H-2B labor certification processing procedures

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL21-06_Acc.pdf

CLASSIFICATION
                                                            H-2B Non-Agricultural Program
EMPLOYMENT AND TRAINING ADMINISTRATION CORRESPONDENCE SYMBOL
           ADVISORY SYSTEM
      U.S. DEPARTMENT OF LABOR         OFLC
         Washington, D. C. 20210       ISSUE DATE
                                                            April 4, 2007

ADVISORY:      FOREIGN LABOR CERTIFICATION
               TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 21-06

TO:            OFLC-NATIONAL PROCESSING CENTER DIRECTORS
               STATE WORKFORCE AGENCY ADMINISTRATORS

FROM:          EMILY STOVER DeROCCO /s/
               Assistant Secretary

SUBJECT:       Procedures for H-2B Temporary Labor Certification in Non-Agricultural
               Occupations

1. Purpose. To update procedures for State Workforce Agencies and ETA National
   Processing Centers to process H-2B labor certification applications in non-agricultural
   occupations.

2. References. Immigration and Nationality Act (INA) Section 101 (a)(15)(H)(ii)(b), Title
   20 Code of Federal Regulations (CFR) Parts 652 and 655; Title 8 CFR 214.2 (h)(6);
   Federal Register Notice, Volume 70, Number 137, pages 41430-41438; General
   Administration Letter (GAL) 01-95, Procedures for H-2B Temporary Labor Certification
   in Nonagricultural Occupations; GAL 01-95, Change 1, Procedures for H-2B
   Temporary Labor Certification in Nonagricultural Occupations; and Field Memorandum
   (FM) 25-98, H-2B Temporary Non-Agricultural Labor Certification Program
   Requirements.

3. Background. The H-2B non-immigrant program permits employers to hire foreign
   workers to come to the United States (U.S.) and perform temporary non-agricultural
   services or labor on a one-time, seasonal, peakload, or intermittent basis. The H-2B
   visa classification requires 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. Historically, H-2B applications for non-
   agricultural occupations were processed through the Employment and Training
   Administration’s (ETA) Regional Offices.


 RESCISSIONS                                                    EXPIRATION DATE
 GAL 01-95; GAL 01-95, Change 1; FM 25-98                       Continuing


   However, in December 2004, the Department opened two new National Processing
   Centers (NPCs), one each located in Atlanta and Chicago. These Centers have been
   designated to process applications to employ foreign workers for temporary positions
   under the H-2B program. The Department published a notice in the Federal Register
   (Vol. 70, No. 137, pages 41430-41438) on July 19, 2005, clarifying that employers
   must file two (2) originals of the ETA Form 750, Part A, directly with the State
   Workforce Agency (SWA) serving the area of intended employment and, once
   reviewed, the SWA will send the complete application to the appropriate NPC. That
   process does not apply to employer applications for boilermakers, entertainers,
   logging, and professional team sports, which were given special filing instructions in
   the notice.

4. Procedures for H-2B Applications. Attachment A outlines procedures that the
   SWAs and NPCs must use in making temporary labor certification determinations
   under the H-2B program. This guidance replaces and supersedes prior operating
   procedures issued under GAL 01-95, GAL 01-95, Change 1, and FM 25-98. 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.

5. Action Required. NPC Directors and SWA Administrators are directed to provide
   Center and SWA staff involved in the processing of H-2B applications with a copy of
   these procedures.

6. Inquiries. Questions from State Workforce Agency staff should be directed to the
   appropriate NPC Certifying Officer.

7. Attachments.

   Attachment A:      Procedures for H-2B Certification of Temporary Non-Agricultural
                      Occupations

Official attachment PDF (TEGL21-06_Att1.pdf): https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL21-06_Att1.pdf

ATTACHMENT A

                       Procedures for H-2B Certification of Temporary
                              Non-Agricultural Occupations


I.   General Provisions

     A. The regulations of the United States Citizenship and Immigration Service (USCIS),
        8 CFR Part 214.2(h)(6), apply to employers who wish to import non-agricultural
        workers to perform services or labor in temporary jobs within the United States
        (U.S.). Section 214(c)(1) of the Immigration and Nationality Act (INA) requires the
        Department of Homeland Security (DHS) to consult with appropriate agencies of
        the government before granting H-2B petitions;

     B. USCIS regulations state that employers who file H-2B petitions (except for
        temporary employment on Guam) must include a certification from the DOL stating
        that qualified workers are not available in the U.S., and the foreign worker’s
        employment will not adversely affect the wages and working conditions of similarly
        employed U.S. workers;

     C. The H-2B non-immigrant program permits employers to hire foreign workers to
        perform temporary non-agricultural work within the U.S. on a one-time occurrence,
        seasonal, peakload, or intermittent basis (8 CFR 214.2(h)(6)(ii)(B));

     D. The DOL regulations at 20 CFR Part 655, Subpart A – Labor Certification Process
        for Temporary Employment in Occupations Other Than Agriculture, Logging or
        Registered Nurses in the United States (H-2B Workers), govern the labor
        certification process for temporary employment in the U.S. under the H-2B
        classification, and requires that the Regional Administrator (now National
        Processing Center (NPC)) Certifying Officer of the Employment and Training
        Administration (ETA) issue temporary labor certifications on behalf of the Secretary
        of Labor;

     E. 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 submit countervailing evidence, according to 8
        CFR Part 214.2(h)(6)(iv)(E), directly to USCIS. There is no provision for
        reconsideration or appeal of the determination made by the DOL through the
        NPC Certifying Officer.

II. Standards for Determining the Temporary Nature of a Job Opportunity Under the
    H-2B Classification

     A. 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 (Matter of Artee Corp., 18 I&N Dec.
        366 (Comm. 1982));

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


   C. The Federal regulations at 8 CFR Part 214.2(h)(6)(ii) state that 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;

   D. The employer’s need for temporary non-agricultural services or labor must be
      justified to the NPC Certifying Officer under one of the following standards: (1) a
      one-time occurrence, (2) a seasonal need, (3) a peakload need, or (4) an
      intermittent need.

        1. One-Time Occurrence. The petitioner must establish that either (1) it has not
          employed workers to perform the services or labor in the past and that it will not
          need workers to perform the services or labor in the future, or (2) it has an
          employment situation that is otherwise permanent, but a temporary event of
          short duration has created the need for a temporary worker(s);

        2. Seasonal Need. The petitioner must establish that the services or labor is
          traditionally tied to a season of the year by an event or pattern and is of a
          recurring nature. The petitioner shall specify the period(s) of time during each
          year in which it does not need the services or labor. The employment is not
          seasonal if the period during which the services or labor is not needed is
          unpredictable or subject to change or is considered a vacation period for the
          petitioner’s permanent employees;

        3. Peakload Need. The petitioner must establish that (1) it regularly employs
          permanent workers to perform the services or labor at the place of employment
          and that it needs to supplement its permanent staff at the place of employment
          on a temporary basis due to a seasonal or short-term demand, and (2) the
          temporary additions to staff will not become a part of the petitioner’s regular
          operation; or

        4. Intermittent Need. The petitioner must establish that it has not employed
          permanent or full-time workers to perform the services or labor, but
          occasionally or intermittently needs temporary workers to perform services or
          labor for short periods.

III. Application Filing Procedures

   A. 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 State
      Workforce Agency (SWA) serving the area of intended employment. If the
      application includes worksite locations within a Metropolitan Statistical Area (MSA)
      covering multiple SWAs, the employer may submit a single application to the SWA
      where the employment will begin. In those instances where the employment
      crosses NPC jurisdictions as well, the NPC that has jurisdiction over the SWA
      where the employment will begin shall process the application.


   The U.S. Census Bureau maintains a current listing of all MSAs as well as maps by
   state at the following Web site:
   http://www.census.gov/population/www/estimates/metroarea.html

B. An association or other organization of employers is not permitted to file master
   applications on behalf of its membership under the H-2B program;

C. Job contractors typically supply labor to one or more employers as part of signed
   work contracts or labor services agreements. The temporary or permanent nature
   of the work to be performed in such applications will be determined by examining
   the job contractor’s need for such workers, rather than the needs of its employer
   customers;

D. Every H-2B application shall include:

    1. Two (2) originals of the ETA Form 750, Part A, Offer of Employment portion of
      the Application for Alien Employment Certification, signed and dated by the
      employer. Part B, Statement of Qualifications of the Alien, is not required to be
      completed;

    2. Documentation of any efforts to advertise and recruit U.S. workers prior to filing
      the application with the SWA;

    3. 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 need standards must
      be satisfied;

    4. Supporting evidence and documentation that justifies the chosen standard of
      temporary need must be submitted. Examples of supportive evidence or
      documentation for the most common standards of seasonal and peakload need
      include, but are not limited to, the following:

       a. Signed work contracts, letters of intent from clients, and/or monthly invoices
          from previous calendar year(s) clearly showing that work will be performed
          for each month during the requested period of need on the ETA Form 750,
          Part A, Item – 18b. This type of documentation will demonstrate that the
          employer’s need for the work to be performed is tied to a season(s) of the
          year and will recur next year on the same cycle;

       b. Annualized and/or multi-year work contracts or work agreements that are
          supplemented with signed work contracts specifying the actual dates when
          work will commence and end during each year of service;

       c. Summarized monthly payroll reports for a minimum of one previous
          calendar year that identifies, for each month and separately for full-time
          permanent and temporary employment in the requested occupation, the
          total number of workers or staff employed, total hours worked, and total
          earnings received. Such documentation must be signed by the employer


               attesting that the information being presented was compiled from the
               employer’s actual accounting records or system. Employers should be
               prepared to provide the documents utilized to generate the summarized
               monthly payroll reports if requested by the NPC Certifying Officer.

           Examples of insufficient documentation: Work contracts with no clear
           termination date and contracts with temporary workers. Applications supported
           solely by weather charts, event calendars, hotel occupancy rates, or
           annual/quarterly tax reports (e.g., IRS Form 941) will not be sufficient to prove
           a temporary need. Staffing charts, graphs, or other documentation, which do
           not correspond with the requested period of need on the ETA Form 750, Part
           A, Item – 18b, will also not be sufficient to prove a temporary need.

   E. To allow for enough time for the recruitment of U.S. workers and sufficient time for
      processing by the states and NPCs, the SWAs shall advise employers to file
      requests for temporary labor certification at least 60 days before the worker(s) is
      needed in order to receive a timely determination;

   F. Unless the NPC Certifying Officer specifies otherwise, the SWA shall return to the
      employer any request for temporary labor certification filed by the employer more
      than 120 days before the worker(s) is needed and advise them to re-file the
      application no more than 120 days before the worker(s) is needed. This is
      necessary since the availability of temporary U.S. workers changes over short
      periods of time and an adequate test of the labor market cannot be made during a
      longer period;

   G. More than one worker may be requested on the ETA Form 750, Part A, Item 18a, if
      they are to do 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. The total number of workers requested by the employer must also be
      specified in the advertisement and the job order required under Section IV of these
      instructions;

   H. 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;

   I.   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.

IV. SWA Processing Instructions

   A. The SWA shall review the job offer for completeness. A job opportunity containing
      a wage offer below the prevailing wage will not be accepted. The SWA shall
      determine the prevailing wage, guided by the regulations at 20 CFR Part 656.40
      and in accordance with Employment and Training Administration, Prevailing Wage
      Determination Policy Guidance, Non-agricultural Immigration Programs, Revised
      May 9, 2005 (http://www.foreignlaborcert.doleta.gov/pdf/Policy_Nonag_Progs.pdf);


B. 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;

C. 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. If the application indicates
   that work will be performed in multiple locations within a MSA and one or more
   locations are outside the jurisdiction of the SWA, the SWA shall 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);

D. 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. If the job opportunity is located in a rural area that
   does not have a newspaper with a daily edition, the employer shall use a daily
   edition with the widest circulation in the nearest urban area or such other
   publication as determined by the SWA;

E. The employer advertisement must:

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

        2. Describe the job opportunity with particularity, including duties to be
          performed, work hours and days, rate of pay, and the duration of the
          employment;

        3. State the employer’s minimum job requirements;

        4. 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

        5. State the total number of job openings the employer intends to fill.

F. The employer shall document that union and other recruitment sources,
   appropriate for the occupation and customary in 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;

G. The employer shall 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 shall submit to the SWA a written,


        detailed recruitment report that is signed by the employer. The written recruitment
        report must:

           1. Identify each recruitment source by name;

           2. State the name, address, and telephone number and provide resumes (if
              submitted to the employer) of each U.S. worker who applied for the job; and

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

   H. After the recruitment period, the SWA shall send the application, results of
      recruitment, prevailing wage findings, and all other supporting documentation to
      the appropriate NPC Certifying Officer;

   I.   Based on the results of the employer’s and SWA recruitment efforts, the NPC
        Certifying Officer shall 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 shall
        return the application to the SWA with specific instructions for additional
        recruitment;

V. NPC Temporary Labor Certification Determinations

   A. The NPC Certifying Officer shall determine whether to grant or deny the temporary
      labor certification or to issue a notice that such certification cannot be made based
      on whether or not:

           1. The nature of the employer’s need is temporary and justified based on a
              one-time occurrence, seasonal, peakload, or intermittent basis. To
              determine this, the NPC Certifying Officer shall 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.

           2. Qualified U.S. workers are available for the temporary job opportunity.

               a. To determine if a U.S. worker is available, the NPC 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;

               b. The NPC 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;
                  and


           c. 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.

        3. 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 shall 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; and

        4. The job opportunity contains requirements or conditions which preclude
          consideration of U.S. workers or which otherwise prevent their effective
          recruitment, such as:

           a. 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;

           b. The job opportunity’s terms, conditions, and/or occupational
              environment are contrary to Federal, state, or local law;

           c. The employer has no location within the U.S. to which domestic workers
              can be referred and hired for employment;

           d. The employer will not pay a wage or salary for the job to be performed;

           e. The job’s requirements are unduly restrictive or represent a combination
              of duties not normal to the occupation; or

           f.   The employer has not recruited U.S. workers according to DOL policies
                and procedures.

B. If the NPC Certifying Officer issues a notice that a certification is denied or cannot
   be made, the Final Determination letter shall:

        1. Detail the reasons why certification cannot be made;

        2. If applicable, address the availability of U.S. workers in the occupation as
          well as the prevailing wages and working conditions of similarly employed
          U.S. workers in the occupation;

        3. Indicate the specific DOL policies the employer should have, but did not,
          follow; and

        4. Advise the employer of the right to appeal by submit countervailing
          evidence directly to the USCIS.

C. 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. If extraordinary circumstances establish a need that requires


       the non-agricultural services or labor for more than one year, a new application
       must be filed;

   D. 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 not be earlier than the date
      certification was granted.

VI. Document Transmittal

   A. After making a temporary labor certification determination, the NPC Certifying
      Officer shall notify the employer, in writing, of the final determination;

   B. If certification is granted, the NPC Certifying Officer shall send the certified
      application containing the official temporary labor certification stamp and a Final
      Determination letter to the employer or, if appropriate, the employer’s agent or
      attorney. The Final Determination letter shall direct the employer to submit all
      documents together with the employer’s petition to the appropriate USCIS Office;

   C. If a notice is issued that certification has been denied or cannot be made, the NPC
      Certifying Officer shall return one copy of the Application for Alien Employment
      Certification, ETA Form 750, supporting documents, and the Final Determination
      letter to the employer, or, if appropriate, to the employer’s agent or attorney.

VII. Appeal of Notice that a Certification cannot be Made

     A. The finding by the NPC Certifying Officer, that a 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 DOL;

     B. In accordance with the USCIS regulations at 8 CFR Part 214.2(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.

VIII. 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.