No, labor certification applications filed prior to March 28, 2005, will not be automatically converted and/or processed under PERM. Applications filed under the regulation in effect prior to March 28, 2005, will continue to be processed at the appropriate Backlog Processing Center under the rule in effect at the time of filing. As of March 28, 2005, applications (Form 750) will no longer be accepted under the regulation in effect prior to March 28, 2005, and instead new applications (Form 9089) will need to be filed under PERM at the appropriate National Processing Center. Only if an employer chooses to withdraw an earlier application and refile the application for the identical job opportunity under the refile provisions of PERM will a previously filed application be processed under the PERM regulation.

No, while many provisions in the PERM regulation are the same as, or similar to, the provisions found in the regulation in effect prior to March 28, 2005, the PERM regulation can not be applied to applications filed under the former regulation. At this point, all provisions of the PERM regulation are applicable only to applications filed on or after March 28, 2005, under the PERM regulation.

 The standards used in making labor certification determinations under the new system will be substantially the same as those used in arriving at a determination in the former system. The determination will continue to be based on: whether there are not sufficient United States workers who are able, willing, qualified and available; whether the employment of the foriegn worker will have an adverse effect on the wages and working conditions of United States workers similarly employed; and whether the employer has met the procedural requirements of the regulations.

This is a brief list of some of the changes; they are covered in greater detail in the particular topic areas below.

Filing: Employers have the option of submitting the new form, the Application for Permanent Employment Certification, ETA Form 9089, electronically directly to a National Processing Center.

Filing: Supporting documentation is not submitted with the application.

Filing: Employers file applications directly with the U.S. Department of Labor and not with a State Workforce Agency (SWA).

Refiling: An employer may, at any time, withdraw an application filed under the regulation in effect prior to March 28, 2005, refile under PERM, and maintain the original filing date if the new application complies with the new regulation, the application is identical to the original application, and a job order has not been placed by the SWA for the original application.

Prevailing Wage: The offered wage must be equal to or greater than the prevailing wage. The wage must be at least 100% of the prevailing wage; the 5% deviation is no longer acceptable.

Prevailing Wage: Where an acceptable employer-provided survey provides a median and does not provide an arithmetic mean, the median will be used as the prevailing wage.

Prevailing Wage: The prevailing wage validity period will vary from no less than 90 days to no greater than one year depending on the wage source used.

Notice of Filing: A notice of filing must be posted in specific locations for ten consecutive business days rather than merely ten days.

Recruitment: The employer is required to conduct recruitment (more than 30 days and less than 180 days) prior to filing.

NOTE: While pre-filing recruitment was the basis for reduction-in-recruitment under the regulation in effect prior to March 28, 2005, the recruitment provisions in the new system differ.

Recruitment: Recruitment provisions are divided into professional and nonprofessional occupations and additional recruitment steps are required for professional occupations.

Recruitment: Sunday edition newspaper advertisements are required.

Recruitment: A job order, obtained through the SWA, is required.

Recruitment: The special handling provision has been removed. Optional recruitment provisions for college and university teachers are in § 656.18. Provisions for college and university teachers of exceptional ability in the science and arts are covered in § 656.5.

Revocation: Certifying Officers have the authority to revoke approved labor certifications.

Adjudication:Certifying Officers will either certify or deny applications. The interim step under the previous regulations of issuing a Notice of Finding (NOF) has been eliminated.

Schedule A, Professional Nurses: A Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate rather than merely passage of the CGFNS examination is required to qualify the foreign worker for Schedule A certification.

Schedule A, Professional Nurses: Passage of the National Council Licensure Examination for Registered Nurses (NCLEX—RN) examination is a means by which to qualify the foreign worker for Schedule A certification.

Schedule B: Schedule B has been eliminated.

The Office of Foreign Labor Certification (OFLC), as a matter of long standing policy, does not expedite the processing of applications due to the particular circumstances of any individual employer, foreign worker, or a family member.

August 03, 2010

The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, filing electronically provides prompts that assist in the completion of the ETA Form 9089.

An application for a Schedule A occupation must be filed by mail with the appropriate Department of Homeland Security office and not with a Department of Labor National Processing Center.

NOTE: Employers will not be permitted to submit applications by facsimile.

The employer can access a customer-friendly web site (https://www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.

NOTE: The web site also provides an option to permit employers that frequently file permanent applications to set up secure files within the ETA electronic filing system containing information common to any permanent application the employer files. Under this option, each time an employer files an ETA Form 9089, the information common to all of its applications, e.g., employer name, address, etc., will be entered automatically and the employer will only need to enter the data specific to the application at hand.

Yes, the system provides the employer with the choice, upon finishing an online session, of either saving an application as a draft or submitting it to the Atlanta National Processing Center.

Applications for Permanent Employment Certification, ETA Form 9089, must be mailed to the following address:

United States Department of Labor
Employment and Training Administration
Atlanta National Processing Center
Harris Tower
233 Peachtree Street, N.E., Suite 410,
Atlanta, Georgia 30303

The employer can contact the
Atlanta National Processing Center at:
E-mail: plc.atlanta@dol.gov
Telephone: (404) 893-0101
FAX: (404) 893-4642

In order to file permanent labor certification applications on-line, the employer must have a Permanent Online System account, username, password, and PIN. The account allows for the preparation and management of applications on-line, the username and password are necessary to access the account, and the PIN is required to submit applications on-line.

Permanent Online System account – An account is created after an employer has submitted registration information on-line at https://www.plc.doleta.gov and the employer information is verified by DOL. Account creation is a means by which to control filing authorization and to provide account holders filing management capabilities. An employer must be registered and be in possession of a PIN in order to file applications on-line. Upon verification of the employer's information, a password and confirmation of the account holder's username are sent to the employer in one email and, for security reasons, the PIN in another. It must be noted that upon accessing the account for the first time, the system requires the DOL password be changed to a new password. It is critical that the employer be aware of and know the new password, as only an individual in possession of the account's valid username and password is able to access the account.

Sub-account – The holder of a Permanent Online System account is able to create multiple sub-accounts with individual usernames and passwords for persons authorized by the employer to file applications in its name, to include attorneys and agents. It is a means by which to provide the employer the security of ensuring only persons authorized by the employer are filing on the employer's behalf. In creating a sub-account, the employer is able to designate whether the sub-account holder is the employer's employee, the employer's agent or the employer's lawyer. The employer is also able to designate the level of security access available to the sub-account holder.

NOTE: While the employer is permitted the opportunity to designate persons to represent the employer in the application filing process, the employer must recognize that ultimate responsibility for the accuracy of all representations made by such designated persons rests with the employer. Therefore, the employer is encouraged to establish measures designed to ensure only legitimate dissemination and use of account information.

Federal Employer Identification Number (FEIN) – The FEIN is provided to the employer by the IRS. It is a means by which the Department of Labor (DOL) verifies the bona fides of the employer and ensures that only legitimate employers are able to avail themselves of the labor certification process. In order to satisfy the definition of employer for purposes of labor certification, all employers, including employers of household domestic workers, must possess a valid FEIN.

Username – The username is a log-in name provided by the employer registrant. After registration, upon successful employer verification, confirmation of the username is emailed to the employer by DOL. It is a means by which to identify the account holder and establish access authority. Each username is unique; duplications are not accepted.

Password – An initial password is provided by the Permanent Online System. After registration, upon successful employer verification, the temporary password is emailed to the employer by DOL. Upon activation of an account after registration, the individual initially accessing the account is required to create a new password. The password is a means by which to identify the account holder and establish access authority. NOTE: An account can only be accessed by the holder of the username and password. Where the password is changed, only an individual with the user name and the new password will be able to access the account.

Personal Identification Number (PIN) – The PIN is provided to the employer after registration upon successful employer verification by DOL. It is a means by which to safeguard on-line filing. Only an individual in possession of a PIN is able to actually submit a labor certification application on-line. The PIN used in submitting an application must be the PIN of the employer named on the application filing the application.

Yes, an attorney or agent may submit applications under the following circumstances. An employer must complete the registration process as explained at https://www.plc.doleta.gov, including the initial log-in. During the initial log-in, the employer will change the employer's temporary password (as assigned by the system during registration) and once logged-in, the employer can establish a sub-account for an attorney or agent. The employer will select a username for the attorney or agent, and the system will assign a temporary password. The attorney or agent will receive an e-mail with the username, temporary password, and the employer's PIN. When the attorney or agent logs in and changes the attorney's or agent's password, the attorney or agent is then permitted to complete and submit applications on-line on behalf of the employer using the PIN of the employer in whose name the application is being filed.

The employer is able to view all applications filed under the employer's account, to include all applications filed under the employer's sub-accounts, and we recommend employers implement a mechanism by which to identify any unauthorized use of the employer's PIN and/or usernames and passwords. We also recommend employers require those persons to whom sub-accounts have been assigned to carefully monitor the accounts for unauthorized activity. If the employer uncovers unauthorized use of the PIN and/or usernames and passwords, the employer must immediately contact the Department of Labor at PLC.HELP@DOL.gov.

NOTE:The employer is advised to set up a sub-account for the attorney or agent. Thereafter, the attorney or agent, using the sub-account's username and password, will be able to access the sub-account and be able to do what is required and/or needed to file labor certification applications on behalf of the employer, depending on the level of access granted by the employer. In filing applications for an employer, the attorney or agent must use the employer's PIN, which is provided to the attorney or agent upon creation of the sub-account along with the sub-account's own username and password. The employer is cautioned that ultimate responsibility for the representations of its attorney and/or agent rests with the employer.

No, a parent company can not create sub-accounts for subsidiaries having FEINs different from that of the parent company in order to centralize administration and control. When an application is being completed using a sub-account, employer information from the main account, including FEIN and address, is automatically populated into the application and that information can not physically be changed or altered.

No, mailing in an application will not prove more successful, as the mailed-in application, upon receipt at the National Processing Center, is initially merely date stamped. Until the application is data entered into the electronic system by a data entry person (using the exact information shown on the ETA Form 9089), processing will not begin on the application. Once entered into the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. If there are two identical applications, one submitted electronically and one mailed-in, there will be no difference in how they are processed. The only difference may be in processing time; a mailed-in application will take longer, as not only mailing but also the data entry time will be involved. Remember: the on-line system will identify mistakes (e.g. entering four digits for a zip code instead of five digits) before allowing the application to be submitted, but the data entry person must enter the information exactly as shown on the application; a mistake on the form may trigger an audit or denial.

There are two locations where you may send your questions, depending upon the type of question asked.

If you have a technical question (for example, if you forgot your password), then please email those questions to plc.help@dol.gov.

If you have a program specific question (for example, if you have a question concerning the content of an advertisement) or a policy question, then please email your questions to PLC.Atlanta@dol.gov (the Atlanta National Processing Center)

Please note: Questions should no longer be e-mailed to perm.dflc@dol.gov.

Under the old and new permanent labor certification regulations, DOL certifies that there are not available U.S. workers for a particular "job opportunity." See, e.g., 20 CFR 656.10(c) (new PERM regulation) and 656.20(c) (prior regulation). DOL's longstanding policy has been that an employer is not prohibited from filing applications for the same foreign worker involving different, legitimate job openings to which U.S. workers may be referred. See, e.g., Field Memorandum 48-94 (May 16, 1994) (Policy Guidance on Alien Labor Certification Issues at § 6). However, DOL has not processed or certified multiple labor certifications for the same foreign worker and same job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

In the months since the PERM regulation's streamlined procedures for filing and processing of permanent labor certification applications took effect on March 28, 2005, some employers have filed multiple electronic applications for the same foreign worker and same job opportunity. In some cases, the multiple applications are identical in all respects and may have been the result of inadvertently repeating the "submit" function. In other cases, the applications differ in minor respects, such as answering questions regarding job requirements differently or varying in descriptions of skill requirements. In some cases, these minor differences may have been intended to prematurely respond to electronic denials (that is, in advance of receiving the written denial letter) or to test the system's responsiveness and auditing criteria.

DOL intends to apply its longstanding policy regarding multiple applications to multiple applications filed under the new PERM regulation. Therefore, an employer may not have more than one Form 9089, Application for Permanent Employment Certification, in process under the PERM regulation for the same foreign worker for the same job opportunity at any given time.

Recognizing that multiple filings are already in the PERM queue for the same employer, foreign worker and job opportunity, we have developed the following procedures to transition in implementation of this policy to PERM:

1. If an employer currently has multiple applications in process under PERM for the same foreign worker and job opportunity, the employer must withdraw, by January 19, 2006, all applications other than the one it wants processed. (For withdrawal information, see the separate FAQ on procedures for withdrawing an application.)
2. As of January 19, 2006, if multiple applications from an employer for the same foreign worker and same job opportunity are still pending under PERM, we will assume that the employer wishes the last-filed application to be processed (since this presumably includes any corrections or clarifications from earlier filings) and the other pending PERM applications for the same foreign worker and the same job opportunity will be denied.
3. After January 19, 2006, if an application for a particular employer/foreign worker/job opportunity is pending under PERM and a second application is filed under PERM for the same employer/foreign worker/job opportunity, we will continue to process the first-filed PERM application and deny subsequent PERM filings except where the employer follows the procedures outlined here. If the employer wishes to file a new or changed application under PERM for that same foreign worker and job opportunity, the employer should not file the new PERM application until the employer formally withdraws the PERM application currently in process or the employer has received the Final Determination form notifying the employer that the previous application is denied. NOTE: An employer may not file a new application for a foreign worker while a request for review is pending with the Board of foreign worker Labor Certification Appeals (BALCA) for that same alien, employer, and job opportunity. See 20 CFR 656.24(e)(6).

DOL will continue to apply its longstanding policy regarding multiple applications under Field Memorandum 48-94 where multiple cases have been filed and are being processed under the old regulation at Backlog Elimination Centers. DOL will continue to process and certify multiple permanent labor certification applications filed under the prior regulation for the same foreign worker if the employer is proposing to employ the foreign worker in multiple different bona fide job openings to which U.S. workers can be referred. DOL will not process or certify multiple labor certifications filed under the prior regulation for the same foreign worker, employer, and job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

If a BEC identifies multiple pending applications for the same employer, job opportunity, and foreign worker, the BEC will issue a Notice of Findings for all related applications, and provide the employer the opportunity to identify which application contains the bona fide job opportunity. Should an employer currently have multiple applications pending at a BEC for the same employer, job opportunity, and foreign worker, the employer may take the initiative and notify the BEC as to which application it wishes to have processed and withdraw all other applications.

This FAQ does not address the situation in which an application for the same employer, foreign worker and job opportunity is pending under both the prior and new PERM regulation. DOL is considering stakeholder input on this situation, which in some cases may have implications for priority dates.

We have removed the response to this question posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future.

The status indicators for an application filed on-line are as follows:

Incomplete: A case number preceded by a "T" indicates that the application has not been formally "filed" by the employer or its agent, i.e., electronically submitted, and is still a temporary draft. When an application is electronically submitted to a National Processing Center, the "T" changes to an "A."

In process: An "in process" status indicates the application is in the process of moving through the DOL's certification process. If the application is in a stage of review requiring further information/documentation from the employer, the employer will be notified.

Withdrawn: A "withdrawn" status indicates the employer has withdrawn the application.

Denied: A "denied" status indicates the application is denied. A Final Determination form, stating the reasons for the determination and advising the employer of how to request review, should the employer choose to do so, will be sent to the employer. The Final Determination must be included in any request for review, therefore, the employer must wait to receive the form before making such a request. The employer is also advised to wait for the Final Determination before filing a new application for the same foreign worker to avoid repeating errors made in the original application.

Appeal: An "appeal" status indicates the application is under reconsideration and/or review and is considered "in process." No new application for the same foreign worker can be filed while an application is in a reconsideration and/or review queue.

Certified: A "certified" status indicates the labor certification is granted. The certified application and a complete Final Determination form will be sent to the employer, or, if appropriate, to the employer's agent or attorney, indicating the employer may file all the documents with the appropriate office in the Department of Homeland Security (DHS).

Employer Point of Contact Information

The employer must designate as its point of contact an employee of the employer who is authorized to act on its behalf in labor certification matters pertaining to the specific job opportunity for which certification is sought. The designated employee may not be the sponsored foreign worker. The employer point of contact will be contacted by the National Processing Center to verify whether the employer is authorizing the filing of the application and sponsoring the foreign worker named therein. Therefore, an authorized employee's name and contact information must be listed in Section D of the employer's submitted ETA Form 9089. It is not acceptable, for example, to reenter the employer's name listed in Section C of the ETA Form 9089 or provide a generic title such as "HR Manager." Moreover, as indicated on the ETA Form 9089 and accompanying instructions, such a person's name and/or contact information, e.g., the phone number and email address, must be different from the attorney or agent name and/or contact information listed in Section E of the ETA Form 9089, unless the attorney or agent is an employee of the employer.

October 12, 2010

The employer can designate its attorney or agent as its point of contact in Section D in addition to Section E, Attorney or Agent Information, only when the attorney or agent is an employee of the employer. Otherwise, the point of contact must be an employee who is authorized to act on the employer's behalf in labor certification matters and, as indicated on the ETA Form 9089 and accompanying instructions, the point of contact name and contact information, e.g., the phone number and email address, must be different from the attorney or agent name and contact information listed in Section E. The designated employee may not be the sponsored foreign worker.

October 12, 2010

The following are the abbreviations for the listed Territories in the State/Province dropdown menu:

1. AS - American Samoa
2. FM - Federated States of Micronesia
3. MH - Republic of the Marshall Islands
4. MP - Commonwealth of the Northern Mariana Islands
5. PW - Republic of Palau

March 01, 2012

The Department takes no position as to whether an employer can use third party software tools. However, it is important to remember that these third party tools were developed without the participation, review, or approval of the Department or the Office of Foreign Labor Certification. As such, the Department cannot vouch for the accuracy or integrity of data submitted using third party tools. It is the responsibility of the party using such tools to review the submitted application completely for accuracy and errors prior to submitting.

When making inquiries about situations encountered while submitting data to the PERM Case Management System please be sure to advise the helpdesk if you are submitting information with the aid of a third party software application. In some situations you may need to contact the developer of the third party system to resolve issues.

May 29, 2012

Where an employer or its representative submits unsolicited documentation in conjunction with, or after filing an ETA Form 9089, the application will be automatically selected for audit except in the case of a request for reconsideration filed after an application is denied. Where an employer or its representative submits unsolicited documentation prior to filing an ETA Form 9089, i.e., where there is no record at the National Processing Center of an application having been submitted by the employer, the documentation will be returned to the sender.

Please note that where an employer or its representative does receive a request for information or documentation from the National Processing Center, e.g. a request regarding confirmation of the bona fide existence of the business or sponsorship verification, such a request does not necessarily signify the application has been placed into the audit queue. However, failure to respond to the request for information or documentation may result in the application being placed in the audit queue or denied.

August, 2010

The employer must file a completed Application for Permanent Employment Certification, ETA Form 9089.

Except as required for applications filed under § 656.5, Schedule A, supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.

August 03, 2010

The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification, ETA Form 9089.

Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

NOTE: Where the employer provides a copy of an application to a Certifying Officer pursuant to an audit or otherwise, the copy must be signed.

PERM is effective March 28, 2005, and will apply to all applications filed on or after the effective date.

If all applicable provisions including timeframes of the regulation have been satisfied, an application may be filed under the PERM regulation on or after the effective date. Required timeframe provisions include, among others: that recruitment be conducted at least 30 days, but no more than 180 days, prior to filing under § 656.17; that filing must be within 18 months after selection under § 656.18; and that notice of filing be provided between 30 and 180 days prior to filing under § 656.10.

August, 2010

No, only an employee or owner of the employer entity may register to use the Permanent On-line System because employers must make the attestations required for the permanent application process and a PIN will only be assigned to an employer. The registration must be submitted by an individual with actual hiring authority for the employer. The individual listed under the "Employer Contact Information" section of the registration page must be the individual with actual hiring authority for the employer and cannot be the attorney or agent. During the registration process, the employer may create sub-accounts for attorneys or agents. We will cancel or deny registrations submitted by non-employers. Submission of a permanent labor certification application using a PIN assigned to a non-employer will be grounds for denial or revocation of a permanent labor certification.

NOTE: To withdraw or delete a registration account (as in a situation where the original registration was set up showing an attorney or representative as the "user" and/or where the contact person for the employer is not a person with actual hiring authority), please e-mail PLC.HELP@dol.gov, provide the user name and password, and request the account be deleted. At that point, the person with actual hiring authority can re-register with the correct information.

November, 2014

Yes, if a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all of the filing and recruiting requirements of the new PERM regulation.

NOTE: Indicating on the Application for Permanent Employment Certification, ETA Form 9089, the desire to use the filing date from a previously submitted application, i.e., marking "yes" to question A-1, is deemed to be a withdrawal of the original application.

NOTE: If a job order for an application has been placed by the State Workforce Agency (SWA) as part of the traditional recruitment process under the regulations in effect prior to March 28, 2005, the employer is prohibited from refiling the application and retaining the original filing date. However, if an employer placed a job order as a recruitment step in a reduction-in-recruitment application, the job order is not considered a job order placed by the SWA as part of the traditional recruitment process and the employer is permitted to withdraw and refile.

November, 2014

No, having a different prevailing wage on the refiled application from that on the original will not impact whether or not the job opportunity is identical. For a job opportunity to be identical, the regulation requires that the employer (including address), alien, job title, job location, job requirements, and job description be identical in both the original and refiled applications. It is quite possible that the prevailing wage in the new application, which must be filed in accordance with the PERM regulations and which must evidence a current prevailing wage, will not be the same as the prevailing wage in the original application.

The Department of Labor does not provide counsel as to questions of this nature. However, employers are reminded refiled labor certification applications must conform to the provisions of the PERM regulation.

No one method for saving and/or storing necessary documents is prescribed, nor is any particular method proscribed. The burden of establishing the validity of any documentation provided in support of a labor certification application rests with the employer. In establishing a method by which to save/store supporting documentation, the employer must remember that the responsibility for producing valid and defensible documentation in the event it is requested by a Certifying Officer rests solely with the employer. Such documentation must be retained by the employer for five years from the date of filing.

The original filing date (priority date) is the date the original application was initially accepted for processing by the SWA under the basic labor certification process; it is not the date the application was accepted as a RIR conversion application.

No, an application can not be refiled under the PERM optional special recruiting provision on behalf of an foreign worker selected pursuant to a competitive recruitment and selection process if eighteen months have passed since the selection of the foreign worker.

Where an employer is required to provide documentation within an established time period and is unable to do so, the employer should request an extension in writing. The regulations permit the Certifying Officer, in his or her discretion, to grant an extension where the employer provides a legitimate reason for the request.

An employer may submit a request in writing outlining the reason for its need for an extension to the Atlanta National Processing Center (NPC) either by:

E-mailing the request to: plc.Atlanta@dol.gov, or

Mailing the request to:

Department of Labor
ATTN: Request for Extension
Employment and Training Administration
Atlanta National Processing Center
Harris Tower, 233 Peachtree Street, Suite 410
Atlanta, Georgia 30303

Extension requests should clearly reference the application number and type of documentation (e.g. audit request, business existence check) and provide as much detail as possible regarding the application in question, including the employer's name and foreign worker's name. Although extension requests are expected to be filed prior to a deadline, the Certifying Officer may accept requests after the deadline in rare circumstances such as when conditions due to extreme weather preclude the employer from timely submitting documents to the Atlanta NPC. If the employer is submitting its extension request after the established deadline, it should outline the need for the extension as well as fully explain the reason(s) for the delay in submitting its request.

In the case of responses to appeals, audits and requests for information, specifically, the timeliness of the employer's response is based on the date it is mailed (and postmarked) and not the date it is received by the Atlanta NPC. Therefore, if the employer's documentation already has been submitted by mail and postmarked on or before the established deadline, an extension request is not necessary.

Please note: Applications for Permanent Employment Certification that are mailed-in are accepted for processing, i.e., filed, when date stamped by the Atlanta NPC. A postmark or other proof of mailing does not serve to establish a filing date.

April 05, 2011

The employer may be required, depending on the circumstances, to establish that the position offered is actually available at the time of the foreign worker's proposed entrance into the United States. For example, the employer may be asked to provide evidence that a plant or restaurant, which is in the planning stage or under construction at the time the application is filed, will be completed at the time of the foreign worker's proposed entrance into the United States. While the employer may be fiscally able to pay the foreign worker, other circumstances, such as non-viability of the business itself, may preclude the employer from placing the foreign worker on the payroll.

Employers may have agents and/or attorneys represent them, however, the employer is required to sign in Section N of the Application for Permanent Employment Certification, ETA Form 9089, that the employer has designated the agent or attorney identified in Section E to represent it, and by virtue of its signature, is taking full responsibility for the accuracy of any representations made by the attorney or agent. In signing, the employer acknowledges that to knowingly furnish false information in the preparation of the application form and any supplement thereto or to aid, abet, or counsel another to do so is a federal offense punishable by a fine or imprisonment up to five years or both under 18 U.S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621.

NOTE: An attorney or agent is not permitted to register to use the Permanent On-line System for the employer. Only an employee or owner of the employer entity may register. Nor is an attorney or agent of either the foreign worker or the employer permitted to participate in interviewing or considering U.S. workers for the job offered the foreign worker. The agent or attorney may only participate if the agent or attorney is the employer's representative, i.e., the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the foreign worker, but which do not involve labor certifications.

If the application was filed online, the employer may withdraw its pending application by accessing the employer’s account in the Permanent Online System.  Instructions are available via the PERM Online System website under the “Online Help” tab.  In addition, the employer may submit a withdrawal request via the “Upload Documents” and the Help Desk Inquiry tools in the Permanent Online System.  

If the application was filed by mail, or in the event an employer is unable to withdraw the pending application electronically, the employer should send a withdrawal request by email to the Atlanta National Processing Center at PLC.Atlanta@dol.gov.  To ensure the request is processed expeditiously, please include the following information in the email request: 

The subject line of the email must indicate it is a "Withdrawal Request – Pending PERM Application," and include the application case number and the employer's name.

In the body of the email, include the following information:

1. Application Case Number

2. Employer's Name

3. Employer's FEIN

4. Foreign Worker's Name

5. Name and title of individual requesting withdrawal

As an alternative to email, a letter with the above information must be mailed to the Atlanta National Processing Center at the following address:

Atlanta National Processing Center

ATTN: Application Withdrawal Request

233 Peachtree Street, Suite 410

Atlanta, Georgia  30303

IMPORTANT NOTE: While an employer may request to withdraw a pending application, the Atlanta National Processing Center is under no regulatory requirement to accept any submitted withdrawal request.  Moreover, if an employer seeks to withdraw an application after it receives an audit notification letter, the employer is not relieved of its requirement to comply with the audit procedure provisions of 20 CFR § 656.20 and must submit all required audit information and/or documentation before the withdrawal will be processed.  The employer must submit the required information and documentation to the Certifying Officer by the date specified in the audit notification letter.

November, 2014

No, the employer does not need to wait to receive confirmation of withdrawal prior to refiling an application.

In the event an employer is unable to withdraw electronically, the employer should send a withdrawal request by e-mail to the Atlanta National Processing Center at: PLC.Atlanta@dol.gov. To ensure the request is processed expeditiously, please include the following information in the e-mail request:

Show the words "Withdrawal Request" and the employer's name in the subject line of the e-mail.

In the body of the e-mail, include the following information:

1. Application Number
2. Employer's Name
3. Employer's EIN
4. Foreign worker's Name
5. Name and title of individual requesting withdrawal

If the application was filed by mail or if the employer does not have access to e-mail, a letter must be mailed to the National Processing Center using the format as outlined above.

An employer may request to withdraw a certified PERM application at any time, via the Help Desk Inquiry tool in the Permanent Online system, using email or mail.  An employer making its withdrawal request by mail must send it to the Atlanta National Processing Center at the following address:

Atlanta National Processing Center

ATTN: Certification Withdrawal

233 Peachtree Street, Suite 410

Atlanta, Georgia  30303

If a request is submitted by email, the employer must send a withdrawal request to the Atlanta National Processing Center at PLC.Atlanta@dol.gov.  All requests must include the following information: 

Indicate "Withdrawal Request - Certified PERM Application" and the employer's name in the subject line of the letter or email.

In the body of the letter or email, include the following information:

a. Application Case Number

b. Employer's Name

c. Employer's FEIN

d. Foreign Worker's Name

e. Name and title of individual requesting withdrawal

IMPORTANT NOTE:  An employer making a withdrawal request by mail must enclose, with its request, all pages of the original certified Form ETA-9089 issued by the Atlanta National Processing Center.  An employer making its withdrawal request via email must submit the certified Form ETA-9089 by mail and include, as a cover to the certified form, a copy of the emailed withdrawal request.

After requesting a withdrawal, an employer may not file a new Form ETA-9089 for the same foreign worker in the same job opportunity until the Atlanta National Processing Center has verified one of the following: 

(A) The status of the pending application is now in "Withdrawn" status or “Denied” status; or 

(B) Employer receives confirmation (via standard U.S. Mail or email) from the Atlanta National Processing Center that the Form ETA-9089 that was in process has been withdrawn. 

The Office of Foreign Labor Certification recognizes that there are times when the employer may have a specific reason for seeking post-expiration withdrawal.  In those rare instances, the employer must send a request via the Help Desk Inquiry tool in the Permanent Online System or an email to PLC.Atlanta@dol.gov explaining the circumstances why it believes it is necessary to note a withdrawal in the PERM system.  These requests will be considered on a case-by-case basis.

OFLC has consistently interpreted “business day” to mean Monday through Friday, except for Federal holidays. However, where an employer is open for business on a Saturday, Sunday, and/or holiday, the employer may include the Saturday, Sunday and/or holiday in its count of the 10 consecutive business day period required for the posting of the Notice of Filing so long as the employer demonstrates that it was open for business on those days. Similarly, where an employer is not open for business any day, Monday through Friday, the employer should not include any such days in its count of the 10 consecutive business day period required for the posting of the Notice of Filing

December 21, 2010

If an employer is requested on audit or otherwise to demonstrate that it was open for business on a Saturday, Sunday, and/or holiday at the time of posting, the employer must provide documentation which establishes that on those days: 1) its employees were working on the premises and engaged in normal business activity; 2) the worksite was open and available to its clients and/or customers, if applicable, as well as to its employees; and 3) its employees had access to the area where the Notice of Filing was posted

December 21, 2010

Within 30 days of the date of the determination, the employer may file a request for reconsideration with the Certifying Officer and provide documentation demonstrating that at the time of posting the Notice of Filing, the employer was open for business. If the application is already on appeal before the Board of Alien Labor Certification Appeals, then the employer may file a request to remand for further processing.

December 21, 2010

Yes, for college and university teachers, notices of filing may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment.

Yes, the last day of the posting must fall at least 30 days prior to filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application.

The employer must provide the address of the appropriate Certifying Officer for the area of intended employment. Addresses for the National Processing Centers and Certifying Officers, including a chart of the states and territories within their jurisdiction, can be found under the section, How to File, above.

If the employer normally recruits for similar positions in the employer's organization through in-house media, then the employer must publish the notice of filing in its in-house media in accordance with the employer's normal procedures for recruitment of similar positions or for 10 consecutive business days, whichever is of longer duration.

No, posting of the notice of filing on in-house media, including an "Intranet," can not be counted as an additional recruitment step, as it is believed that potential job applicants would only view the notice as a legal or information notice, not as an advertisement for a job opportunity, and would not apply.

No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process. However, the notice of filing must include the required advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor's regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).

NOTE: At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.

Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor's regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).

NOTE: At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.

If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

If the work-site(s) is unknown and the staffing agency has no clients, the application would be denied based on the fact that this circumstance indicates no bona-fide job opportunity exists. The employer cannot establish an actual job opportunity under this circumstance. A denial is consistent with established policy in other foreign labor certification programs where certification is not granted for jobs that do not exist at the time of application.

The regulations require that the employer publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The language should give sufficient notice to interested persons of the employer's having filed an application for permanent employment labor certification for the relevant job opportunity. It is not required to mirror, word for word, the physical posting. In most cases, the physical posting language will be the most efficient way to electronically post the Notice of Filing; in others, the software program used to create the electronic in-house posting may be unable to accept all of the language used in the physical Notice of Filing. In every case, the Notice of Filing that is posted to the employer's in-house media must state the rate of pay and apprise the reader that any person may provide documentary evidence bearing on the application to the Certifying Officer. If there is insufficient space to include the Certifying Officer's address, then information as to where the address can be found must be provided.

The employer must recruit under the standards for professional occupations set forth in § 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at § 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.

November, 2014

Generally, all the required steps must be different. Steps can not be duplicated nor can one step be used to satisfy two requirements, except in the case of copies of web pages generated in conjunction with the newspaper advertisements which can serve as documentation of the use of a web site other than the employers. For example, the employer can not count two advertisements in a local and/or ethnic newspaper, or two postings on a web site, as two steps. Similarly, the employer can not use a professional journal in lieu of a second Sunday newspaper advertisement and then count it again as an additional "trade or professional organizations" recruitment step, or count the job order again as an additional "web site other than the employer's" step.

Yes, but only if the placement is not being used to satisfy the job order requirement. Where the State Workforce Agency job order placement procedure consists of placement of the job order on AJB, then that job order placement can not be counted as one of the additional recruiting steps.

No, it is not permissible to use other forms of media other than the alternative steps listed in the professional occupations provision as additional steps. The restriction on acceptable forms of media is governed, in part, by questions of verifiability. Employers, however, are not precluded from using these means as above and beyond the regulation requirements

Pursuant to 20 CFR 656.17(e)(4)(ii)(G), an employer can document its use of an employee referral program with incentives by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered as well as other appropriate documentation.  In addition to establishing the existence of a referral program, employers must document that its employees were aware of the vacancy for which certification is being sought through means such as a posting on the employer's internal web site.  The Notice of Filing provided to satisfy § 656.10(d) shall not be sufficient for this purpose.

August 03, 2010

There is no published list of acceptable publications.

Most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers (or journals for certain professional positions) that are most likely to bring responses from able, willing, qualified, and available U.S. workers. The employer must be able to document that the newspaper and/or journal chosen is the most appropriate to the occupation and the workers likely to apply for the job opportunity.

NOTE: In the case of a rural area where there is no newspaper with a Sunday edition and the employer chooses to use the edition having the widest circulation, the employer must be able to document the edition chosen does, in fact, have the widest circulation.

November, 2014

The employer may not use an electronic national professional journal to satisfy the provision found at 20 CFR §656.17(e)(1)(i)(B)(4) permitting the use of a journal as an alternative to one of the mandatory Sunday advertisements for professional positions. Section 656.17(e)(1)(i) clearly requires two print advertisements. This requirement applies equally to the newspaper advertisements identified in (B)(1) and the journals advertisements referenced in (B)(4).

An employer may use an electronic national professional journal when utilizing the optional special recruitment procedures for college and university teachers per §656.18(b)(3) in accordance with the Department's guidance published on August 31, 2011, in an Frequently Asked Question¹. Additionally, if the employer wishes to use a professional or trade organization as a recruitment source to satisfy the additional recruitment required for professionals per §656.17(e)(1)(ii)(E), the employer may use that organization's electronic journal to place an advertisement. Dated copies of pages from the electronic journal showing the advertisement can serve to satisfy the documentation requirement.

¹Is the employer permitted to use an electronic or web-based national professional journal instead of a print journal when conducting recruitment under 20 CFR 656.18, Optional special recruitment and documentation procedures for college and university teachers?

September 08, 2011

Generally, the newspaper advertisements must be placed on two different Sundays at least 30 days, but no more than 180 days, prior to filing the application. The Sundays may be consecutive.

However, if the job opportunity is located in a rural area that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation.

This exception applies to rural newspapers only. If a suburban newspaper has no Sunday edition, the employer must publish the Sunday advertisement in the most appropriate city newspaper that serves the suburban area.

For journals, there is no specific edition requirement, however, the advertisement must be placed at least 30 days, but no more than 180 days, prior to filing the application.

No, while the majority of the recruitment must take place within the 30 - 180 day timeframe, one of the three additional steps required for professional occupations may consist solely of activity which takes place within 30 days of filing. However, none of the steps may take place more than 180 days prior to filing the application.

Beyond the standard "no greater than 180 days and no less than 30 days prior to filing" there are no further timeframe requirements. The only sequencing requirement is that the two Sunday advertisements must be placed on two different Sundays which may be consecutive.

NOTE: There is one exception to the standard 30 – 180 days prior to filing timeframe: One of the additional steps required for recruitment for professional occupations may be conducted within 30 days prior to filing. However, no steps may have taken place more than 180 days prior to filing.

The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of the foreign worker.

Timelines are the number of days prior to or after a required event. When counting a timeline, the day of the event is not counted, the next day is counted as one, and the last day is included in the count. Thus, when determining the required 30 day timeline prior to filing an application for a newspaper advertisement placed on Thursday, February 1, 2007, the Thursday is not counted because it is the day of the event. Friday, February 2nd, is counted as day 1 of the timeline; Saturday, February 3rd, is day 2; etc., up until Saturday, March 3rd, which is day number 30. The application can be filed on the 30th day after the event, Saturday, March 3rd, but not before. The same result is achieved if counting back from the day of the filing. If the application is filed on Saturday, March 3rd, the 3rd is not counted because it is the day of the event. Friday, the 2nd, becomes day 1; Thursday, the 1st, is day 2; back to February 1st, the 30th day. Under the limitation precluding filing in the 30 days prior to the date of filing, if an application was filed on March 3, 2007, a newspaper or national journal advertisement could have been placed as late as February 1st, but no later.

Time Periods are the number of days during which an activity must take place. Examples of time periods are the requirement that a job order must be placed for 30 days and the requirement that a Notice of Filing must be posted for ten consecutive business days which may include Saturdays, Sundays and Federal holidays where the place of business is open for business on those days. When counting a time period, both the start date and end date are included in the count. Thus, if a job order is posted from February 1, 2007, through March 8, 2007, February 1st, is counted as day 1; February 2nd, is day 2; March 2nd, is day 30; and March 8th, is day 36.

To determine the first date on which the application can be filed after posting a job order, the 30-day time period for the job posting and the 30-day prior to filing timeline must both be calculated. In the example we are using above, March 2nd, [not March 8th] is the last day of the 30 day time period for the job order placement and is considered the event day so it is not counted in the timeline. Rather, the counting of the filing timeline starts on March 3rd, which is counted as day 1; March 4th, is day 2; etc., up until April 1st, which is day 30, the earliest possible filing date for an application. In counting backward from April 1st to February 1st, the 1st is only day 59, not day 60, the outcome if the 30 day time period required for the job order plus the 30 day timeline restriction prior to filing were added.  This is because two counting paradigms are being combined-one where the event (or start date) is counted and the other where it is not. Counting forward 60 days from the start of the 30 day job order time period does provide the correct calculation if the first day of the event is counted, as required, when counting days in a time period To avoid mistakes, it is recommended that the time period and the timeline be counted separately.

As another example, the regulation requires the Notice of Filing to be posted for a time period of ten consecutive business days. Assume that a place of business is open for business Monday through Friday and is closed holidays. If the order is posted on Monday, April 30, 2007, Monday is day 1; Friday, May 4th, is day 5; the following Monday, May 7th, is day 6; and Friday, May 11th, is day 10. May 11th, is the last day of this time period and is therefore defined as the event and not counted when calculating the 30 day restriction prior to filing timeline. To calculate the 30 day timeline, May 12th, is day 1; May 13th, is day 2; May 23rd, is day 12; May 31st, is day 20; and June 10th, is day 30. The application can be filed on June 10, 2007.

Examples of the earliest filing date permissible for a particular Notice of Filing posting or job order placement date are as follows:

Job Order

If the job order start date is Monday, November 13, 2006, the end date must be Tuesday, December 12, 2006 to meet the 30 day job order posting requirement. The earliest filing date permissible is Thursday, January 11, 2007 (neither the 30 day job order placement requirement nor the 30 day prior to filing limitation have a business day restriction and, therefore, weekends and holidays are included in both of the counts).

Notice of Filing

Where the place of business is open for business for ten consecutive business days but closed Saturdays, Sundays and Federal holidays
If the Notice of Filing is posted on Thursday, June 28, 2007, the posting dates must be June 28 - July 12¹, and the earliest filing date permissible is Saturday, August 11, 2007.

Where the place of business is open for business for ten consecutive business days including Saturdays, Sundays and Federal holidays
If the Notice of Filing is posted on Thursday, June 28, 2007, the posting dates must be June 28 - July 7, and the earliest filing date permissible is Monday, August 6, 2007.

Where the place of business is open for business Saturdays and Sundays but closed on Mondays
If the Notice of Filing is posted on Saturday, August 18, 2007, the posting dates must be August 18 - August 29. The days counted are Tuesdays through Sundays; Mondays are not included in the count due to the business being closed on those days. The earliest filing date permissible is Sunday, September 28, 2007 (the 30 day prior to filing limitation has no business day restriction and, therefore, weekends and holidays are included in the count).

__________________________

¹ Assume, for this example, that the employer is only open for business Monday through Friday, and it is closed on July 4.

In Summary: There are two "types" of time calculations used by the Permanent Online System: timeline calculations and time period calculations.

1. Timeline calculations are those calculations verifying the number of days prior to or after an event. For example, verifying that advertisements did not run less than 30 days and no more than 180 days from the date of filing.
   
   

   When calculating timelines, the day the event occurred is not counted. The next day is counted as day one and the last day of the event is included in the count.

2. Time period calculations are those calculations verifying the number of days an activity took place. For example, verifying a job order ran for 30 days.
   
   

   When calculating time periods, the day the event occurred is counted as day one and the last day of the event is included in the count.

September 09, 2011

If there is a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the alien, the employer must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to U.S. workers. 20 C.F.R. 656.17(l). In order to provide the Certifying Officer (CO) the opportunity to evaluate whether the job opportunity has been and is clearly open to qualified U.S. workers, an employer must disclose any familial relationship(s) between the foreign worker and the owners, stockholders, partners, corporate officers, and incorporators by marking "yes" to Question C.9 on the ETA Form 9089. See also Matter of Modular Container, 1989-INA-228 (Jul. 16, 1991) (en banc).

A familial relationship includes any relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws and step-families. The term "marriage" will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated.

A familial relationship between the alien and the employer does not establish the lack of a bona fide job opportunity per se. Ultimately, the question of whether a bona fide job opportunity exists in situations where the alien has a familial relationship with the employer depends on "whether a genuine determination of need for alien labor can be made by the employer corporation and whether a genuine opportunity exists for American workers to compete for the opening." Modular Container at *8. Therefore, the employer must disclose such relationships, and the CO must be able to determine that there has been no undue influence and control and that these job opportunities are available to U.S. workers. When the employer discloses a family relationship, and the application raises no additional denial issues, the employer will be given an opportunity to establish, to the CO's satisfaction, that the job opportunity is legitimate and, in the context of the application, does not pose a bar to certification. The CO will consider the employer's information and the totality of the circumstances supporting the application in making this determination.

Please note that failure to disclose familial relationships or ownership interests when responding to Question C.9 is a material misrepresentation and may therefore be grounds for denial, revocation or invalidation in accordance with the Department's regulations.

July 28, 2014

Employers need to apprise applicants of the job opportunity. The regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer's application, the employer will meet the requirement of apprising applicants of the job opportunity. An advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity.

NOTE: While employers will have the option to place broadly written advertisements with few details regarding job duties and requirements, they must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.

No, the address does not need to be included. However, advertisements must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. Employers are not required to specify the job site, unless the job site is unclear; for example, if applicants must respond to a location other than the job site (e.g., company headquarters in another state) or if the employer has multiple job sites.

No, the employer's physical address does not need to be included in the advertisement. Employers may designate a central office or post office box to receive resumes from applicants, provided the advertisement makes clear where the work will be performed.

No, the offered wage does not need to be included in the advertisement, but if a wage rate is included, it can not be lower than the prevailing wage rate.

As with all the recruitment requirements, the purpose of requiring the employer to use three additional recruitment steps is to ensure that the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity. It should be noted that each of the steps may target slightly different applicant populations. Using at least three of the additional steps normally used by businesses to recruit workers is a means of apprising a greater number of U.S. applicants of the job opportunity and more adequately substantiates an employer's claim there are no available U.S. workers for the job offer.

Where the "Kellogg" language is required by regulation to appear on the application, it is not required to appear in the advertisements used to notify potential applications of the employment opportunity. However, the placement of the language on the application is simply a mechanism to reflect compliance with a substantive, underlying requirement of the program. Therefore, if during an audit or at another point in the review of the application it becomes apparent that one or more U.S. workers with a suitable combination of education, training or experience were rejected, the application will be denied, whether or not the Kellogg language appears in the application.

For professional positions, the regulations at 20 CFR 656.17(e)(1)(ii)(D) permit, as an additional recruitment step, optional pre-filing recruitment at or through a college or university placement office. The preamble to the regulation (69 Fed. Reg. 77325, 77345 (Dec. 27, 2004)) assumed that this option would be used only if the employment opportunity requires a degree but no experience. The Department has examined this policy in light of the fact that many college and university placement offices maintain job listings that are used by alumni with experience as well as recent college or university graduates. Consequently, the job opportunities requiring experience are included in the listings making campus placement offices a viable recruitment source for professional job requiring experience as well as not requiring experience. As a result, the Department is clarifying its position and permitting this option to be used for employment opportunities even if the job requires experience in addition to the degree.

No, the employer is not required to include the statement on the application if the employer has indicated it requires experience in an alternate occupation and not in the job offered. The "any suitable combination of experience of education, training, or experience is acceptable" statement is only required where there are primary as well as alternative requirements and then only if the foreign worker is already employed by the employer and the foreign worker does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's "alternative" as opposed to its "primary" requirements.

The employer must conduct recruitment using its legal name at the time of the recruitment. However, an Application for Permanent Employment Certification (ETA Form 9089) must be filed in the name of the employer's legal name at the time of submission. If a merger, acquisition, or any other corporate change in ownership occurs between the time of recruitment and the time of submission, resulting in a disparity between the employer's name shown on the advertising used to recruit for a job opportunity and the employer's name on the submitted ETA Form 9089, the employer must be prepared to provide documentation -- in the event of an audit -- proving that it is the successor in interest, a determination made based on the totality of the circumstances, including whether the current employer has assumed the assets and liabilities of the former entity with respect to the job opportunity.

Yes, an advertisement for multiple positions may be used as long as all provisions in § 656.17(f), advertising requirements, have been met.

NOTE: While employers have the option to place broadly written advertisements with few details regarding job duties and requirements, employers must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

As stated in the advertising requirements provision, the advertisement must provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity for which certification is sought. At issue in evaluating whether the advertisement meets this criterion is whether the advertisement is written to attract the interest of the greatest number of qualified U.S. workers and encourage them to apply, not whether specific words or phases have, or have not, been used. The advertisement will be reviewed to ensure that it reasonably describes the vacancy and reflects the job opportunity as described on the ETA Form 9089. With respect to the examples, any one of the three can be used as long as it is specific enough, under the circumstances, to apprise U.S. workers of the job opportunity. In any event, if employers feel it necessary, employers may always include more detail.

The employer is required to place a job order with the SWA serving the area of intended employment. It is recognized that states vary in their job order placement procedures and that some may, in fact, place job orders on AJB, in which case, as long as the employer is working through the SWA, a job order placed on AJB would be sufficient.

NOTE: The employer is free to choose AJB as a means of satisfying one of the three additional steps required under professional occupations recruitment if the posting on AJB is not being used to satisfy the job order requirement.

Yes, the 30 day job order timeframe must end at least 30 days prior to filing. While the employer is not limited to the 30 day timeframe and may choose to post the job order for a longer period, 30 days of the posting must take place at least 30 days prior to filing.

Yes, the employer should seek any information required regarding job orders from the SWA. If an employer is not clear on how to place a job order, the employer should check with the SWA responsible for the area of intended employment. Placement of job orders with a SWA must be in accordance with each SWA's rules and regulations. In other words, SWAs place labor certification job orders the same way they place any other job order.

The employer is responsible for considering/contacting those applicants who have affirmatively provided a response as specified by the employer in the job order.

In accordance with PERM regulations at 20 CFR §656.17(f)(1) and the preamble (69 FR 77326, 77348 (Dec. 27, 2004)), as with any advertisement, the employer's name must appear on the job order placed with the SWA. SWA procedures that allow for applicants to view the employer name only after applying for the position do not satisfy the requirement that the employer's name be in the job order. If the SWA's job placement process results in the name of the employer not being visible to job seekers, the employer must include its name in the body of the job order so that the employer's name is visible to potential applicants when viewing the job order.

July 11, 2012

In the preamble to the PERM regulations (69 FR 77326, 77331 (Dec. 27, 2004)), the Department of Labor indicated that SWA job order "[r]eferrals will be handled the same way they are handled for other job orders, which may vary from state to state." However, the PERM regulations at 20 CFR §656.10(c)(8) also state that the employer must attest that "[t]he job opportunity has been and is clearly open to any U.S. worker." Therefore, the employer must receive all resumes submitted to the SWA through a posted job order. To ensure that the SWA refers to it all U.S. workers, the employer must indicate to the SWA, pursuant to each SWA's specific process, that it wants to receive all resumes and all types of referrals (e.g., qualified, best qualified, minimally qualified, etc.). This instruction to the SWA ensures that the employer is accepting and reviewing the resumes of all U.S. workers and determining which of the applicants meets the minimum qualifications for the job opportunity, as well as gives all U.S. workers access to such jobs.

June 11, 2012

Under the PERM regulations at 20 CFR §656.17(e)(1)(i)(A) and §656.17(e)(2)(i), the employer's job order for both professional and nonprofessional occupations must be placed with the SWA serving the area of intended employment for a period of 30 days. Moreover, during this 30-day period, the job order must be accessible and visible to the public at large, i.e., the entire pool of job seekers potentially qualified for the position. Therefore, where a SWA has a special exemption of making job orders accessible to only certain groups, such as veterans, the employer must still ensure that the job order is accessible and/or visible to the public for the full required period of 30 days. The employer can accomplish this by instructing the SWA to post the job for the required 30-day time period only after the days during which the SWA holds the job order open only to the select group.

For example: If the job order start date is Monday, May 7, 2012, the end date must be Wednesday, June 6, 2012, to meet the 30-day job order posting requirement. However, if the SWA places a hold on the job order, so that it is only accessible and/or visible to a certain group, from Monday, May 7, 2012, until Wednesday, May 9, 2012, then the employer must ask the SWA to keep the job order open, and accessible and/or visible to the public at large, from Thursday, May 10, 2012 until Saturday, June 9, 2012, to comply with the 30-day requirement.

June 11, 2012

No, the wage offered must equal or exceed the prevailing wage. The wage must be at least 100% of the prevailing wage. The 5% deviation, permitted under the former regulation, is no longer acceptable.

No, the employer is not required to use a wage determination under the DBA or the SCA but may choose to do so.

No, the employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.

Congress enacted the Consolidated Appropriations Act of 2005 amending the Immigration and Naturalization Act (Section 212(p), 8 U.S.C. 1182(p)) to provide:
"Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the two levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level."

The four wage level provision goes into effect on March 8, 2005, as does the requirement to pay 100% of the prevailing wage.

Yes, but only if the wage source used to make the determination was one other than the wage component of the Occupational Employment Statistics (OES), i.e., an employer-provided survey, a McNamara-O'Hara Service Contract Act or Davis-Bacon Act wage, or a Collective Bargaining Agreement wage. To apply under PERM, those employers using the OES must obtain a prevailing wage determination after March 8, 2005.

NOTE: In all labor certification applications filed (postmarked or electronically dated) on or after March 8, 2005, the wage offer must be 100% of the prevailing wage determination and, if the OES is used to make the prevailing wage determination, the determination must be based on the four wage level provision.

Yes, as long as provisions regarding the validity period are followed, the employer is permitted to use the same prevailing wage determination if the prevailing wage is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved.

If an employer provided survey acceptable under § 656.40(g) provides only a median and not an arithmetic mean, use of the median is permitted.

For purposes of § 656.17(i)(3), the provision on actual minimum requirements, the term "domestic" is being used as an alternative for "United States."

For purposes of the actual minimum requirements provision, the term "contract employee" is intended to include all persons contracted to work for the employer. The broad use of the term under the actual minimum requirements provision is intended to ensure the provision applies to experience gained working for the employer by the foreign worker, whatever the foreign worker's employment status.

The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity. NOTE: The Certifying Officer, after reviewing the employer´s recruitment report, may request the U.S. workers' resumes or applications, sorted by the lawful job related reasons the workers were rejected.

NOTE: The Certifying Officer, after reviewing the employer's recruitment report, may request the U.S. workers' resumes or applications, sorted by the lawful job related reasons the workers were rejected.

As one condition of obtaining PERM labor certification, an employer must provide notice to and consider for hiring U.S. workers laid off by the employer during the six months preceding the filing of the application. 20 CFR 656.17(k)(1). Such notice and consideration must be given to all employees laid off during this period who worked in the occupation in the area of intended employment for which certification is sought or who worked in a related occupation ("potentially qualified U.S. workers"). 20 CFR 656.17(k). A related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought. 20 CFR 656.17(k)(2). An employer must maintain and, if requested, submit documentation establishing that it notified and considered all potentially qualified U.S. workers it laid off during the six months before filing the application. 20 CFR 656.17(a)(1), (3). The employer must include the results of its notification and consideration of these laid-off U.S. workers in its recruitment report. 20 CFR 656.17(g).

As a result of auditing employer compliance with the requirements relating to laid-off workers, OFLC has determined that many applicant employers are applying section 656.17(k) in a straightforward manner, i.e., contacting their laid-off workers who are potentially qualified for the job covered by the application at the time the employer begins inviting interested candidates to apply for the job (about the time a job order is placed or it is advertised in a newspaper) and considering for hire those laid-off workers that apply for the position. Some audits, however, have revealed noncompliance by some employers; these employers have construed section 656.17(k) to only require that they inform workers at the time of their layoff that the employer may have future positions for which the worker may have an interest and inviting the worker to monitor the employer's job postings and apply for such positions, rather than the employer taking it upon itself to notify and consider the laid-off workers, as required by the regulations.

This misapplication of the requirements established by section 656.17 will result in the denial of an application. OFLC is issuing this guidance to prevent other employers from following this approach in the mistaken belief that it satisfies the regulatory requirements.

Where a U.S. worker who is potentially qualified for the job opportunity has been laid off by an employer during the six months preceding the application, the employer must directly notify the worker of the job opportunity and consider the worker if he or she applies for the job. The employer must make a reasonable, good-faith effort to notify each of the potentially-qualified laid-off workers that a relevant job opening exists. Notification should be provided by mail, fax, or e-mail, using the last known contact information for each worker. The employer must provide each worker a full description of the specific job opportunity and must invite the worker to apply for the position for which he or she is potentially qualified.

At the time a worker is laid off, an employer should secure from the worker appropriate contact information to permit the required notification and consideration. The employer must inform the worker that it is his or her responsibility to apprise the employer of any change in the contact information. The employer may inform the worker that he or she may decline to receive or, upon the worker's later request, discontinue such notification. Where a worker declines to receive such notification, the employer will be deemed to have met its notification and consideration obligations. Where a worker requests that notification be discontinued, the employer will also be deemed to have satisfied its notification and consideration obligations for the remainder of the six-month period.

An employer who files multiple labor certifications can satisfy its responsibilities under the regulation by notifying each laid-off worker (in the manner chosen by the worker) not less frequently than once monthly that a list of current relevant job openings is maintained electronically on a website operated by the employer. Where an employer chooses this alternative, the website must list or allow the worker to easily search for all the relevant job openings. Where a list is used, job openings must be identified by title and location and provide a hyperlink through which the worker may obtain a detailed description of, and the minimum requirements for, each position and apply for the position if he or she so chooses.

Simply informing a laid-off worker to monitor the employer's website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer's regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity.

An employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

February 21, 2014

Yes, business necessity is a means to justify requirements which are not normal to the occupation and/or exceed the SVP. While the job opportunity's requirements, as a rule, must be those normally required for the occupation and must not exceed the SVP level assigned to the occupation as shown in the O*Net Job Zones, business necessity may be used to justify requirements not normal to the occupation and/or which exceed the SVP. NOTE: Business necessity can be established by the employer demonstrating that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner.

Yes, the employer can include a foreign language requirement if it is justified by business necessity. The regulation requires that a foreign language requirement be justified by business necessity based on the nature of the occupation, e.g., translator, or the need to communicate with a large majority of the employer's customers, contractors, or employees who can not communicate effectively in English. Documentation necessary to establish such a business necessity is noted in § 656.17(h)(2).

NOTE: Needing to communicate with co-workers or subordinates who can not effectively communicate in English and/or having a working environment where safety considerations would support a foreign language requirement have been added to the ways to justify business necessity for a foreign language requirement.

No. Even if the employer has informed the NPWC of these requirements in a prevailing wage request (ETA Form 9141), the employer must still accurately outline its requirements on Questions H.12 or H.13 of the Application for Permanent Employment Certification (ETA Form 9089).

 Revised November 7, 2011

To inform the Department of the acceptable number of years where the value is other than a whole number, the employer should round to the nearest whole number, e.g., a value of 6 months would become 1 year and a value of 15 months will become 1 year, enter the whole number in Section H, Item 8-C, and then use Section H, Item 14 to provide the actual number of years and months.

Example 1: Where the employer accepts, as an alternate combination of education and experience, a Bachelor's degree and 6 months experience (0.5 years), the employer will mark "Bachelor's" in 8-A. and will enter "1" year in Section H, Item 8-C, having rounded the six months (0.5 years) up to the nearest whole number, in terms of years. The employer will then explain in Section H, Item 14, that its actual acceptable alternate combination of education and experience is a Bachelor's degree plus 6 months (0.5 years) experience but it entered 1 year in Section H, Item 8-C, per the FAQ.

Example 2: Where the employer accepts, as an alternate combination of education and experience, a Bachelor's degree and 15 months experience (1.25 years), the employer will mark "Bachelor's" in 8-A. and will enter "1" year in Section H, Item 8-C, having rounded the 15 months (1.25 years) down to the nearest whole number, in terms of years. The employer will then explain in Section H, Item 14, that its actual acceptable alternate combination of education and experience is a Bachelor's degree plus 15 months (1.25 years) experience but it entered 1 year in Section H, Item 8-C, per the FAQ.

Revised May 29, 2012

If the foreign worker already is employed by the employer, the employer can not require U.S. applicants to possess training and/or experience beyond what the foreign worker possessed at the time of initial hire by the employer, including as a contract employee: (1) unless the foreign worker gained the experience while working for the employer in a position not substantially comparable to the position for which certification is sought; or (2) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.

NOTE: A substantially comparable job or position means a job or position requiring performance of the same duties more than 50 percent of the time.

For purposes of determining whether the foreign worker gained experience with the employer, an employer is "an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at § 656.3."

No, the foreign worker does not need to have a bachelor's or higher degree to qualify. However, if the employer is willing to accept work experience in lieu of a baccalaureate degree, such work experience must be attainable in the U.S. labor market and the employer's willingness to accept work experience in lieu of a degree must apply equally to U.S. applicants and must be stated on the application form.

Yes, the employer may accept an equivalent foreign degree. However, the employer's willingness to do so must be clearly stated on the Application for Permanent Employment Certification, ETA Form 9089.

Yes, an employer may specify alternative experience or qualification requirements, provided the alternative requirements and primary requirements are substantially equivalent to each other with respect to whether the applicant can perform the proposed job duties in a reasonable manner. As discussed in the preamble to the final regulation, this is the standard developed by the Board of Alien Labor Certification Appeals in Matter of Francis Kellogg.

NOTE: Even when the employer's alternative requirements are substantially equivalent, but the foreign worker does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, the alternative requirements will be considered unlawfully tailored to the foreign worker's qualifications unless the employer has indicated on the application that applicants with any suitable combination of education, training or experience are acceptable.

When entering the years of experience, education, or training on ETA Form 9089, the questions asking for this type of information specify the answer be provided in the number of months necessary. Therefore, if the employer requires 1 year experience in the job offered in ETA Form 9089, the number 12 (for 12 months) would be entered for the answer to Question H-6A.

However, if the employer would accept a range of experience in the job offered (such as 1 to 3 years), the employer must identify the actual minimum years/months of experience required to perform the job (please see 656.17(i) for additional information on Actual Minimum Requirements). The number that represents the Actual Minimum Requirement for the number of years/months experience would be the number entered in Question H-6A. If a range is indeed the Actual Minimum Requirement, the employer should use the low end of the range as the answer, since that represents the minimum level of requirement.

An employer must list the actual minimum requirements for the job opportunity sought to be filled through the filing of the labor certification application. If training is required, the employer must list the training required for the position in Section H.5, noting the number of months of training required in H.5.A, and the field of training in H.5.B. The employer and foreign worker must also attest that the foreign worker meets the training requirement in section J.17.

The employer is also required to list in Section K, as noted on the Form ETA 9089, "any other experience that qualifies the foreign worker for the job opportunity for which the employer is seeking certification." Accordingly, an employer seeking certification should list in Section K any training experience possessed by the foreign worker that qualifies the foreign worker for the job opportunity, regardless of how the training was secured. The source of the training should also be identified. For example, an application for the job opportunity of physician filed on behalf of a foreign worker that requires 36 months of medical residency training in H.5 should not only mark section J.17 as "yes" but also list in Section K all training experience by which the foreign worker meets that training requirement, as well as any other experience requirement. An employer filing an application for a job opportunity that requires 12 months of training in section H.5 should also list the training received by the foreign worker in section K, regardless of whether it was a paid training opportunity, and also list the source of the training.

When completing section K, enter the training provider in the employer information section, to include the address. For the type of business, enter 'training provider' unless the training is of a work study type such as an apprenticeship or medical residency. The job title should be 'Training' unless there is an actual job title, in which case it should begin with 'Training –' followed by the title, such as 'Training – Apprentice Carpenter'. The employer should enter the beginning and end dates of the training. When there is an actual number of hours of training, the employer should enter those actual hours, otherwise the employer should enter the average number of hours per week spent in training. In the "Job Details" the employer should list the topics covered by the training, any certification of completion issued and, when applicable, the organization issuing the certificate, if different from the training provider, and the final test completion or certification date.

For example:
Employer A completes Section K as follows:
1. Large Teaching Hospital
2. 111 Main Street
3. Anytown, DC 99999 USA
4. Hospital
5. Training-First Year Resident
6. 01/01/2000
7. 12/31/2000
8. 60
9. Basic hospital procedures. Patient care techniques. Staff duties and responsibilities.
10. First Year Residency Certificate, 12/31/2000

Employer B completes Section K as follows:
1. Independent Project Management School
2. 111 Main Street
3. Anothertown, DC 99999 USA
4. Training Provider
5. Training
6. 01/01/2000
7. 12/31/2000
8. 20
9. Basic project management concepts. Use of graphics tools. Resource allocation.
10. Professional Project Manager Certificate, Project Management Institute, 01/12/2001

ETA must assess whether the foreign worker possesses all the qualifications for the employer's job opportunity. When the employer lists specific skills and other requirements for the job opportunity in Section H, Question 14, the employer must also demonstrate on the ETA Form 9089 that the foreign worker possesses those skills and requirements. In order to do so, the employer should list separately in Section K all the foreign worker's qualifications, such as certificates, licenses, professional coursework, or other credentials that meet the requirements to perform the job opportunity listed in Section H, if those qualifications have not already been explicitly identified under information about the jobs held in the past three years. If not listed elsewhere, the list of certificates, licenses, professional coursework, or other credentials held by the foreign worker and required in order to perform the job opportunity, should be entered after all jobs held in the past three years are listed, under Question 9, "Job Details (duties performed, use of tools, machines, equipment, etc.)"; Question Numbers 1-8 requesting information about the job can be left blank.

For example, assume a situation in which the foreign worker has had two jobs in the last three years, and holds a license required to perform the employer's job opportunity that he or she obtained in the last three years through a course of study not undertaken in connection with either job. The employer should complete Section K, Question Numbers 1-9 for Job 1 and Question Numbers 1-9 for Job 2. If the required license is not explicitly stated in information provided under Job 1 or Job 2 in Section K because it was not obtained performing either job, the employer must list the license since it demonstrates the foreign worker meets the requirements to perform the job opportunity under Job 3, Question 9. The employer may leave blank Question Numbers 1-8 on Job 3.

Examples of certifications, licensure, or other credentials that must be provided in Section K if relevant to the foreign worker's qualifications include, but are not limited to, bar admission, medical residency, ordination, professional exams, certifications such as medical Board certifications or other professional certifications, teaching certificates, university or professional coursework, and professional insurance.

The employer must be prepared to demonstrate the business necessity of each and every special skill or requirement listed in Section H.
 
Such qualifications must be listed on any application submitted on or after the date of posting of this FAQ.

July 28, 2014

No, only college and university teachers of exceptional ability in the sciences or arts who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States fall under Schedule A, Group II, Sciences or Arts.

Applications for college and university teachers who do not qualify under the Schedule A, Group II, Sciences or Arts provision may be filed either under the provision for optional special recruitment and documentation procedures for college and university teachers, § 656.18, or under the provision for the basic process, § 656.17.

Yes, the employer may file an application previously denied under Schedule A for a college or university teacher either under the provision for optional special recruitment and documentation procedures for college and university teachers, § 656.18, or under the provision for the basic process, § 656.17.

Yes, while the employer may choose to recruit for college and university teachers under the basic process, the employer may choose to recruit under § 656.18, optional special recruitment and documentation procedures for college and university teachers.

NOTE: The employer must support hiring of the foreign worker by documenting that the foreign worker was found to be more qualified than each U.S. worker who applied for the job opportunity.

Yes, the employer must provide a notice of filing which must include the advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

Yes, an employer may use an electronic or web-based national professional journal to satisfy the regulatory provision at 20 CFR § 656.18(b)(3), which requires use of a national professional journal for advertisements for college or university teachers. The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal's website. Documentation of the placement of an advertisement in an electronic or web-based national professional journal must include evidence of the start and end dates of the advertisement placement and the text of the advertisement.

                                                                                                                                Revised September 28, 2011

No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process.

Yes, a prevailing wage determination must be obtained from the NPWC even if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision.   Because the Department of Labor's PERM regulations require the employer to certify that the offered wage equals or exceeds the prevailing wage determined pursuant to the prevailing wage provision at 20 Code of Federal Regulations
§§ 656.40 and 656.41, the employer must obtain a prevailing determination from the NPWC in order to meet that requirement.

Revised October 7 2011

The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of foreign worker.

Schedule A lists those occupations for which a determination by the Department of Labor has been made that there are not sufficient United States workers who are able, willing, qualified, and available and the wages and working conditions of United States workers similarly employed will not be adversely affected by employment of foreign workers in those occupations. An employer seeking a labor certification for a physical therapist, a professional nurse, or an alien of exceptional ability in the performing arts, sciences or arts, to include college and university teachers, should review § 656.5, Schedule A, to determine whether the foreign worker's qualifications meet the provision's requirements.

No, an application for a labor certification for Schedule A occupations is filed, in duplicate, with the appropriate Department of Homeland Security (DHS) office.

The employer must use an Application for Permanent Employment Certification, ETA Form 9089, which includes a prevailing wage determination.

Yes, a prevailing wage determination must be requested from the SWA having jurisdiction over the proposed area of intended employment.

Yes, an employer must comply with the posting requirement in § 656.10(d) to file applications under Schedule A with the appropriate Department of Homeland Security office.

No, labor certifications for professional nurses and for physical therapists will not be considered under § 656.17.

Yes, the passage of the examination alone is not acceptable; the foreign worker is required to have a CGFNS Certificate. A CGFNS Certificate documents that, in addition to having passed the nursing skills examination, the foreign worker has demonstrated English language proficiency and CGFNS has made a favorable evaluation of the individual's nursing credentials.

The employer must file, as part of its labor certification application, documentation the foreign worker meets one of three requirements: the foreign worker has a Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate, the foreign worker has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or the foreign worker holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.

NOTE: Unlike the filing requirements under other PERM provisions, for Schedule A occupations, the employer is required to submit the applicable documentation when the employer files the application with the appropriate Department of Homeland Security office.

No, the former regulation's Schedule B provision has been eliminated; there is no similar provision in PERM.

No, the elimination of the former regulation's Schedule B and its waiver provision does not prevent employers from seeking labor certifications for the occupations listed in Schedule B. To the contrary, employers are free to file applications under the provisions of PERM, as appropriate, for occupations found in the former regulation's Schedule B and are not required to obtain a waiver in order to do so.

Aliens of exceptional ability in the performing arts are now included in § 656.5, Schedule A, under Group II. Accordingly, such applications must be filed in duplicate with the appropriate office of the Department of Homeland Security. The documentation that must be filed in support of such applications is listed in § 656.15, Applications for labor certification for Schedule A occupations.

Questions regarding audit criteria will not be addressed. The criteria was purposely not included in the regulation in order to retain the flexibility to change audit criteria, as needed, for example, to focus on certain occupations or industries when information indicates program abuse may be occurring. The regulation grants authority to increase the number of random audits or change the criteria for targeted audits. Making the audit process predictable would defeat the purpose of the audits and undermine the program's integrity.

Under § 656.31(a), Department of Labor processing of an application, including audit procedures, may be suspended in certain circumstances. Specifically; "If possible fraud or willful misrepresentation involving a labor certification is discovered before a final labor certification determination; the Certifying Officer will refer the matter to the Department of Homeland Security (DHS) for investigation, and must send a copy of the referral to the Department of Labor's Office of Inspector General (DOL OIG). If 90 days pass without the filing of a criminal indictment or information, or receipt of a notification from DHS, DOL OIG, or other appropriate authority that an investigation is being conducted, the Certifying Officer may continue to process the application."

An application can not be withdrawn once it has been selected for audit. If circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. If an application is selected for audit, the employer can not forego the audit by claiming the application is no longer valid or applicable. The employer will be held to the audit provision standards and possible resulting consequences.

Under the procedures outlined in 20 CFR 656.20, in response to an audit, employers must present the required documentation. The documentary evidence the regulations require the employer to maintain in its compliance file is what is sought in an audit request. For example, the use of an employer's web site is to be documented by dated copies of pages from that site advertising the occupation involved in the application. However, if the employer does not have the primary evidence suggested by the regulation, it may attempt to satisfy the request through the use of alternative evidence not specifically listed in 656.17. In the case of the employer's web site, in the absence of a copy of the posting, the employer may provide an affidavit from the official within the employer's organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job. Whether such evidence will be accepted depends upon the nature of the submission and the presence of other primary documentation. The more primary evidence is not provided, the more likely the audit response will be found to be non-responsive.

An employer may use the posting sample of a Notice of Filing issued by the USCIS and such a posting will be honored by the Department of Labor (DOL) provided that the Notice of Filing includes the employer's name when filing under the basic labor certification process. DOL will honor the use of the sample form, but is not endorsing or requiring its use. Employers may use other forms, as long as they comply with the PERM regulation. Please note that, while the USCIS sample does not include an employer name field, the Notice must contain the name of the employer if the application is filed under 20 CFR 656.17.

Requests for a duplicate ETA-9089 can be made by contacting the Department of Labor or by requesting that USCIS assist with obtaining a duplicate labor certificate ETA-9089 from DOL. The following steps are suggested when requesting a duplicate ETA-9089 through USCIS. Please include on the top of the I-140, Petition for Alien Immigrant Worker, a cover sheet (preferably highlighted with colored paper) stating the following:

LOST OR MISPLACED LABOR CERTIFICATION, REQUEST FOR DUPLICATE, DO NOT REJECT

On the same sheet, the following information should also be included:

1. Attorney name;
2. Petitioner's name;
3. Beneficiary's name;
4. ETA case number;
5. Priority Date;
6. Specify whether you want USCIS to initiate the request for duplicate certificate ETA-9089 or you have contacted DOL to initiate the request for duplicate;
7. Proper fee, signature and all required supporting documents;
8. A print screen showing that the case has been certified.
9. Provide the reason(s) for requesting that the Service Center secure a duplicate, approved labor certificate from DOL, e.g. "Case was certified, original approved labor certificate was never received in the mail."

Once the duplicate certificate ETA-9089 is received by USCIS, the petitioner and/or his representative will be contacted via a Request For Evidence (RFE) notice in order to secure the petitioner's signature on the duplicate certificate. The certificate must be signed by the petitioner before USCIS can accept it for filing purposes.

1. Petitioners must send the signed duplicate ETA-9089, along with a copy of the RFE notice requesting the signature. Failure to do so may result in significant delays in processing or denial.
   
   
2. Petitioners are reminded not to submit concurrent I-140 and I-485, Application for Permanent Residence, when submitting petitions without the labor certificate, and with a request that USCIS secures a duplicate ETA-9089 from DOL or evidence of having requested the duplicate from DOL.
   
   
3. If Forms I-140 and I-485 are concurrently filed without the ETA-9089, but with a request for duplicate labor certificate, the I-140 may be accepted and the I-485 rejected. However, if the fees for both forms are remitted with a single check, both forms will be rejected.
   
   
4. Applicants who have submitted a Form I-140 with a request for duplicate labor certificate ETA-9089 are encouraged to wait until approval of the Form I-140 before submitting Form I-485. When submitting the Form I-485 subsequent to approval of the Form I-140, the approval notice of the Form I-140 must be submitted as well, along with appropriate fees and supporting documents.

The expiration date of an approved labor certification depends on when it was approved. For labor certifications approved prior to July 16, 2007, the labor certification expires 180 days after July 16, 2007 - that is, January 12, 2008 - unless filed prior to its expiration with the Department of Homeland Security in support of a Form I-140 Immigrant Petition for Alien Worker. Labor certifications approved on or after July 16, 2007, will expire 180 days from their date of issue, unless filed prior to expiration with the Department of Homeland Security in support of a Form I-140 Immigrant Petition for Alien Worker.

If the granting of a labor certification is found not to be justified, whether based on unintentional or willful conduct of the employer, a previously approved labor certification will be revoked.

Certifying Officers have the authority to revoke an approved labor certification for fraud and willful misrepresentation, obvious errors, or for grounds or issues associated with the labor certification process.

No, a time limit has not been imposed on the authority of Certifying Officers to revoke labor certifications.

The Department of Homeland Security and a Consul of the Department of State have the authority to invalidate an issued labor certification if a determination is made, either in accordance with the agencies' procedures or by a court, that fraud or willful misrepresentation of a material fact involving the labor certification application exists.

Yes, the employer may request a review by the Certifying Officer of a SWA prevailing wage determination by sending a request for review to the SWA that issued the prevailing wage determination within 30 days of the date of the determination.

Yes, the employer is permitted to request a review by the Board of Alien Labor Certification of the Certifying Officer's prevailing wage determination by submitting, in writing and within 30 days of the date of the decision of the Certifying Officer, a request to the Certifying Officer who made the determination.

If a labor certification is denied, the employer has three options for seeking review of the Certifying Officer's decision:

1. Request for Reconsideration, pursuant to 20 CFR 656.24(g)(1);
2. Request for Review before the Board of Alien Labor Certification Appeals (BALCA), pursuant to 20 CFR 656.26(a);
3. Request for Reconsideration based on alleged Department Error. Depending on the specific language used in the cover letter of the employer's appeal, the Department will assign the appeal request to the appropriate appeals queue.

Requests for Reconsideration must be filed with the Certifying Officer in writing and submitted within 30 calendar days of the determination.

Requests for Review before BALCA must be made in writing and within 30 calendar days of the determination to the Certifying Officer who denied the application.

Please note, as of October 27, 2014, the ANPC has changed its process and will no longer forward all Requests for Reconsideration where the original case decision was upheld automatically to BALCA for review. Rather, an employer must affirmatively request review before BALCA no later than 30 calendar days after the date the request for reconsideration was denied.

The 30 days to file an appeal to the Certifying Officer begins on the date that the SWA makes a final decision on the case. If the employer submits supplemental information (as permitted one time), the 30 days begins after the SWA considers and makes a decision on the supplemental information.

Upon receipt of the denial notification via U.S. mail, a new application may be filed at any time unless a request for review by the Board of Alien Labor Certification Appeals (BALCA) has been submitted. While a request for BALCA review is pending, a new application for the same occupation and the same foreign worker cannot be filed. See 20 CFR 656.24(e)(6). (For more information, please see the FAQ "When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?")

The Department of Labor considers a request for review to be pending with BALCA under 20 CFR 656.24(e)(6) at the time an affirmative written request for BALCA review is submitted to the Certifying Officer.

If a labor certification is revoked, the employer may submit a written Request for Review before BALCA per 20 CFR § 656.26. The request must be made in writing and within 30 calendar days of the determination to the Certifying Officer who revoked the application.

An employer's cover letter should make the reconsideration request by explicitly using the term "reconsideration" to ensure proper classification of the appeal.
If an employer's appeal request does not indicate which type of appeal is being sought,
the NPC will assume the appeal is a request for reconsideration and the appeal will
enter the request for reconsideration appeals queue.

With few exceptions, an employer may not make modifications or corrections to an ETA Form 9089.  See 20 CFR § 656.11(b). 

Examples of exceptions can include:

• The Department made an error when entering data for a mailed in application, resulting in the denial of the application.  Supporting documentation must consist of a copy of the original mailed in application. 

• The employer entered and submitted information on the online ETA Form 9089, but certain information is now missing from the electronic version of the form, resulting in the denial of the application.  The employer must provide a copy of the original “T” electronic application before submission in the Permanent Online System. (Applications saved prior to submission online have the prefix “T” at the bottom of each page, as in “T-12345-54321.” Applications submitted online have the prefix “A,” as in “A-12345-54321.”) 

If an employer can prove that an exception applies, it may request corrections to the denied application by filing a written Request for Reconsideration within 30 calendar days from the date on the denial notification. 

If the CO accepts the employer’s information, the CO will make the change to the ETA Form- 9089. The application returned to “in process” status and then will be processed according to the priority date.  If the CO does not accept the employer’s information, the CO will issue a Notice of Decision (Notice). The Notice will inform the employer that it may request review by the Board of Alien Labor Certification Appeals (BALCA), but must affirmatively do so in writing no later than 30 calendar days from the date on the Notice.

If the CO upholds (or agrees with) the denial of the application, the CO will issue a Notice of Decision (Notice) to the employer.  The Notice will inform the employer that it has the option to request review by the Board of Alien Labor Certification Appeals (BALCA).  The CO will not automatically forward the appeals file to BALCA. The employer must affirmatively request review by BALCA in writing no later than 30 calendar days from the date on the Notice.

No, the employer must affirmatively state in writing whether it is requesting reconsideration from the Certifying Officer (CO) or a Request for Review from BALCA.  A submission that asks for both reconsideration and BALCA review will be treated as a Request for Reconsideration. 

If the CO upholds the denial decision on a Request for Reconsideration, the CO will issue a Notice of Decision (Notice) to the employer.  The Notice will explain to the employer its option to request review by BALCA. Such request must be filed in writing no later than 30 calendar days from the date on the Notice.

An employer's cover letter should expressly state at the top of the letter the phrase “Request for BALCA Review Only” to notify the Certifying Officer (CO) that it desires BALCA review without reconsideration by the CO. Upon receipt of the Request for Review, the ANPC will send the appeal file to BALCA.

No, once a Request for Reconsideration has been filed, the case may not be reclassified if the 30 day regulatory time frame has passed.

In general, a Department error may be a denial arising from a data entry error or denial for failure to respond to an audit where the employer has proof of its audit response or proof it never received an audit request letter. If you believe your application was improperly denied on this type of basis, the employer's cover letter must clearly state that reconsideration is being requested based on an alleged Department error. The Department recommends filing such requests for reconsideration with a brightly colored cover sheet stating that the request for reconsideration is being filed because the employer believes that the Department error is the sole reason for the denial. If accepted as a Department error, the appeal will go to the Department error queue and be processed accordingly. If the Certifying Officer concludes that the criteria for Department error have not been satisfied, the request will be processed in the normal reconsideration queue.

If an employer fails to request BALCA review within 30 days from the date on the Notice, the case file will not automatically be forwarded to BALCA for review.  The application will be listed as denied in the Permanent Online System. 

An employer may inquire about the status of a Request for Reconsideration through the Permanent Online System Help Desk Inquiry, by email at PLC.Atlanta@dol.gov or by mailing a letter requesting the status of the request to the Atlanta National Processing Center at: 

Atlanta National Processing Center

ATTN: Application Status – Request for Reconsideration

233 Peachtree St, Suite 410

Atlanta, GA 30303

The subject line of the letter must state: "Application Status – Request for Reconsideration” and include the employer's name.

An employer making an inquiry about the status of a Request for Reconsideration by email must send it to the Atlanta National Processing Center at PLC.Atlanta@dol.gov.

The subject line of the email must state:  "Application Status – Request for Reconsideration.” 

In the body of the letter or email, include the following information:

1. Application Case Number

2. Employer's Name

3. Employer's FEIN

4. Foreign Worker's Name

Section 656.11(a) of 20 CFR part 656 prohibits any request to change the identity of an foreign worker beneficiary on any application for permanent labor certification that is submitted after July 16, 2007.

As revised, §656.30(c)(2) states that a permanent labor certification is valid only for the particular job opportunity, the foreign worker named on the original application (unless a substitution was approved prior to July 16, 2007), and the area of intended employment stated on the application (either Form ETA 750 or Form ETA 9089). As the Department made clear in the Supplementary Information that accompanied the Final Rule, 'approved' for purposes of the substitution request means approved by DOL at the DOL stage in processing such a request. Pursuant to §656.11(a), the Department will consider a request for substitution made prior to July 16, 2007, even if it does not make a determination or complete action on that request until after the Final Rule's effective date.

No application for labor certification or approved labor certification may be sold, bartered, or purchased as of July 16, 2007. A "sale" means an agreement between a seller and a buyer to transfer ownership of a labor certification in consideration of monetary payment or promise of monetary payment. "Barter" means the transfer of ownership of a labor certification from one person to another by voluntary act or agreement in exchange for a commodity, service, property, or other valuable consideration. "Purchase" means the voluntary agreement to transfer ownership of a labor certification from one person to another based on valuable consideration. The Final Rule adds these definitions to §656.3.

Pursuant to §656.12(b), an employer may not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the foreign worker will benefit that party. "Payment" includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other "in kind" payments; and free labor. This includes the prohibition against the foreign worker paying the employer's attorneys' fees in connection with the labor certification application.

"Activity related to obtaining permanent labor certification," for purposes of §656.12(b), includes, but is not limited to, recruitment activity, the use of legal services, and any other action associated with the preparation, filing, or pursuit of an application. This section prohibits any such payment. A foreign worker may pay his/her own costs, including attorneys' fees for representation of the foreign worker, except that when the same attorney represents both the foreign worker and the employer, all costs related to preparing, filing, and obtaining the permanent labor certification must be borne by the employer.

The regulation prohibits payment by the foreign worker or others of employer-incurred costs related to labor certification, including attorneys' fees. If, for example, a reimbursement agreement would require the employee to reimburse the employer for some or all of the attorneys' fees it incurred associated with preparing, filing and obtaining the labor certification, such reimbursement agreement would violate the Final Rule.

Section 656.12(b) prohibits an employer from seeking or receiving payment of any kind for activity related to obtaining permanent labor certification, including the employer's attorneys' fees. If the payment obligation, however, accrued prior to July 16, the employer has the right to seek the payment after the effective date.

For applications filed on or after July 16, 2007, an employer who has sought this type of payment from the foreign worker beneficiary of the application must answer "yes" to Question I-23 on ETA Form 9089 ("Has the employer received payment of any kind for the submission of this application?"), even if the employer has not yet received payment from the foreign worker. Employers should describe the payment and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (ie, July 16, 2007). Employers answering "yes" to Question I-23 must be prepared, if requested by the Certifying Officer, to explain and support the details of such payment.

Both because the Final Rule governs the payment or reimbursement of an employer's attorneys' fees, and because an attorney is the employer's legal representative (and so stands in the place of the employer), the rule prohibits payments to an attorney for the employer's legal fees when such payments would not be permissible directly to the employer. If the payment obligation accrued, however, prior to July 16, the attorney has the right to seek the payment after the effective date and should note on the application, for the record, when the obligation accrued.

For applications filed on or after July 16, 2007, if an attorney or firm completing the application represents the employer, or the employer and foreign worker jointly, and has either sought or received a payment from the foreign worker that is directly related to the employer's labor certification costs as outlined in the regulation, the attorney must answer "yes" to Question I-23.

Attorneys answering "yes" to Question I-23 must be prepared to explain and support the details of such payments. The attorney should describe the payment, explain that the payment was to the attorney and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (ie, July 16, 2007).

The regulations state that an employer may not seek or receive payment from the employee (or a third party except in specific circumstances) after July 16 2007. Attorneys may represent employers in the preparation, filing and obtaining of a labor certification and may be paid for that activity by the employer. Attorneys may represent foreign workers in their own interests in the review of a labor certification (but not in the preparation, filing and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the foreign worker for that activity. To the extent, however, that a contract exists between the attorney and the employee, which calls for the receipt on or after July 16 of payment for services rendered on or after July 16 in connection with the preparation, filing or obtaining of a labor certification, such services are to be paid for, under the regulation, by the employer.

No. But for the attorney's representation of the foreign worker, the attorney would not be furnishing such services to the employer. This is prohibited by the regulations.

Pursuant to §656.31(f), the Department may debar an employer, attorney, and/or agent from the permanent labor certification program for up to three years, when it determines such employer, attorney, and/or agent has facilitated or participated in one or more of the following actions, if such action was prohibited at the time it occurred:

1. Sale, barter, or purchase of an application for labor certification or approved labor certification;
   
   
2. Prohibited payment for an activity related to obtaining permanent labor certification;
   
   
3. Willful provision or assistance in the provision of false or inaccurate information for an application for labor certification;
   
   
4. Pattern or practice of failure to comply with the terms of Form ETA 9089, Application for Permanent Employment Certification, or Form ETA 750, Application for Alien Employment Certification;
   
   
5. Pattern or practice of failure to comply with the Permanent Labor Certification audit process;
   
   
6. Pattern or practice of failure to comply with the Permanent Labor Certification supervised recruitment process; or
   
   
7. Fraud or willful misrepresentation involving a Permanent Labor Certification, as determined by a court, the Department of Homeland Security, or the Department of State.

20 CFR 656.21 provides, "Where the Certifying Officer determines it appropriate, post-filing supervised recruitment may be required of the employer for the pending application or future applications pursuant to 20 CFR 656.20(b)," and 20 CFR 656.24(f) provides, in part, "If the Certifying Officer determines the employer substantially failed to produce required documentation, or the documentation was inadequate, or determines a material misrepresentation was made with respect to the application, or if the Certifying Officer determines it appropriate for other reasons, the employer may be required to conduct supervised recruitment pursuant to §656.21 in future filings of labor certification applications for up to two years from the date of the Final Determination.

The employer will be notified by the Office of Foreign Labor Certification/Atlanta National Processing Center (OFLC/ANPC).

The supervised recruitment process generally consists of the following steps:

1. The employer will receive a Notification of Supervised Recruitment letter. Using the advertisement's general content requirements outlined in the Notification of Supervised Recruitment letter, the employer must supply a draft advertisement of the job opportunity to the Certifying Officer for review within 30 calendar days from the date of the notification letter. The employer may submit a request for one extension (for good cause) of the 30-day timeframe, to be granted at the Certifying Officer's discretion. In drafting the advertisement, the employer cannot substantively deviate from the job opportunity's requirements as listed in Section H of the submitted ETA Form 9089.
   
   
2. Upon receipt and review of the draft advertisement, the Certifying Officer may issue an Assessment/Correction Letter to the employer, identifying any changes/additions that must be made before recruitment can begin.
   
   
3. Once the draft advertisement is approved, the Certifying Officer will send the employer a Recruitment Instructions letter identifying in what sources or publications, as well as when, the employer's advertisement(s) must be placed. The employer must not initiate recruitment for U.S. workers until it receives this letter.
   
   
4. The employer's advertising will direct applicants to send resumes and or applications to an OFLC or ANPC post office box address as outlined in the Recruitment Instructions letter. The Certifying Officer will send all resumes and applications received in response to the employer's advertisement(s) along with a cover letter listing the resumes/applications to the employer's attorney or agent of record, if any, with a copy of the cover letter to the employer. If the employer is not represented by an attorney or agent, the resumes and or applications will be sent directly to the employer. The employer will be required to consider all U.S. applicants for this job opportunity and any rejections must be made only for lawful reasons.
   
   
5. A Recruitment Report Letter outlining the requirements set forth under 20 CFR 656.21(e) will be sent to the employer requiring it to submit a written recruitment report to the OFLC/ANPC within 30 calendar days of the request. The employer may request one extension (for good cause) of the 30-day timeframe, to be granted at the OFLC/ANPC's discretion.
   
   
6. The Certifying Officer will utilize all recruitment information and supporting documentation to determine whether to grant or deny the employer's application.

In accordance with the regulation, failure to adhere to any timeframe throughout the supervised recruitment process will result in a denial of the employer's application. A pattern or practice of failing to comply in the supervised recruitment process is a ground for debarment of an employer, attorney, agent, or any combination thereof from the permanent labor certification program for a reasonable period of up to three years.

The employer must provide notification of a change of representation as soon as the decision to hire the attorney or agent is finalized. The notification may be included with other correspondence or communication with the OFLC/ANPC. If the employer's communication with OFLC/ANPC is via e-mail, a copy of the notification, in PDF format, must be attached to the email and, thereafter, the signed original must be mailed to the OFLC/ANPC. Please note: Communication will not be held with an attorney or agent who is not listed on the ETA Form 9089 and for whom no notification establishing employer representation is provided to the OFLC/ANPC.

The employer and/or the newly retained attorney or agent must provide documentation signed by the employer establishing that it intends to be represented by the attorney or agent named, providing all applicable information as requested in Section E, Agent or Attorney Information, of the ETA Form 9089, and containing the statement, "I hereby designate the agent or attorney identified in this letter to represent me for the purpose of labor certification. I take full responsibility for the accuracy of any representations made by the agent or attorney identified above."

Yes, If the employer wishes to state a wage range in the advertisement, the bottom of the range must not be lower than the prevailing wage or the wage being offered to the foreign worker named on the ETA Form 9089, whichever is higher.

Where the employer includes a wage in its advertisement, the wage must be equal to or greater than the current prevailing wage for the job opportunity. Where necessary, the OFLC/ANPC will provide the employer with the new prevailing wage applicable to the job opportunity. If the employer chooses to use a source other than the Occupational Employment Statistics (OES) survey, the employer must provide an acceptable survey, as outlined in 20 CFR 656.40(g), to the Certifying Officer.

All documentation required by the OFLC/ANPC as part of the supervised recruitment process must be provided in full. Where one form of documentation lends itself more readily for submission to the OFLC/ANPC, e.g., electronic versus hardcopy, arrangements can possibly be made to accommodate the one form over the other.

Resumes and or applications received by the OFLC/ANPC in response to the employer's advertisement(s) will be sent to the employer's attorney or agent of record, if any, with a copy to the employer. If the employer is not represented by an attorney or agent, the resumes and or applications received by the OFLC/ANPC in response to the employer's advertisement(s) will be sent directly to the employer.

While OFLC/ANPC may grant an employer's request to withdraw an application undergoing supervised recruitment and the employer then files a new application meeting all regulatory requirements, the future application for the same foreign worker as in the withdrawn application will be subject to supervised recruitment pursuant to 20 CFR 656.21. Additionally, where the OFLC/ANPC determines it appropriate, all other applications filed by the employer for any foreign worker or job opportunity may also be subject to supervised recruitment.

 An employer that wishes to file a future application for the same foreign worker as in an application withdrawn while undergoing supervised recruitment must do so by completing the ETA Form 9089, except Section I, Recruitment Information, which will be completed after submission at the instruction of the OFLC/ANPC. The employer must file the above referenced application by mail to the Atlanta National Processing Center at the following address:



U.S. Department of Labor
 Employment and Training Administration
Office of Foreign Labor Certification
 Attention: Supervised Recruitment Certifying Officer
 P.O. Box 56625
 Atlanta, Georgia 30343

Repeated requests to withdraw different applications undergoing supervised recruitment will be carefully reviewed and may evidence a pattern or practice of the employer's failure to comply with the supervised recruitment process, and may subject the employer to debarment from the permanent labor certification program for a reasonable period of no more than three years pursuant to 20 CFR 656.31(f)(1)(v).

The employer should email the DOL Helpdesk at PLC.Atlanta@dol.gov as
soon as possible to notify the DOL of the new address. The email should include the
following:

1. Subject line of the email should state "Employer Change of Address."
2. Body of email should include:
a. The reason for the change of address request (i.e. moved office location);
b. Employer's FEIN;
c. Mailing address the employer listed on pending application(s);
d. Employer's new mailing address;
e. Effective date of the new mailing address; and
f. Each PERM case number(s) and/or name(s) of the foreign workers for which the applications were filed that currently are pending with the DOL.

In the alternative, the employer may mail a letter to the Atlanta National Processing
Center (ANPC) in lieu of an email that includes all of the information listed above to
notify the DOL of employer's the change of address.

Yes. If the company's move will change the area of intended employment for
the beneficiary of the application the employer must complete recruitment for the new area of intended employment before filing the application with the DOL. An employer must recruit within the area of intended employment (defined in 20 CFR 656.3), in accordance with 20 CFR 656.17.

An attorney should send an email to the DOL Helpdesk at
PLC.Atlanta@dol.gov as soon as possible stating the following:

1. Subject line of the email should state "Attorney/Agent Change of Address."
2. Body of email should include:
a. The reason for the change of address request (i.e. moved to new location);
b. Employer's FEIN;
c. Mailing address the attorney/agent listed on pending application(s);
d. Attorney's/Agent's new mailing address;
e. Effective date of the new mailing address; and
f. Each PERM case number(s) and/or name(s) of the foreign workers for
which the applications were filed that currently are pending with the DOL.

In the alternative, the attorney may mail a letter to the ANPC in lieu of an email that
includes the information listed above to notify the DOL of the attorney's change of
address.

An attorney should send an email to the DOL Helpdesk at PLC.Atlanta@dol.gov as soon as possible to notify the DOL that he or she has changed firms. The email should provide the following:

1. Subject line of each email should state "Attorney/Agent Change of Address"
2. Body of email should include:
a. Employer's FEIN;
b. The reason for the change of address request (i.e. moved to new law firm);
c. Mailing address the attorney/agent listed on pending application(s);
d. Attorney's/Agent's new mailing address;
e. Effective date of the new mailing address; and
f. PERM case number(s) and/or name(s) of the foreign workers for which the applications were filed that currently are pending with the DOL.

Since the attorney is not continuing to represent all applications he or she originally
filed, it is imperative to provide case numbers of the cases that the attorney will continue to represent. If the case numbers are unavailable then the attorney must provide the full name(s) of the foreign worker(s) for whom the application(s) were filed. In the alternative, the attorney may mail a letter to the ANPC in lieu of an email that includes the information listed above to notify the DOL of the attorney's change of address.

The attorney should send an email to the DOL Helpdesk at PLC.Atlanta@dol.gov to notify the DOL of a change in address and a change in representation.
1. Subject line of the email should state "Attorney/Agent Change in Representation"
2. Body of email should include:
a. The nature of the corporate change;
b. Name, address and FEIN of the employer listed on the pending application;
c. Name, address and FEIN of the new entity, if applicable;
d. Mailing address of the attorney/agent listed on pending application(s);
e. Attorney's/Agent's new mailing address, if applicable;
f. Effective date of the corporate change;
g. Effective date of the new mailing address, if applicable; and
h. PERM case number(s) and/or name(s) of the foreign workers for which the applications were filed that currently are pending with the DOL.

If the case numbers are unavailable then the attorney must provide the full names of the foreign workers for whom applications were filed. In the alternative, the employer may mail a letter to the ANPC in lieu of an email that includes the information listed above to notify the DOL of the change in representation and/or the change in corporate entity and address, if applicable.

Yes. An employer with pending applications must notify the DOL of the
employer's new address.

Yes. The attorney may notify the DOL of a change of address, change in
representation and/or corporate change on behalf of a client. The attorney should send an email to the DOL Helpdesk at PLC.Atlanta@dol.gov to notify the DOL of a change in address and a change in representation. The email should include the following:

1. Subject line of the email should state "Employer Change of Address."
2. Body of email should include:
a. The reason for the change of address request (i.e. moved office location);
b. Employer's FEIN;
c. Mailing address the employer listed on pending application(s);
d. Employer's new mailing address;
e. Effective date of the new mailing address; and
f. Each PERM case number(s) and/or name(s) of the foreign workers for which the applications were filed that currently are pending with the DOL.

In the alternative, the employer may mail a letter to the ANPC in lieu of an email that
includes all of the information listed above to notify the Department of employer's the change of address.

Yes. You must notify BALCA and the ANPC separately.

Yes. Please notify BALCA of your change of address following BALCA's change of address procedures.

PLC.Atlanta@dol.gov

U.S. Department of Labor, Employment & Training Administration, Atlanta
National Processing Center, Harris Tower, 233 Peachtree Street, Suite 410, Atlanta, GA 30303.  Please state clearly on the cover letter that the request is for a notice of the change in address or representation.

A pay differential (also referred to as a pay adjustment, cost of labor adjustment, cost of living adjustment, or locality pay) is a type of pay offered to workers, in addition to the base rate of pay for a job, to account for cost differentials depending on the area where the job is located. Typically, a pay differential is offered when an employer employs individuals in multiple areas of employment with a set base rate of pay for a job company-wide and then pays a wage differential to account for the different costs of living or costs of labor in the places where the job is performed. A pay differential is generally established as a certain amount per pay period and is paid along with the base salary on a biweekly, monthly or similar basis.

May 13, 2019

Yes. Under 20 CFR § 656.10(c), the employer must certify the "conditions of employment," including the "offered wage." The offered wage, in turn, must equal or exceed the prevailing wage in the area of employment. 20 CFR § 656.10(c)(1). Pay adjustments such as locality pay - whose purpose is to bring a worker’s wage rate at least "level" with the prevailing wage rate in the area of employment - are part of an employee’s base pay. See Crowley v. United States, 57 Fed. Cl. 376, 381 (2003) (finding that federal locality pay is a "special pay adjustment" to be deemed part of "base pay"). Accordingly, in the labor certification context, the Department considers the "offered wage" to include all wage adjustments.

May 13, 2019

Yes. Since a pay differential is a wage adjustment and therefore part of the offered wage, the employer must include the pay adjustment in Section G-1 of the ETA Form 9089.

May 13, 2019

Yes. Pursuant to 20 CFR § 656.10(d)(4), the NOF must state the rate of pay. The rate of pay is the wage offered to the interested person, whether a U.S. citizen or foreign national, for the job opportunity at the worksite location. As a pay differential is part of the offered wage, employers must include any pay differential in the rate of pay when completing the NOF.

May 13, 2019

As noted above, if the employer can anticipate the various worksites, it must disclose any locality-based pay differential in the Form ETA-9141 and the ETA Form 9089, and all statements of wages offered or rates of pay must include applicable pay differentials. In instances in which the worksites cannot be anticipated at the time of filing, the Employer must use the location of its Headquarters to determine its recruitment and prevailing wage. Section G-1 of the ETA Form 9089 must state the wage offered at Headquarters, including the applicable pay differential. The rate of pay offered must equal or exceed the prevailing wage. The NOF must state the rate of pay listed in Section G-1 of the ETA Form 9089, including the differential.

May 13, 2019

Performance of longshore work at U.S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exceptions. One such exception requires an employer to file an attestation stating that it is the prevailing practice for the activity at that port, there is no strike or lockout at the place of employment, and that notice has been given to U.S. workers or their representatives.

Another exception requires that, before using alien crewmen to perform longshore activities in the State of Alaska, the employer will make a bona fide request for and employ U.S. longshore workers who are qualified and available in sufficient numbers from contract stevedoring companies, labor organizations recognized as exclusive bargaining representatives of United States longshore workers, and private dock operators.

An employer seeking to file an H-1B, H-1B1, or E-3 visa application must first file an LCA with the Department. The H-1B visa classification includes workers in specialty occupations and fashion models of distinguished merit and ability. The H-1B1 visa classification includes workers in specialty occupations and is limited to nationals of Singapore and Chile. The E-3 visa classification includes workers in specialty occupations and is limited to nationals of Australia.

February 17, 2011

For purposes of the H-1B, H-1B1 and E-3 programs, the Department's regulations define a specialty occupation as an occupation that requires theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor's degree or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States.

Posted February 17, 2011

No. The Department does not accept LCAs filed by fax.

Posted February 17, 2011

You can access H-1B disclosure information from our website at http://www.flcdatacenter.com.

Posted February 17, 2011

Complaints should be filed with the Wage and Hour Division local office which has jurisdiction over the physical location of the employer. Check the 'blue pages' in the local telephone book or http://www.dol.gov/whd/america2.htm#Map.

The form to file a complaint (Form WH-4) can be downloaded at http://www.dol.gov/whd/forms/fts_wh4.htm

Complaints on not fulfilling the attestations and pay go to the Wage and Hour Division, while complaints of fraudulent or misrepresented applications (e.g. the company does not exist or never employs the individuals, or someone who is not a representative of the employer signs the application) go to the Office of Inspector General (OIG) which then generally works with the Department of Justice (DOJ) to investigate. The Wage and Hour Division will forward fraud cases appropriately.

Posted February 17, 2011

No. There is no fee to the employer or worker to file an LCA with the Department of Labor.

Posted March 27, 2012

To change your iCERT System account access information, the OFLC Portal Technical Help Desk will need the following information on the business letterhead of the account holder:

1. action to be taken on the account
2. reason for the account change
3. account username
4. full name of the original contact person on the account (if different from the requestor)
5. full name of the new contact person on the account (if applicable)
6. name of the business
7. current business phone number to contact
8. current business e-mail address to contact
9. Federal Employer Identification Number (FEIN)
10. effective date of the change

This request and any other technical assistance questions related to your iCERT System account may be e-mailed to the OFLC Portal Technical Help Desk at oflc.portal@dol.gov.Account change requests that cannot be e-mailed as PDFs may be sent to us via fax on (202) 693-2768 or U.S. mail to the following address:

Office of Foreign Labor Certification
Employment and Training Administration
200 Constitution Avenue, NW, Room C-4312
Washington, DC 20210
Attn: LCA Program iCERT Account

Posted March 27, 2012

In order to employ a nonimmigrant worker in H-1B, H-1B1 or E-3 status, an employer must complete and file electronically the Labor Condition Application (LCA), through the iCERT Portal System no more than 6 months before the initial date of intended employment. Employers with physical disabilities or those who lack Internet access may file by mail but must first receive permission from the Office of Foreign Labor Certification (OFLC) to do so.

February 17, 2011

Employers with physical disabilities or those who lack Internet access and cannot electronically file the ETA Form 9035E through the iCERT Portal System must petition the Administrator of OFLC for approval to file an LCA on the ETA Form 9035 in paper format by mail. The employer must send the written request to:

Administrator, Office of Foreign Labor Certification
Employment & Training Administration
U.S. Department of Labor
Room C-4312
200 Constitution Avenue, NW
Washington, DC 20210

The employer's written request must establish the need to file by mail, and include an explanation of physical disability or lack of Internet access. The employer should be prepared to submit supporting documentation if requested by the OFLC.  The OFLC Administrator must approve the request before the employer may file by mail.

Posted February 17, 2011

1. Yes. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification, and are either all part-time or all full-time positions. However, an employer must file separate LCAs for:

   1. Workers in different visa categories, e.g. an H-1B position and an E-3 position may not be requested on the same ETA Form 9035/9035E;
   2. Nonimmigrant workers in different job classifications, e.g. a computer systems analyst (Standard Occupational Code [SOC] 15-0051.00) and a software engineer (SOC 15-0032.00) must be listed on separate applications;
   3. Full-time or part-time positions; and/or
   4. Exempt and non-exempt nonimmigrant workers for H-1B dependent employers and/or willful violators as indicated in Item I of the LCA.

   Posted February 17, 2011

Yes. An employer's ETA Form 9035/9035E must list all of the places of intended employment that are identified at the time of filing.  The ETA Form 9035E (electronic format) can accommodate up to three places of intended employment.  For employers who have received pre-approval to submit an LCA by mail, since the ETA Form 9035 (paper format) can only accommodate one place of intended employment, the employer may submit an attachment identifying up to two additional worksites. An employer may file additional LCAs to identify additional places of employment beyond the three places listed on the original application.

Employers should note that the LCA must reflect an appropriate prevailing wage that corresponds to each place of intended employment; i.e. it must be the prevailing wage for the area of intended employment as defined by the Department's regulations.

Posted February 17, 2011

The LCA filing process for an employer in the CNMI is the same as the LCA process outlined above.

Posted February 17, 2011

Yes. When you submit an LCA through the iCERT Portal System at https://icert.doleta.gov, you will receive a courtesy email confirming that your application has been submitted. You will also receive an email when your application has been processed, providing you with the final determination on your application. If you do not receive email notification of the final determination after seven (7) working days, you may check the status of your LCA by logging onto the iCERT Portal System. If you cannot obtain status of your LCA from the iCERT Portal System, please contact the LCA Help Desk at LCA.Chicago@dol.gov. For technical or system problems concerning the iCERT Portal System or submission of your LCA, please contact the iCERT Portal System Help Desk at OFLC.Portal@dol.gov.

Please note: You may check the status of your LCA at any time after submission by logging onto the iCERT Portal System

February 17, 2011

Denial for the FEIN value means that the FEIN entered in Section C.12 of the ETA
Form 9035E by the employer could not be currently verified by the OFLC as a valid nine digit FEIN assigned by the IRS. When the employer receives a denial of an LCA on this ground, it also receives additional instructions from Chicago National Processing Center (CNPC) on how to resubmit an LCA. In order for the employer to overcome the issue identified on the denial determination for any future LCAs submitted using the denied FEIN, the employer will first need to submit at least one document that clearly displays the FEIN and the name of the employer associated with the unique identification number. Such documents may include:

• Documentation from IRS noting assignment of FEIN
• Federal or State tax return (only acceptable with a preprinted label) or a preprinted tax coupon
• Documentation from employer's financial institution showing employer's FEIN
• Articles of incorporation, business license, or other certifications of business existence
• Secretary of State or Corporation Commission registration documents
• Official and/or government documents
• Other documentation showing the FEIN and name of the employer

In order to expedite the process, you may either fax, email as a PDF attachment, or mail the requested information to the following:

FAX: (312) 353-6757. On the cover page of the fax, please write "LCA Business
Verification Team Proof of Valid FEIN", or

EMAIL: LCA.Chicago@dol.gov. In the Subject Line, please write "LCA Business Verification Team Proof of Valid FEIN", or

MAIL: Attn: LCA Business Verification Team Proof of Valid FEIN
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification,
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105

The employer will be notified via email after the requested information has been reviewed. Only then should the employer submit a new LCA.

Posted June 17, 2010

The employer who is a "new" company (created through a merger, acquisition, sale, etc.) may submit the documentation described above to establish its new FEIN. It may then file an LCA.

Posted June 17, 2010

The employer must enter the contact information of the employee who is authorized to act on behalf of the employer. This cannot be an agent or attorney, unless the agent or attorney is a direct employee of the employer.

Posted June 17, 2010

In order to prevent an adverse effect on the U.S. workforce, an employer applying to temporarily hire a nonimmigrant worker in H-1B, H-1B1 or E-3 status must attest that it has met or will meet the following requirements:

• Wages: Pay the required wage to the workers for whom it will file a petition supported by the LCA for the duration of the authorized period of employment;
• Working Conditions: Provide the nonimmigrant workers working conditions that will not adversely affect the working conditions of U.S. workers similarly employed, such as hours, shifts, vacation periods, and benefits based on the same criteria as those the employer offers to its U.S. workers;
• No Strike/Lockout: Ensure that there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment at the time of filing the ETA Form 9035/9035E; and
• Notice: Notify its U.S. workers that it intends to hire an H-1B, H-1B1 or E-3 nonimmigrant worker by either providing notice of the LCA to the bargaining representative (representing the workers of the employer in the same job classification and area of intended employment as the nonimmigrant worker), or where there is no bargaining representative, providing electronic notice of the filing of the LCA or by posting notice of the LCA in at least two conspicuous locations in the employer's place(s) of business in the area of intended employment. The notice must contain specific information about the nonimmigrant workers sought and the process for submitting allegations of misrepresentation or non-compliance related to the LCA. Since the ETA Form 9035/9035E contains this information, employers may choose to comply with the notice requirement by providing or posting a copy of the ETA Form 9035/9035E.

In addition, the employer must provide the nonimmigrant worker(s) with a copy of the certified ETA Form 9035/9035E no later than the first day on which the foreign worker begins to work for the employer.

An employer who is H-1B dependent or a willful violator must also attest that it has met or will meet the following requirements:

• Displacement: Non-displacement of the U.S. workers in the employer's workforce;
• Secondary Displacement: Non-displacement of the U.S. workers in another employer's workforce; and
• Recruitment and Hiring: Recruitment of U.S. workers and hiring of U.S. workers applicant(s) who are equally or better qualified than the H-1B non-immigrant(s).

February 17, 2011

For the most part, the obligations of an employer filing an LCA with the Department where the beneficiary is either a national of Chile or a national of Singapore in the H-1B1 visa category are virtually the same as those applicable to employers hiring H-1B workers.

However, there are some differences in the H-1B1 visa category. The employer filing an LCA to hire a national of Chile or Singapore in the H-1B1 visa category must make one of the following appropriate notations on its ETA 9035: "H-1B1-Chile" or "H-1B1-Singapore".

In addition, Section 20 CFR 655.700(d) of the Department's regulations provides a list of regulatory provisions that do not apply to the H-1B1 visa category, including: numerical visa cap provisions (note: the H-1B1 visa category is subject to a separate cap of 6,800 (1,400 for Chile and 5,400 for Singapore) initial visas annually); the provisions regarding the North American Free Trade Agreement; certain provisions for filing complaints; certain provisions regarding the H-1B dependent employers or willful violators; provisions regarding changes in the employer's corporate structure or identity; provisions regarding short-term placement of H-1B foreign workers outside the area of intended employment; the provision defining H-1B dependent employers and willful violators; provisions regarding exempt H-1B workers; certain non-displacement provisions applicable to H-1B dependent employers and willful violators; provisions regarding recruitment of U.S. workers applicable to H-1B dependent employers and willful violators; and certain public examination of records requirements. This section also includes specific filing procedures for employers applying to hire foreign workers in the H-1B1 visa category with paragraphs (5) and (6) of the section applying to Chile and Singapore, respectively.

Posted February 17, 2011

For the most part, the obligations of an employer filing an LCA with the Department where the beneficiary is an Australian national in the E-3 visa category are virtually the same as those applicable to employers hiring H-1B foreign workers.

However, there are some differences for the E-3 visa category. The employer filing an LCA to hire an Australian national in the E-3 visa category must make the following notation on its ETA Form 9035/9035E - "E-3 Australia".

In addition, Section 20 CFR 655.700(d) of the Department's regulations provides a list of regulatory provisions that do not apply to the E-3 visa category including: numerical visa cap provisions (note: the E-3 visa category is subject to a separate cap of 10,500 initial visas annually); the provisions regarding the North American Free Trade Agreement; certain provisions for filing complaints; certain provisions regarding the H-1B dependent employers or willful violators; provisions regarding changes in the employer's corporate structure or identity provisions regarding short-term placement of H-1B foreign workers outside the area of intended employment; the provision defining H-1B dependent employers and willful violators; provisions regarding exempt H-1B workers; certain non-displacement provisions applicable to H-1B dependent employers and willful violators; provisions regarding recruitment of U.S. workers applicable to H-1B dependent employers and willful violators; and certain public examination of records requirements. This section also includes specific filing procedures for employers applying to hire foreign workers in the E-3 visa category.

Posted February 17, 2011

The required wage is the wage the employer must pay to its foreign workers in the H-1B, H-1B1 and E-3 visa categories for the entire period of authorized employment, as approved by the Department. The required wage rate must be the higher of the actual wage rate (the rate the employer pays to all other individuals with similar experience and qualifications who are performing the same job), or the prevailing wage (a wage that is predominantly paid to workers in the same occupational classification in the area of intended employment at the time the application is filed). In addition, an employer is not permitted to pay a wage that is lower than a wage required under any other applicable Federal, State or local law.

February 17, 2011

Although the Department's regulations governing the LCA process do not require an employer to use any specific wage methodology to determine the prevailing wage, they do require that the prevailing wage be based on the best information available at the time the employer files an application. An employer filing an LCA may, but is not required to, request a prevailing wage determination (PWD) from the OFLC's National Prevailing Wage Center (NPWC) by U.S. mail or through the iCERT Portal System. In the absence of a PWD issued by the NPWC, the employer may consider the following wage sources in determining the prevailing wage:

    1. A wage rate set forth in a collective bargaining agreement (CBA), or
    2. If the job opportunity is in an occupation which is not covered by a CBA:

• A wage rate for the occupation and area of intended employment under the Davis-Bacon Act (DBA);
• A wage rate for the occupation and area of intended employment issued under the McNamara-O'Hara Service Contract Act (SCA);
• A wage rate produced by a survey conducted by an independent authoritative source that meets the requirements set forth in 20 CFR 655.731; or
• A wage rate produced by another legitimate source of information, including the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) data available through the iCERT Portal System and the FLC Data Center.

Under the American Competitiveness and Workforce Improvement Act (ACWIA), as implemented by the Department's regulations, the prevailing wage for employees of an institution of higher education, an affiliated or related nonprofit entity, a nonprofit research organization, or a governmental research organization must be based only on the wages of similarly employed employees of such institutions in the area of intended employment. The ACWIA wages may be accessed through the iCERT Portal System and the FLC Data Center.

For more information on the process of obtaining a PWD from the NPWC, please consult the Prevailing Wage Determination Policy Guidance and the Prevailing Wage FAQs on the OFLC web site.

Posted February 17, 2011

Under the Department's regulations, the Department will deem the PWD from the NPWC as correct as to the amount of the wage in the event of an investigation by the Wage and Hour Division. However, this "safe harbor" does not protect an employer who has failed to pay the higher of the actual wage or the prevailing wage, and/or who has paid a wage that is lower than a wage required under any other applicable Federal, State or local law.

Posted February 17, 2011

No. The employer does not need to obtain the PWD from the NPWC prior to filing the LCA. However, if the employer requests a PWD, but does not wait to obtain the PWD before submitting the LCA, the employer must consider the following:

• The employer may list the PWD from the NPWC as its prevailing wage source in Section G of the ETA Form 9035/9035E only if it has a PWD issued and valid on the day it submits the LCA. If the employer intends to file an LCA listing the NPWC-issued PWD as the source of the prevailing wage, it must wait until the NPWC actually issues the final PWD before submitting the LCA. The employer may not use iCERT tracking numbers and wage rates requested on the ETA 9141, in lieu of an actual final NPWC prevailing wage determination. Listing an NPWC-issued prevailing wage on an LCA operates as an endorsement of that wage and forecloses the employer's ability to appeal the PWD after filing the LCA.
• If the employer wishes to qualify for the "safe harbor" discussed in the previous FAQ, the employer must request a PWD from the NPWC and file an LCA during the prevailing wage validity period specified on the ETA Form 9141. If the employer cannot wait for the NPWC to issue the PWD before filing its LCA, the employer may instead rely on another legitimate source of available wages so long as the employer retroactively compensates the H-1B, H-1B1 or E-3 nonimmigrant for the difference between the wage the employer paid in reliance on the other legitimate wage source and the prevailing wage, if higher. Please see 20 CFR 655.731(a)(2)(ii)(A)(2).

Posted February 17, 2011

ETA Form 9035/9035E instructions for Item G.7 require the employer to identify either the State, district or territory where the prevailing wage was issued or the agency which issued the prevailing wage. However, as of January 1, 2010, prevailing wage determinations are only provided by the NPWC. Accordingly, an employer who has received a prevailing wage determination from the NPWC by mail or through the iCERT Portal System must enter under item G.7 either "District of Columbia" (for the State/district/territory) or "NPWC" (for the National Prevailing Wage Center) or both. An employer who has received a PWD from the NPWC must also enter the prevailing wage tracking number under Item G.7a.

Posted February 17, 2011

Item G.11 of the ETA Form 9035/9035E specifically lists four prevailing wage sources: Occupational Employment Statistics (OES), Collective Bargaining Agreement (CBA), Davis-Bacon Act (DBA), and McNamara-O'Hara Service Contract Act (SCA). When an employer uses one of these sources, it must mark the box next to the prevailing wage source it used. When the employer uses a prevailing wage source not specifically listed in Item G.11, it must mark the box for "Other," and list the specific prevailing wage source used in item G.11b.

Important note: Pursuant to the instructions accompanying the ETA Form 9035/9035E, if an employer obtained a prevailing wage using OES data from the Foreign Labor Certification Data Center Online Wage Library at http://www.flcdatacenter.com (not the National Prevailing Wage Center), then the employer must specify "OFLC Online Data Center" in item G.11b of the ETA Form 9035/9035E. Additionally, if the employer obtained a prevailing wage using the same OES data available from the iCERT Portal System, the employer should likewise specify "OFLC Online Data Center" in item G.11b of the ETA Form 9035/9035E.

Posted February 17, 2011

The term "independent authoritative source" (defined in 20 CFR 655.715) refers to any professional, business, trade, educational or governmental association, organization, or other similar entity, which is not owned or controlled by the employer and which has recognized expertise in a particular occupational field. As explained above, for purposes of prevailing wage determinations, an employer may use or request the consideration (by the NPWC) of a published survey of wages produced by an independent authoritative source. The independent authoritative source survey must meet three main requirements:

1. It must reflect the average wage (i.e. the weighted average or, if the survey provides a median rather than a weighted average, the median) paid to U.S. workers who are similarly employed in the area of intended employment;
2. It must be based on recently collected data, e.g. data that was collected during the 24-month period before the date on which the survey was published; and
3. The survey must be the most recent survey published by that independent authoritative source for the occupation in the area of intended employment.

Please see 20 CFR 655.715. The Department published a non-comprehensive sample list of generally acceptable wage surveys applicable to LCA program on its Web site in the form of the ETA Form 9035CP - General Instructions for 9035 & 9035E; Appendix II: Sample of Acceptable Wage Survey Sources. Employers should note that the acceptability of a particular wage source is a determination that is made on a case-by-case basis.

Posted February 17, 2011

An employer using an independent authoritative source survey or another legitimate source of wages (a prevailing wage survey) must mark "Other" in Item G.11 and specify the prevailing wage source in Item G.11b of the ETA Form 9035/9035E. Where the employer is relying on a private survey as the source of the prevailing wage, the employer must enter both the company name and the survey title in Item G.11b. If the complete survey company name and the complete survey title do not fit into the available space in Item G.11b, the employer should enter as much information as possible to clearly identify the survey company name and the title of the exact survey used. 

While an employer may abbreviate words contained in the survey company name and title to fit the space provided in Item G.11b, the information provided by the employer must be sufficient to ensure that both the survey company name and the survey title are obviously identifiable. If the title of a survey includes the year the survey was conducted, the employer should not include the year in the survey title entry in Item G.11b but should only enter the year in Item G.11a.

Important Reminder: Acceptability of wage source entries in Item G.11b may vary due to abbreviations, spacing and special characters. OFLC's review of Item G.11b of the ETA Form 9035/9035E, the prevailing wage source, is limited by the information entered by an employer on the individual LCA.

Example: A 2015 survey published by XYZ Wage Surveys, Incorporated entitled  2015 Engineering Salary Survey would appear in Section G under Items 11, 11.a and 11.b in the following manner:

(*) form designation which indicates the field response is required

(§) form designation which indicates the field response is conditionally based on a response provided in a required field

The Department's regulations require that the employer pay the H-1B nonimmigrant the greater of the actual wage (rate of pay) or the prevailing wage and prohibit an employer from paying less than a wage required by any applicable Federal, State or local law. Where the employer's elected wage source provides a wage that is lower than the applicable Federal, State or local minimum wage, the employer must list the highest applicable minimum wage in Section G of the ETA Form 9035/9035E as the prevailing wage. Please refer to the example below (based on the current Federal minimum wage):

Example:

*Item 9. Prevailing wage: $7.25
*Item 11. Prevailing wage source (Choose only one): Other
*Item 11.a Year source published: 2009
§Item 11b. If "OES", and SWA/NPC did not issue prevailing wage OR "Other" in
question 11, specify source: Federal Minimum Wage

Important note: Employers may only list the most recent source of minimum wage information. In addition, an employer must retain documentation of the applicable minimum wage source consistent with the Department's regulations.

(*)indicates the field response is required

(§)indicates the field response is conditionally based on a response provided in a required field

Posted February 17, 2011

Yes. An employer may list the prevailing wage on the LCA in the form in which the employer intends to pay the wage, except where the job opportunity is for part-time employment, in which case the employer must list the prevailing wage as an hourly rate.

Posted February 17, 2011

Since the number of work hours for part-time employment may vary, the employer should enter the wage rates in both Item F.1 (Rate of Pay) and Item G.9 (Prevailing Wage) on the ETA 9035/9035E in the form of an hourly wage. The employer may use the example below as a model for converting annual wage rates into hourly wage rates. Employers may also use prevailing wage sources which provide hourly prevailing wage rates.

Example: If the Rate of Pay minimum wage rate for a worker to be paid is $50,000 annually at 40 hours per week, the calculation is as follows:

52 weeks x 40 hours per week= 2080 hours per year
$50,000 per year/ 2080 hours per year= $24.04 per hour

If the Rate of Pay minimum wage rate for a worker to be paid is $50,000 annually at 30 hours per week, the calculation is as follows:

52 weeks x 30 hours per week= 1560 hours per year
$50,000 per year/ 1560 hours per year = $32.05 per hour

Posted February 17, 2011

An H-1B employer is required to pay a nonimmigrant H-1B worker who is not working and is in nonproductive (not producing income for the employer) status as follows:

• As to full-time salaried nonimmigrant workers, the employer must pay that worker the full pro-rata amount due.

• As to full-time hourly wage nonimmigrant workers, the employer must pay that worker for a full-time workweek (40 hours, unless the employer can demonstrate that a different number of hours constitutes full-time employment).

• Part-time nonimmigrant workers must be paid for at least the number of hours indicated on the USCIS petition, and where that number is represented by a range, the employer is required to pay for at least the average number of hours within the range normally worked by the nonimmigrant worker. The employer may not pay the nonimmigrant worker less than the amount corresponding to the minimum number of hours in the range.

• An employer is not required to pay a nonimmigrant work for nonproductive status if it is based on a decision by the nonimmigrant worker to make him/herself unavailable to work (provided the worker's unavailability is due to conditions unrelated to employment which take the worker away from his/her duties at that worker's voluntary request or convenience or render the nonimmigrant unable to work in accordance with 20 CFR 655.731(c)(7)(ii), and the time is not subject to payment under the employer's benefit plan or other statutes).

Posted February 17, 2011

If an employer obtains and uses a custom-made survey that conforms to the prevailing wage source requirements contained at 20 CFR 655.731, the employer must mark “Other” in Item G.11 and specifically identify the prevailing wage source in Item G.11b of the ETA Form 9035/9035E. In Item G.11b, the employer must enter both the name of the company that provided the wage source, and the words “custom survey” to identify an untitled custom survey source. An employer may use acronyms and abbreviations to identify the company name as long as the employer includes sufficient information in Item G.11b to ensure that the company name is obviously recognizable and the words “custom survey” appear.

Important Reminder: The words “custom survey” may only be entered on the ETA Form 9035/9035E when the employer is identifying a custom-made wage survey it has obtained for the occupation.

Example: If the employer obtains and uses a custom-made wage survey conducted in 2015 from a company called “XYZ Wage Surveys, Incorporated”, the ETA Form 9035/9035E Section G.11 should be completed in the following manner:

(*) form designation which indicates the field response is required

(§) form designation which indicates the field response is conditionally based on a response provided in a required field

The OFLC does not maintain a list of acceptable wage source survey instruments for purposes of processing the ETA Form 9035/9035E. An employer preparing an LCA must select a wage source that complies with the Department's regulations at 20 CFR 655.731 and identify that wage source on the ETA Form 9035/9035E. This information must be obviously recognizable from a revie w only of the information entered on the ETA Form 9035/9035E. When completing the application, the survey entry in Item G.11b must contain the name of the survey company and the exact title of the survey used. The survey title entered must be for the most recent applicable survey published.

While the OFLC does not maintain a separate list of acceptable wage source survey instruments, the OFLC publishes on our web site LCA Disclosure Data on a quarterly and annual basis which includes certified LCAs with their Item G.11b wage source entries. The LCA Disclosure Data can be found here, and a table listing examples of commonly used prevailing wage surveys from FY 2011 LCAs is provided below. LCA Disclosure Data may be helpful to an employer as a list of potentially acceptable wage sources; however, the OFLC does not endorse specific wage source surveys or otherwise guarantee that wage source entries appearing in LCA Disclosure Data meet all regulatory requirements or will be approved in future-filedLCAs.

Each employer must ensure that the wage source it relies on meets the regulatory requirements. For example, a wage source entry that was acceptable in a previous year may no longer reflect the current title of the latest wage survey publication or may no longer meet the requirements under 20 CFR 655.731. Wage survey source entries in Item G.11b must correspond to survey instruments ava ilable in the year entered in Item G.11a; the OFLC will deny an LCA where the wage survey source entry in Item G.11b does not match the year in Item G.11a. Moreover, wage survey source entries in Item G.11b must reflect the most recent publication of the specific survey at the time of LCA submission. The OFLC will deny an LCA with an otherwise acceptable wage survey source entry where, in Items G.11a and G.11b, the LCA identifies a version of the survey other than the most recent publication.

Important Reminder: Acceptability of wage source entries in Item G.11b may vary due to abbreviations, spacing and special characters, since the OFLC's review of Item G.11b of the ETA Form 9035/9035E, the prevailing wage source, is limited to the information entered by an employer on the application. Upon submission of the application, employers attest that the prevailing wage information entered on the application complies with the Department's regulations at 20 CFR 655.731.

Table: Examples of Commonly Used Prevailing Wage Surveys on FY 2011 LCAs
from the LCA Disclosure Data*

* Note: The Department does not endorse specific wage source surveys or otherwise

guarantee that wage source entries appearing in the examples will be approved

in future LCAs.

                                                                     Posted March 27, 2012

Where there is no bargaining representative, the employer must post a notice meeting the requirements of 20 CFR 655.734. A copy of the completed ETA Form 9035 /9035E can serve as the notice, but is not required to be posted as long as all of the required information set forth at 20 CFR 655.734(a)(1)(ii) is in fact posted The notice must be posted on or within 30 days before the filing date. Each notice must remain posted for a total of 10 days.

Posting may occur through one of two methods: hard copy notice or electronic notice. The hard copy notice must be posted in at least two conspicuous locations in each employment location where an H-1B, H-1B1, or E-3 nonimmigrant worker will be employed. Appropriate locations for posting notice include, but are not limited to, near Wage and Hour Division notices or Occupational Safety and Health Administration notices. If the employer is providing electronic notice, it must notify employees in the occupational classification for which the H-1B nonimmigrant is sought (including both the direct employees of the H-1B employer and employees of a secondary/downstream employer where the H-1B worker will actually be placed). Electronic notification may be provided by whatever means the H-1B employer and/or secondary employer normally uses to communicate with its workers including electronic postings (e.g., e-mail, bulletin board, and home web page). The same time frames that apply to electronic notice apply to hard copy notice.

February 17, 2011

The employer must offer the nonimmigrant worker the number of hours specified in the USCIS petition (incorporating the LCA) and which constitute either full-time or part-time employment.

February 17, 2011

If the new permanent business location is a place of employment within the meaning of 20 CFR 655.715 that was not contemplated at the time of filing, and the employer permanently relocates its nonimmigrant worker(s) to the new business location, the employer must post electronic or hard-copy notice(s) at those worksites on or before the date the H-1B nonimmigrant begins work. In addition, the employer may file a new LCA to reflect the new place of employment.

February 17, 2011

The employer must ensure that there is no strike or lockout in the course of a labor dispute in the new place of employment in the same job classification before transferring the nonimmigrant worker to the new worksite that was previously identified on the approved LCA.
Important note: H-1B-dependent employers and willful violators placing a non-exempt H-1B nonimmigrant worker(s) at a new place of employment also have an obligation to ensure that they are not displacing any U.S. worker(s) directly (in their own workforce) or secondarily (in the workforce of another employer at the place of employment). H-1B dependent employers and willful violators are defined in 20 CFR 655.736. Exempt H-1B nonimmigrants are defined in 20 CFR 655.737. Non-displacement obligations are described in 20 CFR 655.738.

Posted February 17, 2011

Yes. In addition, under the Department's regulations, employers who do not wish to be bound by the terms and conditions of an obsolete LCA may withdraw that LCA at any time before the expiration of its validity so long as the nonimmigrants covered by that LCA are not employed at the place of employment pursuant to that LCA, and the Department's Wage and Hour Division has not commenced an investigation of that particular LCA.

Posted February 17, 2011

If an employing entity receives nonimmigrant workers under a valid and certified LCA from a previous employer as a result of a change in corporate structure or identity, the new employing entity is not required to file a new LCA (in order to continue to employ the nonimmigrant worker(s)), regardless of whether the new entity has the same Federal Employer Identification Number (FEIN), so long as the new employing entity:

• Maintains a list of transferred nonimmigrant workers in its public access file(s); and
• Maintains in a public access file a document containing all of the following:

• The number of each affected LCA and date of certification;
• A description of the new employing entity's actual wage system applicable to the transferred nonimmigrant workers;
• The FEIN of the new employing entity (even if it is the same as the previous employer's);
• A sworn Statement by the new employer or its authorized representative in which the new employing entity explicitly accepts all obligations and responsibilities inherent in the attestations of all affected (and valid) LCAs with respect to the transferred nonimmigrant workers. This statement must also include the new employing entity's acknowledgement of assuming all obligations, liabilities, and undertakings arising from or under attestations made in each certified and still effective LCA filed by the predecessor entity.

No employing entity may use a transferred LCA to either hire new nonimmigrant workers or extend the status of any nonimmigrant worker. Instead, the new employing entity must initiate a new LCA process.

Posted February 17, 2011

Any sworn statement made to the Department in connection with an approved LCA must be signed by the employer and, as listed on the LCA instructions (ETA Form 9035CP), should indicate that the employer is making such statement under penalty of perjury and understands that knowingly and willingly furnishing any false information, or aiding, abetting, or counseling another to do so is committing a federal offense, punishable by fine or imprisonment up to five years or both. The employer must maintain the sworn statement in its public access file.

Posted February 17, 2011

An employer who received a certified LCA filed through the iCERT Portal System may withdraw a certified labor condition application (LCA) electronically through the iCERT Portal System, via email or written notice.

A certified labor condition application (LCA) may be withdrawn at any time, provided the employee benefiting from the LCA is not currently working for the employer and the Administrator has not commenced an investigation. If an investigation has commenced, the LCA will remain pending until the investigation is complete.

To withdraw a certified LCA using the iCERT Portal System, a Master account holder (Attorney/Employer) or Associate account holder (a subaccount user granted permission by the Master account holder) must login to the iCERT Portal System, select the certified LCA he or she wishes to withdraw and click the withdraw button. The user is required to select a withdrawal reason from a dropdown list and enter a case note explaining the reason for withdrawal. The system will ask the user to verify the request to withdraw the selected certified LCA. The user must click the verification button. Once the verification is made, the employer contact and the attorney contact, as listed on the LCA, will receive an email indicating the withdrawal was successful. If the user does not have the authority to withdraw the certified LCA, either because of LCA status or account status, the iCERT Portal System will not allow completion of the withdrawal. Withdrawing an LCA through the iCERT Portal System is the only option that guarantees confirmation once the withdrawal is complete.

To withdraw a certified LCA via email, the employer must send the request to the LCA Help Center at: LCA.Chicago@dol.gov. The email subject line must include: Certified LCA Withdrawal Request. Please scan the certified LCA and attach it to the body of the email.

In the body of the email, please provide: the employer's name and Federal Employer Identification Number (FEIN) if available, the LCA number, an explanation for why you are withdrawing the certified LCA, and provide a statement that no employee is working on the LCA pursuant to it being withdrawn. The user must access the iCERT Portal System to verify if the certified LCA was successfully withdrawn.

To withdraw a certified LCA through written notice, the employer must send the written request to:
Attn: LCA Withdrawal
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification,
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105

Written notice must include: the employer's name and FEIN if available, the LCA case number, an explanation for why you are withdrawing the LCA, and verification that no employee is working on the LCA pursuant to it being withdrawn. The user must access the iCERT Portal System to verify if the certified LCA was successfully withdrawn.

Please reference 20 Code of Federal Regulations 655.750(b) for further explanation of the requirements for withdrawing a certified LCA with the Department of Labor ETA.

Posted June 17, 2010

Under the Department's regulations, the employer is prohibited from charging a nonimmigrant worker a penalty fee outright or in the form of a deduction for ceasing employment early. However, in some circumstances, the employer may contract with the worker to receive liquidated damages in the event of a premature termination on the part of the worker. Employers should refer to DHS regulations for additional obligations.

Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation.

February 17, 2011

1. Employers who filed with DOL before March 15, 2010, and have a start date of need before June 1, 2010, will be processed in accordance with the 2008 Final Rule's
   transition procedures.
2. Employers who filed with DOL on or after March 15, 2010, and have a start date of need before June 1, 2010, will be processed in accordance with the 2010 Final Rule's emergency procedures.
3. Employers with a start date of need on or after June 1, 2010, will be processed in accordance with the 2010 Final Rule's normal procedures.

March 29, 2010

No. To qualify for an H-2A labor certification an employer must establish a need for the agricultural services or labor to be performed on a seasonal basis. Although the Department considers each employer's specific circumstances on a case-by-case basis, the Department's program experience has consistently shown that the majority of dairy activities, and milk production in particular, are year-round and therefore cannot be classified as either temporary or seasonal.

February 4, 2013

Yes. The regulation explicitly states that such special procedures will continue.

March 29, 2010

The Training and Employment Guidance Letter (TEGL) No. 16-06, Change 1, establishes special procedures applicable to itinerant custom combine employers seeking H-2A certifications. The TEGL permits them to file one Application for Temporary Employment Certification covering one or more areas of intended employment based on a planned itinerary. As the TEGL notes, custom combine activities are exempt from MSPA registration and therefore are not required to provide a MSPA Farm Labor Contractor (FLC) Certificate of Registration. An itinerant custom combine employer, however, meets the definition of an "H-2A Labor Contractor" (H-2ALC) and must submit all of the other documentation required of H-2ALCs by regulation.

February 13, 2013

We recognize that, due to the unique nature of custom combine activities, a custom combine employer operating on a planned itinerary may not have fully executed work contracts for all worksites before filing an Application for Temporary Employment Certification. Custom combine employers typically travel across vast distances bringing heavy machinery not available locally to meet the needs of fixed-sited agricultural business owners. Weather, crop growth, and other factors that cannot be anticipated on such long itineraries (e.g., across multiple states) may cause an employer's anticipated work to change during the course of the season. Moreover, when the unique custom combine machinery arrives in a local area, additional local fixed-site agricultural business owners may seek the employer's custom combine services. Nevertheless, the employer must have sufficient evidence of the work it expects to perform across the itinerary at the time it submits its application in support of its request for temporary workers.

Given the unique characteristics of custom combine activities, the Department will consider an employer to have effectively satisfied the intent of the H-2A Labor Contractor (H-2ALC) work contract documentation requirement if it provides alternative evidence of agreements to perform custom combine work for fixed-site agricultural business owners, such as letters of intent. Therefore, at the time of filing its Application for Temporary Employment Certification, the employer must provide copies of work contracts or similar agreements (e.g., letters of intent) with the agricultural business owners listed on the itinerary submitted with the application for which the custom combine employer intends to perform work. If an employer meets all other certification requirements, but is unable to substantiate the period of need requested or itinerary provided, the certification will be limited to the portion of the itinerary substantiated through work contracts or similar agreements.

Under certain circumstances, such as when weather conditions prevent completing the custom combine activities approved on the itinerary during the period of need certified, an employer may request a short or long-term extension. The post-certification extension regulatory provision and request process is discussed in more detail in a separate Frequently Asked Question.

Important Note: An employer augmenting its scheduled work within the approved areas of intended employment after certification should maintain an updated itinerary and retain copies of work contracts or similar agreements to ensure that accurate documentation is available in the event of a post-certification audit or upon request by authorized representatives of the Department.

February 13, 2013

No. The 2010 Final Rule does not require employers participating in the H-2A program to obtain a wage rate separate from completing and submitting a job order to the SWA.

March 29, 2010

Yes. An employer participating in the H-2A program will be required to initiate pre-filing recruitment 75 to 60 days before the employer's first date of need by 2 submitting its job order to a SWA serving the area of intended employment as required under 20 CFR 655.121.

March 29, 2010

The employer should use the Agricultural and Food Processing Clearance Order, ETA Form 790 (the job order). Employers may download a PDF copy of the form from the Office of Foreign Labor Certification (OFLC) web site:
http://www.foreignlaborcert.doleta.gov/form.cfm

March 29, 2010

Yes. Employers are encouraged to submit a complete application containing as much detail as possible, including entering "n/a" where appropriate, so as to facilitate the adjudication of the application and minimize the chances of the application package being returned due to incomplete information.

September 15, 2010

An employer filing on its own behalf will only need to submit the ETA Form 790 and the attachments required by the form, as explained in the instructions. Thereafter, the SWA and/or the Certifying Officer may require the employer to submit documentation substantiating the appropriateness of any qualification(s) contained in the ETA Form 790. For example, if the employer is a Farm Labor Contractor, it must be prepared to submit a copy of a valid FLC Certificate of Registration, if requested.

September 15, 2010

The employer is required to submit to the SWA the original ETA Form 790 along with all required attachments, as specified in the instructions to the form. The required attachments include, if applicable, an attachment describing special work schedule situations, an attachment describing in detail the job tasks and duties, and an attachment explaining the employer's handling of wage rate for each activity. The employer should also submit any additional attachments it creates to complete its response to one of the question(s) on the form or otherwise document its compliance with the required assurances described in 20 CFR 653.501 and 655.122. Upon receiving the ETA Form 790, the SWA may require the employer to submit documentation substantiating the appropriateness of any qualification(s) contained in the ETA Form 790.
Please note:
The employer must also send a copy of the ETA Form 790 submitted to the SWA with its Application for Temporary Employment Certification to the Chicago National Processing Center.

September 15, 2011

We frequently see problems in the following areas and would like to remind employers to include the information noted below in the ETA Form 790:

• Item 2 - Worksite location(s) and directions must be clear and complete

• Item 3 - Housing location(s) and directions must be clear and complete. If the employer is providing rental or public accommodations, an assurance must be submitted stating that all rental or public accommodations will meet all local, State or Federal housing standards

• Item 14 - Referral instructions must include the name of the employer's point of contact, phone number and the hours when the person can be contacted regarding an application or interview

• Item 15 - Job specifications must include as much detail as possible

• Item 16 - Indicate all deductions to be made from the worker's paycheck. Note that while employers are required by law to deduct Federal and Social Security taxes in all States, in some States employers are not required to deduct for State taxes.

• Item 17 - The employer must state the minimum amount of daily subsistence (meals costs) in Item 17 of ETA Form 790 or in the ETA Form 790 Attachments. The current minimum amount is available on the OFLC Web site at http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm

February 29, 2012

The employer must identify the specific wage rate offered in Item 16 of the ETA Form 790. In addition, in almost all cases, the employer must specifically state the following assurance in Item 16 of the ETA Form 790 or the ETA Form 790 Attachments: "The employer will pay the highest of the Adverse Effect Wage Rate (AEWR), the prevailing hourly wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage, in effect at the time work is performed." Only an employer subject to an approved special procedure for an occupation or specific class of agricultural employment may be required to provide a different assurance.

Simply stating a regulatory citation is not acceptable, as the ETA Form 790 and Attachments serve to fully apprise a worker of the job offered. The worker should not have to look up a regulatory provision to understand the terms and conditions of employment.

February 29, 2012

By regulation, the employer must pay workers at least twice monthly, or according to the prevailing practice in the area of intended employment, whichever is more frequent. The Office of Foreign Labor Certification (OFLC) has established the Agricultural Employment Practice Survey Library, which makes prevailing practice information available to employers. This library is available on our website at http://www.foreignlaborcert.doleta.gov/aowl_survey_pdf.cfm.
The employer must identify the specific frequency of pay applicable to the job opportunity in Item 16 of the ETA Form 790, or in the ETA Form 790 Attachments. Simply stating the regulatory citation or the general rule is unacceptable, as the ETA Form 790 and Attachments serve to fully apprise a worker of the terms and conditions of employment.

February 29, 2012

No. Departmental regulations, prohibit the State Workforce Agency (SWA) from placing a job order seeking workers to perform agricultural or food processing work unless the employer has signed the job order (i.e., the Agricultural and Food Processing Clearance Order (ETA Form 790)). 20 CFR 653.50(d)(2). The plain language of the regulation requires the employer's own signature on the ETA Form 790. An employer may not delegate its responsibility to sign the ETA Form 790 to a representative acting on its behalf (e.g., an agent who has obtained a specific power of attorney from the employer).

Important Note: An association submitting an Agricultural and Food Processing Clearance Order (ETA Form 790) as a joint employer with its employer-members may sign the ETA Form 790, as the association is an employer on the application. An association acting as an agent of the employer-members, however, may not sign the ETA Form 790, as the association is not an employer on the application. An association of employers shall be considered an employer only if the association has an employer relationship with respect to hiring, paying, firing, supervising, or otherwise controlling the work of the workers sought through the ETA Form 790. Such an association, however, shall be considered a joint employer with the employer member(s) when it shares in exercising one or more of the definitional indicia.

February 4, 2013

Under the 2010 Final Rule, an employer in the H-2A program is required to offer, advertise, recruit at and pay the highest of the AEWR, the prevailing hourly wage rate, the prevailing piece rate, the agreed-upon collective bargaining rate (if an employer is subject to a collective bargaining agreement (CBA)), or the Federal or State minimum wage rate, in effect at the time work is performed, for every hour or portion of an hour worked during a pay period, except where a special procedure is approved for an occupation or specific class of agricultural employment. Therefore, the employer must list the highest of these applicable rates. If an employer lists the AEWR and the SWA, before accepting the job order for intrastate clearance, determines that another applicable wage rate is higher, the SWA will issue to the employer a Notice of Deficiency directing the employer to modify its job order to reflect the higher applicable wage rate. Each employer who is subject to a CBA must attach a copy of the CBA to its job order. Employers should note that if they pay workers on a piece rate basis and at the end of the pay period the worker's earnings for that pay period, if re-calculated on an hourly basis, would result in an hourly wage that is below the required hourly wage, the employer must guarantee to pay the worker an additional amount bringing the worker's wages for that pay period up to the amount the worker would have been paid at the required hourly wage rate.

March 29, 2010

The wage rate listed on the work contract must be the same wage rate as the rate listed on the job order and approved by the SWA. If the employer intends to sign work contracts before the SWA accepts the job order for intrastate clearance and the SWA subsequently directs the employer to modify the wage rate listed on the job order, the employer will be required to also modify its work contracts to reflect the approved wage rate. The employer may contact its local SWA to inquire whether a wage rate higher than the AEWR is applicable to its job order.

March 29, 2010

Under the 2010 Final Rule, the SWA has 7 calendar days after receiving an employer's job order to accept the job order for intrastate clearance or to notify the employer that the job order is deficient. If, after receiving a timely-filed job order, the SWA determines that the job order does not meet all of the regulatory and program requirements, the SWA must issue a Notice of Deficiency listing the job order deficiencies that must be corrected before the job order can be accepted. The employer will have 5 calendar days to respond to the SWA and correct the noted deficiencies. If the employer timely corrects the deficiencies, the SWA will send the employer a Notice of Acceptance within 3 calendar days after receiving the employer's response, and promptly place the job order in intrastate clearance. If the employer does not adequately correct the deficiencies, or fails to submit a timely response to the SWA, the SWA will issue a Notice of Denial.

Where the employer has not been able to resolve the deficiencies regarding the job order with the SWA, the employer will be able to use the emergency filing procedures under 20 CFR 655.134 to submit its application and job order directly to the Chicago NPC so long as:

1. The employer timely submitted the job order and after documented efforts to solicit a response from the SWA received no response by the 46th day before the employer's first date of need; or
2. The employer timely submitted the job order and after receiving a Notice of Deficiency timely and in good faith submitted information aimed to correct the noted deficiencies, but the SWA did not respond to the employer's submission within 3 days of the receipt of the employer's submission, or by the 46th day before the employer's first date of need, whichever is later; or
3. The employer timely submitted the job order and after receiving a Notice of Deficiency timely and in good faith submitted information aimed to correct the noted deficiencies, but the SWA did not consider the employer's timely submission sufficient to accept the job order and issued a Notice of Denial within 3 days after receipt of the employer's submission or by the 46th day before the employer's first date of need, whichever is later.

March 29, 2010

Under the regulations, the SWA is only required to send the employer a Notice of Deficiency, if applicable, within seven days of the date of submission. However, as a courtesy, the SWA will send the employer a Notice of Acceptance verifying placement of the job order and providing a copy of the approved job order. If seven days have passed and the employer has not received a Notice of Deficiency or Notice of Acceptance from the SWA, the employer may contact the SWA to inquire into the status of its submitted ETA Form 790.

September 15, 2010

An employer may request a pre-occupancy housing inspection well in advance of its date of need. Early contact with the SWA will provide the employer with time to resolve potential housing compliance issues without impacting the issuance of the temporary labor certification. The statute provides that an employer is not required to submit proof that its housing complies with applicable program requirements at the time of filing its Application for Temporary Employment Certification (ETA Form 9142). However, the Department cannot grant a temporary labor certification without proof, which is typically provided in the form of a confirmation from the SWA that the employer-provided housing has sufficient capacity and is in compliance with applicable requirements.

We encourage an employer who has not already obtained the SWA's approval of its housing to contact the SWA to schedule the required pre-occupancy housing inspection as part of its initial preparations to submit an Application for Temporary Employment Certification. At the latest, the employer must request the housing inspection when submitting its job order (ETA Form 790) to the SWA.

Note that where special procedures permit an employer to use mobile housing on a multi-State itinerary, the employer may contact the SWA with jurisdiction over the initial pre-occupancy location of the mobile housing to conduct the inspection. That SWA's inspection and approval serves to certify the mobile housing for the entire itinerary.

February 13, 2013

An employer must submit an application no later than 45 days before the employer's first date of need.

March 29, 2010

The relevant date for purposes of any time calculation or submission in connection with the filing of an Application for Temporary Employment Certification, including the application and the job order, is the date on which the Department receives the submission.

September 15, 2010

When determining whether an application has been filed "no less than 45 calendar before employer's date of need," as required by 20 CFR 655.130(b), the National Processing Center does not include the day the application was received in its calculation. Instead, the next day is counted as day one. For example, if an application is received at the National Processing Center on Tuesday, June 1, 2010, that date is not counted. Instead, Wednesday, June 2nd, is counted as day 1 of the timeframe and Thursday, June 3rd, as day 2; etc., up until Friday, July 16th, which is day 45. In this instance, provided the employer lists its date of need on its submitted application as July 16, 2010, or after, the employer has complied with 20 CFR 655.130(b).

September 15, 2010

Employers may now submit their H-2A application either electronically OR via mail directly to the Chicago National Processing Center (NPC). The employer must choose only one method of submission. Duplicate applications, where the employer or authorized representative files electronically and submits that same application via U.S. mail, will be rejected.

• Electronic Filing:

Employers may submit their H-2A application electronically via the Department's iCERT Visa Portal System at https://icert.doleta.gov/. It is important to read the H-2A iCert Quick Start Guide and H-2A iCERT User Manual before completing and submitting an H-2A application. The online help provides step-by-step instructions for completing and submitting the H-2A application electronically. For more resources and information, please visit the iCERT implementation web page at http://www.foreignlaborcert.doleta.gov/h2ah2b_icert_rollout.cfm.

• Mail Filing:

The employer may mail the application package to the Chicago NPC at the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604- 2105
ATTN: H-2A Program Unit

December 10, 2012

An employer must use the Application for Temporary Employment Certification ETA Form 9142 and Appendix A.2. Employers may download the required forms in PDF format from the OFLC web site: http://www.foreignlaborcert.doleta.gov/form.cfm.

March 29, 2010

An employer can minimize processing time by ensuring that its job order and Application for Temporary Employment Certification are complete and accurate, and by responding promptly to any request(s) from the State Workforce Agency (SWA) or Chicago NPC during job order and application processing.

In addition, an employer should begin the temporary labor certification application process as early as the regulations permit. Absent an emergency situation, an employer may begin the process by submitting a job order to the SWA serving the area of intended employment as early as 75 calendar days before the date of need (but must submit its job order no fewer than 60 days before the date of need). As soon as the SWA approves the employer's job order, the employer may submit its completed Application for Temporary Employment Certification and a copy of the SWA-approved job order to the Chicago NPC. This non-emergency submission must occur no less than 45 days before the employer's date of need. Note that under certain circumstances (i.e., the SWA does not provide notice of acceptance or deficiencies within 7 calendar days after job order submission or the SWA and employer try but are unable to resolve a dispute about regulatory compliance of job order content), an employer may submit a copy of an unapproved job order to the Chicago NPC with its Application for Temporary Employment Certification.

After reviewing the Application for Temporary Employment Certification and job order, the Chicago NPC will issue either a Notice of Acceptance or a Notice of Deficiency. An employer receiving a Notice of Acceptance should follow the recruitment instructions provided by the Certifying Officer (CO) and may submit the recruitment report and any other required documentation identified in the Notice of Acceptance to the Chicago NPC as soon as the employer has that documentation but must submit this documentation no later than the date specified by the CO. An employer receiving a Notice of Deficiency minimizes delay when it responds to the Notice of Deficiency quickly and completely. As soon as all certification requirements are met, the Chicago NPC can issue a certification.

Important Note: We encourage employers to register for our e-mail notification program by contacting TLC.Chicago@dol.gov. Participation in our e-mail notification program is an effective way for employers or, if applicable, their authorized attorney or agent to receive information about deficiencies more quickly, enabling them to more quickly respond.

February 13, 2013

The North American Industry Classification System (NAICS) is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy. The NAICS coding system is maintained by the U.S. Census Bureau. A listing of NAICS codes can be found at http://www.census.gov/epcd/www/naics.html. The code selected by the employer should reflect the nature of the employer's business, not the job for which certification is sought.

September 15, 2010

The Standard Occupational Classification (SOC) system is a numerical code that classifies job opportunities into occupational categories for the purpose of collecting, calculating, or disseminating data. An employer may search the Bureau of Labor Statistics' 2010 SOC list, which lists occupations in alphabetical order (http://www.bls.gov/soc/2010/soc_alph.htm#F), or may search theDepartment's wage wizard at http://www.flcdatacenter.com/OesQuick.aspx to obtain the appropriate code. The code and occupation title selected by the employer should reflect the nature of the position for which certification is sought.
The SOC categories of occupations that are most likely to be identified with H-2A agricultural workers are:

45-2092.01 Nursery Workers
45-2092.02 Farmworkers and Laborers, Crop
45-2041.00 Graders and Sorters
45-2091.00 Agricultural Equipment Operators
45-2093.00 Farm Workers, Farm and Ranch Animals
45-2099.00 Agricultural Workers, All Other

September 15, 2011

Applications will not be rejected if questions, such as those listed above, are not answered as long as they are not required fields/items containing an asterisk(*). Additionally, temporary and/or seasonal workers should not be included in the non-family FTE count.

September 15, 2010

As a general matter, the employer must submit along with its Application the SWA-approved job order (ETA Form 790), unless a specific exception applies.
In addition, the employer is required to submit several documents prior to certification these documents may be submitted at the time the application is filed. If the employer does not have the documentation ready at the time it submits the application, the employer will be directed by the Notice of Acceptance to submit each of these documents before certification may be granted.

1. Proof that the employer's housing is in compliance with applicable program requirements. See 20 CFR 655.122(d);
2. Proof of workers' compensation insurance coverage as required under new section 20 CFR 655.122(e);
3. A written and signed recruitment report on the date specified by the CO in the Notice of Acceptance.

In addition, employers should note that if an employer is listing specific job qualifications on its job order and/or application, the CO has the authority, through a Notice of Deficiency, to request that the employer provide documentation evidencing the appropriateness of these job qualifications. See 20 CFR 655.122(b). However, an employer may choose to submit the justification for any qualifications required for the position at the time it files the application.
Additional requirements apply to associations, H-2ALCs and agents, as explained below:

Associations.If filing a master application, associations must list on the Application (or attachment to the Application) the names, addresses, total number of workers needed, crops and agricultural work performed for each employer who will employ H-2A workers under the master application. See 20 CFR 655.131 (b). If the association is filing as an agent (instead of as a joint employer), the association must obtain and submit each member's signature for the particular Application.

H-2A Labor Contractors. Labor contractors seeking to file H-2A applications (H2ALCs)
must submit the name and location of each fixed-site agricultural business to which the H-2ALC will provide H-2A workers, the expected beginning and ending dates of employment on each fixed site and a description of the crops and activities the workers will be performing on each site. The H-2ALC must submit copies of signed contracts with each fixed-site agricultural business to which it is providing H-2A workers and If those fixed-site businesses are providing housing and transportation to the workers, proof that the housing and transportation are in compliance with program
regulations. See 20 CFR 655.132.

The H-2ALCs must also provide a copy of a valid Farm Labor Contractor (FLC) Certificate of Registration, If the H-2ALC is considered an FLC within the meaning of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). In addition, an H2ALC must provide proof that it is able to meet its financial obligations under the H-2A program by submitting an original surety bond as required by 29 CFR 501.9.

Agents. In addition, an agent must provide a copy of the agent agreement or other document demonstrating the agent's authority to represent the employer. This required document must be submitted with the application and is in addition to Sections E and I on ETA Form 9142 and Appendix A.2. Finally, an agent must submit a copy of a valid FLC Certificate of Registration, if required under MSPA. See 20 CFR 655.133.

March 29, 2010

Yes. An employer's application may cover multiple work locations within an area of intended employment so long as they are within reasonable commuting distance from a place of the job opportunity for which the employer is seeking certification. If an employer belongs to an association, under the 2010 Final Rule the association may file a master application on behalf of the employer and its other members. A master application may cover multiple areas of intended employment and multiple work locations so long as: all workers covered by the application belong to the same occupation or will perform comparable work for the employer-members; the application reflects a single date of need for all workers; and all employer-members covered by the application are located in at most two contiguous states. Master Applications can only be filed by Associations acting as joint employers with their members. Finally, if the employer is an H-2A Labor Contractor (H-2ALC), the employer may file a single application covering multiple work locations within one area of intended employment.

March 29, 2010

Yes. Both the job order and the ETA Form 9142 must list each worksite where the workers will be working so that they may be apprised of the locations prior to applying for the job opportunity.

September 15, 2010

Only associations filing as joint employers with their employer-members may file master applications. An employer who receives workers through a master application filed by an association must have the same initial date of need, i.e. the same start date, as all other employers listed in the master application. However, the employers' end dates may contain slight variances depending on their need for workers. Regardless of whether the employers covered by a master application have the same or different end dates of need, an association filing a master application must specify each employer's period of need on: the job order, i.e. the Agricultural and Food Processing Clearance Order ETA Form 790; the Application for Temporary Employment Certification, ETA Form 9142, and/or any attachments thereto; and the newspaper advertisements.

March 29, 2010

Unless an employer belongs to a group or occupation to which special procedures apply, itineraries involving work in more than one area of intended employment are not permitted.

March 29, 2010

No. The H-2A regulation requires the employer itself to sign the Application for Temporary Employment Certification (ETA Form 9142) as well as the recruitment report. The plain language of the regulation requires the employer's original signature on the ETA Form 9142 in addition to, and separately from, the original signature of the employer's attorney or agent, if the employer is represented by an attorney or agent. The plain language of the recruitment report provision conveys the importance of the employer's direct involvement in the recruitment process and validation of the recruitment results reflected in the recruitment report. An employer may not delegate its responsibility to sign the ETA Form 9142 or recruitment report to a representative acting on its behalf (e.g., an agent who has obtained a specific power of attorney from the employer).

Important Note: An association filing an Application for Temporary Employment Certification as a joint employer with its employer-members may sign the ETA Form 9142 and recruitment report, as the association is an employer on the application. An association acting as an agent of the employer-members, however, may not sign the ETA Form 9142 or recruitment report, as the association is not an employer on the application.

February 4, 2013

An employer may use correction tape or fluid to fix typographical errors on the Application for Temporary Employment Certification (ETA Form 9142), provided that its use of correction tape or fluid does not render the text illegible or ambiguous.

In all fields of the Application for Temporary Employment Certification, employers may make any necessary corrections using a pen and striking a line through unwanted text directly on the ETA Form 9142. Pen-and-ink corrections that are initialed and dated by the employer are acceptable.

Important Note: We encourage employers to use the fillable ETA Form 9142 and Appendix A.2 available on our Web site. Completing the form electronically enables the preparer to resolve typographical errors before printing the final document.

February 13, 2013

An Application for Temporary Employment Certification is limited to a single area of intended employment, unless the job opportunity is covered by an approved special procedure that permits work in multiple areas of intended employment. The H-2A regulation defines an area of intended employment as the geographic area within normal commuting distance of where the job opportunity is located. An employer may include multiple worksite locations, including worksites on different sides of State lines, on a single Application for Temporary Employment Certification as long as each worksite is within a single area of intended employment (i.e., within normal commuting distance). If the worksites are beyond a reasonable commuting distance, then a separate application must be filed for those worksites.

There is no specific distance that constitutes a maximum normal commuting distance because various factors specific to the worksite area determine what length of commute is normal. For example, the quality of the public transportation network impacts the length of commute considered normal. To provide an employer with some measure of normal commuting distance, the Department has determined that any place within a Metropolitan Statistical Area (MSA) (including a multistate MSA) is within normal commuting distance. The borders of an MSA are not controlling, however, for identifying normal commuting distance; a location outside of an MSA may be within normal commuting distance of a location inside the MSA (e.g., close to the border of the MSA).

The Chicago National Processing Center (NPC) will consult with the applicable State Workforce Agency in determining what constitutes the maximum normal commuting distance for a given geographic area.

February 13, 2013

In most cases, an Application for Temporary Employment Certification is limited to a single area of intended employment. However, provided that certain conditions are met, an association may file a Master Application on behalf of its employer-members in multiple areas of intended employment:

• The association must file as a joint employer with its employer-members;
• All employer-members must be located in no more than two contiguous States;
• The application covers the same occupation or comparable work with employermembers; and
• A single date of need is provided for all workers requested in the application.

February 13, 2013

The regulations require the employer to provide housing only for those workers who are not reasonably able to return to their residence the same day. A homeless shelter does not qualify as a person's "residence" because a shelter, by its very nature, is temporary. Therefore, in an instance where a worker is living in a homeless shelter, the employer must offer such worker housing. However, the employer is not required under the regulations to provide housing to a worker who is able to return to his or her residence within the same day but who no longer wants to incur the price of rent.

September 15, 2010

SWAs receive grants from the Employment and Training Administration to perform all of the duties necessary under the Office of Foreign Labor Certification's (OFLC) programs, including conducting housing inspections in a timely manner. The regulations now permit employers to request the housing inspections well in advance of the date of need. If a SWA refuses to conduct the housing inspection, employers should contact the Chicago National Processing Center.

September 15, 2010

No, as long as the public rental housing meets applicable local, state or federal standards. The employer must provide documentation to the satisfaction of the Certifying Officer that the housing complies with the applicable standard. At a minimum, the employer must provide a written assurance that the public rental housing provided meets all local, State, and Federal standards for such accommodations.

September 15, 2011

The Department’s regulations do not require SWA inspection of housing available for rent to the general public (as opposed to housing used mainly by migrant agricultural workers) or public accommodations, such as hotels or motels, available to the general public (as opposed to accommodations used mainly by migrant agricultural workers).  Rather, the regulations require that such housing or accommodations comply with local standards if there are such standards, and if there are not, then with applicable State standards.  In the event there are no applicable local or State standards, then DOL OSHA standards at 29 CFR 1910.142 will apply. Only if the applicable standard requires SWA inspection, must you provide a SWA certification.

June 16, 2017

Employers using rental housing or public accommodations, available to the general public must comply with applicable local, state or Federal standards as described in 20 CFR 655.122(d)(ii).  This obligation requires employers to submit documentation to the Certifying Officer (CO) that informs the CO which standards (i.e., local, State, or Federal) apply to the rental housing or public accommodations it will use, and demonstrate that the housing or accommodations comply with those standards.  Employers are encouraged to submit this documentation when filing the H-2A Application for Temporary Employment Certification, Form ETA-9142A.
The type of documentation an employer will need to submit before certification may be granted will depend on the particular circumstances and applicable housing standards.  Acceptable documentation includes, but is not limited to, the following:

If the applicable rental housing or public accommodation standards require SWA inspection, the employer must submit a copy of the SWA inspection report or certification.

• If the applicable rental housing or public accommodation standards require inspection by a local, State, or Federal authority other than the SWA, the employer must submit a copy of official documentation from that authority.  This documentation may include, but is not limited to, a certificate from the local or State Department of Health or building department (e.g., the current certificate of occupancy). 

• If the applicable rental housing or public accommodation standards do not require inspection by the SWA or another local, State, or Federal authority, the employer must submit a written statement, signed and dated, identifying the applicable housing standards; confirming that no local, State, or Federal inspection is required; and attesting that the accommodations are compliant with applicable standards.  The written statement may be prepared and signed either by the employer itself or the employer’s attorney or agent, or by the person or entity that owns, controls, or otherwise operates the rental housing or public accommodation. 

• If an H-2A Labor Contractor will use housing owned, operated, or secured by one or more fixed-site agricultural businesses, such housing must comply with the applicable standards set forth in 20 CFR 655.122(d) and be certified by the SWA.  See 20 CFR 655.132(b)(5)(i).  In support of its application, the H-2A Labor Contractor  must secure a written statement from each of the fixed-site agricultural businesses stating that “[a]ll housing used by workers and owned, operated, or secured by [it] complies with the applicable housing standards in 20 CFR 655.122(d) and, if applicable, 655.235” and attach to this statement a copy of the SWA certification.  See Form ETA-9142A, Appendix A, Section B.16(v).

In the event the documentation submitted fails to contain the required information and/or fails to establish that the housing or accommodations comply with applicable standards, the CO will issue a Notice of Deficiency soliciting additional documentation to demonstrate compliance.

The CO must receive documentation demonstrating compliance in order to issue a favorable determination.

Reminder:  Where required by the applicable local, State, or Federal housing standards, the employer will need to make a timely request for a preoccupancy inspection from the appropriate authority and receive documentation demonstrating that the housing or accommodations it plans to use are compliant.

June 16, 2017

Pursuant to 20 CFR 655.122(e)(2), the employer is required to submit proof of workers' compensation insurance coverage before certification. The employer is encouraged to include the documentation when submitting its application. If the employer does not have the documentation ready at the time it submits the application, the employer will be directed by a Notice of Acceptance to submit the documentation by a specific date before certification may be granted.

September 15, 2010

The employer must submit documentation that adequately demonstrates that it has the required workers' compensation insurance coverage for the entire period of need requested on the application. (See 20 CFR 655.122(e))

The documentation submitted must demonstrate that the employer's workers' compensation insurance coverage is in compliance with State law and covers injury and disease arising out of and in the course of the worker's employment. In addition, the documentation submitted must contain the name of the insurance carrier, the insurance policy number, and proof of insurance for the period of need stated on the application, or, if appropriate, proof of State law coverage.

Examples of acceptable documentation of workers' compensation insurance coverage include, but are not limited to, the following:

• Association for Cooperative Operations Research and Development (ACORD) Certificate of Insurance
• State Workers' Compensation Fund Certificate or equivalent
• Certificate of Insurance indicating worker's compensation coverage (copy of policy)

September 15, 2010

If the employer's current workers' compensation insurance coverage will expire before the end date of need requested on the application, the employer must submit a signed and dated written statement showing its intent to renew and maintain coverage for entire period of need requested on the application. The written statement must be submitted in addition to the documentation of the employer's current coverage described above. Also, the employer must retain the proof of renewed coverage in its file and be prepared to submit such documentation if requested.

September 15, 2010

An employer providing three meals a day to its workers must provide a reasonable balance of food groups and nutrients intended to supply sufficient nutrition to the workers three times a day. The Department advises employers to consult the United States Department of Agriculture's Dietary Guidelines for Americans 2005 report (in effect until the publication of the new report in 2010) that may be accessed or downloaded through the following web site: http://www.cnpp.usda.gov/Publications/DietaryGuidelines/2005/2005DGPolicyDocument.pdf
In addition, the employer may only charge the workers for the actual cost of the meals and may not profit from the provision of food. This amount may not exceed the amount specified in 20 CFR 655.173, currently set at $10.64 for three meals a day, absent a successful petition for a higher meal charge.

September 15, 2010

Daily subsistence includes, but is not limited to, the reasonable cost of food and lodging incurred during the worker's inbound trip from the point of recruitment to the employer's worksite, notwithstanding any unauthorized detours, and during the worker's outbound trip from the employer's worksite to the worker's home or subsequent employment, notwithstanding any unauthorized detours, whichever is applicable.

September 15, 2010

When an employer is unable to find sufficient workers locally to perform the work it requires, bringing a worker to the employer's worksite benefits the employer and, therefore, the costs associated with the worker's travel to the employer's worksite are the employer's responsibility. By regulation, an employer is responsible for providing, paying in advance, or reimbursing a worker for the reasonable costs of transportation and daily subsistence between the employer's worksite and the place from which the worker comes to work for the employer, if the worker completes 50 percent of the work contract period, and upon the worker completing the contract, return costs.  Where a worker must travel to obtain a visa so that the worker may enter the U.S. to come to work for the employer, the employer must pay for the transportation and daily subsistence costs of that part of the travel as well. The Department has interpreted the regulation to require the employer to assume responsibility for the reasonable costs associated with the worker's travel, including transportation, food, and, in those cases where it is necessary, lodging.

If not provided by the employer, the amount an employer must pay for transportation and, where required, lodging must be no less than (and is not required to be more than) the most economical and reasonable costs. Moreover, the employer is responsible for those costs necessary for the worker to travel to the worksite if the worker completes 50 percent of the work contract period, but is not responsible for unauthorized detours or unnecessary costs, and if the worker completes the contract, return transportation and subsistence costs. For example:

• The employer is not responsible for the cost of a worker's lodging when the worker chooses to arrive earlier than required for a visa appointment at the U.S. Consulate. If the appointment is so early in the morning, that the worker could not reasonably be expected to travel to the consulate that same day, the employer will be liable for the cost of lodging the night before the appointment.

• The employer is responsible for the cost of a worker's lodging where, after the worker attends a required appointment at the U.S. Consulate, the worker must remain nearby overnight while waiting for the U.S. Consulate to issue the visa.

• The employer is responsible for the cost of aworker's lodging from the time the worker leaves the U.S. Consulate to the time he arrives at the worksite. The employer is also responsible for the worker's return transportation and subsistence costs upon the worker completing the work contract.

The amount an employer must pay for food is at least as much as the employer would charge the worker for providing the worker with three meals a day during employment and no more than a maximum amount established annually based on the standard rate for the Continental United States (CONUS) for meals and incidental expenses as published by General Services Administration (GSA). The current minimum and maximum amounts for meals and incidental expenses are available on the OFLC website at http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm.

Please note that the FLSA applies independently of H-2A and imposes obligations on employers regarding the payment of wages.

February 29, 2012

No. The employer is only responsible for the cost of the worker's daily subsistence from the time the worker departs the place from which the worker has come to work for the employer (generally, the worker's home or place from which the worker was recruited) until the time the worker arrives at the employer's worksite.

September 15, 2011

Yes, if the AEWR is the highest applicable wage rate. In most cases the published AEWR will be the correct baseline wage. However, sometimes the prevailing wage for the crop and location or the CBA wage rate or the Federal or State minimum wage rates will be higher than the AEWR, in which case the employer must pay the higher rate. If an employer wishes to pay a piece-rate, it must nevertheless guarantee that workers will be paid a minimum equal to the appropriate hourly wage.

March 29, 2010

Yes. If the employer pays by the piece rate and specifies the productivity standard in the job offer. Any productivity standard required by an employer may be no more than those required by the employer in 1977, unless the OFLC Administrator approves a higher minimum, or, if the employer first applied for an H-2 temporary labor certification after 1977, such standards must be no more than those normally required by other employers for the activity in the area of intended employment at the time the employer filed its first application.

March 29, 2010

Yes. All employers in the H-2A program are required to offer, recruit at and pay the highest applicable wage rate. An H-2A employer who has filed an application under the 2010 Final Rule will be required to adjust to a higher wage at any time between the date on which it submits its job order to the SWA and/or signs a work contract (whichever is earlier) until the end of the contract period. This applies only to applications filed under the 2010 Final Rule. Employers who filed applications under the 2008 Final Rule will continue to apply that rule's wage rates and principles (i.e. must pay the wage rate at the time of recruitment). If the Department publishes a new AEWR and the new AEWR is higher than the approved wage rate listed on the employer's job order and/or work contract, the employer will be required to adjust the offered wage to the higher AEWR. Similarly, if an applicable prevailing wage is increased during the contract period and the Department notifies employers of the increase, all employers whose approved wage rate (listed on the job order and/or work contract) is lower than the new prevailing wage will be required to adjust to the higher prevailing wage rate. The Department's notification will state the effective date of the wage increase upon which all affected employers will be required to adjust to the higher wage.

March 29, 2010

Questions regarding the taxation and Federal withholding from H-2A workers fall under the jurisdiction of the Internal Revenue Service (IRS). IRS guidance states that foreign agricultural workers temporarily admitted into the United States on H-2A visas are exempt from Federal Unemployment Tax, U.S. Social Security and Medicare taxes on compensation paid to them for services performed in connection with the H-2A visa. Additionally, IRS guidance states that compensation paid to H-2A workers for services performed in connection with the H-2A visa is not considered to be “wages” for purposes of Federal income tax withholding, and is therefore not subject to mandatory withholding.

The IRS requires an employer to begin backup withholding if the H-2A worker does not have a Social Security Number or Individual Taxpayer Identification Number and the aggregate annual payments made to the worker are $600 or more. For more information on Federal withholdings for H-2A workers, see the IRS website at http://www.irs.gov/businesses/small/international/article/0,,id=96422,00.html. Employers should consult the IRS website to ensure that the IRS has not updated their guidance in regards to this issue.

An H-2A worker may request voluntary Federal income tax withholding. Such a request must be evidenced by a signed form W-4 provided by the worker to the employer. Note: Only Federal income tax is to be withheld. Withholding for Social Security or Medicare is not permitted, and the employer may be held responsible for reimbursement of improperly withheld amounts (see below).

Since State income tax law varies, the employer should consult with the appropriate State tax authorities to determine whether the wages of H-2A workers are subject to state income taxes.

It is important to remember that the H-2A regulations at 20 CFR 655.122(m) and 655.122(p) require the H-2A employer to pay wages when due and to ensure that all wage payments to H-2A workers are received free and clear of any improper deductions. Wages either improperly withheld or withheld based on a voluntary agreement but not remitted to the appropriate agency may be considered improper deductions.

If Federal income tax or U.S. Social Security and Medicare taxes have been improperly withheld from H-2A workers and remitted to the appropriate government agency, the Wage and Hour Division will take into consideration employer reimbursement or assistance provided to the workers to recapture such amounts in determining violations and potential penalties. The employer can evidence reimbursement to H-2A workers and the employer may seek a refund of over reported amounts using Form 941-X, Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund (see http://www.irs.gov/pub/irs-pdf/f941x.pdf). An alternate method exists in which the employer provides documented assistance to H-2A workers in completing Form 843, Claim for Refund and Request for Abatement (see www.irs.gov/pub/irs-pdf/f843.pdf); however, the IRS indicates that workers will need to provide copies of their W-2, H-2A visa, I-94 (indicating date of arrival/departure), and a statement indicating that the withheld taxes need to be returned (either from the employer or employee, who would indicate that this was requested of the employer but not provided).

Additionally, the National Taxpayer Advocate and Low Income Taxpayer Clinics are potential sources of targeted assistance to the worker regarding proper tax withholding, as indicated per http://www.irs.gov/advocate/index.html?portlet=110

May 15, 2012

Prevailing wage rates are established through surveys conducted by State Workforce Agencies (SWAs) in accordance with the ET Handbook 385 wage finding process. Where the SWA is unable to reach a prevailing wage rate finding (e.g., due to insufficient numbers of domestic workers and/or employers employing domestic workers), the SWA will recommend a No Finding for the occupation or crop activity surveyed to the Office of Foreign Labor Certification (OFLC). The OFLC will post a No Finding to the Agricultural On-Line Wage Library and will require that the employer offer and pay the worker(s) the legal state or Federal minimum wage, the agreed-upon collective bargaining wage, or the Adverse Effect Wage Rate (AEWR) for that State, whichever is highest.

This procedure does not apply to wage findings for open range production of livestock, sheepherding and goatherding, and itinerant animal shearing occupations, which are subject to special procedures. These occupations involve atypical work schedules, for which an hourly wage cannot be used for a default, or piece rate work performed along a planned itinerary. In those cases where a SWA's survey results are insufficient to establish a prevailing wage rate for an occupation, due to inadequate sample size or another valid reason, the wage setting procedures allow the Department to issue a prevailing wage or piece rate for that State based on the wage rate findings submitted by an adjoining or proximate SWA or using a regional approach (e.g., U.S. Department of Agriculture farm production regions) for the same or similar agricultural activity.

February 4, 2013

The Agricultural Online Wage Library, available at http://www.foreignlaborcert.doleta.gov/aowl.cfm, reflects the current prevailing wage rate for agricultural occupations, including sheepherders. A sheepherding employer is required to pay at least the prevailing wage rate which for occupations that are characterized by other than a reasonably regular workday, such as sheepherding, is deemed to be the Adverse Effect Wage Rate. The employer must also comply with any mandatory state monthly minimum wage rates for the occupation. The employer may but is not required to pay the workers more than the required wage rate.

February 13, 2013

The employer is required under the regulations to offer, advertise, and pay a wage that is the highest of the AEWR, the prevailing hourly wage or piece rate, the agreed upon collective bargaining wage, or the Federal or state minimum wage, in effect at the time the work is performed. Where the new AEWR is still the highest rate, an employer may pay the new, lower AEWR. If, however, the new AEWR is lower than the prevailing hourly wage or piece rate, the agreed upon collective bargaining wage, or the Federal or State minimum wage in effect, the highest of the those wage rates will become the employer's new minimum wage rate requirement.

February 29, 2012

workers are on strike or are being locked out applies to any labor dispute involving two or more domestic workers. Any employer engaged in such a dispute at the time the employer seeks to apply for the labor certification may not apply to import H-2A foreign workers.

September 15, 2010

Section 218(b) of the Immigration and Nationality Act (INA) requires the Secretary to deny a labor certification if there is a strike or lockout in the course of a labor dispute. An employer seeking to employ H-2A workers must agree that it will abide by the requirements and assurances outlined in 20 CFR 655.135, including that the worksite does not have workers on strike or being locked out in the course of a labor dispute. Therefore, if the employer's workers go on strike after the employer filed its application but before the labor certification is granted, the employer must notify the Department of the strike or lockout and/or withdraw its application until such a time as the labor dispute is resolved.

September 15, 2010

Absent material misrepresentation or fraud in connection with the application within the meaning of the 2010 Final Rule, the employer may continue to employ H-2A workers notwithstanding a strike by its non-H-2A workers. Lock-outs resulting from a labor dispute will be analyzed on a case by case basis to determine whether they warrant debarment under 20 CFR 655.182(d). Also, if a lock-out meets the definition of a layoff and if it occurs within 60 days of the first date of need, section 20 CFR 655.135(g) requires that the U.S. workers be offered the job opportunity listed in the Application for Temporary Employment Certification before the H-2A workers. Therefore, unless the employer has sufficient work to be performed by all the laid-off U.S. workers and the H-2A workers, the employer will need to dismiss the H-2A workers.

September 15, 2010

Under the 2010 Final Rule, the Department reinstated a long-standing H-2A program component from the 1987 Final Rule that requires employers to continue to consider for employment and hire any qualified and eligible U.S. worker who applies for the position up until the end of the first half of the contract period, as identified on the Agricultural and Food Processing Clearance Order, ETA Form 790, as well as on the Application for Temporary Employment Certification, ETA Form 9142. This program component is referred to as the 50 percent rule. Previously, under the 2008 Final Rule, employers were only required to accept U.S. applicants for the first 30 days of the contract period.

September 15, 2010

For as long as an H-2A worker is employed in a certified position during the first 50 percent of the contract period, the employer must provide employment to any able, willing, qualified and available U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed, regardless of the number of H-2A workers covered by the employer's certification. The start of the work contract timeline is calculated from the first date of need stated on the Application for Temporary Employment Certification under which the foreign worker who is in the job was hired.

An employer may continue to employ its H-2A workers under the work contract so long as it complies with all requirements of the H-2A program with respect to the H-2A workers and workers in corresponding employment. The employer may also choose to displace its H-2A workers with the newly hired U.S. workers so long as it pays for the H-2A workers' return transportation and subsistence in accordance with 20 CFR 655.122(h)(2). In the event the employer decides to displace its H-2A employees as a result of hiring U.S. workers, the employer is not liable for the payment of the three-fourths guarantee to the displaced H-2A workers.

October 1, 2010

If all of the H-2A workers have been displaced, and some or all of the U.S. workers hired as a result of the 50 percent rule become unavailable, i.e., abandon the position or are terminated for cause, during the first 50 percent of the work contract period, the employer is under no obligation, but may continue, to hire any able, willing, qualified and available U.S. workers. However, so long as the employer continues to employ at least one H-2A worker in a certified position during the first 50 percent of the contract period, the employer must continue to hire any able, willing, qualified and available U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed, regardless of the number of U.S. workers hired under the 50 percent rule who become unavailable.

If some or all of the newly hired U.S. workers become unavailable after the first 50 percent of the work contract period, the employer may, but is not obligated to, hire additional able, willing, qualified and available U.S. workers and/or engage in additional recruitment of U.S. workers.

Note: An employer whose Application for Temporary Employment Certification is approved for the full number of workers requested may not apply to the National Processing Center for a redetermination of its need based on the unavailability of U.S. workers. Pursuant to the Department's regulations at 20 CFR 655.166, this option is only available to employers whose certifications were initially denied or whose applications were partially certified.

October 1, 2010

As discussed above, an employer who is a member of an association which has applied for a labor certification on behalf of its members is not exempt from the 50 percent rule. Similarly, an employer who technically is not a member of an association but otherwise maintains a relationship with other employers who are either members of an association that has applied for a labor certification and/or who have individually applied for a labor certification, such that this employer together with the other employers forms an informal group that effectively operates as an association - i.e., shares employees - would be considered to have "otherwise associated with other employers" and thus would not be exempt from the 50 percent rule.

September 15, 2010

The Department is not requiring that an employer submit supporting documentation with its application at the time of filing, but the employer must in the application certify to the Certifying Officer that the small business exemption applies and be prepared to provide documentation in support of such a claim if requested through an audit or investigation. However, the employer should notify the SWA if it wishes to claim the exemption at the time it submits the job order for intrastate clearance and include such documentation as the SWA requires. This will ensure that the SWA will not refer applicants to that employer for the duration of the 50 percent of the contract period.

September 15, 2010

The small business exemption allows certain employers to forgo compliance with the requirement to consider for employment and hire qualified and eligible U.S. workers during the first half of the contract period. The exemption is available to an employer who 1) did not use more than 500 man-days (defined at 29 U.S.C.§203(u)) of agricultural labor during each calendar quarter of the preceding calendar year, 2) is not a member of an association that is applying for temporary employment certifications under the H-2A program on behalf of its members, and 3) has not otherwise associate

September 15, 2011

Each job qualification and requirement listed on the Application for Temporary Employment Certification and used to recruit U.S. workers must be bona fide and consistent with the normal and accepted qualifications required by employers that do not use H-2A workers in the same or comparable occupations and crops. The Office of Foreign Labor Certification (OFLC) has established the Agricultural Employment Practice Survey Library, which makes acceptable experience requirements available to employers. This library is available on our website at http://www.foreignlaborcert.doleta.gov/aowl_survey_pdf.cfm. The information provided in the library is collected through the State Workforce Agencies (SWAs), typically through surveys of employers to determine current practices. Surveyed employers are asked to report the basic acceptable experience necessary to perform the job, as this is consistent with the standard applied to employers seeking H-2A workers for testing the U.S. labor market.

SWAs conduct employer surveys on the acceptability of job requirements during the course of each year. Employers are strongly encouraged to check this webpage for any updates prior to preparing and submitting an agricultural job offer under the H-2A program.

February 29, 2012

Employers are not prohibited from including a requirement in the job opportunity that the applicant must pass a specific background check and/or drug test. However, the requirement that the worker pass a particular background check or drug test will be reviewed on a case-specific basis against the regulatory standard of review that all job requirements must be bona fide and consistent with the normal and accepted qualifications required by non-H-2A employers in the same or comparable occupations and crops. The State Workforce Agency (SWA) receiving the employer’s job offer assists the OFLC Certifying Officer in making determinations as to what are normal and accepted job qualifications and requirements required by non-H-2A employers in that area in the same or comparable occupations or crops.

The results of a background check or drug test may not be used to automatically reject a U.S. worker for agricultural work. Rather, the results of the background check or drug test may be used to reject a worker only if they provide a lawful job-related reason to do so. For example, while a sex offense conviction may be a lawful job-related reason to reject a worker who is applying to work at a “pick-your-own” fruit farm, a Driving Under the Influence (DUI) conviction is very unlikely to be. An employer requiring a background check or drug test should be prepared to provide documentation, if requested by the SWA or the OFLC Certifying Officer, establishing the nexus between the background check or drug test to be conducted and the nature of the job opportunity.

If an employer chooses to disclose in the job order that it will be conducting a criminal background check, the employer’s job order must also identify the specific criminal issue(s) for which the employer could lawfully reject an applicant due to the nature of the job opportunity. A general statement about conducting a criminal background check without any further explanation is unacceptable, as it fails to adequately apprise U.S. workers of the job opportunity and applicable conditions of employment.

December 6, 2011

It has long been the Department's position that an employer's job qualification preferences, in effect, serve as requirements. The Department's program experience, supported by a number of decisions issued by the Board of Alien Labor Certification Appeals involving job qualification preferences and requirements is that prospective applicants perceive employer job qualification preferences as the employer's hiring criteria, resulting in qualified applicants being less likely to apply. The Department, therefore, treats an employer's listed job qualification preferences as the employer's job qualification requirements, which must meet the regulatory requirement that each job qualification and requirement listed on the employer's Application for Temporary Employment Certification (ETA Form 9142) and in its recruitment must be bona fide and consistent with normal and accepted qualifications required by non-H-2A employers in the same or comparable occupations and crops.

February 4, 2013

An employer may only include in its recruitment (e.g., job order and newspaper advertisements) those minimum job qualifications and requirements necessary to perform the services or labor, so that the job opportunity is clearly open to any qualified U.S. worker. In order to comply with the statute, 8 U.S.C. 1188(a), (c)(3)(A), and H-2A program regulations, 20 CFR 655.103(a), 655.122(b), and consistent with its other visa programs involving a test of the U.S. labor market, a job opportunity that is clearly open to U.S. workers is one in which the recruitment lists only the minimum job qualification requirements against which prospective applicants will be screened. Where an employer believes its job qualification is necessary to perform the job, the preference is, in fact, a requirement and must be disclosed in the job order and newspaper advertisements.

Conversely, where an employer does not believe the job qualification is necessary to perform the job (e.g., one month of experience is necessary to perform the job, but the employer prefers to hire workers with more experience, when possible), the job qualification preference for workers with more than the minimum qualifications necessary (e.g., more than one month of experience) must not be disclosed in the job order and newspaper advertisements. Identifying such a job qualification preference in its recruitment efforts implies to prospective applicants that the employer will use the job qualification preference as a screening mechanism, discouraging prospective applicants who meet the actual minimum job requirements, but not the preference, from applying. As such, job qualification preferences that are not, in fact, actual minimum requirements necessary to perform the job, must not be included in the employer's recruitment efforts and may not be used to screen applicants.

Important Reminder: Each job qualification and requirement listed on the employer's Application for Temporary Employment Certification (ETA Form 9142) and in its recruitment must be bona fide and consistent with normal and accepted qualifications required by non-H-2A employers in the same or comparable occupations and crops.

February 4, 2013

The employer, upon receiving approval from the Chicago National Processing Center Certifying Officer, may terminate its work contract before the end date if the services of the worker are no longer required for reasons beyond the control of the employer due to fire, weather, or other Act of God that makes the fulfillment of the contract impossible. The regulations refer to this as the “contract impossibility” provision. Since the contract impossibility provision obligates the employer to certain actions and affects the wages and working conditions of the workers it employs, the employer must disclose this provision in the job order that is submitted to the SWA as well as work contracts to prospective applicants.

To help employers appropriately disclose the contract impossibility provision, the following suggested language can be included in the job order as well as work contracts with its employees:

“Contract Impossibility: The work contract may be terminated before the end date of work specified in the work contract if the services of the workers are no longer required for reasons beyond the control of the employer due to fire, weather, or other Act of God that makes fulfillment of the contract impossible, as determined by the U.S. Department of Labor. In the event that the work contract is terminated, the employer assures that the three-fourths guarantee will be fulfilled for the time that has elapsed from the start date of work specified in the work contract to the date of termination. The employer also assures that it will make efforts to transfer the worker to other comparable employment acceptable to the worker and, where applicable, consistent with existing immigration laws.

In situations where a transfer is not affected, the employer will return the workers at the employer’s expense to the place from which the worker, disregarding intervening employment, came to work for the employer or transport the worker to his/her next certified H-2A employer, whichever the worker prefers. The employer will also reimburse the worker the full amount of any deductions made by the employer from the worker’s pay for transportation and subsistence expenses to the place of employment, and pay the worker for any transportation and subsistence expenses incurred by the worker to that employer’s place of employment.

The amounts the employer will pay for subsistence expenses shall be a minimum of $______ per day and a maximum of $______ per day for workers with documentation of actual expenses. The amount of the transportation payment must not be less (and is not required to be more) than the most economical and reasonable common carrier transportation charges for the distances involved. The requirement will be nullified if the worker has contracted with a subsequent employer who has agreed to provide or pay for the worker's transportation and subsistence expenses from the present employer’s worksite to the subsequent employer’s worksite.”

For the minimum and maximum amounts for subsistence expenses, the employer can find the current amounts to be included in the job order on the OFLC website at http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm

December 6, 2011

Under section 655.122(h)(1) and (p) of the H-2A regulations, consistent with the Fair Labor Standards Act (FLSA), a covered employer must reimburse a worker for inbound transportation costs by the first payday to the extent that those costs effectively bring a worker's wages below the FLSA minimum wage during the first workweek of employment.

After that, when the worker completes 50 percent of the work contract period, an employer is obligated to fully reimburse the worker for the reasonable costs incurred by the worker for transportation and daily subsistence from the place from which the worker came to work for the employer. Some employers may choose to fully reimburse workers before they have a regulatory obligation to do so, i.e., upon the worker's arrival. Those employers may, through reasonable deductions that do not bring the worker's wages below the FLSA minimum wage, recoup the cost until obligated, by regulation, to fully reimburse the workers when 50 percent of the contract period has elapsed. As with all deductions not required by law, this must be disclosed in the job offer.

February 13, 2013

Under the FLSA, covered employers may not require workers to pay for expenses that are for the primary benefit of the employer, through deductions or otherwise, when doing so would effectively bring a worker's wages below the FLSA minimum wage during the first workweek of employment. Therefore, any pre-employment costs found to be primarily for the benefit of the employer must be reimbursed to the extent that they bring a worker's wages below the FLSA minimum wage.

The Department's view on costs that are primarily for the benefit of the employer in the context of the H-2B non-agricultural program is discussed in detail in the Wage and Hour Division's Field Assistance Bulletin No. 2009-2, which is available at http://www.dol.gov/whd/FieldBulletins/FieldAssistanceBulletin2009_2.htm. The Department will view costs the same way in the H-2A program.

February 13, 2013

No. The employer is not required to reimburse workers for fees associated with obtaining or maintaining a worker's passport. Employers are not responsible for costs that are for the primary benefit of the worker. Government-required passport fees are considered costs primarily for the benefit of the worker as the worker may use the passport for purposes other than employment.

February 13, 2013

Yes.  Labor productivity standards, which may be required as a condition of job retention, 20 CFR 655.122(l)(2)(iii), and are commonly defined as the amount of output per worker, must be listed on the ETA Form 790.  

Under the H-2A regulations, if an employer who pays based on a piece rate requires one or more minimum productivity standards of workers as a condition of job retention, such standards must be specified in the job offer and be no more than those required by the employer in 1977 or, if the employer first applied for H-2A temporary labor certification after 1977, such standards must be no more than those normally required by other employers for the activity in the area of intended employment at the time of the employer's first H-2A application, ETA Form 9142, Application for Temporary Employment Certification. 20 CFR 655.122(l)(2)(iii). Accordingly, the State Workforce Agency (SWA) and Chicago NPC CO’s review of an employer’s productivity standard on the ETA Form 790 will be based on the year in which that employer first applied for H-2A program certification.  Therefore, when you prepare the job offer using the ETA Form 790, please make sure you indicate the first year you applied for H-2A program certification. 

If the employer first applied in 1977 or before, the productivity standard for workers in each crop or agricultural activity where a piece rate will be paid must be the same as the employer required of its workers in 1977.  20 CFR 655.122(l)(2)(iii).  The SWA or Chicago NPC CO may request evidence from the employer to establish that the productivity standard listed on its ETA Form 790 is the same as it required in 1977. 

Where the employer first applied for H-2A temporary labor certification after 1977, the productivity standard for each crop or agricultural activity must be no more than that normally required by other employers in the area of intended employment in the year the employer filed its first H-2A application.  20 CFR 655.122(l)(2)(iii).  For example, if the employer first applied for H-2A program certification in 2014 and specified a productivity standard for harvesting oranges in Polk County, Florida, the employer’s ETA Form 790 must contain productivity standards that are not higher than those normally required by other citrus harvesting employers (H-2A and non-H-2A program users) within that local area of intended employment in 2014.  When reviewing an employer’s productivity standard, the SWA and Chicago NPC CO consider available information, such as surveys and filing data, related to the crop or agricultural activity in the year the employer first filed. Either the SWA or Chicago NPC may request evidence from the employer demonstrating that the productivity standard listed on its ETA Form 790 is no more than that normally required by other employers in the area of intended employment in the year the employer first applied for H-2A program certification. 

Reminder:  A separate FAQ under the "Productivity Standards" subheading discusses the limitation on productivity standard increases.

October 29, 2015

For recruitment and enforcement purposes in the H-2A program, productivity standards must be expressed in static, objective, and quantifiable terms based on the hours or days of work needed to produce a unit of production, and specified in a manner that is easily understood by the worker.  Thus, the State Workforce Agency (SWA) and Chicago National Processing Center (NPC) will evaluate whether the productivity standards specified by an employer in the job order are static, objective, quantified, and able to be understood by the worker.  "A worker must pick at least 3 crates of fruit per hour" is an example of a static, objective, quantified, and understandable productivity standard language. 

The H-2A regulations require that where employees are paid a piece rate, e.g., a wage rate the employer assigns to each "unit" or quantity of goods a worker processes, the worker’s pay must be supplemented, as necessary, so that the worker's earnings are at least as much as the worker would have earned if the worker had instead been paid at the applicable hourly wage rate for each hour worked.  20 CFR 655.122(l)(2).  In some cases, employers tie their productivity standards to the applicable hourly wage rate by requiring that a worker’s output be at least enough to equal the hourly rate, so that the employer does not have to supplement the piece rate earned.  Such productivity standards will not be acceptable, because they are not static (i.e., the hourly wage rates are subject to change during the course of a work contract period or from one year to the next).  Thus, where the minimum hourly wage rate increases but the piece rate wage does not, the effect is to create an ever-increasing (i.e., non-static) productivity standard.  Moreover, such a requirement does not specifically quantify the expected output per worker and does not clearly communicate to the worker the output required for job retention in the specific crop or agricultural activity.  

Similarly, the use of vague productivity standards, such as requiring workers to "perform work in a timely and proficient manner," "perform work at a sustained, vigorous pace," "make bona fide efforts to work efficiently and consistently considering climatic and other working conditions," "keep up with the crew," "produce at a rate that does not detrimentally affect other workers’ productivity," or "perform work in the amount, quality, and efficiency of other workers" are also unacceptable.  Such standards lack objectivity, quantification, and clarity.  In these circumstances, the SWA and/or the Chicago NPC Certifying Officer (CO) will require the employer to remove any vague benchmarks and specify productivity standards that are static, quantified, objective, and understandable to the worker in each crop or agricultural activity.

October 29, 2015

In most cases, a productivity standard may not be increased.  If the employer first applied for H-2A temporary labor certification in 1977 or before, the productivity standard for workers in each crop or agricultural activity must remain at the employer’s 1977 standard.  20 CFR 655.122(l)(2)(iii).  Where the employer first applied for H-2A temporary labor certification after 1977, the productivity standard must remain at the standard that was normally required by other employers in the area of intended employment in the year the employer first applied for H-2A workers.  20 CFR 655.122(l)(2)(iii).  Therefore, in the example above, although other employers in the local area may have higher productivity standards for workers, the employer’s productivity standards established in 2009 (i.e., the year it first applied for H-2A temporary labor certification) cannot be raised in any subsequent years.

October 29, 2015

An H-2A Labor Contractor (H-2ALC) is any person who meets the definition of employer under 20 CFR 655.103(b) and is not a fixed-site employer, an agricultural association, or an employee of a fixed-site employer or agricultural association, who recruits, solicits, hires, employs, furnishes, houses, or transports any worker(s) subject to section 218 of the Immigration and Nationality Act.

A Farm Labor Contractor (FLC), as defined under the Migrant and Seasonal Worker Protection Act (MSPA), is any person, other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association, who, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity.

MSPA applies separately from the Department's H-2A regulations at 20 CFR part 655, Subpart B.Under the requirements of MSPA, FLCs (and any employee who performs farm labor contracting functions) must register with the Department before recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.Agricultural employers and associations (and their employees) need not register as FLCs.

September 15, 2010

No. Any employer who fits the definition of an H-2ALC must identify itself as such on both the ETA Form 790 and the ETA Form 9142 and meet all of the obligations and requirements applicable to H-2ALCs, as set out in 20 CFR 655.132. Employers who are H-2ALCs and who belong to occupations for which special procedures have been established will continue to submit their applications in accordance with those special procedures. However, the H-2ALC must comply with all the requirements set forth in §655.132, unless the particular requirement is superseded by the special procedures.

September 15, 2011

As a prospective employer filing as an H-2A Labor Contractor (H-2ALC), you are required to obtain a surety bond demonstrating your ability to meet payroll and other financial obligations to your employees contained in the terms and conditions of the agricultural job order and the Application for Temporary Employment Certification (ETA Form 9142). The original bond instrument issued to you by the surety must be submitted with the ETA Form 9142to the Chicago National Processing Center. Copies of the original bond instrument will not be accepted.

At a minimum, the bond instrument issued to you by the surety must:

1. Identify the surety’s name, address, phone number, and contact person;
2. Specify the amount of the bond based on the number of workers to be employed;
3. State that the aggregate liability of the surety shall not exceed the amount of the bond;
4. State that the bond must be payable to the “Administrator, Wage and Hour Division, United States Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210“;
5. Obligate the surety to pay any sums for (a) wages and benefits owed to an H-2A worker or worker engaged in corresponding employment, or (b) to a U.S. worker improperly rejected or improperly laid off or displaced, based on a final decision finding a violation(s) of the regulation relating to the certified ETA Form 9142 the bond is intended to cover;
6. Specify the date of issuance and expiration covering liability incurred during the period of employment listed on the certified ETA Form 9142. The bond may be amended to cover any extensions requested by the H-2ALC employer and approved by DHS and/or the Chicago NPC;
7. Contain a designation or company seal used by the surety for the bond;
8. State that the bond will remain in force for a period of no less than 2 years from the date on which the certified ETA Form 9142 expires; and
9. State that the bond may not be canceled or terminated unless 45 days notice is provided by the surety, in writing, to the Administrator, Wage and Hour Division, using the same address provided in Item 3 above.

Important Reminder: If the Wage and Hour Division commences any enforcement action under the regulations against an H-2ALC employer or any successor in interest within 2 years from the expiration date of the certified ETA Form 9142, the bond shall remain in force until the conclusion of such action and any related appeal or related litigation.

December 6, 2011

The amount of coverage disclosed on the surety bond depends on the number of workers you plan to employ under the H-2A temporary labor certification. The table below provides the amount of coverage required in relation to the range of workers to be employed.

Important Reminder: When it is shown based on objective criteria that the amount of the surety bond is insufficient to meet potential liabilities, the Administrator, Wage and Hour Division, may require that an H-2ALC employer obtain a surety bond with a higher amount of coverage after notice and an opportunity for a hearing.

December 6, 2011

No. A new, separate bond is required for each Application for Temporary Employment Certification.

The regulations governing the H-2A program require an H-2A Labor Contractor (H-2ALC) to submit an original surety bond, i.e. one with a raised seal or other indicator evidencing it is an original, for each Application for Temporary Employment Certification filed with the Department.

Submitting a copy of a surety bond or a surety bond without an original indicator is not sufficient to satisfy the regulations. Also, submitting a rider or evidence of a "continuous" bond, even if an original document, is not sufficient to satisfy the regulations. Such documents provide evidence of an existing bond rather than a new bond specific to the application. The requirement of a new original surety bond to support each Application for Temporary Labor Certification allows the Chicago National Processing Center (NPC) to ensure that the amount of the bond coverage appropriately corresponds to the number of workers requested on the employer's ETA Form 9142. Additionally, in the event of a violation, a separate bond for each application is critical to the effective enforcement of the H-2ALC's wage obligations against the surety that agreed to be legally responsible.

Each surety bond must comply with all requirements outlined in the regulations. These requirements include the bond: (1) identifying the issuer, the name, address, phone number, and contact person for the surety; (2) specifying the amount of the bond, the date of issuance and expiration and any identifying designation used by the surety for the bond; (3) being payable to the Administrator, Wage and Hour Division, United States Department of Labor; and (4) remaining in force for a period of no less than 2 years from the date on which the labor certification expires. Additional information about surety bonds may be found in other Frequently Asked Questions (FAQs) posted here.

Important Reminder: The employer must submit the original surety bond to the Chicago NPC at the time of filing its Application for Temporary Employment Certification.

February 29, 2012

Yes. If an Application for Temporary Labor Certification is denied or withdrawn and the Chicago NPC receives a written request from the employer or the employer's authorized agent for the original surety bond that was submitted with the application, the Chicago NPC will return the original surety bond using regular mail.

February 29, 2012

The requirement of a new original surety bond to support each Application for Temporary Employment Certification allows the Chicago National Processing Center (NPC) to ensure that the amount of the bond coverage appropriately corresponds to the number of workers requested on the employer's ETA Form 9142, as outlined in 29 CFR 501.9. Additionally, in the event there is a finding of a violation, the requirement that a separate bond meet the face value parameters specified in 29 CFR 501.9 for each application is critical to the effective enforcement of an H-2ALC's wage obligations against the surety that agreed to be legally responsible with regard to the wages owed to the workers under that particular application.

February 13, 2013

No. Under the 2010 Final Rule and historically in the H-2A program, the employer has an affirmative obligation to apprise all workers, including H-2A workers and workers in corresponding employment of all material terms and conditions of employment. The Department's regulations, at 20 CFR 655.122(q), additionally require each employer to provide its H-2A workers and workers in corresponding employment with a copy of the work contract (or in the absence of a separate work contract, with a copy of the application and job order) in a language understood by the worker. Finally, rejections of U.S. workers who apply for the job must be only for lawful, job-related reasons - not being aware of all the terms and conditions of employment is not a lawful, job-related reason to not hire an otherwise qualified and eligible U.S. worker.

September 15, 2010

No. A willing and available worker anticipates being available on the start date and throughout the period of need.

February 13, 2013

Under the Immigration and Nationality Act (INA), the employer is responsible for verifying the employment eligibility of all of its hires. Department of Homeland Security (DHS) regulations do not require State agencies to verify the employment eligibility of job applicants they refer to employers but do permit employers to rely on employment verification voluntarily performed by a State employment agency under certain limited circumstances. Under the 2008 Final Rule the Department required the SWAs to perform I-9 verification on all applicants being referred to job openings for which H-2A workers were sought. Under the 2010 Final Rule, the SWAs will no longer be required to conduct I-9 employment eligibility verification of job applicants referred to job opportunities for which H-2A workers are sought. Employers should carefully examine the requirements under the INA and the DHS regulations to ascertain their obligations and ensure compliance with respect to employment eligibility verification.

March 29, 2010

The Notice of Acceptance contains the recruitment instructions and the due date for the first recruitment report. The employer should begin recruitment when it receives the Notice of Acceptance and then submit the first recruitment report by the due date provided. We understand that an employer may not have time to complete the required recruitment before submitting its first recruitment report. The regulation provides for the employer to continue recruiting after submitting the first recruitment report. Specifically, an employer must continue to maintain and update its recruitment report during the first 50 percent of the contract period and be prepared to submit the updated recruitment report, if requested.

February 29, 2012

When choosing where to place the two required newspaper advertisements in the area of intended employment, an employer must ensure that the publication it selects meets the following regulatory criteria:

• It is a newspaper;
  Note: A newspaper contains news articles, editorials, feature articles and some advertising. A publication primarily consisting of advertising is not a newspaper.
• It maintains general circulation;
  Note:A newspaper maintains general circulation when it is sold to the public in general.
• It serves the area of intended employment; and
• It is appropriate to the occupation and the workers likely to apply for the job opportunity.

A newspaper that is circulated on a weekly basis, or less frequently than weekly (e.g., monthly), is not acceptable. Factors such as the cost of an advertisement or advertisement presentation format, however, do not necessarily indicate that a newspaper is more or less appropriate for the labor market test. The employer should be prepared, if asked, to explain how the publication it selected meets the regulatory criteria.

In some cases the SWA may, but is not required by regulation to, include the name of appropriate newspaper(s) in its letter to the employer accepting the job order.

Important Note: If an employer needs assistance identifying a newspaper of general circulation in the area of intended employment, the employer may direct an inquiry to the Chicago National Processing Center Help Desk: TLC.Chicago@dol.gov.

February 13, 2013

All advertisements should contain the same job order number. The job order number in all advertisements is the job order number the SWA serving the area of intended employment (the order holding office) assigns to the employer's ETA Form 790. It has been our practice to accept a statement in out-of-state advertisements directing prospective applicants to apply for the job opportunity at the nearest local office of the SWA. This statement, combined with the employer's own contact information listed in the advertisement, provide sufficient contact information for an applicant to connect with the job opportunity. The employer is not required to research and identify in the advertisement the specific SWA name or contact information for the local out-of-state SWA office.

February 29, 2012

The Certifying Officer (CO) will outline the employer's recruitment requirements in the Notice of Acceptance. When a job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the CO may direct the employer, in place of a Sunday edition, to advertise in the regularly published daily edition with the widest circulation in the area of intended employment.

February 29, 2012

Employers may request to amend, i.e., to either increase or decrease, the number of workers requested in their initial application at any time before final determination. Employers may request an increase in the number of workers without additional recruitment as long as the increase is no more than 20 percent of the original number requested or 50 percent in the case of an employer requesting less than 10 workers. For requests for increases above the percentages prescribed, without additional recruitment, the employer must demonstrate that the need for additional workers could not have been foreseen, and the crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period.

September 15, 2010

Yes, the employer may request amendments to either the period of employment or change the number of workers before a certification decision is issued by the Chicago National Processing Center (NPC).
Submit a written amendment request directly to the Chicago NPC.

The employer may e-mail the request directly to the Chicago NPC using the address: TLC.Chicago@dol.gov, with the words "H-2A Amendment Request" contained in the subject line of the e-mail.

Employers without internet access may send a written request by facsimile to (312) 886-1688 (ATTN: H-2A Amendment Request) or by U.S. mail to the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification,
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105
ATTN: H-2A Amendment Request

If you are requesting a change in the period of employment or an increase in the number of workers by more than 20% (more than 50% if you originally requested less than 10 workers), attach to the amendment request a statement and any other documentation (e.g., state/local weather reports, crop yield data) demonstrating how the need for the change in the period of employment or workers requested could not have been foreseen, and a description of how the crops or commodities will be in jeopardy if approval is not granted immediately.

The employer will receive a courtesy notification from the Chicago NPC acknowledging receipt of the amendment request within 48 hours and providing a date on which a decision will be made on the request or stating whether additional information is needed from the employer.

Important Reminders:

1. The Chicago PC may require additional recruitment for U.S. workers as a condition of approving your amendment request, particularly in circumstances where the request will increase in the number of workers by more than 20% or more than 50% if you originally requested less than 10 workers.
2. If you are requesting a delay in the expected start date of work, please remember to include in your written notification to the Chicago NPC a statement indicating whether any U.S. workers have already departed for your place of work and, if so, an assurance that all workers who are already traveling will be provided housing and meals, without cost to the workers, until work begins.

September 9, 2011

Yes. An employer who submitted a job order in connection with a future H-2A application may withdraw it once it has been accepted for intrastate clearance but before the employer files an Application for Temporary Employment Certification, ETA Form 9142 with the Chicago National Processing Center, but the employer's withdrawal of the job order does will not nullify existing obligations to workers who were recruited in connection with that job order. If the employer received SWA referrals pursuant to the withdrawn job order and successfully recruited U.S. workers, the employer will be bound by the terms and conditions of employment reflected in the job order with respect to those workers, including but not limited to wages, housing, and transportation.

September 15, 2010

Yes. An employer may withdraw its Application for Temporary Employment Certification and job order submitted in connection with the application, after the job order is accepted by the SWA and placed intrastate clearance, but before the Certifying Officer issues a Notice of Acceptance. However, the employer will be required to comply with the terms and conditions of employment contained in the job order with respect to workers recruited in connection with that application and job order.

September 15, 2010

Yes. An employer may withdraw its Application for Temporary Employment Certification and job order submitted in connection with the application after the Certifying Officer issues a Notice of Acceptance. The employer will be required to comply with the terms and conditions of employment contained in the application and job order with respect to workers recruited in connection with that application and/or job order.

September 15, 2010

An employer cannot obtain a duplicate certified ETA Form 9142. A request for a duplicate certified ETA Form 9142 may only be made by the U.S. Citizenship and Immigration Services (USCIS) to DOL at the discretion of USCIS. Generally, USCIS will not make a request for a duplicate certified ETA Form 9142 unless the employer can establish there are extenuating circumstances beyond its control which caused the initial certification to become unavailable. Employers requesting that USCIS obtain a duplicate certified ETA Form 9142, should include on the top of the I-129, Petition for Nonimmigrant Worker, a cover sheet (preferably highlighted with colored paper) stating the following: NO TEMPORARY LABOR CERTIFICATION, REQUEST FOR DUPLICATE, DO NOT REJECT.

On the cover sheet, the following information should also be included:

1. Attorney or agent name, if applicable;
2. Employer's name; and
3. ETA case number.

In addition to the coversheet, proper fee, signature and all required supporting documents, the employer must provide the reason(s) that the original ETA Form 9142 cannot be submitted and evidence to support its claim. Once USCIS receives the duplicate certified ETA Form 9142, USCIS will contact the employer and/or his representative via a Request for Evidence (RFE) in order to secure the employer's signature on the duplicate certification.

DOL WILL NOT SEND THE DUPLICATE CERTIFIED ETA FORM 9142 TO THE EMPLOYER. DOL WILL SEND IT ONLY TO USCIS.

February 29, 2012

Yes, the employer may request either a short-term or long-term extension to the end date of work on a certified H-2A application.

Short-term extension requests:

• Employer needs to extend the end date of work for two (2) weeks or less;
• DO NOT submit an extension request to the Chicago National Processing Center (NPC);
• Submit an extension request directly to the Department of Homeland Security’s United States Citizenship and Immigration Services (USCIS) for approval. To obtain information on how to submit a short-term extension request to the USCIS, please visit www.uscis.gov.
  
  

  Important Reminder: When USCIS approves a short-term extension, the certified H-2A application will automatically be extended and the employer does not need to notify the Chicago NPC.

Long-term extension requests:

• Employer needs to extend the end date of work for more than two (2) weeks;
• Submit an extension request and all supporting documentation directly to the Chicago NPC;
  
  

  To make requesting an extension simple and fast, the employer may e-mail the request directly to the Chicago NPC using TLC.Chicago@dol.gov with the words “H-2A Extension Request” contained in the subject line of the e-mail.

  Employers without internet access may also send written requests by facsimile to (312) 886-1688 (ATTN: H-2A Extension Request) or by U.S. mail to the following address:
  U.S. Department of Labor
  Employment and Training Administration
  Office of Foreign Labor Certification,
  Chicago National Processing Center
  11 West Quincy Court
  Chicago, IL 60604-2105
  ATTN: H-2A Extension Request

• Attach to the extension request a statement and any other documentation (e.g., weather reports, crop yield data) demonstrating how the need for the long-term extension is related to weather conditions or other factors beyond the control of the employer that could not have been reasonably foreseen, which may include changes in market conditions.
• The employer will receive a courtesy notification from the Chicago NPC acknowledging receipt of the extension request within 48 hours and a date on which a decision will be made on the request or whether additional information is needed from the employer.
  
  

  Important Reminder: Except in extraordinary circumstances, the Chicago NPC will not approve an extension request where the new certified period of employment will be 12 months or more.

DON’T FORGET! Where the employer receives approval for either a short-term or long-term extension, it must provide to all workers a copy of the approved extension to the period of work as soon as practical.

September 9, 2011

Yes, the employer may request a minor delay in the start date of work after a certification decision is issued by the Chicago National Processing Center (NPC).

• Submit a written amendment request directly to the Chicago NPC.
  
  

  The employer may e-mail the request directly to the Chicago NPC using the address: TLC.Chicago@dol.gov, with the words “H-2A Start Date Amendment Request” contained in the subject line of the e-mail.
  
  Employers without internet access may send a written request by facsimile to (312) 886-1688 (ATTN: H-2A Start Date Amendment Request) or by U.S. mail to the following address:
  U.S. Department of Labor
  Employment and Training Administration
  Office of Foreign Labor Certification,
  Chicago National Processing Center
  11 West Quincy Court
  Chicago, IL 60604-2105
  ATTN: H-2A Start Date Amendment Request

• Attach to the amendment request a statement and any other documentation (e.g., state/local weather reports, crop yield data) demonstrating how the need for the delay in the start date of work could not have been foreseen, and a description of how the crops or commodities will be in jeopardy if approval is not granted immediately.

• The employer will receive a courtesy notification from the Chicago NPC acknowledging receipt of the amendment request within 48 hours and providing a date on which a decision will be made on the request or stating whether additional information is needed from the employer.
  
  

Important Reminder: Include in your written notification to the Chicago NPC a statement indicating whether U.S. and/or H-2A workers have already departed for your place of work and, if so, an assurance that all workers who are already traveling will be provided housing and meals, without cost to the workers, until work begins.

September 9, 2011

Yes. An employer may withdraw its Application for Temporary Employment Certification and job order submitted in connection with the application after the Certifying Officer grants the certification, as long as the employer returns the original certified ETA Form 9142. The employer, however, will be required to comply with the terms and conditions of employment contained in the application and job order with respect to workers recruited or offered employment in connection with that application and/or job order.

September 15, 2011

No. At any time before certification, an employer may submit a request to increase the number of H-2A workers stated on the Application for Temporary Employment Certification to the Certifying Officer (CO) following the instructions in a separate Frequently Asked Question (FAQ) available in the “Post-Filing” FAQ section. After certification, however, the regulations do not allow the employer to request more H-2A workers than it stated on the Application for Temporary Employment Certification at the time of certification. An employer that needs additional workers after receiving a certification would need to conduct another test of the labor market by placing a new job order with the State Workforce Agency (SWA) serving the area of intended employment and filing a new Application for Temporary Employment Certification with the Chicago National Processing Center (NPC).

When the employer needs the additional workers to begin work in less than 45 calendar days, the employer may seek a waiver of the regulatory filing time period requirement through the emergency filing procedures. An employer requesting this waiver must concurrently submit to the Chicago NPC and the SWA: the Application for Temporary Employment Certification; a completed job order on ETA Form 790; and a statement justifying the request for the waiver. The statement must include detailed information describing the good and substantial cause which necessitated the waiver request. Good and substantial cause may include, but is not limited to, the substantial loss of U.S. workers due to weather-related activities or other reasons, unforeseen events affecting the work activities to be performed, pandemic health issues, or similar conditions. The CO can only grant the request if the request is justified and there is sufficient time to test the local area for the availability of U.S. workers.

February 29, 2012

An employer may, upon receiving approval from the Chicago National Processing Center (NPC) Certifying Officer (CO), terminate work to be performed under the job order and/or work contracts with employees before the end date of work due to fire, weather, or other Act of God beyond its control that makes fulfillment of the contract impossible. An employer seeking the CO's "contract impossibility" determination must submit a written request directly to the Chicago NPC.

The employer may e-mail its request for relief under the "Contract Impossibility" provision directly to the Chicago NPC using the address: TLC.Chicago@dol.gov with the words “H-2A Contract Impossibility Request” contained in the subject line of the e-mail.

Employers without internet access may also fax a request to (312) 886-1688 (ATTN: H-2A Contract Impossibility Request) or by U.S. mail to the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification,
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105
ATTN: H-2A Contract Impossibility Request

Important Reminders:

• An employer continues to be responsible for its obligations under the work contract until receiving a favorable "contract impossibility" determination from the CO.
• In the event that the CO makes a finding of contract impossibility, the employer should document its efforts to comply with each aspect of the contract impossibility provision. Specifically, the employer should document that it:
• Fulfilled the three-fourths guarantee for the time that has elapsed from the start date of work specified in the work contract to the date of termination;
• Made efforts to transfer the worker to other comparable employment acceptable to the worker, consistent with existing immigration laws; and
• In situations where a transfer did not occur:
• Returned the workers at the employer's expense to the place from which the worker (disregarding intervening employment) came to work for the employer, or transport the worker to his/her next certified H-2A employer, whichever the worker prefers. Note: This requirement does not apply if the worker has contracted with a subsequent employer who has agreed to provide or pay for the worker's transportation and subsistence expenses from the present employer's worksite to the subsequent employer's worksite;
• Reimbursed the worker the full amount of any deductions made by the employer from the worker's pay for transportation and subsistence expenses to the place of employment, and
• Paid the worker for any transportation and subsistence expenses, including any lodging expenses incurred on the employer's behalf, incurred by the worker to that employer's place of employment.

February 29, 2012

A worker who fails to report for work at the regularly scheduled time for five consecutive working days, without the employer's prior consent, is considered to have abandoned the job. This includes a worker who fails to report for employment for the first five consecutive working days of the contract period. When a worker does not appear on the first day of the contract period, we suggest that the employer contact the worker and, in the case of a U.S. worker, the State Workforce Agency (SWA) to resolve any confusion about the start date and confirm whether the worker will report to work or is no longer available for the job opportunity.

Instructions for submitting the written notification of abandonment for those workers who fail to report to work, as scheduled, for five consecutive working days, are available in a separate H-2A Frequently Asked Question (FAQ).

February 29, 2012

After submitting the written notification of abandonment, if the workers who abandoned the job were in H-2A visa status, the employer may submit a request to USCIS to replace the workers. For more information please contact USCIS at www.uscis.govor at its National Customer Service Center at 1-800-375-5283.

If, however, the workers who abandoned the job were U.S. workers and the employer's labor certification had been denied or reduced by the number of U.S. workers hired, the employer may submit a request for a new temporary labor certification determination to the Chicago National Processing Center (NPC). By regulation, the employer may contact the Certifying Officer by telephone (312-886-8000) or e-mail to request a new determination based on U.S. worker unavailability. The employer must also submit a signed written statement confirming its belief that U.S. workers are unavailable. Employers may submit the request and/or written statement by e-mail directly to the Chicago NPC using the address: TLC.Chicago@dol.gov, with the words "H-2A Redetermination Request" contained in the subject line of the e-mail. Employers without internet access may fax the request and/or written statement to (312) 886-1688 (ATTN: H-2A Redetermination Request) or by U.S. mail to the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification,
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105
ATTN: H-2A Redetermination Request

If the Certifying Officer (CO) does not receive the employer's signed written statement within 72 hours of the employer's initial request, the CO will deny the request.

Upon receipt of the request, the CO will look to applicable sources, which may include the State Workforce Agency, to determine whether specific able, willing, eligible and qualified replacement U.S. workers are available or can be reasonably expected to report for the job within 72 hours of the employer's request. If the CO determines that U.S. workers are unavailable and cannot identify sufficient available replacement U.S. workers, the CO will issue a new determination, which the employer may use to seek additional workers in H-2A visa status with USCIS.

February 29, 2012

The employer must provide the Chicago National Processing Center (NPC) with written notification when any worker voluntarily abandons or is terminated for cause from the job before the end of the certified work period. A worker who fails to report for work at the regularly scheduled time for five (5) consecutive working days, without the employer’s consent, is considered to have abandoned the job.

• Submit the written notification directly to the Chicago NPC within two(2) working days of the abandonment or termination from the job;

To make compliance with this requirement simple and fast, the employer may e-mail the notification directly to the Chicago NPC using TLC.Chicago@dol.gov with the words “H-2A Abandonment/Termination Notice” contained in the subject line of the e-mail.

Employers without internet access may also send written notification by facsimile to (312) 886-1688 (ATTN: H-2A Abandonment and Termination) or by U.S. mail to the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification,
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105
ATTN: H-2A Abandonment and Termination

To ensure prompt and effective processing, please make sure the signed notification includes the following information:

• Case number(s) on the H-2A certification(s);
• Employer’s name, address, telephone number, and Federal Employer Identification Number (FEIN);
• Number of U.S. worker(s) and H-2A worker(s) who abandoned or was/were terminated from the job;
• Name of each worker and last known physical address (other than employer-provided housing);
• Date of abandonment or termination; and
• Reason(s) for notification (for example, explain that the worker was either an “absconder” or “termination for cause”) or late notification, if applicable.
• The employer will receive a courtesy notification from the Chicago NPC acknowledging receipt of the written notification within 48 hours and an indication as to whether additional information is needed from the employer.

DON’T FORGET! If the worker who abandons or is terminated from the job is in H-2A visa status, the employer must also notify the Department of Homeland Security’s United States Citizenship and Immigration Services (USCIS) within 2 working days. To obtain information on how to submit notifications to the USCIS, please visit www.uscis.gov.

September 9, 2011

The Certifying Officer (CO) may issue a partial certification, reducing the number of H-2A workers, based upon information the CO receives during the course of processing the Application for Temporary Employment Certification. The number of requested workers will be reduced for each U.S. worker that is able, willing and qualified to fill the position and who was not rejected for a lawful job-related reason. The number of workers certified on the application will also be reduced when the number of requested workers exceeds the capacity of the pre-occupancy housing inspection conducted by the State Workforce Agency (SWA). When issuing a partial certification, the CO includes an enclosure that fully details the specific reason for the partial certification.

February 29, 2012

When the prevailing wage rate for a specific crop in a specific State changes after a certification has been granted the Office of Foreign Labor Certification posts the new prevailing wage rate, including the effective date, on its Web site in the Agricultural On-Line Wage Library (AOWL), available at http://www.foreignlaborcert.doleta.gov/aowl.cfm. Also, the Chicago National Processing Center (NPC) sends a letter to all potentially affected employers notifying them of the change.

Important Note: Because the Office of Foreign Labor Certification receives new wage findings from States for different crops/occupations on a rolling basis, employers are encouraged to periodically check the AOWL to ensure that they are paying the appropriate required wage throughout the certified period of employment. If needed, employers may direct their questions regarding the applicability of new wage determinations to TLC.Chicago@dol.gov.

February 4, 2013

Yes. Where the Department certifies an H-2A Application for Temporary Employment Certification in whole or in part, the employer will receive a bill for the required certification fee in the envelope delivering the original certification. The employer must timely pay the certification fee no more than 30 calendar days after the date of the certification.

Important Note: An employer who is issued an H-2A labor certification but who requests post-certification withdrawal of that H-2A labor certification, and/or who decides not to proceed with the filing of a Petition for a Nonimmigrant Worker (Form I-129) with the United States Citizenship and Immigration Services is still required to pay the required labor certification fee in a timely manner. Failure to do so can result in debarment from the H-2A program.

February 4, 2013

The basic labor certification fee is $100.00 per application and $10.00 for each H-2A worker certified, up to a maximum labor certification fee of $1000.00 per employer. For example, an employer who received an H-2A labor certification to hire 15 temporary H-2A workers would pay a total fee of $250.00, which includes $100.00 for the temporary labor certification plus $10.00 for each certified worker position (15 x $10.00 = $150.00). No additional fee is assessed to an association filing jointly with its employer members.

February 4, 2013

Each employer member is responsible for paying through its association the required fee related to the H-2A labor certification, where the association filed the Application for Temporary Employment Certification jointly with its employer members. At the time of certification, the Chicago National Processing Center (NPC) will issue an invoice directly to the association for the aggregate amount of labor certification fees owed by all employer members covered by the H-2A labor certification. For example, if employer member A is certified for 10 workers, employer member B is certified for 15 workers and employer member C is certified for 20 workers, the H-2A labor certification fee invoice would request the payment of $750.00 – employer A ($100.00 + 10 x $10.00 = $200.00) plus employer B ($100.00 + 15 x $10.00 = $250.00) plus employer C ($100 + 20 x $10.00 = $300.00). No additional fee would be assessed to an association filing jointly with its employer members. While the aggregate amount of labor certification fees appearing on an association's invoice may be greater than $1,000, no employer member will be billed for or assessed a fee of more than $1,000 (i.e., the maximum labor certification fee per employer).

If, however, the association is representing the employer as an agent in the labor certification process, the Chicago NPC will direct the invoice for the labor certification fee to the individual employer, who will be responsible for paying the required fee directly to the Department. As with other correspondence, the Chicago NPC will send the invoice to the employer through its agent (i.e., the association).

February 4, 2013

After receiving a bill for the required H-2A labor certification fee, the employer should send a money order payable in U.S. currency or a check from a U.S. bank payable to the "United States Department of Labor" to the Chicago National Processing Center (NPC) at the following address:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
P.O. Box A3804
Chicago, IL 60690-A3804
Attention: Director of Administration

Employers should include with the payment the H-2A case number, and the employer's name, address, and phone number. The payment must be received by the Chicago NPC no more than 30 calendar days after the date of certification.

Associations filing jointly with employer members should send a single money order payable in U.S. currency or a check from a U.S. bank covering the aggregated fees for all employer members covered by the single Application for Temporary Employment Certification.

Questions related to the labor certification fee invoice should be directed to the Chicago NPC at TLC.Chicago@dol.gov with the e-mail subject line "H-2A Invoice Question".

Important Note: Please note that some commercial express couriers will not deliver to a U.S. P.O. box; therefore, an employer choosing to use a commercial express courier should confirm that provider's services before submitting a payment. Also, all employers should allow for sufficient time to assure timely receipt of payment.

February 4, 2013

The Chicago National Processing Center (NPC) must receive payment of H-2A labor certification fees no more than 30 calendar days after the date of certification. Payment that is received more than 30 calendar days after the date of certification will be considered untimely. Non-payment or untimely payment of the H-2A labor certification fees may be considered a substantial violation and subject the employer to debarment from the H-2A program, consistent with 20 CFR 655.182.

Questions related to the labor certification fee invoice should be directed to the Chicago NPC at TLC.Chicago@dol.gov with the e-mail subject line "H-2A Invoice Question".

February 4, 2013

A successor in interest entity may use the certification issued, provided that it assumes all obligations, liabilities, and undertakings arising under the certification. The Department’s H-2A regulations expressly contemplate successorship by including a definition of “successor in interest” and, in fact, permit debarment of employers who are successors to a debarred employer. See 20 CFR 655.100(b) and 20 CFR 655.182(a).  As a result, although the H-2A regulations do not expressly contain a process in which a certification may be assumed by a successor employer, the Office of Foreign Labor Certification (OFLC) has determined that such a process is a reasonable interpretation of the H-2A regulations cited above, and that such a model would prove useful to both employees and employers in situations involving corporate restructuring or sale of a business.

As indicated in the definition of “successor in interest” at 20 CFR 655.100(b), the following factors may be considered in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole:

(i) substantial continuity of the same business operations;
(ii) use of the same facilities;
(iii) continuity of the work force;
(iv) similarity of jobs and working conditions;
(v) similarity of supervisory personnel;
(vi) whether the former management or owner retains a direct or indirect interest in the new enterprise;
(vii) similarity in machinery, equipment, and production methods;
(viii) similarity of products and services; and
(ix) the ability of the predecessor to provide relief.

Before employing workers covered by the certification, a successor in interest entity should notify the Chicago National Processing Center (NPC) by submitting a sworn written statement that identifies the certification using the ETA case number; describes the business situation resulting in the change; provides the successor in interest’s name and contact information; and confirms the successor in interest’s assumption of all obligations, liabilities, and undertakings arising under the certification. Also, a copy of the sworn written statement submitted to the Chicago NPC should be added to the employer’s document retention file, consistent with the H-2A regulation’s record and documentation retention requirements described at 20 CFR 655.167.

Important Note:  The H-2A regulations do not provide a process for the Chicago NPC to determine whether a new entity is a “successor in interest” for purposes of using the H-2A certification. Therefore, the Chicago NPC’s receipt of the sworn statement serves only to document the asserted successorship and the transition between employers using the certification.

January 22, 2016

Yes. In addition to providing supporting documentation before certification, each employer participating in the H-2A program is required to retain certain documentation for a period of 3 years from the date of certification. The document retention requirements may be found under the new section 20 CFR 655.167.

March 29, 2010

If an employer wishes to appeal the CO's issuance of a Notice of Deficiency before certification, the employer must within 5 days of the receipt of the Notice of Deficiency file by facsimile or other means normally assuring next day delivery a written request for an expedited administrative review or a de novo administrative hearing to the Chief Administrative Law Judge of the Department of Labor and simultaneously 9 serve the CO. If an employer wishes to appeal the CO's issuance of a Final Determination letter denying the temporary labor certification, the employer must within 7 calendar days of the receipt of the Final Determination letter file a written request by facsimile or other means normally assuring next day delivery with the Chief Administrative Law Judge of the Department of Labor and simultaneously serve the CO. See sections 20 CFR 655.141 and 655.164.

March 29, 2010

Not directly. The H-2A regulations do not contain a provision for appealing wage determinations. However, if the SWA and the employer do not agree on the correct wage that must be offered, and the employer complies with all requirements of the 2010 Final Rule (described more fully below) the Certifying Officer (CO) at the Chicago NPC ultimately may make the determination on the wage that must be offered. If the matter is not resolved with the CO, the employer may follow the appeal procedures in the 2010 Final Rule and request an appeal from either a Notice of Deficiency or a Final Determination denying the employer's application.

March 29, 2010

Each H-2A labor certification is valid for the period of employment provided on the application. In order to qualify for a temporary labor certification, the employer's period of need, including any subsequently granted extensions, may not exceed one year except in extraordinary circumstances.

March 29, 2010

No. An application must contain a single date of need for all workers under that application. Under the H-2A program, a date of need is defined as the first date the employer requires the services of H-2A and U.S workers as indicated in the Application for Temporary Employment Certification. The date is not an indication of the first date of need for some workers, but for all the workers that are the subject of the application. We expect that the filing of an Application indicates that the employer has full-time work available for all positions it is requesting for that single start date and that all information reflects the employer's true need. Changing the date of need for some or all workers invalidates the validity of the labor market test, which eliminates the Department's basis for granting the labor certification. A different date was not advertised to U.S. workers, in particular those who, if they had been apprised of the later date, could have made themselves available for the job opportunity, and therefore made the approval of the certification unnecessary. Where the employer has staggered dates of need, the employer must file a separate application for each date of need.

July 22, 2011

As discussed further in a separate Frequently Asked Question (FAQ), where an employer requires workers to begin work on different dates, the employer has staggered dates of need and must file a separate Application for Temporary Employment Certification for each of the different start dates of need.

An employer that intends for all of its workers to begin work on the same date, but finds that some workers are unable to arrive in time due to minor travel delays, is different from an employer that requires workers to begin work on different dates. We recognize that these employers make every effort to ensure that all workers arrive in time to be ready to work on the start date listed on the Application for Temporary Employment Certification. The regulatory provision for requesting a delayed start date applies when the employer wishes to delay the start date of all workers covered by the Application for Temporary Employment Certification. It does not cover minor travel delays or slower than expected processing times at USCIS or a U.S. Consulate for workers coming from outside the U.S.; however, these delays should not delay any other worker's start date or the employer's start date of work.

The employer's application also does not need to be amended when minor differences in worker travel schedules, such as those described above, mean workers will arrive within a few days of each other or the start date of need.

Important Reminder: The employer's positive recruitment obligations continue through the date the H-2A workers depart for the employer's place of work. Unless the SWA is informed in writing of a different date, the date that is the third day before the employer's start date will be considered the date the H-2A workers depart for the employer's place of work.

February 29, 2012

On March 4, 2015, the U.S. District Court for the Northern District of Florida (District Court) vacated the Department of Labor's (Department) 2008 H-2B regulations on the ground that the Department lacked authority under the Immigration and Nationality Act to unilaterally issue regulations in the H-2B program. Perez v. Perez, No. 3:14-cv-682 (N.D. Fla. Mar. 4, 2015). Because this decision vacated the 2008 H-2B Rule and permanently enjoined the Department from implementing or enforcing it, the Department was forced to immediately discontinue the processing of applications for temporary labor certification in the H-2B program. On March 18, 2015, the District Court granted a temporary stay of the vacatur, allowing the Department to resume the processing of H-2B applications and prevailing wage determinations.  On April 15th, the Court extended the temporary stay through May 15, 2015.

On April 29, 2015, the Departments of Labor and Homeland Security jointly issued an Interim Final Rule (IFR) to rectify the regulatory gap that the vacatur of the 2008 H-2B regulations caused.  The H-2B 2015 IFR addresses the critical issue of U.S. worker access to the jobs for which employers seek H-2B workers through a re-engineered program design which focuses on enhanced U.S. worker recruitment and strengthened worker protections. 

As the 2015 IFR is immediately effective, the Department will process H-2B applications received on or after the effective date of the 2015 IFR under this authority.

May 01, 2015

Below is a brief list of some of the major changes incorporated in the 2015 Interim Final Rule (IFR).  These updates are covered in greater detail in the particular topic areas below.

Duration of Temporary Need: Seasonal need, peakload need and intermittent need are limited to a validity period of 9 months or less. One-time occurrence remains available for a 3-year timeframe,

Definition of Full-Time Work: Full time work has been expanded from 30 hours per week to 35 hours per week.

H-2B Registration: New pre-filing process allowing the employer to “register” its temporary need for a specific number of job opportunities that will be sought in the first year of registration.  DOL may approve an employer’s H-2B Registration for a period up to 3 consecutive years (to be effective at a later date, to be published in the Federal Register).

Post Filing Recruitment Model:  Recruitment is conducted after the application is accepted for processing.

Application and Job Order Filing:  Simultaneous; must occur no more than 90 and no less than 75 calendar days before the date of need, unless there is an emergency.

Proof of Agency. Where an employer is represented by an agent, any application filed by an agent must be accompanied by an agreement demonstrating the agent’s authority to act on behalf of the employer in the labor certification process.

Prevailing Wage Determinations in Guam:  Subject to the transfer of authority from DHS to DOL, employers who will employ H-2B workers in Guam must request a Prevailing Wage Determination from the Department’s National Prevailing Wage Center. The Governor of Guam will retain the authority to issue temporary non-agricultural labor certifications for labor or services to be performed on Guam.

Employer-Conducted Recruitment:  Includes additional components, including contact with the bargaining representative if the job is unionized, or posting the job opportunity on the employer’s work premises or electronically, such as displaying a notice prominently on any internal or external Web site.  May include contact with community-based organizations and additional recruitment, as ordered by the Certifying Officer (CO).  Recruitment requirements under the IFR expand disclosures to prospective applicants.  Employer is required to update the recruitment report throughout the referral period.

Extended Referral Period: Employer is required to accept referrals and hire qualified U.S. workers until 21 days before the employer’s date of need. 

Emergency Filings: Employers that show good and substantial cause may file the H-2B registration, application and job order fewer than 75 days before the date of need, where there is sufficient time to test the labor market and make a final determination.

Determinations Based on the Nonavailability of U.S. Workers: New provision allowing an employer whose application was partially certified or denied to request a new determination from the Department based on the non-availability of U.S. workers. 

Employer Assurances and Obligations

Fees (Visa/Border Crossing): Employer must cover the cost of visa processing, border crossing, and other related fees within the first workweek.  Passport or other charges primarily for the benefit of the workers need not be reimbursed.

Transportation to and from the place of employment: Employers must cover the cost of inbound transportation and subsistence for H-2B workers who complete 50 percent of the period of employment covered by the job order, and outbound transportation and subsistence for H-2B workers who work to the end of the job order or are dismissed early.

Three-fourths guarantee: Employers must offer employment for three-fourths of each 12-week period for certifications extending 120 days or more; certifications covering fewer than 120 days will use a 6-week period. Employer must inform the CO if the certified work period will end early in order to modify this guarantee.

Tools and Equipment: Employer must provide all tools and equipment necessary to perform the job to workers free of charge.

Worker Protections: The 2015 Interim Final Rule includes additional worker protections, including protections from retaliation.  See 20 CFR 655.20(n) and 20 CFR 503.16(n).  Employer obligations and assurances are enforced by the Department’s Wage and Hour Division. For compliance guidance, please visit: http://www.dol.gov/whd/immigration/H2BFinalRule/index.htm

Disclosure of Foreign Recruitment: Employer must provide a copy of all agreements with any agent or recruiter who conducts or plans to conduct international recruitment for the employer, and a list of the identities and locations of persons hired by or working for the recruiter.

Revocation: The OFLC Administrator has new authority to revoke approved temporary non-agricultural labor certifications.

May 01, 2015

An employer must establish that its need for non-agricultural services or labor is temporary in nature, which means the need is for a limited period of time and, as defined by the Department of Homeland Security (DHS), will “end in the near, definable future.”  See 8 CFR 214.2(h)(6)(ii)(B).  The DHS categorizes and defines temporary need into the following four standards:

a.    One-time occurrence: The employer must establish the following:

- It has not employed workers to perform the services or labor in the past and it will not need workers to perform the services or labor in the future,

or

- It has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker. 

b.    Seasonal need: The employer must establish the following:

The services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature

and

- The period(s) of time during each year in which it does not need the services or labor.

Important Note:  The employment is not seasonal if the period during which the services or labor is not needed is unpredictable, subject to change, or considered a vacation period for the employer's permanent employees.

c.    Peakload need: The employer must establish the following:

- It regularly employs permanent workers to perform the services or labor at the place of employment

and

- 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

- The added temporary staff will not become a part of the employer's regular operation.

d.    Intermittent need: The employer must establish the following:

- It has not employed permanent or full-time workers to perform the services or labor

but

- Occasionally or intermittently needs temporary workers to perform the services or labor for short periods. 

Under the 2015 Interim Final Rule, an employer’s temporary need justified on either a seasonal, peakload, or intermittent basis will be limited to 9 months or less in duration.  An employer’s temporary need justified on a one-time occurrence basis can be approved for up to 3 years.

May 01, 2015

Yes. Under the 2008 H-2B regulations, an employer may have been approved to hire temporary H-2B workers for a period of need lasting up to 10 months.  However, under the 2015 IFR, the maximum duration for which an employer may hire temporary workers in the H-2B visa category is 9 months, unless the temporary need is based on a one-time occurrence.  Therefore, the Department will not certify an H-2B application based on a seasonal, peakload or intermittent need which reflects a period of need exceeding 9 months.

May 01, 2015

No.  Any H-2B application that was certified under the 2008 Final Rule will continue to be governed by those regulations.  Therefore, a certification previously issued for a 10-month validity period continues to be valid through the validity end date identified on the certification.

May 01, 2015

Any business enterprise that meets the definition of employer, possesses a valid Federal Employer Identification Number (FEIN) and has a temporary need for non-agricultural services or labor can qualify for a temporary non-agricultural labor certification.  If a staffing company meets the definition of a “job contractor” under 20 CFR 655.5, the staffing company must comply with specific filing requirements applicable to job contractors at 20 CFR.655.19, and may only qualify for certification based on its own temporary need, which may be either seasonal or a one-time occurrence.  If a staffing company can demonstrate that it will exercise substantial, day-to-day supervision and control over the temporary workers performing the services or labor and, is not a “job contractor” as defined in the regulation, it may seek certification under the seasonal, peakload, intermittent or one-time occurrence temporary need standards.

May 01, 2015

The 2015 IFR removes the regulatory provision authorizing the Department to create new special procedures.  The Department will continue to accept H-2B applications for professional athletes, tree planting and related reforestation, and professional/outdoor entertainers under the existing special procedures. However, the Department is in the process of expeditiously reviewing special procedures applicable to the H-2B program.  The public will be advised when the Department’s review is complete and any impact on current special procedures. 

May, 2015

All H-2B temporary employment certifications issued before the publication date of the H-2B 2015 Interim Final Rule under the provisions of the 2008 Final Rule, will continue to be valid for the number of job opportunities, work locations and period of employment certified, and will be governed by that regulation. 

May 01, 2015

Any Application for Temporary Employment Certification, ETA Form 9142B (H-2B application) that was filed before April 29, 2015 will be processed in accordance with the 2008 H-2B Final Rule.

May 01, 2015

Any PWD application submitted before April 29, 2015 will be processed under the 2008 Final Rule, as modified by the 2013 Wage Methodology Interim Final Rule. The new 2015 regulations will not apply to those pending PWD applications.

May 01, 2015

No. Given the immediate effective date of the 2015 H-2B Interim Final Rule, the Department of Labor (Department) will need a period of time to operationalize the
H-2B registration process. As a result, the Department will announce separately in the Federal Register the initiation of this requirement, consistent with 20 CFR 655.11(j). In the meantime, the Office of Foreign Labor Certification will assess the employer’s temporary need during the adjudication of the H-2B application.

May 01, 2015

An employer with a start date of need before October 1, 2015 may file its H-2B application and job order under 20 CFR 655.17 Emergency Situations.  The following documentation must be filed with the Department’s Chicago National Processing Center:

The ETA Form 9142B and attachments may be filed electronically through the Department’s iCERT Visa Portal System (https://icert.doleta.gov/) or by mail to:

U.S. Department of Labor

Employment and Training Administration

Office of Foreign Labor Certification

Chicago National Processing Center

11 West Quincy Court

Chicago, Illinois 60604

Important Note: Please note that no justification for a waiver of the required filing time period need be submitted for applications with a start date of need before October 1, 2015.  In addition, employers with start dates of need before October 1, 2015 are exempted from submitting copies of agreements with agents and/or foreign labor recruiters, executed in connection with the H-2B application, as required by 20 CFR 655.8 and 655.9.

May 01, 2015

Upon receipt of the employer’s application filed under 20 CFR 655.17 of the 2015 IFR and reflecting a start date of need before October 1, 2015, the Chicago National Processing Center will require the employer to conduct recruitment of U.S. workers on an expedited basis consistent with 20 CFR 655.4, and 655.17.  Expedited recruitment will consist of placing a new job order with the State Workforce Agency (SWA) serving the area of intended employment for at least 10 days.  In addition, employers who have not yet placed any newspaper advertisements under the 2008 Final Rule will be required to place one newspaper advertisement on any day of the week, meeting advertising content requirements under 20 CFR 655.41 during the period the SWA is actively circulating the job order for intrastate clearance.

May 01, 2015

No. The emergency situation provision permits an employer who did not previously apply for a PWD to simultaneously submit the Application for Prevailing Wage Determination, ETA Form 9141 (PWD application) with its H-2B application.  Upon receipt, the Chicago National Processing Center will transmit on behalf of the employer a copy of the PWD application to the National Prevailing Wage Center for processing and issuance of the PWD, using the wage methodology under the 2015 H-2B Wage Final Rule.

May 01, 2015

Some employers may request a supplemental prevailing wage determinations (SPWD) for certain workers. Consistent with 20 CFR 655.4(f) of the 2015 Interim Final Rule, an employer who was issued a PWD by the National Prevailing Wage Center, or who has a pending or an approved H-2B temporary employment certification may request a supplemental prevailing wage determination (SPWD) to obtain a prevailing wage based on an alternate wage source under the 2015 IFR and the companion 2015 wage rule. 

When issued, the SPWD will apply during the validity period of the H-2B temporary employment certification only to those H-2B workers who were not yet employed in certified positions as of the date the SPWD was issued.  The SPWD will not apply to H-2B workers who were already working for the employer on or before the date of the SPWD, nor to U.S. workers who were recruited and hired under the original job order.

An H-2B SPWD issued to a seafood employer who is staggering the entry of its H-2B workers, consistent with 20 CFR 655.15(f) of the 2015 H-2B Interim Final Rule, will only apply to those H-2B workers who have not yet entered the United States are therefore not employed in certified positions, as of the date of the issuance of the SPWD.

Important Note:  The employer must provide to an H-2B worker outside of the U.S. no later than the time at which the worker applies for the visa, or to a worker in corresponding employment no later than on the day work commences, a copy of the job order including any approved modifications, reflecting the offered wage and all other information required by 20 CFR 655.18.

May 01, 2015

An employer seeking an SPWD under 20 CFR 655.4 of the H-2B 2015 Interim Final Rule, must submit a new Application for Prevailing Wage Determination, ETA Form 9141 (PWD application) to the National Prevailing Wage Center.  The employer’s PWD application must contain in Section E.a.5. Job Duties the original PWD tracking number (starting with P-400), and the H-2B application number (starting with H-400), and the words “Request for a Supplemental Prevailing Wage Determination.”  Electronic submission through the iCERT Visa Portal System is preferred.

After the NPWC receives the employer’s request, it will issue to the employer, or if applicable, the employer’s attorney or agent, an SPWD in an expedited manner and provide a copy to the Chicago National Processing Center.

May 01, 2015

Employers with a start date of need on or after October 1, 2015 must file their H-2B applications under the regular filing procedures of the H-2B 2015 IFR and comply with all program requirements under 20 CFR part 655, subpart A. 

Important Note:  If the employer’s H-2B application is filed before the Department announces that it has initiated the H-2B registration process under 20 CFR 655.11 of the H-2B 2015 Interim Final Rule, the employer will not be required to apply for an H-2B Registration and will have its temporary need assessed by the Chicago National Processing Center during the adjudication of the H-2B application.

May 01, 2015

If the Chicago NPC grants an H-2B temporary employment certification, the employer will receive an original certified ETA Form 9142B and a Final Determination letter. Upon receipt of the original certified ETA Form 9142B, the employer or its agent or attorney, if applicable, must complete the footer on the original Appendix B, retain the original Appendix B, and submit a signed copy of Appendix B, together with the original certified ETA Form 9142B directly to the appropriate Service Center of the United States Citizenship and Immigration Services (USCIS) along with the Petition for a Nonimmigrant Worker USCIS Form I-129 (see, http://www.uscis.gov/i-129-addresses).  Under the document retention requirements 20 CFR 655.56 of the 2015 IFR, the employer must retain a copy of the approved H-2B temporary employment certification and the original signed Appendix B. 

Important Note: A job contractor filing jointly with an employer client must retain both its own and, its employer-client’s original signed and dated Appendix B, reflecting the validity period of the approved H-2B temporary employment certification.

May 01, 2015

In order to file an Application for Temporary Employment Certification, ETA Form 9142B, the employer must establish an iCERT System account. To establish an iCERT account, please visit the iCERT homepage at http://icert.doleta.gov and select “Create Your Portal Account Today.”  For more information, please refer to the iCERT Visa Portal System Quick Start Guide.

May 01, 2015

After establishing an iCERT Visa Portal System account, the employer should select the H-2B button on the Welcome Screen.  This will direct the user to the H-2B Portfolio Summary Screen and the “Begin New ETA Form 9142B” button.  After clicking on the button, the preparer should follow the prompts and helpful tips to move through the 12 steps of the application.  For more information, please refer to the H-2A and H-2B Electronic Filing Implementation page for guides and other helpful resources.

May 01, 2015

No.  The Office of Foreign Labor Certification processes each application in the order in which it is received (i.e., first in, first out).  In addition, all data from mailed-in applications will be entered into the electronic case management system and processed in essentially the same fashion as those applications that are electronically submitted. We encourage filers to continue to file their Applications for Temporary Employment Certification using the iCERT portal.

May 01, 2015

No. No changes have been made to the iCERT account creation process or to the existing iCERT accounts based on the regulatory changes.

May 01, 2015

Based on the 2015 Interim Final Rule (IFR), Section H of the application, “Recruitment Information” will no longer be fillable in iCERT because recruitment of U.S. workers will occur after instead of before filing.

May 01, 2015

No. When filing electronically via the iCERT portal, you will retain the original signed and dated Appendix B of the ETA Form 9142B while the application is in process. 

May 01, 2015

Yes. An iCERT account holder can use its profile information to quickly pre-populate certain section of the ETA Form 9142B and also reuse one or more section of a previously submitted ETA Form 9142B to reduce preparation time. 

May 01, 2015

When filing electronically through iCERT, the preparer must upload all required supporting documentation in Step 12 of electronic ETA Form 9142B before submitting the application.  Before navigating away from this step please read the Important Reminder(s) to ensure you have uploaded all required documentation.

May 01, 2015

The H-2B regulations require that the ETA Form 9142B filed with the Chicago National Processing Center (NPC) must bear the original signature of the employer and that of the employer’s authorized attorney or agent, if applicable.  When filing an application electronically, the iCERT account holder must upload a scanned copy of the signed and dated Appendix B and retain the original in its file.  The scanned copy with the employer’s signature and, if applicable, that of its attorney or agent on the Appendix B, as appropriate, satisfies the original signature requirement.  Where an application for temporary labor certification is granted, the employer and, if applicable, its attorney or agent will be required to sign and date the footer of the retained Appendix B. 

Important Note for Job Contractors filing H-2B applications:  For a job contractor filing under the H-2B program as a joint employer with its employer-client, a separate attachment containing the employer-client’s business and contact information (i.e., Sections C and D of the ETA Form 9142B) and a separate signed and dated Appendix B for the employer-client is still required and must be scanned and uploaded prior to electronically filing the application.

May 01, 2015

No. After you submit an Application for Temporary Employment Certification, ETA Form 9142B, through the iCERT System, you will be able to view a list of the documents submitted with the ETA Form 9142B; however, you will not be able to retrieve or print the documents.

May 01, 2015

Yes, an authorized user can withdraw an Application for Temporary Employment Certification, ETA Form 9142B, through an iCERT account at any time before the application is assigned to an analyst for review.  Alternatively, or where the authorized user is unable to withdraw the application through his or her iCERT account, an employer wishing to withdraw its application may submit a written request for withdrawal directly to the Chicago National Processing Center (NPC).  The employer may e-mail the request directly to the Chicago NPC using the address: tlc.chicago@dol.gov, with the words “H-2B Withdrawal Request” contained in the subject line of the e-mail.

Employers without internet access may send a written request by facsimile to (312) 353-8830 (ATTN: H-2B Withdrawal Request) or by U.S. mail to the following address:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105

ATTN: H-2B Withdrawal Request

May 01, 2015

There are two places where you may send your questions, depending upon the type of question:

If you have a technical question related to electronic filing (for example, if you forgot your username or password), please e-mail the iCERT Help Desk at OFLC.Portal@dol.gov.

If you have a program specific question (for example, when you should submit your recruitment report or newspaper advertisement content requirements), please e-mail the Chicago National Processing Center Help Desk at TLC.Chicago@dol.gov.

May 01, 2015

n accordance with 20 CFR 655.11(j), the Department’s Office of Foreign Labor Certification will announce in the Federal Register a separate transition period for the registration process, and until that time, will continue to adjudicate temporary need during the processing of applications.  If an H-2B application is being submitted before such transition procedures are published, the employer need not apply for an H-2B Registration but must include a statement of temporary need with its Application for Temporary Employment Certification, ETA Form 9142B and be prepared to document its seasonal, peakload, intermittent or one-time temporary need through supporting documents.

May 01, 2015

Yes.  An employer with a start date of need on or after October 1, 2015 must submit an Application for Prevailing Wage Determination, ETA Form 9141 before submitting a job order to the State Workforce Agency,  to the Department’s National Prevailing Wage Center electronically through the iCERT Visa Portal System (https://icert.doleta.gov) or if an employer has no internet access, the ETA Form 9141 may be submitted by mail to:

Employment and Training Administration
Office of Foreign Labor Certification,
National Prevailing Wage Center
1341 G Street, NW Suite 201
Washington, DC 20005-3105

Electronic filing is strongly recommended.

May 01, 2015

There is no federally-mandated form for H-2B non-agricultural job orders.  To place the job order, an employer should place the job order using the form or submission format used by the SWA in the State where the work will be performed.  While many SWAs allow employers to place job orders using self-service Internet-based software systems, some SWAs also provide more facilitated or staff-assisted job order services for employers.  Please remember that each job order must comply with the H-2B regulations, including specific content requirements applicable to job orders, and must inform the SWA that the job order is being placed in connection with a concurrently filed H-2B application.

The Department’s Employment and Training Administration (ETA) maintains a website providing a map of SWA Web sites at http://www.dol.gov/dol/topic/training/onestop.htm where employers can access job order services.

May 01, 2015

The employer’s original job order must be sent directly to the SWA serving the area of intended employment where work will be performed.  Where the job opportunity involves work in more than one State within the same area of intended employment, the employer may send the job order to any of the SWAs with jurisdiction over the worksites.  When submitting the job order, the employer must inform the SWA that the job order is being placed in connection with a concurrently filed H-2B Application for Temporary Employment Certification.

Concurrently, the employer must send a copy of the job order to the Chicago National Processing Center (NPC) in its Application for Temporary Employment Certification filing package.  Where multiple States are involved, the employer must identify the SWA receiving the job order on the job order copy submitted to the Chicago NPC.  Address and contact information for the SWAs is available on our Web site at http://www.foreignlaborcert.doleta.gov/contacts.cfm.

May 01, 2015

The regulations require that each SWA in receipt of an employer’s job order keep the job order active from the date it receives the Notice of Acceptance from the Chicago NPC approving the job order. In addition to intrastate and interstate clearance, upon the acceptance of the job order and application, the Department will place a copy of the job order on its Electronic Job Registry. Wherever posted, the the job must remain active until 21 days before the employer’s start date of need.

May 01, 2015

An employer’s job order must contain the material terms and conditions of employment relating to wages, hours, working conditions, worksite and other benefits as well as the assurances and obligations required under the H-2B regulation. We have developed a checklist of minimally sufficient job order content to help employers satisfy their obligation to apprise prospective applicants of the job opportunity in the job order. Although each employer’s job opportunity and business operation is unique, we provide, where appropriate, example language that may help employers better understand how to disclose their obligations under the regulations. In addition, employers may use abbreviations so long as the abbreviation clearly and accurately captures the underlying job order content requirement. The checklist is available on our Web site here.

Revised December 8, 2015

May 01, 2015

A job order prepared in connection with an H-2B Application for Temporary Employment Certification must include language notifying prospective applicants as to how the employer will provide or reimburse a worker for the cost of transportation and daily subsistence to the place of employment from the place where the worker is located (whether in the United States or abroad), if the worker completes 50 percent of the employment period. Where a worker must travel to obtain a visa so that the worker may enter the U.S. to come to work for the employer, the employer must pay for the transportation and daily subsistence costs of that part of the travel as well. The Department has interpreted the regulation to require the employer to assume responsibility for the reasonable costs associated with the worker’s travel, including transportation, food, and, in those cases where it is necessary, lodging. If not provided by the employer, the amount an employer must pay for transportation and, where required, lodging must be no less than (and is not required to be more than) the most economical and reasonable costs.

The job order must also include language notifying prospective applicants that, if the worker completes the employment period or if the worker is dismissed early for any reason, the employer will provide or pay for the worker’s return transportation and daily subsistence from the place of employment to the place from which the worker came to work for the employer. Please note that the employer will not be responsible for return transportation and subsistence fees where the worker will not return due to subsequent employment with another employer or where the employer has appropriately reported a worker’s voluntary abandonment of employment.

To help employers appropriately disclose these inbound and outbound travel cost obligations, the following language may be included in the job order:

“If the worker completes 50 percent of the work contract period, the employer will [insert suggested language for option A, B, and/or C below]

Option A: arrange and pay directly for transportation and subsistence
Option B: reimburse the worker for transportation and subsistence
Option C: provide advance payment for transportation and subsistence

from the place of recruitment to the place of work. Upon completion of the work contract or where the worker is dismissed earlier, the employer will provide or pay for worker’s reasonable costs of return transportation and subsistence back home or to the place the worker originally departed to work, except where the worker will not return due to subsequent employment with another employer or where the employer has appropriately reported a worker’s voluntary abandonment of employment. The amount of transportation payment or reimbursement will be equal to the most economical and reasonable common carrier for the distances involved. Daily meals will be provided at a rate of at least $____ p/day during travel to a maximum of $____ p/day with receipts.”

The current minimum and maximum amounts for the meal component of subsistence expenses to be included in the job order are available on the OFLC Web site at http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm

Revised February 11, 2016

February 17, 2016

Yes. In addition to the employer applicant, an Application for Temporary Employment Certification, ETA Form 9142B (H-2B application) may be filed by an agent representing an employer if the H-2B application is accompanied by a valid agent agreement or other document demonstrating the agent’s authority to represent the employer, and if applicable a copy of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor Certrificate of Registration.

May 01, 2015

The current version of the Application for Temporary Employment Certification, ETA Form 9142B and Appendix B, is available on our Web site.  Employers may download this and other the required forms in PDF format from our Web site at http://www.foreignlaborcert.doleta.gov/form.cfm.

Important Note:  Under certain circumstances, a form on our Web site at http://www.foreignlaborcert.doleta.gov/form.cfm may appear to be nearing expiration, based on the "Expiration Date" appearing in the upper left hand corner of the form.  Be assured that we have undertaken the required steps to ensure continued validity of such a form; the forms on our Web site at http://www.foreignlaborcert.doleta.gov/form.cfm are the current forms and are valid for use until expired, in which event they will be immediately removed from our Web site.

May 01, 2015

Although the majority of H-2B employment is not subject to MSPA and there is no exhaustive list of H-2B occupations covered by MSPA, certain employers or individuals working in affected industries (e.g., tree planting and reforestation) are covered by the Act and generally are already aware of their obligations including the requirement to maintain a valid Certificate of Registration, which identifies the specific farm labor contracting activities authorized.  Where an employer or attorney or agent is subject to MSPA, it must submit a copy of its valid Certificate of Registration with the Application for Temporary Employment Certification.  

Employers who would like to learn more about MSPA should visit the Wage and Hour Division’s website http://www.dol.gov/whd/mspa/ or call or call 1-866-4USWAGE (1-866-487-9243).  Information on how to apply as a Farm Labor Contractor (FLC) or Farm Labor Contractor Employee (FLCE) may be found here http://www.dol.gov/whd/forms/fts_wh530.htm.  The WHD website also contains a listing of persons and companies currently registered as an FLC or FLCE (at http://www.dol.gov/whd/regs/statutes/FLCList.htm), as well as those who are not eligible to register and may not engage in any activity as an FLC or FLCE (at http://www.dol.gov/whd/regs/statutes/mspa_debar.htm).

May 01, 2015

All worksite locations must be disclosed on the H-2B application with as much geographic specificity as possible.  In general, if the worksite locations are not within a single area of intended employment, i.e. are not within the normal commuting distance of one another, the employer will be required to file separate applications for each area of intended employment.

May 01, 2015

An employer may use the most commercially available overnight courier services to file an Application for Temporary Employment Certification with the Chicago National Processing Center (NPC).  However, due to restricted access to the Federal building where the Chicago NPC offices are located, the employer may not use private courier services or otherwise attempt to submit an application in person.  Where the employer is using a commercially available overnight courier service to file the application, the Chicago NPC will use the date the filing is accepted by the courier and entered into the courier’s tracking system as the “postmark” date.

May 01, 2015

Yes.  The 2015 Interim Final Rule requires an employer to submit a copy of all agreements with any agent or recruiter whom it engages or plans to engage in the international recruitment of H-2B workers.  This requirement includes agreements that the employer itself has entered into and agreements the employer’s agent or attorney has entered into with such entities. 

Important Note:  The requirement to submit agreements with any agent or recruiter engaged in the recruitment of H-2B workers does not apply to employers with a start date of need before October 1, 2015.

May 01, 2015

The 2015 Interim Final Rule requires an employer to submit a copy of all agreements with any agent or recruiter whom it engages or plans to engage in the international recruitment of H-2B workers.  Moreover, the regulation requires these agreements to contain a contractual prohibition against charging workers fees that must be borne by the employer according to the regulations. Although the regulation does not specifically require that these agreements be in English, the Certifying Officer (CO) must be able to verify that the agreement includes the required contractual prohibition.  In order to facilitate timely adjudication of applications, we encourage employers to submit certified translations of agreements with foreign labor recruiters or agents along with their H-2B applications.  Where an employer submits an agreement in a language other than English without providing a certified translation and the CO is not able to identify the required contractual prohibition in the agreement, the CO is authorized to request further information (e.g., through a Notice of Deficiency) to ensure that the contractual prohibition is in the agreement. 

For any foreign language certified translation, the translator must certify that s/he is competent to translate and that the translation is accurate.  The translation certification format should include the certifier's name, signature, address, and date of certification. A suggested format is:

Certification by Translator

I [typed name], hereby attest that I am fluent (conversant) in the English and ________ languages, and that the above/attached document is an accurate translation of the document attached entitled ______________________________.

Signature_________________________________
Date                                             Typed Name
                                                     Address

May 01, 2015

No. The emergency situation provision permits an employer that did not previously apply for a PWD or, after implementation of the H-2B registration process, an H-2B Registration, to simultaneously submit either one or both of those applications with its Application for Temporary Employment Certification and waiver request.

May 01, 2015

For applications filed under 20 CFR 655.17 Emergency Situations, good and substantial cause may include but is not limited to: the substantial loss of U.S. workers due to an Act of God, or a similar unforeseeable man-made catastrophic event (such as an oil spill or controlled flooding) that is wholly outside the employer’s control, unforeseeable changes in market conditions, or pandemic health issues.

May 01, 2015

Under 20 CFR 655.17, the Certifying Officer (CO) will review the employer’s request for a waiver of the time period requirement(s) and may grant or deny the waiver.  The CO’s determination rests on whether the employer has established good and substantial cause and whether the CO has sufficient time to thoroughly test the U.S. labor market on an expedited basis and make a final determination, as required by the regulations.  Where the CO determines the request is not justified and/or there is not sufficient time to make a determination of temporary need or to ensure compliance with the criteria for certification, the CO will deny the waiver and send a Final Determination letter to the employer, stating the reason(s) certification is denied and offering the employer an opportunity to appeal the denial.  Otherwise, the CO will grant the waiver and process the emergency application in a manner consistent with the regulations, beginning with the issuance of a Notice of Acceptance or Notice of Deficiency.

May 01, 2015

After the employer submits its Application for Temporary Employment Certification, ETA Form 9142B, the Certifying Officer (CO) at the Chicago National Processing Center (NPC) will review the application and job order for compliance with all applicable program requirements.  If the CO determines that the application or job order is incomplete, contains errors or inaccuracies, or does not meet the relevant regulatory requirements, the CO will issue a Notice of Deficiency.  The Notice of Deficiency will include all the reasons of why the application failed to meet with the criteria for acceptance, and will give the employer 10 business days to submit the required modifications or request administrative review.  In the alternative, if the application meets the criteria for acceptance the CO will issue a Notice of Acceptance.  The Notice of Deficiency or the Notice of Acceptance will be issued within 7 business days from the date the employer’s application is received by the Chicago NPC.

May 01, 2015

No.  Under the 2015 Interim Final Rule, the SWA and the Chicago NPC will review the job order submitted with the Application for Temporary Employment Certification at the same time.  The SWA has 6 business days to notify the Chicago NPC of any deficiencies and the Chicago NPC has 7 business days to issue either a Notice of Deficiency (NOD) or a Notice of Acceptance.  These timeframes run concurrently. If the Certifying Officer determines that it must issue a NOD, s/he will include any deficiencies noted by the SWA in the NOD.  The employer will be required to respond to the NOD and will resolve all job order deficiencies directly with the Chicago NPC.

May 01, 2015

No. The Certifying Officer (CO) will issue a Notice of Acceptance when it is determined that the employer’s Application for Temporary Employment Certification (H-2B application) ETA Form 9142B and job order are complete and meet the relevant regulatory requirements.  The Notice of Acceptance will include instructions for the SWA regarding job order placement and circulation, and for the employer related to the recruitment of U.S. workers, the submission of the required recruitment report, and any other actions required for the approval and certification of the employer’s H-2B application.

May 01, 2015

Yes, the employer may request amendments to the period of employment or number of workers, or to make other changes to the H-2B Application for Temporary Employment Certification and/or job order, before a certification decision is issued by the Chicago National Processing Center (NPC). The Certifying Officer (CO) will evaluate the requested amendments. The CO will approve the amendment request if the CO determines the change(s) proposed:

• are sufficiently justified;
• will not negatively impact the labor market test;
• will not change the total period of employment by more than 14 days;
• will not result in a total period of employment longer than nine months; and/or
• will not result in an increase of more than 20 percent (50 percent for employers requesting fewer than 10 workers) from the number listed on the employer’s H-2B Registration, once implemented. Before implementation of the H-2B Registration process, the CO will calculate the resulting increase using the number of workers the employer requested when submitting the H-2B Application for Temporary Employment Certification, Form ETA-9142B.

To request amendment of an H-2B application and/or job order before the Chicago NPC issues a final determination, submit a written amendment request directly to the Chicago NPC.

The employer may e-mail the request directly to the Chicago NPC using the address: TLC.Chicago@dol.gov, with the words "H-2B Amendment Request" contained in the subject line of the e-mail.

Employers without internet access may send a written request by facsimile to (312) 886-1688 (ATTN: H-2A Amendment Request) or by U.S. mail to the following address:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105
ATTN: H-2B Amendment Request

If the CO approves the amendment request, the CO will notify the employer of the decision, submit to the State Workforce Agency any necessary changes to the job order, and update the electronic job registry. Upon receipt of the CO’s notification, the employer must promptly provide copies of any approved amendments to all U.S. workers hired under the original job order.

December 8, 2015

February 17, 2016

After the employer submits its recruitment report consistent with the instructions contained in the Notice of Acceptance and after the CO determines that the application meets all regulatory requirements and criteria for certification in accordance with the regulations, the CO will issue a final determination indicating that there are – an insufficient number of U.S. workers who are qualified and available to staff the employer’s job opportunity and that the employment of the H-2B workers will not adversely affect the wages and working conditions of U.S. workers similarly employed.  Upon certification, the employer will receive an original certified ETA Form 9142B and a Final Determination letter.  Upon receipt of the original certified ETA Form 9142B, the employer or, if applicable, the employer’s agent or attorney, must complete the footer on the original Appendix B, retain the original Appendix B, and submit a signed copy of Appendix B, together with the original certified ETA Form 9142B directly to the appropriate Service Center of the United States Citizenship and Immigration Services (see, http://www.uscis.gov/i-129-addresses).

May 01, 2015

A job offer is the offer made by an employer or potential employer of H-2B workers describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits.  A job order is a State-specific document containing material terms and conditions of employment relating to wages, hours, working conditions, worksite(s) and other benefits, including assurances, in accordance with 20 CFR 655.18 that is posted by a State Workforce Agency on its job clearance system.

May 01, 2015

The 2015 H-2B Interim Final Rule (IFR) expands and clarifies employer assurances and obligations.  In accordance with 20 CFR 655.20, the following summary generally describes the obligations that apply to all employers filing their H-2B applications under the 2015 H-2B IFR:

a.    Payment of the offered wage, which equals or exceeds the highest of the prevailing wage or Federal, State or local minimum wage, free and clear at least every two weeks during the entire certified period of employment.  Alternative payment arrangements such as piece-rate, commissions, or bonuses are only permissible if the employer guarantees a weekly wage that equals or exceeds the offered wage. Any piece-rate must be no less than the normal rate paid by non-H-2B employers in the same occupation and area of intended employment.

b.    Deductions from wages must be made if they are required by law; all other deductions must be specifically disclosed in the job order and may only include the reasonable cost or fair value of board, lodging, and facilities furnished; and deductions of amounts authorized to be paid to third persons for the worker’s benefit through his/her voluntary assignment or deductions that are authorized through a collective bargaining agreement(s);

c.    Offer of full-time employment of at least 35 hours per week, with a single week being used for wage computation purposes;

d.    Disclosure of job qualifications and requirements which must be bona fide and consistent with the normal and accepted job qualifications and requirements of non-H-2B employers in the occupation and area of intended employment;

e.    Offer to each worker employment for a total number of work hours equal to at least three-fourths of the workdays of each 12-week period (6-week period if the job order is less than 120 days), unless the certified period of employment is shortened by the contracting officer due to unforeseeable circumstances outside the employer’s control;

f.     Payment or reimbursement of transportation and subsistence for workers to the place of employment after the worker completes 50 percent of the period of employment covered by the job order, if the employer has not previously reimbursed such costs;

g.    Payment of return transportation and subsistence if the worker completes the job order period or is dismissed early;

h.    Payment or reimbursement of visa, border crossing and related government-mandated fees in the first workweek;

i.      Provision of all tools, supplies and equipment;

j.      Provision of accurate earnings statements to employees each pay period with all deductions and reimbursements clearly itemized and hours worked and hours offered listed;

k.    Requirement that employers provide workers with copies of the job order no later than the time at which the worker applies for the visa, if the worker is departing directly from his or her home country, and display a poster describing employee rights and protections in English and, if necessary and made available by the Department, another language common to a significant portion of the workers at the work site;

l.      Prohibition of retaliation (such as by intimidation, threats, coercion, blacklisting, discharge or other discrimination) against employees who complained against violations, including through filing or participating in legal actions or seeking assistance from third parties;

m.    Prohibition against:  passing on of fees associated with the H-2B applications or employment, such as application/petition costs, attorney fees, recruitment fees or other related fees (and employers must contractually prohibit agents and recruiters from seeking or receiving such fees from employees);

n.    Prohibition against:  treating H-2B workers more favorably than U.S. workers; discriminating in hiring based on race, color, national origin, age, sex, religion, disability or citizenship; and laying off U.S. workers within the 120-day period before the start date of work through the end of the period of certification;

o.    Prohibition against:  placing workers into uncertified employment or geographic area; and using the H-2B program if there is a strike or lockout in the area of intended employment at the time of application;

p.    Compliance with recruitment requirements under 20 CFR 655.40-.46;

q.    Continuing to consider and hire all qualified U.S. workers who apply for the job opportunity until 21 days before the start date of need;

r.     Notifying DOL when a worker abandons the job or is terminated for cause (and DHS if the person is an H-2B worker);

s.    Complying with all applicable Federal, State, and local employment-related laws; and

t.      Disclosing the identity of all foreign labor recruiters and their employees as well as pertinent agreements related to the recruitment of foreign workers.

May 01, 2015

The Department’s Wage and Hour Division (WHD) is responsible for the enforcement of H-2B assurances and obligations under the 2015 H-2B IFR.  WHD maintains a helpful Web site including a variety of Fact Sheets to assist employers with understanding and complying with the assurances and obligations under the 2015 H-2B IFR.  To learn more, please visit: http://www.dol.gov/whd/fact-sheets-index.htm.

May 01, 2015

The 2015 H-2B IFR requires an employer to identify its actual minimum education and experience requirements on the Application for Temporary Employment Certification (ETA Form 9142B) and job order.  It further requires that each job qualification and requirement be bona fide and consistent with the normal and accepted qualifications and requirements imposed by non-H-2B employers in the same occupation and area of intended employment.  In this scenario, the employer may only impose a 6-month experience requirement if 6 months of experience is minimally required for the workers to perform the job and if the 6 months of experience is consistent with the normal and accepted qualifications and requirements for the job imposed by non-H-2B employers in the same occupation and area of intended employment.

Important Note:  Please remember that the Certifying Officer may require the employer to submit documentation substantiating the appropriateness of any job qualification and/or experience requirement that does not appear to meet this standard of review based on the information available to the Certifying Officer during the consideration of the application.

May 01, 2015

When reviewing an Application for Temporary Employment Certification and related job order, the Chicago NPC evaluates each of the employer’s listed minimum job requirement(s) and qualification(s) on an individual basis.  The Chicago NPC will use a variety of information sources to evaluate whether a job requirement or qualification is consistent with the normal and accepted regulatory standard and, therefore, is appropriate for testing the U.S. labor market.  For example, the Chicago NPC uses the Occupational Information Network (O*NET), available at http://www.onetonline.org/, as a baseline for identifying normal and accepted qualifications (such as experience requirements) for specific occupations.  For other qualifications and requirements not addressed by the O*NET (e.g., criminal background checks, licensing requirements, or drug tests), the Chicago NPC relies on its own historical experience with case-by-case application review as well as information received from outside sources (e.g., information on non-H-2B job requirements and qualifications available to the State Workforce Agency, other employers in the industry or occupation, or interest groups with knowledge of the industry or occupation) to identify job requirements and qualifications that do not appear consistent with the regulatory standard.

May 01, 2015

The requirement that an H-2B employer pay or reimburse a worker for the reasonable cost of transportation and daily subsistence (which includes meals and, if required, lodging costs incurred on the employer’s behalf along the way) is a new requirement in the 2015 H-2B Interim Final Rule.  However, this requirement has existed in the H-2A program for decades and the Department publishes annually the minimum and maximum daily meals amount for workers traveling to and from the place of employment.  Because the Department has already determined the minimum amount of money required to provide reasonably adequate and nutritious meals per day under the H-2A program, the Department is extending this amount to the H-2B program.  Accordingly, in the H-2B program, the amount of daily subsistence required to be provided for meals must be at least the amount permitted to be charged when the employer provides meals under the H-2A program.  

To obtain the most current minimum and maximum amounts that workers will receive for daily meals, please visit the OFLC website at http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm.

May 01, 2015

No.  The employer is not required to provide or pay for daily transportation from the workers’ living quarters to the worksite, or transportation from designated pick-up points to the worksite.  However, where the employer chooses to offer or provide daily transportation to H-2B workers, the employer also must offer the benefit to U.S. workers and must disclose the benefit, and if applicable, any associated costs to the worker, including related deductions, in the job order and advertisements for the job opportunity. 

May 01, 2015

No.  The employer is not required to provide on-the-job training.  However, where the employer chooses to offer or intends to offer on-the-job training to H-2B workers, the employer must extend at least the same offer to U.S. workers and must disclose the offer in the job order and advertisements for the job opportunity.  The employer may not offer any less in terms of benefits, wages and working conditions to U.S. workers than the employer is offering to H-2B workers. 

May 01, 2015

No. The 2015 H-2B IFR uses a post-filing recruitment model. Thus, all required recruitment will begin after an employer’s H-2B Application for Temporary Employment Certification is accepted for processing by the Certifying Officer (CO).

May 01, 2015

Under the 2015 H-2B IFR, the employer must conduct the recruitment steps outlined in the Notice of Acceptance (NOA) within 14 calendar days from the date of issuance, with the exception of the posting of the job opportunity, if applicable, which must stay posted for a minimum of 15 business days in accordance with 20 CFR 655.45(b).

In addition, the employer must accept referrals and applications of all U.S. applicants until 21 days before the employer’s start date of need. During this recruitment period, the employer must consider all U.S. applicants, and must offer employment to each U.S. worker who is qualified and who will be available to perform the services or labor during the employer’s period of need.

May 01, 2015

An employer is required to actively recruit U.S. workers during the 14 calendar days following the issuance of a Notice of Acceptance (NOA). Specifically, the employer must:

• Place a print advertisement on 2 separate days, one of which must be a Sunday (unless no Sunday edition exists), in a newspaper of general circulation serving the area of intended employment and appropriate to the occupation and workers likely to apply for the job opportunity;
• Contact former U.S. employees employed in the occupation and at the place of employment during the previous year, including those workers laid off within 120 days before the date of need (except those U.S. workers dismissed for cause or who abandoned the worksite), to inform them of the job opportunity and ask if they are interested in returning;
• Notify current employees in the occupation and area of intended employment of the job opportunity:
• Where employees have a bargaining representative: the employer must provide notice of the job opportunity by providing a copy of the Application for Temporary Employment Certification and the job order to the bargaining representative
• Where there is no bargaining representative: the employer must post the job opportunity in at least 2 conspicuous locations for at least 15 consecutive business days at the place(s) of anticipated employment or using a means that provides reasonable notification to all employees in the occupation and area of intended employment (e.g., electronic intranet customarily used to post notices about job opportunities)
• Conduct any additional recruitment activities as directed by the CO in the NOA (e.g., provide written notice of the job opportunity to community-based organizations, engage in additional contact with One-Stop Career Centers.)

Please note that the employer must document all recruitment steps and keep appropriate records in accordance with 20 CFR 655.42-.48 and 655.56.

Important Note: The employer is obligated to consider for employment all referrals from the State Workforce Agency and U.S. workers who apply directly throughout the recruitment period (i.e., from the NOA issuance date until 21 days before the employer’s start date of need)

May 01, 2015

A job contractor’s recruitment responsibilities are essentially the same as any other employer submitting an ETA Form 9142, Application for Temporary Employment Certification, for H-2B workers. The only differences serve to accommodate the involvement of 2 joint employers and apprise U.S. workers of the job opportunity. Specifically, a job contractor’s job order and advertisements must disclose the names of both joint employers (i.e., the job contractor and the employer-client) and the location of work. Additionally, while either the job contractor or the employer-client may place the job order and conduct recruitment activities, both joint employers must sign and date the recruitment report.

May 01, 2015