Foreign Labor Certification Program
ATTENTION H-2B APPLICANTS!!
The Department of Labor is making available Frequently Asked Questions (FAQs) regarding its implementation of the Northern District of Florida's March 18, 2015 decision to temporarily stay its earlier judgment in Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015). As a result of this stay, the Department has temporarily resumed processing of requests for H-2B prevailing wage determinations and applications for H-2B temporary non-agricultural labor certification until April 15, 2015. The FAQs can be accessed here.
March 18, 2015. Prohibition of DOL H-2B Processing Temporarily Lifted
On March 18, 2015, the federal district court in the Northern District of Florida issued an order effectively permitting DOL to restart its processing of H-2B applications under the 2008 rule immediately and to continue processing applications under that rule through April 15, 2015. Effective immediately, DOL will begin processing H-2B applications under the 2008 rule and will continue to do so through April 15th. Under the terms of the court's March 18th order, any application for certification or prevailing wage determination that has not completed DOL processing by the time the stay ends as of April 16, 2015 may no longer be processed under the 2008 H-2B rule.
On March 4, 2015, the federal district court in the Northern District of Florida vacated the Department of Labor‘s (DOL) 2008 H-2B regulations on the ground that DOL lacks authority under the Immigration and Nationality Act to issue regulations in the H-2B program. Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015). Because of this decision, effective immediately, DOL can no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program. DOL is considering its options in light of the court‘s decision. http://www.foreignlaborcert.doleta.gov/
As of March 5, 2015, U.S. Citizenship and Immigration Services (USCIS) is temporarily suspending adjudication of Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers the appropriate response to the court order entered March 4, 2015, in Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015). www.uscis.gov
The following DOL directives to State Workforce Agencies (SWAs) are temporarily suspended in anticipation of new DOL directives to SWAs.
**As a result, State Workforce Agencies (SWA) have been directed to no longer accept or process any H-2B job order (under 20 CFR 655.15). The regulatory authority for SWAs to accept and process H-2B job orders has been vacated by the court ruling and takes effect immediately. However, employers who have utilized the H-2B program can continue to submit non-H-2B job orders for the purpose of soliciting U.S. workers for their job opportunities.
To assure compliance with DOL directives, all H-2B job orders which are new, active or pending will have the designation as an H-2B job order in OKJobMatch removed. These orders will remain in their current status as a regular, non-H-2B job order. All job orders will be monitored daily to ensure future postings do not represent themselves as H-2B recruitment positions. Notification to the employer or agent will be made.**
Perez v. Perez Decision Perez v. Perez Stay Order (3/18/2015)
Announcing the implementation of electronic filing in the H-2A and H-2B visa programs through the Department of Labor’s iCERT Visa Portal System. As indicated in the notice, electronic filing in the H-2B program will begin on October 15, 2012. Electronic filing in the H-2A program will begin on December 10, 2012.Click here for more information:H-2A and H-2B Electronic Filing Implementation
H-2A- Temporary Agricultural Program
The H-2A temporary agricultural program allows 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. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for ongoing operations. Employment is of a temporary nature when the employer's need to fill the position with a temporary worker will last no longer than 10 months.
For detailed information on the filing process, click here:
H-2B- Temporary Non-Agricultural Program
An employer seeking to fill job opportunities through the H-2B program must demonstrate that it has a temporary need for the services or labor, as defined by one of four regulatory standards: (1) a one-time occurrence; (2) a seasonal need; (3) a peak-load need; or (4) an intermittent need. Generally, that period of time is limited to nine (9) months or less, except in the case of a one-time occurrence, which could last up to 3 years.
For detailed information on the filing process, click here
Employers who who have questions on their job order may e-mail to H-2B@oesc.state.ok.us.
Filing an H-2A Application
What Steps Do I Take Before Filing an H-2A Application?
Prior to filing an Application for Temporary Employment Certification, the employer must prepare a job offer on the ETA Form 790 - Agricultural and Food Processing Clearance Order and submit the form and all attachments to the State Workforce Agency (SWA) serving the area of intended employment for intrastate clearance. The following requirements must be met:
- The job order must be submitted to the SWA no more than 75 calendar days and no fewer than 60 calendar days before the start date of the job by using the H-2A@oesc.state.ok.us e-mail box;
- The job order must be identified as one that will be used in connection with a future Application for Temporary Employment Certification (ETA Form 9142) with the U.S. Department of Labor; and
- The contents of the job order must satisfy the requirements of 20 CFR part 653, subpart F and 20 CFR 655.122.
Upon receipt of the job order, the SWA will review the job order and notify the employer in writing of any deficiencies in the job order within seven (7) calendar days after it has been submitted. The employer must respond to the Notice of Deficiency within five (5) calendar days after receipt of the SWA notification. The SWA must respond to the employer's response within three (3) calendar days. The employer will receive a Notice of Acceptance from the SWA providing the job order number, intrastate clearance date and the 50 percent date. The job order will be active until the end of the recruitment period, which will extend through 50 percent of the period of employment.
Please Note: During the period of “active recruitment” the employer must hire all U.S. workers that are qualified, able and willing to accept the job.
What Documents Must I File with the U.S. DOL/ETA Chicago NPC (CNPC)?
All agricultural employers who desire to hire H-2A foreign agricultural workers must apply for certification from the Secretary by filing the following with the CNPC:
- Completed ETA Form 9142 - Application for Temporary Employment Certification;
- Completed ETA Form 9142 - Appendix A.2 bearing the original signature of the employer and, if applicable, that of the employer's attorney or agent); and
- Copy of the ETA Form 790 and all attachments
The Department must determine that:
- there are not sufficient able, willing, and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which nonimmigrant foreign workers are being requested; and
- the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide numerous worker protections and employer requirements with respect to wages and working conditions. The U.S. DOL Wage and Hour Division (WHD) bears responsibility for enforcing provisions of worker contracts.
When Can I File the H-2A Application Package?
A complete application package must be received by the CNPC at least forty-five (45) calendar days before the first date on which workers are needed. Employer may not file with the ETA Chicago NPC until after the job order has been submitted to and reviewed by the SWA in accordance with the regulatory timeframe (i.e., no more than 75 days and no less than 60 days before the anticipated start date of work).
However, the CNPC may waive the regulatory timeframes for filing in emergency situations pursuant to 20 CFR 655.134 (e.g., first time filers, unforeseen changes in market conditions), and where the employer is unable to resolve deficiencies in the job order with the SWA or the SWA is unable to respond to the employer's job order within the regulatory timeframes.
Where Do I File the H-2A Application Package?
A complete application package including the ETA Form 9142, ETA Form 790, all Attachments and supporting documentation may be mailed or delivered by private mail courier to :
U.S. Department of Labor - ETA
Chicago National Processing Center
536 South Clark Street, 9th Floor
Chicago, IL 60605 -1509
Attention: H-2A Program Unit
For complete and detailed information on the H-2 certification process visit the U.S. DOL/ETA CNPC website found at
H-2B Application Process _
- Step 1: Employer Obtains a Prevailing Wage Determination (PWD) from the National Prevailing Wage Center (NPWC) using the Application for Prevailing Wage Determination (ETA Form 9141).The PWD application is available for electronic filing on the iCERT System. The PWD must be valid either on the date recruitment begins or the date of filing a complete Application for Temporary Employment Certification (ETA Form 9142).The application for PWD may also be submitted by mail to the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
National Prevailing Wage Center
1341 G Street, NW- Suite 201
Washington, DC 20005- 3105
ATTN: PWD Request
- Step 2: Employer Conducts Pre-Filing Recruitment by:
- Filing a job order no more than 120 calendar days prior to the employer's date of need with the State Workforce Agency (SWA) serving the area of intended employment. The job order must be open and available for recruitment purposes for a minimum of 10 days.
* Oklahoma employers can post their job orders in the state’s Job Order System. Employers must notify H-2B and the Career Center in the area of intended employment when a job order is posted. Ensure your job order is categorized as a Foreign Labor Certification - H-2B Job order when entered. The job order must state that it is filed in connection with a future application for H-2B workers. Upon request from employers/agents, the Oklahoma Foreign Labor certification Unit will post job orders into the state’s job bank system in the area of intended employment for a period of no less than 10 full calendar days.
Publishing two print advertisements for the position(s), one of which must be on a Sunday.
Advertisements must be placed during the period of time the job order is active
- The job order and the print advertising must contain the following information:
- Employer's name and contact information to allow applications to send resumes;
- Geographic area of employment to allow applicants to be aware of travel requirements and where applicant will likely have to reside to perform the services or labor;
- If transportation to the worksite is provided by the employer, the advertising must say so;
- Description of the job opportunity including the job duties to apprise applicants of services or labor to be performed and the duration of the job opportunity;
- Work hours and days, expected start and end dates of employment, and whether or not overtime will be available
- Wage offer or offers in the event of multiple wage offers;
- That the position is temporary, and the total number of job openings the employer intends to fill
Clarification on 3rd party H-2B orders –
Some approval processes have been tightened up for OKJobMatch & in the future, new employer accounts will not be approved if managed by a third party. (Any old employer accounts will stay as they are for now).
For example- "Okie Agent" gets a new H-2B account for ABC Food Processing.
"Okie Agent" will:
• Go to the "Okie Agent" account in OKJobMatch
• Create a new job order
• Under Title & Company tab, item 2. Company Information, select the Confidential-Name will not be displayed box (don’t want "Okie Agent" info to display).
• Under Description tab, identify the company, city & state related to the job order. (Contact information for company can be put at end of this job description.)
• Under Recruitment Information tab, under Interview contact preferences, select appropriate contact method(s) for jobseekers making application. (This is the primary place for contact information).
This process will allow for agents, attorneys, or any other 3rd party group to manage their employer job orders through their own account instead of multiple user names & passwords. This also brings 3rd party representatives into compliance with the OKJobMatch employer account agreement.
Any questions regarding your OKJobMatch account or completing this process, should be directed to RES-TechSysSup@oesc.state.ok.us
If you require further assistance, in general, please contact the H-2B@oesc.state.ok.us email inbox.
- Step 3:Employer submits an application and provides the following documentation to the Chicago National Processing Center (NPC):
a. A completed ETA Form 9142, Application for Temporary
b. ETA Form 9142 - Appendix B.1;
c. A completed recruitment report;
d. Any applicable supporting documentation (documentation
substantiating temporary need is recommended).
Employers may now submit their H-2B 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.
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-2B Program Unit
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
ETA Form 790
ETA Form 9142
ETA Form 9142 Appendix A2
FLC Job Order Referral Report
Instructions for Completion of I-9 (rev 1/2011)
2011 Survey Results
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