Foreign Labor Certification Program

** See important upcoming H2A changes starting March 15, 2010 by selecting this link **

H-2A Certification for Temporary or Seasonal Agricultural Work

The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

"Temporary or seasonal nature" means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers(s) is truly temporary.

 Because of the change in rules in the Alien Labor Program, H-2B applications are no longer processed by State Workforce Agencies.  The application process is handled entirely between the employer/agent and the Chicago National Processing Center.  The employer is to notify the SWA when s/he enters a job order for an H-2B application, but that is all.   OESC does not prepare, place or monitor job orders for H-2B applications.

H-2B Certification for Temporary, Non-Agricultural Work

The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peakload or intermittent basis. The H-2B visa classification requires intending employer first to apply for a temporary labor certification as to whether qualified U.S. workers are available and whether the alien's employment will adversely affect the wages and working conditions of similarly employed U.S. workers, or a notice that such certification cannot be made, prior to filing an H-2B visa petition with USCIS. There is currently a 66,000 visa cap on the number of foreign workers who may receive initial H-2B status during each government fiscal year (October 1 through September 30).

The applicant must be a U.S. employer with a temporary job opportunity located within the U.S.  A job opportunity is considered temporary under the H-2B classification if the employer's need for the duties to be performed is temporary, whether or not the underlying job is permanent or temporary. It is the nature of the employer's need, not the nature of the duties that is controlling.

 Changes effective January 18, 2009

20 CFR 655 governs the temporary labor certification process.  New Regulations went into effect as of January 18, 2009.

Changes to the H-2A Application Process:

• Employer’s with a “Start Date of Need” prior to July 1, 2009 must comply with transition procedures contained at 20 CFR 655.100(b)
• Employer’s with a “Start Date of Need” on or after July 1, 2009 must comply with all of the requirements, obligations and assurance under the new regulations
• ETA Form 750 is discontinued and ETA Form 9142 takes its place
• Employers are no longer required to provide a copy of the Application to the State Workforce Agency (SWA), the Chicago National Processing Center (CNPC) will overnight a copy of the application and provide the job order number to the employer
• Job Orders that were active until the 50% date are now active only until 30 days after the date of need
• Employers must contact the CNPC for the Prevailing Wage Rate
• The employer now submits 2 recruitment reports, one before the date of need and one within 2 days of the job order close date
• CNPC now has the authority to audit an employer

Changes to the H-2B Application Process:

• Employers with a “Start Date of Need” prior to October 1, 2009 must comply with transition procedures under the new regulations
• Employer’s with a “Start Date of Need” on or after October 1, 2009 must comply with all of the requirements, obligations and assurance under the new regulations
• Recruitment currently done after filing with the SWA  will be done before filing with CNPC
• ETA Form 750 is discontinued and ETA Form 9142 takes its place
• Until October 1, 2009 the employer will file a Request for Prevailing Wage Determination with the SWA.  The prepared Prevailing Wage Determination will be returned to the employer with an Alien Labor Certification Program Job Order Request Form and a copy of the ETA Form 9142 with instructions
• SWA will Review the job order request for obvious errors or omissions and enter a job order not more than 120 days from the date of need for not less than 10 days
• Within 2 days of the close of the job order and within 5 days of the last advertisement day the employer will submit the ETA 9142 and the Recruitment Report to CNPC

For forms, applications and additional information on other types of applications see the U.S. Department of Labor’s website at  www.foreignlaborcert.doleta.gov

Prevailing Wage Request

Foreign Labor Certification Job Order Form

Instructions for Completion of I-9 (rev 1/2011)

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