Foreign Labor Certification Program
February 26, 2016. New Allowable Meal Charges & Reimbursements for Daily Subsistence (click)
December 22, 2015. New 2016 H-2A Adverse Effect Wage Rates (AEWRs) (click)
December 17, 2015. New Small Business Guide to the H-2A Visa Program: Herding or Production of Livestock on the Range (click )
October 16, 2015
On October 16, 2015, the Department of Labor (Department) published a new regulation governing the Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range (H-2A Herder Final Rule) in the United States. This Final Rule amends the current regulations governing the labor certification process and standards to cover H-2A foreign workers in herder occupations, codified at 20 CFR part 655, and enforcement of employer obligations under the H-2A program. In the coming weeks, the Department's Office of Foreign Labor Certification will publish additional technical implementation materials on its website for the new H-2A Herder Final Rule and will alert stakeholders as those materials becomes available. To read the full text of the Final Rule, please click here. This rule will be effective on November 16, 2015.
Electronic filing in the H-2A and H-2B visa programs is available through the Department of Labor’s iCERT Visa Portal System. 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.
H-2A Application Process
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 _
* Oklahoma H-2B employers post their job orders in the state’s Job Order System, OKJobMatch. However, employers must notify the H-2B email box of the posting. When entering self-service H-2B job orders, 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.
Clarification on 3rd party (Agent completed) 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
For further assistance, in general, please contact the H-2B@oesc.state.ok.us email in-box.
How and When to Apply (From DOL-ETA-Foreign Labor certification site)
Prior to filing a petition with DHS' U.S. Citizenship and Immigration Services (USCIS), an employer must obtain an approved temporary labor certification from the Department:
For additional information on electronic filing through the iCERT System, please see the Frequently Asked Questions on the iCERT System here.
New Applicants with Dates of Need on or After October 1, 2015 MUST:
- Register - 150-120 calendar days before the date of need will be required.
OFLC 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.
- Registration is not required for start dates of need before October 1, 2015. If your start date of need is before October 1, 2015, additional action for the registration process is not needed at this time.
- Obtain a Prevailing Wage Determination (PWD) - at least60 calendar days before it is needed. Obtain a 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 and filing by mail.
- File a job order and H-2B application - 90 to 75 days prior to the date of need. File a job order with the State Workforce Agency (SWA) AND
Submit the H-2B application (ETA Form 9142B) with supporting documents and a copy of the job order filed with the SWA to the Chicago National Processing Center (Chicago NPC).
When to submit your application package to the Chicago NPC:
90-75 calendar days before the start date of need, the employer concurrently submits the job order to the SWA and submits the H-2B application package to the Chicago NPC
What to submit to the Chicago NPC:
- H-2B Application for Temporary Employment Certification (ETA Form 9142B)
- Copy of signed Appendix B (new form)
- A valid PWD tracking number issued by the NPWC
- A copy of the job order submitted to the SWA
- Copies of all contracts and agreements with the employer demonstrating the authority to represent the employer (agents and/ or recruiters)
- Contact information for all persons and entities hired by or working for recruiters or agents including any subagents or employees of such persons and entities (as applicable)
- Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor Certificate of Registration (agents, as applicable)
- Any applicable supporting documentation (documentation substantiating temporary need is recommended)
- A valid H-2B registration number (for applications submitted with dates of need on or after October 1, 2015)
Where to Apply:
Prevailing Wage Determinations- Electronic filing is strongly recommended. The PWD application may be submitted electronically through the iCERT System at http://icert.doleta.gov. The application 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: H-2B Prevailing Wage Determinations
Job Order - The job order must be filed with the SWA serving the area of intended employment.
(In Oklahoma, the “SWA serving the area of intended employment” is your local Oklahoma Works office that is closest to the employment location. It must be listed on the job order as one of the ways to apply. https://www.ok.gov/oesc_web/Services/Workforce_Services/index.html In addition to this; notification of the job order posting is required by sending an email to the SWA FLC program office at H-2B@oesc.state.ok.us.)
H-2B Application Package- The H-2B Application package which includes the ETA Form 9142B, copy of Appendix B, the Prevailing Wage Determination issued by the National Prevailing Wage Center or tracking number, a copy of the job order, and any applicable supporting documentation may be filed electronically through the iCERT System at http://icert.doleta.gov.Assistance with setting up an iCERT System account may be found at the iCERT System link.
Applications may also be filed with the Chicago NPC by mail 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 Application
What Happens Next:
- The SWA reviews the job order for compliance with program requirements as soon as possible but no later than 6 business days of receipt.
- The Chicago NPC reviews the H-2B application and job order for compliance with program requirements within 7 business days of receipt.
- Within 7 business days of receipt of the application, the Chicago NPC will notify the employer in writing of the decision to either accept (Notice of Acceptance) or not accept (Notice of Deficiency) the employer's application and/ or job order.
- A Notice of Deficiency identifies the deficiencies found by the SWA and Chicago NPC and provides the employer the opportunity to address those deficiencies with the application and/ or job order.
- Each notification will also provide next steps for the employer to take.
- Within 14 days of receipt of a Notice of Acceptance, the employer must follow the instructions provided in the Notice of Acceptance and conduct recruitment, including:
- placing newspaper advertisements,
- contacting former U.S. workers,
- contacting the bargaining representative (if any) or posting notice of the job opportunity to the employer's current employees, and
- conducting any additional recruitment, if directed by the Certifying Officer.
- The Certifying Officer in the Notice of Acceptance will specify a date for the employer's initial recruitment report.
- The Certifying Officer will place a copy of the SWA job order on the iCERT Public Job Registry.
- After receipt of the initial recruitment report the Chicago NPC will determine whether to certify or deny the application and issue the final determination.
- The final determination will be sent to the employer and, if applicable, the employer's attorney or agent by means normally assuring next day delivery.
- The employer completes the footer of Appendix B and submits the certified ETA Form 9142B with a copy of Appendix B with the petition package to the USCIS Service Center. The original Appendix B is retained in the employer's retention file.
- The employer is obligated to continue to update the recruitment report and prepare a final recruitment report.
- The updated report need not be submitted to the Department, but must be retained in the employer's retention file and made available in the event of a post-certification audit or upon request by the Department.
- The employer must also continue to accept referrals of U.S. applicants until 21 days before the date of need.
- Employers may request re-determinations from the Certifying Officer on partial certifications and denials.
- Employers may appeal for administrative review of Notices of deficiency, partial certifications, denials of labor certification, denials of redetermination requests, denials of modified applications or job orders and denials of extension requests.
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)
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