 674-1923

Performers (except musicians) who are engaged in the field of Hebrew or Yiddish Language Theater.

International Alliance of Theatrical Stage Employers Approx. Membership: 98,700

and Moving Picture Machine Operators

of the United States and Canada.

Thomas C. Short, President

1515 Broadway

New York, New York 10036

PH: (212) 730-1770

www.iatse.lm.com

All craft and technical occupations associated with motion picture production, television broadcasting, sound and video recording, cable, legitimate theater, and audio visual materials.

International Brotherhood of Electrical Workers Approx. Membership: 718,742

Jack Stanley, Director, Broadcasting & Recording Dept.

1125 15th Street, NW

Washington, DC 20005

PH: (202) 833-7000

www.ibew.org

Technical and craft personnel employed in broadcasting, television, cable operations, sound and video recording, and program production.

Italian Actors Union Approx. Membership: 43

Sal Carrollo, Executive Secretary

1540 Broadway

New York, New York 10036

PH: (212) 765-0800

Performers (except musicians) who are engaged in the field of Italian language theater.

National Writers Union Approx. Membership: 6,500

Jonathan Tasini, President

113 University Pl, 6th Floor

New York, New York 10003

PH: (212) 254-0279

www.nwu.org

Freelance writers of all genres who work for American publishers or employers.

Screen Actors Guild Approx. Membership: 98,000

5757 Wilshire Blvd.

Hollywood, California 90036

PH: (323) 954-1600

www.sag.com

Performers (other than musicians) employed in the production of motion pictures, television, videotape or videodisc as “extras” (non-speaking).

Society of Stage Directors and Choreographers Approx. Membership: 1,300

Barbara Hauptman, Executive Secretary

1501 Broadway

New York, New York 10036

PH: (212) 391-1070

Directors and choreographer in the professional theater.

United Scenic Artists Approx. Membership: 5,100

Paul Moore, National Business Agent

16 W. 61st Street

New York, New York 10023

PH: (212) 581-0300

www.usa829.org

Professional scenic designers, scenic artists, costume and lighting designers, diarama and display workers, and mural artists employed by television, theater, commercial producers, and motion picture studios.

Writers Guild of America, West Approx. Membership: 8,094

Cheryl Rhoden, Communications

8955 Beverly Blvd.

Los Angeles, California 90048

PH: (323) 951-4000

www.wga.org

Writers in the fields of motion pictures, television, and radio in areas west of the Mississippi.

Writers Guild of America, East, Inc. Approx. Membership: 3,700

Mona Morgan, Exec. Director

555 West 5th Street

New York, New York 10019

PH: (212) 245-6180

www.wgaeast.org

Writers in the field of motion picture, television and radio in areas east of the Mississippi.