H-2B Temporary Labor Certification

Employers may now submit their H-2B application either electronically via the Department'siCERT Portal System OR submit their application 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.

Program Overview

The H-2B nonimmigrant program permits employers to hire foreign workers to perform temporary non-agricultural services or labor in the U.S. on a one-time, seasonal, peakload or intermittent basis. The H-2B visa classification requires the Secretary of Homeland Security to consult with appropriate agencies before admitting H-2B nonimmigrants. Homeland Security regulations require that, except for Guam, the petitioning employer first apply for a temporary labor certification from the Secretary of Labor indicating that: (1) there are not sufficient U.S. workers who are capable of performing the temporary services or labor at the time of filing the petition for H-2B classification and at the place where the foreign worker is to perform the work; and (2) the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The Department of Labor will complete a review of each H-2B application within 7 calendar days of receipt. When filing an application, it is not necessary for the employer to name each temporary foreign worker it wishes to employ. An employer may submit a request for multiple unnamed foreign workers as long as each worker is to perform the same services or labor, on the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment. Certification is issued to the employer, not the worker, and is not transferable from one employer to another.

Qualifying Criteria

The applicant must be a U.S. employer with a job opportunity located within the U.S. The job opportunity must also be temporary. 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. Except where the employer's need is based on a one-time occurrence, the Secretary of Labor will, absent extenuating circumstances, deny an Application for Temporary Employment Certification where the employer has a recurring seasonal or peakload need lasting longer than 10 months.

Part-time employment does not qualify for temporary labor certification under the H-2B program. Only full-time employment can be certified.

The OFLC Administrator has the authority to establish or to devise, continue, revise, or revoke special procedures in the form of variances for the processing of certain H-2B applications when employers can demonstrate, upon written application to the OFLC Administrator, that special procedures are necessary. Special procedures currently exist for temporary labor certification in Tree Planting and Related Reforestation Occupations and the Entertainment Industry. For additional filing instructions for these industries, please review Training and Employment Guidance Letter No. 27-06, Special Guidelines for Processing H-2B Temporary Labor Certification in Tree Planting and Related Reforestation Occupations and Training and Employment Guidance Letter No. 31-05, Procedures for Temporary Labor Certification in the Entertainment Industry Under the H-2B Visa Program.

Process for Filing

Prior to filing an H-2B application, the employer must first:

1. Obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC). For requirements on obtaining a prevailing wage determination for the occupation, employers are encouraged to refer to 20 Code of Federal Regulations (CFR) 655.10 and 655.11. Employers may submit a request for a prevailing wage determination electronically via the iCERT Portal System.
2. Submit a job 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 calendar days. During the period of time the job order is active, the employer must publish two print advertisements for the position(s), one of which must be on a Sunday. For pre-filing advertising requirements, employers are encouraged to refer to 20 CFR 655.15 and 655.17.

The following is a general outline for filing an H-2B application for temporary labor certification. For additional instructions, please review the regulations at 20 CFR 655, Subpart A, Labor Certification Process and Enforcement of Attestations for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers).

Electronic Filing:

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

1. Establish an iCERT account
   • To establish an iCERT account, please visit the iCERT homepage at http://icert.doleta.govand select “Create Your Portal Account Today.”
   • For more information on establishing an iCERT account, please follow the process outlined in the H-2B Quick Start Guide.
2. File an application electronically through OFLC’s iCERT System by going tohttp://icert.doleta.gov.
   • To initiate an application, log into your iCERT account, and click on the H-2B icon. You will be directed to your portfolio summary which, at the bottom of the page, contains a button “Begin New ETA Form 9142.” Pressing this button will take you to the first application preparation step. To learn more about case preparation in iCERT please consult the H-2B User Manual.
   • Upload a scanned copy of the signed and dated Appendix B.1
   • Upload signed and dated recruitment report that must:
     • Identify each recruitment source by name;
     • State the name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker, including any applicable laid-off workers;
     • If applicable, explain the lawful job-related reason(s) for not hiring any U.S. workers who applied or were referred to the position
   • Upload a complete statement of temporary need that includes:
     • A description of the employer's business history and activities (i.e., primary products or services) and schedule of operations throughout the year;
     • An explanation of how the nature of the employer's job opportunity and number of foreign workers being requested for certification reflect a temporary need;
     • An explanation of how the request for temporary labor certification meets one of the regulatory standards of a one-time occurrence, seasonal, peakload or intermittent need; and
     • If applicable, a statement justifying any increase or decrease in the number of H-2B positions being requested for certification from the previous year.
   • Upload all required supporting documentation.
     • If filing under H-2B Special Procedures upload additional supporting documentation (e.g., work itineraries and Farm Labor Contractor Certificates of Registration).
     • For job contractors filing under the H-2B program as joint employers with their employer-clients, a separate attachment containing the employer-client’s business and contact information (i.e., Sections C and D of the ETA Form 9142) and a signed and dated Appendix B.1 for the employer-client is still required and must be scanned and uploaded prior to electronically filing the application, along with a description of the relationship between the job contractor and the employer-client.

Important Reminder: All supporting documentation related to an Application for Temporary Employment Certification, ETA Form 9142, must be uploaded in iCERT before you submit the application. Additional documentation cannot be uploaded in connection with the application after it is submitted.

Employers submitting H-2B applications via the iCERT Portal System will be provided e-mail notifications and other official correspondence during key points of the business process. Employers will also have quick access to check the status of pending applications. If you have technical questions related to electronic filing, please direct them to the iCERT Help Desk atOFLC.Portal@dol.gov. For all program-related questions, please send an e-mail to the Chicago National Processing Center Help Desk at TLC.Chicago@dol.gov.

 

Mail Filing:

An employer desiring to use foreign workers for H-2B temporary non-agricultural employment must file a complete ETA Form 9142, Application for Temporary Employment Certification, with the Chicago NPC. The ETA Form 9142 - Appendix B.1 must bear the employer's original signature, and, if applicable, the original signature of the employer's authorized attorney or agent if the employer is represented by an attorney or agent. An association or other organization of employers is not permitted to file master applications on behalf of its members under the H-2B program. Certification of more than one position may be requested on the application as long as all H-2B workers will perform the same services or labor on the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment. Only oneApplication for Temporary Employment Certification may be filed for worksite(s) within one area of intended employment for each job opportunity with an employer. Every H-2B application must include the following documentation:

1. A completed ETA Form 9142, Application for Temporary Employment Certification;
2. ETA Form 9142 – Appendix B.1; and
3. A completed recruitment report that must:
   • Identify each recruitment source by name;
   • State the name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker, including any applicable laid-off workers;
   • If applicable, explain the lawful job-related reason(s) for not hiring any U.S. workers who applied or were referred to the position.
4. Each application must include a detailed statement of temporary need in Item B.9. of the ETA Form 9142. The statement of temporary need must contain the following:
   • A description of the employer's business history and activities (i.e., primary products or services) and schedule of operations throughout the year;
   • An explanation of how the nature of the employer's job opportunity and number of foreign workers being requested for certification reflect a temporary need;
   • An explanation of how the request for temporary labor certification meets one of the regulatory standards of a one-time occurrence, seasonal, peakload or intermittent need; and
   • If applicable, a statement justifying any increase or decrease in the number of H-2B positions being requested for certification from the previous year.

Employer Attestations

Employer seeking H-2B temporary labor certification must attest as part of the Application for Temporary Employment Certification that it will abide by the following conditions:

• The employer is offering terms and working conditions normal to U.S. workers similarly employed in the area of intended employment. The terms and conditions must not be unusual for workers performing the same activity in the area of intended employment, are not less favorable than those offered to the H-2B worker(s), and are not less than the minimum terms and conditions required under the H-2B regulation;
• The specific job opportunity for which the employer is requesting H-2B certification is not vacant because the former occupant(s) is on strike or locked out in the course of a labor dispute involving a work stoppage;
• The job opportunity is open to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, handicap, or citizenship, and the employer conducted the required recruitment and has been unsuccessful in locating sufficient numbers of qualified U.S. applicants for the job opportunity for which labor certification is sought. Any U.S. worker applicants were rejected only for lawful, job-related reasons and the employer has retained records of those rejections;
• During the period of employment, the employer will comply with applicable Federal, State and local employment-related laws and regulations, including employment-related health and safety laws;
• The offered wage equals or exceeds the highest of the prevailing wage, the applicable Federal minimum wage, the State minimum wage, and local minimum wage and the employer will pay the offered wage during the entire period of the approved H-2B labor certification;
• Upon separation from employment of H-2B worker(s) employed under the labor certification application, if such separation occurs prior to the end date of the employment specified in the application, the employer will notify the Departments of Labor and Homeland Security in writing of the separation from employment no later than two (2) work days after the separation is discovered by the employer. An abandonment or abscondment is deemed to begin after a worker fails to report for work at the regularly scheduled time for five (5) consecutive working days without the consent of the employer;
• The offered wage is not based on commissions, bonuses, or other incentives unless the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage, or the legal Federal, State, or local minimum wage, whichever is highest. The employer must make all deductions from the worker's paycheck required by law. The job offer must specify all deductions not required by law that the employer will make from the worker's paycheck. All deductions must be reasonable;
• The employer has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2B workers to seek or receive payments from prospective employees;
• The job opportunity is a bona fide, full-time temporary position, the qualifications for which are consistent with the normal and accepted qualifications required by non-H-2B employers in the same or comparable occupations;
• The employer has not laid off and will not lay off any similarly employed U.S. worker in the occupation that is subject to the Application for Temporary Employment Certification in the area of intended employment within 120 calendar days before the date of need through 120 calendar days after the date of need, except where the employer also attests that it offered the job opportunity to the laid off worker(s) and the laid off U.S. worker(s) either refused the job opportunity or was rejected for the job opportunity only for lawful, job-related reasons;
• The employer and its attorney or agent have not sought or received payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer's attorney's or agent fees, Application for Temporary Employment Certification, or recruitment costs.
• If the employer is a job contractor, it will not place any H-2B workers with any other employer or at another employer's worksite unless the employer makes a written bona fide inquiry to and receives written confirmation from its client that the employer's client has not displaced and does not intend to displace any similarly employed U.S. workers in the area of intended employment within 120 days before or after the date of need and all worksites are listed on the certified Application for Temporary Employment Certification;
• The employer will not place any H-2B workers outside of the area of intended employment listed on the Application for Temporary Employment Certification unless the employer has obtained a new temporary labor certification from the Department of Labor;
• Unless the H-2B worker will be sponsored by another subsequent employer, the employer will inform H-2B workers of the requirement that they leave the U.S. at the end of the authorized period of stay or separation from the employer, and that if the worker is dismissed by the employer prior to the ending of the period, the employer is liable for return transportation; and
• The dates of temporary need, reason for temporary need, and number of positions being requested for certification have been truly and accurately stated on the application.

 

Application Processing

1. The Chicago NPC Certifying Officer (CO) will review applications for an absence of errors that would prevent certification and for compliance with the criteria for certification. The CO will make a determination to certify, deny or issue a Request for Further Information (RFI) prior to making a final determination on the application. The criteria for certification includes whether the employer has:
   • Established the need for non-agricultural services or labor to be performed is temporary in nature;
   • Established that the number of worker positions being requested for certification is justified and represent bona fide job opportunities;
   • Made all the assurances and met all the obligations required in 20 CFR 655.22; and
   • Complied with all requirements of the H-2B Program.
2. If the CO determines that the application fails to comply with one or more of the criteria for certification, the CO will issue a written RFI to the employer within seven (7) calendar days of receipt of the application. The RFI will:

• Specify the reason(s) why the application is not sufficient to grant temporary labor certification;
• Specify a date by which the supplemental information and documentation must be received by the CO to be considered; and
• State that, upon receipt of a response to the RFI, or expiration of the stated deadline for receipt of the response, the CO will review the existing application as well as any supplemental materials submitted by the employer and issue a Final Determination.
If unusual circumstances exist, the CO may issue one or more additional RFIs prior to issuing a Final Determination. Compliance with an RFI does not guarantee that the employer's application will be certified after submitting the information. Failure to comply with an RFI, including not providing all documentation within the specified time period, may result in a denial of the application. Failure to comply with an RFI may also result in the CO requiring the employer to undergo supervised recruitment under 20 CFR 655.30 for the employer's future H-2B applications.
1. The CO will make a determination to either grant or deny the Application for Temporary Employment Certification. The CO will grant the application if the employer has met all requirements of the H-2B regulations at 20 CFR 655, Subpart A. If an application is certified, the CO will send the certified Application for Temporary Employment Certification and a Final Determination letter to the employer or the employer's agent or attorney.

If an application is denied, the final determination letter will:

• State the reason(s) certification is denied;
• If applicable, address the availability of U.S. workers in the occupation as well as the prevailing benefits, wages, and working conditions of similarly employed U.S. workers in the occupation and/or any applicable special procedures;
• Offer the employer an opportunity to request administrative review of the denial or file a new application; and
• State that if the employer does not request administrative review, the denial is final and the Department of Labor will not consider the application any further.

The CO may issue a partial certification by reducing the period of need, the number of H-2B positions being requested, or both, based upon information the CO receives in the course of processing the temporary labor certification application. If a partial labor certification is issued, the Final Determination letter will:

• State the reason(s) for which either the period of need and/or the number of H-2B positions requested has been reduced;
• If applicable, address the availability of U.S. workers in the occupation;
• Offer the employer an opportunity to request administrative review of the partial labor certification; and
• State that if the employer does not request administrative review, the partial labor certification is final and the Department will not consider the application any further. 
1. Where an employer requests a start date earlier than the date its application is certified, the certified employment period begins on the certification date. The validity period cannot begin prior to the certification date.

1. The certification is to be used by the employer to support its nonimmigrant worker petition filed with the U.S. Citizenship and Immigration Services (USCIS) using the USCIS Form I-129, Petition for Nonimmigrant Worker. The Labor Certification Determination and the Form I-129 are submitted to the USCIS along with the appropriate filing fees. Where a candidate is outside the U.S. and a visa is required, the candidate must apply for a visa at the U.S. Consulate.
2. A temporary labor certification is valid only for the number of workers, the area of employment, the specific occupation and duties, the period of time, and the employer specified on the Application for Temporary Employment Certification, ETA Form 9142. The validity period cannot begin before the certification date.

Violations, Penalties, & Sanctions

The Wage and Hour Division (WHD) of the Department of Labor has a primary role in investigating and enforcing the terms and conditions of employment. WHD is responsible for enforcing the contractual obligations employers have toward employees, and may assess civil money penalties and recover unpaid wages. Administrative proceedings and/or injunctive actions through federal courts may be instituted to compel compliance with an employer's contractual obligations to employees.

Document Retention Requirements

All employers who have received temporary labor certification must retain the following documentation for a period of no less than three years from the date of certification:

• Prevailing wage determination;
• Advertisement and recruitment efforts;
• Documents that the appropriate unions were contacted, if applicable;
• Documentation that laid off workers were notified of the job opportunity, if applicable;
• Recruitment report; and
• Documentation substantiating the employer's temporary need.

Post Certification

Appeals

If a temporary labor certification is denied, in whole or in part, the employer may request review of the denial by the Board of Alien Labor Certification Appeals (BALCA) within 10 calendar days of the determination date. For information regarding the H-2B appeal process, employers are encouraged to review the regulations at 20 CFR 655.33.

Abandonment/Abscondment

If an H-2B worker abandons or absconds from employment prior to the employer's end date of need, the employer is required to notify the Departments of Labor and Homeland Security of the separation from employment not later than two work days after the separation is discovered by the employer. For additional information regarding this requirement, employers are encouraged to review the regulations at 20 CFR 655.22(f).

Integrity Measures

The OFLC will conduct audits of H-2B temporary labor certification applications, within its sole discretion and authority under 20 CFR 655.24. For information regarding the H-2B audit process, employers are encouraged to review the regulations at 20 CFR 655.24.

The OFLC may impose supervised recruitment where an employer is found to have violated H-2B Program requirements, to have a made a material misrepresentation to the Department of Labor, or to have failed to adequately conduct recruitment activities, or failed in any of its H-2B Program obligations. For information regarding the H-2B supervised recruitment process, employers are encouraged to review the regulations at 20 CFR 655.30. The OFLC may debar an employer from the H-2B program if it is determined that the employer substantially violated a material term or condition of its temporary labor certification. Similarly, the OFLC may debar an agent or attorney if it is determined that the agent or attorney participated in, had knowledge of, or had reason to know of, the employer's substantial violation. For information regarding the H-2B debarment process, employers are encouraged to review the regulations at 20 CFR 655.31.

Forms & Instructions

• ETA Form 9142
• ETA Form 9142 – APPENDIX B.1
• Application for Temporary Employment Certification ETA Form 9142
  - General Instructions from the 9142

Program News & Updates

 

• April 25, 2013. USCIS Resumes Adjudication of All H-2B Petitions Following Publication of Interim Final Rule.

   

  As announced by USCIS on April 25, 2013, USCIS has resumed processing of all Form I-129, H-2B petitions for temporary non-agricultural workers. Read the USCIS Alert.

 

• April 25, 2013. H-2B Wage Methodology Interim Final Rule and Frequently Asked Questions.

   

  On April 24, 2013, the Department of Labor and the Department of Homeland Security published in the Federal Register a joint Interim Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2. The joint Interim Final Rule, revises the prevailing wage methodology used by the Department of Labor to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification, and has been published in response to a court order issued by the U.S. District Court for the Eastern District of Pennsylvania on March 21, 2013, in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 09-cv-00240 (E.D. Pa). The court order vacated a portion of the 2008 wage methodology rule dealing with the way the Department of Labor determines the prevailing wage when relying on the Bureau of Labor Statistics' Occupational Employment Statistics (OES) survey, and provided the Department of Labor with 30 days to come into compliance.

  On April 24, 2013, the effective date of the Interim Final Rule, the Department of Labor also resumed processing both pending H-2B prevailing wage requests and H-2B applications for temporary labor certification based on the OES wage survey data, in accordance with standards set in the Interim Final Rule. To learn more about the revised H-2B prevailing wage methodology, please read the Interim Final Rule.

  In addition, the Department of Labor is making available Frequently Asked Questions (FAQs) to assist filers with complying with the requirements of the joint Interim Final Rule. The FAQs address the applicability of the new prevailing wage methodology, employer wage obligations, requests for review and the processing of pending H-2B prevailing wage requests and H-2B applications for temporary labor certification. To learn more, please read the FAQs. Important Note: These FAQs have been updated as of April 25, 2013.

  We encourage stakeholders to sign up to receive e-mail alerts to ensure receipt of most recent updates affecting the H-2B Temporary Non-agricultural Visa Program. Instructions for signing up for e-mail updates are provided below.

  E-Mail Update Instructions: On the home page of the OFLC web site, under the E-mail Updates heading, enter your e-mail address and then click the "Subscribe" button. You will be directed to the Department's E-mail Subscription Service page. On that page, under the Employment and Training Administration heading, please select a checkbox next to "Foreign Labor Certification Website" and then click the "Submit" button.

• April 22, 2013. H-2B Wage Methodology Interim Final Rule.

  The Department of Labor and the Department of Homeland Security are making available for public inspection a copy of the Interim Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2, to be published in the Federal Register on April 24, 2013. This Interim Final Rule, developed jointly by the Departments of Labor and Homeland Security, revises the prevailing wage methodology used by the Department of Labor to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification, and is being published in response to a court order issued by the U.S. District Court for the Eastern District of Pennsylvania on March 21, 2013, in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 09-cv-00240 (E.D. Pa).  The court order vacated a portion of the 2008 wage methodology rule dealing with the way the Department of Labor determines the prevailing wage when relying on the Bureau of Labor Statistics' Occupational Employment Statistics (OES) survey, and provided the Department of Labor with 30 days to come into compliance.
  
  On the effective date of the Interim Final Rule, the Department of Labor will resume processing both pending H-2B prevailing wage requests and H-2B applications for temporary labor certification based on the OES wage survey data, in accordance with standards set in the Interim Final Rule. To learn more about the revised H-2B prevailing wage methodology, please read the advance copy of the Interim Final Rule. 
  
  In the near future, the Department of Labor will post additional information about the Interim Final Rule on this web site. We encourage stakeholders to sign up to receive e-mail alerts to ensure receipt of most recent updates affecting the H-2B Temporary Non-agricultural Visa Program. Instructions for signing up for e-mail updates are provided below.
  
  E-Mail Update Instructions: On the home page of the OFLC web site, under the E-mail Updates heading, enter your e-mail address and then click the "Subscribe" button. You will be directed to the Department's E-mail Subscription Service page. On that page, under the Employment and Training Administration heading, please select a checkbox next to "Foreign Labor Certification Website" and then click the "Submit" button.

• April 4, 2103. Update on Suspension of Adjudication of Most H-2B Petitions Following Court Order.

  As announced by USCIS on April 2, 2013, USCIS has temporarily suspended adjudication of certain Form I-129 H-2B petitions for temporary non-agricultural workers.

  For more complete information, please visit http://go.usa.gov/2uRT.

• April 2, 2013. USCIS Suspends Adjudication of H-2B Petitions.

  Effective March 22, U.S. Citizenship and Immigration Services (USCIS) is temporarily suspending adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa). That order granted a permanent injunction against the operation of the portion of the Department of Labor's (DOL) 2008 wage rule related to certain prevailing wage determinations and gave DOL 30 days to come into compliance with the Court order. Read the alert.

 

• April 1, 2013.

   

  Effective March 22, the Department is holding in abeyance the issuance of final determinations on most pending H-2B applications for temporary labor certification and those it received after March 22, while it considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa). That order granted a permanent injunction against the operation of the portion of the 2008 wage rule related to certain prevailing wage determinations and gave the Department 30 days to come into compliance with the Court order.

  The Department will, however, continue to process and issue final determinations on H-2B applications for temporary labor certification where the employer's wage offer is based upon a prevailing wage not enjoined by the court order: those utilizing applicable Collective Bargaining Agreements, acceptable private wage surveys or Service Contract Act or Davis Bacon Act wage determinations. The Department intends to promulgate a revised wage rule within 30 days of the date of the Court order. This will allow the Department to resume providing employers with both prevailing wage determinations and final determinations on their H-2B applications for temporary labor certification.

  We encourage stakeholders to sign up to receive e-mail updates through the Department's Office of Foreign Labor Certification (OFLC) web site. Instructions for signing up for e-mail updates are provided below.

  E-Mail Update Instructions: On the home page of the OFLC web site, under the E-mail Updates heading, enter your e-mail address and then click the "Subscribe" button. You will be directed to the Department's E-mail Subscription Service page. On that page, under the Employment and Training Administration heading, please select a checkbox next to "Foreign Labor Certification Website" and then click the "Submit" button.

• March 29, 2013. H-2B Wage Final Rule Update: Delay of Effective Date.

  The Department of Labor has published a notice in the Federal Register delaying the effective date of the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program final rule (2011 Wage Final Rule), which was published on January 19, 2011, 76 FR 3452. In light of the enactment of the Consolidated and Further Continuing Appropriations Act, 2013, Pub. L. 113-6, which establishes the Department's appropriations through September 30, 2013, and also continues the prohibition of the expenditure of the Department's appropriated funds to implement, administer, and enforce the 2011 Wage Final Rule, the Department is delaying the effective date of the 2011 Wage Final Rule. To read the Final Rule please click here.

• March 28, 2013

  Effective March 22, the Department is holding in abeyance most pending H-2B prevailing wage requests and those it received after March 22, while it considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa). That order granted a permanent injunction against the operation of the portion of the 2008 wage rule related to prevailing wage determinations and gave the Department 30 days to come into compliance with the Court order. The result is that the Department can no longer make prevailing wage determinations based on the Occupational Employment Statistics (OES) survey four tier wage system. The Department will, however, continue to process prevailing wage requests not enjoined by the court order: those utilizing applicable Collective Bargaining Agreements, acceptable private wage surveys or Service Contract Act or Davis Bacon Act wage determinations. The Department intends to comply with the Court order within 30 days by promulgating a revised wage rule. This will allow the Department to resume providing employers with prevailing wage determinations.

  We encourage stakeholders to sign up to receive e-mail updates through the Department's Office of Foreign Labor Certification (OFLC) web site. Instructions for signing up for e-mail updates are provided below.

  E-Mail Update Instructions: On the home page of the OFLC web site, under the E-mail Updates heading, enter your e-mail address and then click the "Subscribe" button. You will be directed to the Department's E-mail Subscription Service page. On that page, under the Employment and Training Administration heading, please select a checkbox next to "Foreign Labor Certification Website" and then click the "Submit" button.

• September 26, 2012. Implementation of Electronic Filing in the H-2A and H-2B Programs.

  The Department has made available for public inspection a Federal Register notice formally announcing the implementation of electronic filing in the H-2A and H-2B visa programs through the Department'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. In advance of these implementation dates, the Department will conduct four webinar training sessions to orient the public to electronic filing in the H-2A and H-2B programs. To read the Federal Register notice please click here. To learn more about the implementation of electronic filing, including how to participate in the upcoming webinar training sessions, please click here.

• September 25, 2012

  The Department is announcing the implementation of electronic filing in the H-2A and H-2B visa programs through the Department's iCERT Visa Portal System. We believe this new electronic filing capability will enhance the accessibility and quality of labor certification services, reduce the data collection and reporting burden on small employers, facilitate more streamlined business processes, and establish greater transparency in the Department's decisions.

  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. In advance of these implementation dates, the Department will publish a Federal Register notice formally announcing implementation of electronic filing, and then conduct four webinar training sessions to orient the public to electronic filing in the H-2A and H-2B programs. To learn more about the implementation of electronic filing, including how to participate in the upcoming webinar training sessions, please click here.

• May 22, 2012. H-2B Ombudsman Program.

  The OFLC is pleased to announce the expansion of the H-2A Ombudsman Program to include the H-2B Program community. The Ombudsman Program is here to facilitate the fair and equitable resolution of concerns that arise within the H-2A and H-2B filing communities, by conducting independent and impartial inquiries into issues related to the administration of these programs. We also identify areas in which employers and worker advocate organizations have concerns in dealing with the OFLC and propose internal recommendations designed to continuously improve the quality of services provided by the OFLC. For more information on the H-2B Ombudsman Program click here.

• May 14, 2012. H-2A and H-2B Forms Update:

  The Office of Management and Budget has approved the Department's request to extend the ETA Form 9142, Appendices A.2 and B.1 and associated instructions which were previously set to expire on April 30, 2012. The new expiration date for these forms is October 31, 2012.

  As of the date of this announcement, future H-2A applications should be filed using the extended ETA Form 9142 and Appendix A.2 which reflect the October 31, 2012 expiration date.

  In light of the recent preliminary injunction of the 2012 H-2B Final Rule, employers filing H-2B applications under the 2008 Final Rule must do so using the extended ETA Form 9142 and Appendix B.1 (H-2B only), reflecting the October 31, 2012 expiration date. To view or download the extended forms, please click here.

• April 14, 2011. Application of the Prevailing Wage Methodology in the H-2B Program; Amendment of Appendix B.1. The Department has published in the Federal Register a notice announcing an amendment to the Appendix B.1 of the ETA Form 9142, Application for Temporary Employment Certification. The amendment reflects an employer's obligation to pay a prevailing wage determined under the new prevailing wage methodology promulgated by the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program Final Rule, which published in the Federal Register on January 19, 2011, and applies to wages paid for work performed on or after January 1, 2012. As of the date of this notice, all employers utilizing the H-2B program must submit the new Appendix B.1 with their applications. Read the text of the notice here.

• January 19, 2011.  The Department has published in the Federal Register a Final Rule on the Wage Methodology for Temporary Non-agricultural Employment in the H-2B Program. The Final Rule revises the methodology by which the Department calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with a temporary labor certification. The Final Rule is effective for wages paid for all work performed on or afterJanuary 1, 2012. To read or download the Final Rule please click here.

• January 18, 2011.  H-2B Program:  Wage Methodology Final Rule.  The Department has placed on the table to be published in the Federal Register a Final Rule on the Wage Methodology for Temporary Non-agricultural Employment in the H-2B Program. The Final Rule revises the methodology by which the Department calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with a temporary labor certification. The Final Rule is effective for wages paid for all work performed on or after January 1, 2012. 

• October 13, 2010. H-2B Regulation Mailbox Temporarily Suspended: The Office of Foreign Labor Certification has temporarily suspended its H-2B.Regulation@dol.gov mailbox. The H-2B Regulation mailbox was temporarily suspended to avoid inadvertent and/or incorrect submission of comments on the recently published Notice of Proposed Rulemaking (NPRM) on the Wage Methodology for the Temporary Non-agricultural Employment in the H-2B Program. The NPRM includes instructions on how to appropriately submit public comments on the proposed rulemaking. To read the text of the NPRM and learn how to submit comments, please click here.

• October 5, 2010. H-2B Prevailing Wage NPRM: The Department has published in the Federal Register a Notice of Proposed Rulemaking (NPRM) on the Wage Methodology for the Temporary Non-agricultural Employment in the H-2B Program. The NPRM proposes to revise the methodology by which the Department calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with a temporary labor certification. The Department is accepting comments on the proposed rulemaking until Thursday, November 4, 2010. To read the text of the NPRM and learn how to submit comments, please click here.

• September 30, 2010.  Prevailing Wage:  Validity Period for H-2B prevailing wage determinations.  On August 30, 2010, the U.S. District Court for the Eastern District of Pennsylvania in Comitè de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, et al., Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa.) invalidated the Department's use of skill levels in establishing prevailing wages and the Department's reliance upon Occupational Employment Statistics (OES) data in lieu of Davis Bacon Act and Service Contract Act rates. The court order requires the Department to complete a new rulemaking regarding the calculation of prevailing wage rates in the H-2B program within 120 days.

   

  The Department has been issuing prevailing wage determinations with a validity period ending on June 30, 2011, since the OES data is updated annually each June. Given that the Department has been ordered to promulgate a new regulation in approximately 3 months, which may result in changes to the calculation of the prevailing wage rates, the Department, beginning onSeptember 30, 2010, will issue H-2B prevailing wage determinations with validity periods of three months, in accordance with § 655.10(d). This change does not affect the validity periods of existing prevailing wage determinations. It also does not affect any new requests for prevailing wage determinations that will be used in connection with PERM, H-1B, H-1B1 or E-3 applications.

• March 24 Prevailing Wage FAQs: OFLC has issued updated prevailing wage FAQs to assist employers and others. These FAQs replace those issued in December 2009 by updating certain information. To see the FAQs click here.
  
  
• March 15, 2010: To support implementation of the new H-2A regulations and current H-2B regulations, the Office of Foreign Labor Certification is making available the ETA Form 9142 - Application for Temporary Employment Certification in a fillable Adobe Acrobat PDF format to provide users with the option to save and reuse the information on the form for future applications. To access the fillable form, please click here.

• January 4, 2010: The Office of Foreign Labor Certification's (OFLC) National Prevailing Wage and Helpdesk Center is open and is currently accepting for processing Prevailing Wage Determination (PWD) requests for use in the H-1B, H-1B1 (Chile/Singapore), H-2B, E-3 (Australia) and the permanent labor certification programs, as well as PWD requests for use in the Commonwealth of the Northern Mariana Islands. The Department has posted on the OFLC website Frequently Asked Questions (FAQs) that address the filing and processing of PWD requests.
  
  The Department has also updated and posted on the OFLC website the Prevailing Wage Determination Policy Guidance for use in the Nonagricultural Immigration Programs. To read the updated Prevailing Wage guidance, please click here.
  
  
• December 4, 2009: The Department has published in the Federal Register a notice informing the regulated community that as of January 1, 2010, OFLC's National Prevailing Wage and Helpdesk Center in Washington, DC, will receive and process prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs. The Notice also provides guidance about the issuance of prevailing wage determinations for use in the Commonwealth of the Northern Mariana Islands. To read the full text of the Notice click here.

• December 4, 2009:The Department has published in the Federal Register a notice announcing a change in the location of the Chicago National Processing Center, where applications for temporary labor certification programs are filed. To read the full text of the Notice, click here.

• "August 21, 2009 Notice Announcing H-2B Stakeholder Briefings in Boston and Chicago: The Department has published in the Federal Register a Notice announcing that it will hold public stakeholder briefing sessions in September in Boston and Chicago. The briefings will address changes to the H-2B temporary worker program and specifically focus on the full implementation stage of the new H-2B regulations that were published on December 19, 2008. To read the full text of the Notice, please click here."
  
  
• June 19, 2009: H-2B Entertainer FAQs: The Department has released FAQs for H-2Bs in the entertainment industry. To read them, click here.

• April 20, 2009: H-2B FAQs: The Office of Foreign Labor Certification (OFLC) has posted the first round of Frequently Asked Questions (FAQs) for the H-2B program under the new regulations, which took effect January 18, 2009. To see the FAQs click here. The questions deal with the new forms ETA-9141 and ETA-9142, including where to find the NAICS and SOC codes, where and when to file, and other useful information. The FAQs for the old H-2B program are still available through the link located in the right margin on the OFLC home page.
• New Prevailing Wage Form: In conjunction with the regulations going into effect on January 18, 2009 for the H-2B program, the Department has created and received approval from OMB for a new form to collect the necessary information from employers in order to provide a prevailing wage so that employers may begin the recruitment process. Employers must begin using the Form ETA-9141 for wage requests for H-2B work that is to commence on or after October 1, 2009. For instructions on how to complete the form and appendices see theinstructions.

• January 12, 2009
  New Forms: In conjunction with the regulations going into effect on January 17 and 18 for the H-2A and H-2B programs, the Department has created new forms to collect the necessary information from employers applying for labor certifications. Employers must begin using theForm ETA-9142 on the effective date of the new regulations. In addition, for the H-2A program employers must fill out and submit Appendix A.1 and Appendix A.2. For the H-2B program employers must fill out and submit Appendix B.1. For instructions on how to complete the form and appendices see the instructions. The H-2B Final Rule requires the use of the new Form ETA-9141 for prevailing wage determinations. However, the use of this form will only begin after the transition period outlined in the rule is completed. Therefore, Form ETA-9141 will be posted towards the end of the transition period.
  
  
• January 5, 2009
  OFLC Performance Report: The Employment and Training Administration's (ETA's) Office of Foreign Labor Certification today posted its FY 2007 performance report Foreign Labor Certification: International Talent Helping Meet Employer Demand. This report includes key facts about the variety of occupations certified in the permanent and temporary labor certification programs and the number of jobs filled, employers that request foreign workers, and the countries from which those workers come. The report also contains important information for the public on labor market trends and occupational opportunities for Americans. Read the report here.
• H-2B Final Rule: On December 19, 2008, the Office of the Federal Register published the Department's Final Rule on H-2B Temporary Non-agricultural Employment. Click here for the Final Rule. The Final Rule is effective January 18, 2009, although certain aspects of the Rule will be subject to transition provisions. The application form accompanying this rule, ETA Form 9142, was published in the Federal Register on December 18, 2008, in conjunction with the Department's H-2A Final Rule. The Department will shortly post an ETA Form 9142 that is fillable on line. We strongly encourage program users to complete the fillable form. Employers with questions are encouraged to submit those questions to OFLC at H-2B.Regulation@dol.gov. Due to a high volume of calls, we will be unable to respond individually to inquiries.

Program Regulations and Guidance

• 20 CFR 655, Subpart A
• Training and Employment Guidance Letter 31-05, Procedures for Temporary Labor Certification in the Entertainment Industry Under the H-2B Visa Program
• Training and Employment Guidance Letter NO. 27-06, Special Guidelines for Processing H-2B Temporary Labor Certification in Tree Planting and Related Reforestation Occupations

Additional Resources

• H-2B Entertainer FAQs (based on regulations published in December 2008)
• H-2B FAQs - Round 1 (based on regulations published in December 2008)
• H-2B Ombudsman Program