H-2B labor certification procedures for entertainment work

Signed letter (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2006/TEGL31-05.pdf):

EMPLOYMENT AND TRAINING ADMINISTRATION ADVISORY SYSTEM
U.S. Department of Labor, Washington, D.C. 20210
CLASSIFICATION: Temporary Labor Certification/H-2B Entertainers
CORRESPONDENCE SYMBOL: DFLC
ISSUE DATE: May 31, 2006
ADVISORY: FOREIGN LABOR CERTIFICATION
TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 31-05
TO: FLC-NATIONAL PROCESSING CENTER DIRECTORS; FLC-BACKLOG ELIMINATION CENTER DIRECTORS
FROM: EMILY STOVER DeROCCO, Assistant Secretary
SUBJECT: Procedures for Temporary Labor Certification in the Entertainment Industry under the H-2B Visa Program
RESCISSIONS: DFLC TEGL No. 4-03
EXPIRATION DATE: Continuing

1. Purpose. This guidance letter and its attachments replace and supersede prior operating
procedures and policy guidance within the Employment and Training Administration (ETA)
for H-2B certifications in the entertainment industry, including attachments I - IV of ETA
Training and Employment Guidance Letter No. 4-03 (TEGL 4-03). This letter describes the
special procedures in ETA governing the H-2B nonimmigrant labor certification process for
temporary positions in the entertainment industry. This TEGL, as revised, identifies the
Chicago National Processing Center as the Center designated to issue ETA determinations
on applications for certification to employ temporary workers in the entertainment industry
which are initially filed by employers with designated Offices Specializing in Entertainment
(OSEs) within the State Workforce Agencies (SWAs). This is the only substantive change
from previous procedures, under which ETA’s New York City, Dallas, and San Francisco
Regional Certifying Officers were designated to issue determinations on these applications.

2. References. 20 CFR §§655.1 through 655.4, and §656.40.

3. Background. The H-2B visa classification applies to foreign workers coming temporarily to
the United States to perform nonagricultural work of a temporary or seasonal nature. The
Code of Federal Regulations at Title 20, Part 655, Subpart A requires that, before petitioning
the Department of Homeland Security's (DHS) United States Citizenship and Immigration
Services (USCIS) for authorization to hire H-2B workers — which requires the filing of a
nonimmigrant worker visa petition with USCIS — employers obtain: (1) a temporary labor
certification from the Secretary of Labor advising USCIS that the employer has established,
to the satisfaction of the Department of Labor (DOL), that no United States workers capable
of performing the temporary services or labor are available and that the foreign worker's
employment will not adversely affect the wages and working conditions of similarly employed
United States workers, or, alternatively, (2) a notice from DOL that such a certification cannot
be made.

For purposes of temporary employment of foreign workers under the H-2B program, DOL’s
certification addresses the occupational classification named in the employer's application
and the (un)availability of qualified United States workers, not the qualifications of individual
foreign worker(s) who might fill the employer’s opening(s) in that occupational classification.

Due to the unique characteristics of the entertainment industry, the Employment and Training
Administration has established the following procedures for the processing of employer
applications for certification of temporary positions in that industry. These procedures clarify
processing requirements and continue to provide that applications are filed with one of three
state Offices Specializing in Entertainment and then centralize processing authority for
temporary labor certifications related to the entertainment industry in the Chicago National
Processing Center.

4. Discussion.

Operating Guidelines

A. The Certifying Officer at the Chicago National Processing Center is designated as the
appropriate ETA official to issue determinations on applications for temporary
employment of foreign workers in the entertainment industry.

B. Offices of the SWAs in New York, New York; Austin, Texas; and Sacramento, California;
are designated as OSEs. These offices exclusively shall receive and process
applications for certification of temporary positions in the entertainment industry. Each
OSE shall accept applications directly from employers in its jurisdiction. The states
served by each OSE are listed in Attachments 1 and 2 to this guidance. OSEs shall
forward approved applications to the Chicago National Processing Center.

C. Canadian musicians who enter the United States 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 file nonimmigrant worker
petitions directly with USCIS in accordance with USCIS guidelines.

D. The Virgin Islands Nonimmigrant Alien Adjustment Act of 1981, Pub. L. 97-271, limits
temporary employment of entertainers in the U.S. Virgin Islands to periods not to exceed
45 days. Therefore, the period of labor certification for such applications may not exceed
45 days.

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 United States workers, e.g., there is no employer in the United States, the
OSE shall disregard the recruitment procedures below and immediately send the
application to the Chicago National Processing Center for determination.

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 jurisdictions). 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 United States workers, and to give the OSE and the
Chicago National Processing Center enough time to process the application and issue a
timely determination, employers should be advised to file their applications at least 60
calendar days but no more than 120 days prior to the employment start date (date of
need). The Department of Labor cannot assure a timely determination if the employer
files an application for labor certification less than 60 days prior to its date of need. The
OSE must return to the employer applications that are filed more than 120 days prior to
the date of need.

C. When filed, the temporary application must include:

1. A completed Form ETA-750, Part A, the “Offer of Employment” portion of the 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 United States workers, and
the results of those efforts.

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

E. 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
United States 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 United States 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 Chicago Certifying Officer, employers located in the
U.S. Virgin Islands will be allowed to conduct local recruitment using local
publications on the appropriate island, rather than conducting recruitment in
national publications found in the continental United States that may or may not be
available in the U.S. 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 United States worker who
applied for the job; and

3. Explain the lawful job-related reason for not hiring each United States worker.

H. The OSE shall write to the appropriate national union(s) (see Attachment 3) for U.S.
worker 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 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.

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

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

5. 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 National
Processing Center.

I. A recruitment or information source which asserts the availability of qualified
United States workers must provide specific information on the United States 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 Certifying Officer at the Chicago National
Processing Center.

K. 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

In making a final determination, the Chicago Certifying Officer shall consider
circumstances unique to the entertainment industry.

A. Decisions on applications by employers seeking temporary admission of nonimmigrant
foreign workers for temporary employment in entertainment occupations require special
consideration, 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 United States workers to fulfill the employer's prescribed
itinerary.

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

1. United States workers are available for the temporary employment opportunity:

a. The Chicago Certifying Officer, in judging if a United States 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 or options the employer could have used or may still use to recruit United
States 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 United States worker is available, the Chicago Certifying Officer
shall consider United States workers living or working in the area of intended
employment, and may also consider United States 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 Chicago Certifying Officer shall consider a United States 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 United States workers similarly employed and is
willing to accept the specific job opportunity.

d. For a determination that United States 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 United States workers or which otherwise would prevent their effective recruitment,
e.g., there is no employer in the United States. Such applications shall be denied on
the basis that United States workers are generally available for employment in the
entertainment industry and it was not shown that the employer made reasonable
efforts to obtain United States workers for the job. Under these circumstances, the
Department of Labor must assume that United States 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 (a maximum of 364 days, for purposes of
the H-2B program). 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 DHS. 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. DHS will consider all
such evidence in adjudicating the petition. The denial of certification letter or notice of
non-determination must set forth the specific reason(s) for denial. This statement of
reasons will enable DHS to better understand the basis for the Department of Labor’s
decision to deny the request, in the event the denial is appealed.

5. Action Required. The National Processing Centers in Atlanta and Chicago, the Backlog
Elimination Centers in Dallas and Philadelphia, and State Workforce Agencies (SWAs) are
requested to:

A. Provide the attached procedures to appropriate staff; and

B. Instruct staff to provide application forms and advise employers of procedures for filing
temporary labor certification applications in the entertainment industry to the Chicago
National Processing Center.

6. Inquiries. Questions or inquiries should be addressed to ETA’s Division of Foreign Labor
Certification.

7. Attachments.

1. Contact information for Chicago National Processing Center and Offices Specializing in
Entertainment (OSEs).
2. Map of OSEs and Areas Covered.
3. List of Unions with Substantial Membership in the Arts, Entertainment, and Media
Industry.

Attachment 1 (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2006/TEGL31-05_Att1.pdf):

Attachment 1


             Contact information for Chicago National Processing Center
                  and Offices Specializing in Entertainment (OSEs)

                       Chicago National Processing Center

                                  Charlene G. Giles
                                      Director
                             U.S. Department of Labor
                        Office of Foreign Labor Certification
                        Chicago National Processing Center
                               11 West Quincy Court
                              Chicago, IL 60604-2105
                            Telephone: (312) 886-8000

            Chris Gonzalez                     Dominic Pavese
            Chicago Certifying Officer         Chicago Certifying Officer
____________________________________________________________________________

                    Office Specializing in Entertainment (OSE)

                               Gloria Hood
                               N.Y. State Department of Labor
                               P.O. Box 703
                               New York, N.Y. 10014-0703
                               Telephone: (212) 621-9362

                                STATES SERVED

      Alabama           Connecticut      Delaware          Dist. of Columbia
      Florida           Georgia          Kentucky          Maine
      Maryland          Massachusetts    Mississippi       New Hampshire
      New Jersey        New York         North Carolina    Pennsylvania
      Puerto Rico       Rhode Island     South Carolina    Tennessee
      Vermont           Virginia         Virgin Islands    West Virginia
____________________________________________________________________________

                    Office Specializing in Entertainment (OSE)

                                Norma Martinez
                                Texas Workforce Commission
                                TWC Building
                                101 E. 15th, Rm. 120-T
                                Austin, Texas 78778
                                Telephone: (512) 463-2332



                                 STATES SERVED

                  Arkansas         Illinois          Indiana
                  Iowa             Kansas            Louisiana
                  Michigan         Minnesota         Missouri
                  Ohio             Oklahoma          Nebraska
                  New Mexico       Texas             Wisconsin
____________________________________________________________________________

                    Office Specializing in Entertainment (OSE)

                       Cecilia Garduno and Annie McCraw
                       California Employment Development Department
                       Foreign Labor Certification Office
                       P.O. Box 269070
                       Sacramento, California 95826-9070
                       Telephone: Ms. Garduno (916) 653-2813
                                   Ms. McCraw (916) 654-7749

                                 STATES SERVED

                 Alaska               Arizona             California
                 Colorado             Guam                Hawaii
                 Idaho                Montana             Nevada
                 North Dakota         Oregon              South Dakota
                 Utah                 Washington          Wyoming

Attachment 2 (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2006/TEGL31-05_Att2.pdf):

Map of OSEs and areas covered. Sacramento serves the western region; Austin serves the central region; New York City serves the eastern region. The map states: "All cases will be processed at the Chicago National Processing Center." Attachment 1 gives the jurisdiction for each state and territory.

Attachment 3 (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2006/TEGL31-05_Att3.pdf):

Attachment 3

                    UNIONS WITH SUBSTANTIAL MEMBERSHIP
               IN THE ARTS, ENTERTAINMENT, AND MEDIA INDUSTRY

Actors Equity Association                                          Approx. Membership: 40,000
Alan Eisenberg, Executive Director
165 West 46th Street
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
Thomas Lee, 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
1430 Broadway, 14th Floor
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
363 7th Avenue, 17th Floor
New York, New York 10001
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, Room 700
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
Vera McGee
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.
Los Angeles, California 90046
PH: (310) 289-2000
www.dga.org
In film directing: directors, production managers, and first and second assistant directors. In
tape directing: directors, associate directors, stage managers, and production assistants.

Guild of Italian American Actors                                        Approx. Membership: 70
Olga Barbato, Executive Secretary
Canal Street Station
P.O. Box 123
New York, New York 10013
PH: (212) 420-6590
[email protected]

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
1430 Broadway, 20th Floor
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.
 900 7th Street, NW
Washington, D.C. 20001
PH: (202) 833-7000
www.ibew.org
Technical and craft personnel employed in broadcasting, television, cable operations, sound
and video recording, and program production.

National Writers Union                                             Approx. Membership: 6,500
Gerald Colby, President
113 University Place, 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.
Los Angeles, 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 Director
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
29 West 38th Street, 15th Floor
New York, New York 10018
PH: (212) 581-0300
www.usa829.org
Professional scenic designers, scenic artists, costume and lighting designers, diorama 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
7000 West 3rd Street
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                                          Approx. Membership: 3,700
Mona Mangan, Exec. Director
555 West 57th Street, 12th Floor
New York, New York 10019
PH: (212) 767-7800
www.wgaeast.org
Writers in the field of motion picture, television and radio in areas east of the Mississippi.