1. H-2B Final Rule Briefing: Process & SWA Responsibilities
May 21, 2009 at 2:00pm E.S.T.

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6. Presenters
Presenters:
Charlene Giles, Director, Chicago National Processing Center, Office of Foreign Labor Certification
Kevin Henderson, Certifying Officer Chicago National Processing Center, Office of Foreign Labor Certification

7. Agenda/Objectives
Virtual classroom overview and practice
H-2B Application – Requirements and Process
Employer Attestations
NPC Processing
Integrity Measures

8. H-2B Final Regulation
effective January 18, 2009

9. H-2B Final Rule Purpose and Scope
20 CFR 655, Subpart A, sets out the procedures established by the Secretary of Labor to acquire information sufficient to make factual determinations of . . .
Whether there are sufficient U.S. workers available 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. Whether the employment of H-2B workers will adversely affect the wages and working conditions of workers in the U.S. similarly employed
The H-2B Rule does not apply to the Territory of Guam. Administration of the H-2B program in Guam is performed by the Governor of Guam 9

10. H-2B Final Rule Authority and Special Procedures
Authority of ETA-OFLC
Labor certification determinations are made by the OFLC Administrator within USDOL-ETA who, in turn, may delegate this responsibility to a designated staff member (e.g., NPC Certifying Officer - CO)
Establishment of Special Procedures
Provides a limited degree of flexibility in processing certain H-2B applications while not deviating from statutory requirements (e.g., tree planters, entertainers)
OFLC Administrator has the authority to establish or to devise, continue, revise, or revoke special procedures
Until new procedures are published, OFLC is adapting the existing special procedures in effect for the new regulatory framework 10

11. Application Filing Requirements General Provisions
Filed by a U.S. employer by U.S. Mail or private mail courier with the USDOL Chicago National Processing Center (NPC)
Any future address changes will be published in the Federal Register as well as the USDOL Internet Web site at
The Department may also require applications to be filed electronically in addition to or instead of by mail 11

12. Application Filing Requirements General Provisions (continued)
Employer will submit the following documents to the Chicago NPC
ETA Form 9142 – Application for Temporary Employment Certification with Appendix B.1
Initial Recruitment Report
Application must contain attestations of the employer's compliance or promise to comply with program requirements regarding recruitment of eligible U.S. workers, the payment of an appropriate wage, and terms and conditions of employment
The ETA Form 9142, Appendix B.1 must bear the original signature of the employer and, if applicable, that of the employer's authorized attorney or agent 12

13. Application Filing Requirements Employers
Except where otherwise permitted under 20 CFR , only ONE Application for Temporary Employment Certification may be filed for worksite(s) within one area of intended employment for each job opportunity with an employer. 13

14. Job contractors can file applications under the H-2B program
Application Filing Requirements Association of Employers and Job Contractors
An association or other organization of employers CANNOT file master applications on behalf of its employer-members under the H-2B program
Job contractors can file applications under the H-2B program
However, the temporary nature of the work or services will be determined by examining:
The job contractor’s own need for the labor or services; AND
The needs of each individual employer with whom the job contractor has agreed to provide workers 14

15. Application Filing Requirements Establishing Temporary Need
To use the H-2B Program, the employer must establish that its need for nonagricultural services or labor is temporary, regardless of whether the underlying job is permanent or temporary
The employer’s need is considered temporary if justified as either a:
One-time occurrence;
Seasonal need;
Peakload need; or
Intermittent Need
Applications with a seasonal or peakload need lasting longer than 10 months will be denied absent unusual circumstances. 15

16. Offered Wage Rate Determination General Provisions
The employer must obtain a prevailing wage determination that is valid either:
On the date recruitment begins; OR
The date of filing the ETA Form 9142
The employer must request and obtain a wage rate determination from the NPC before commencing any recruitment under the regulations, except where a specific exemption is granted
The employer must offer and advertise the position at a wage at least equal to the prevailing wage to all potential workers 16

17. Pre-Filing Recruitment Activity General Provisions
Employer may not file the ETA Form 9142 until all of the pre-filing recruitment steps have been met, except where a specific exemption applies
Employer must attest on the ETA Form 9142 that it has complied with all necessary steps of the recruitment process, including:
Obtain a prevailing wage determination from the NPC
Submit a job order to the SWA serving the area of intended employment
Run two print advertisements in area of intended employment
If the employer is part of a CBA, contact the union for referrals of able, willing, qualified and available U.S. workers
All advertising must contain terms/conditions of employment which are no less favorable than those offered to the H-2B workers 17

18. Pre-Filing Recruitment Activity 1. SWA Job Order
The employer must place an active job order with the SWA no more than 120 calendar days before the date of need for intrastate and interstate clearance
The SWA must keep the job order open for at least 10 calendar days
If the job contains multiple worksites in the same area of intended employment covering multiple states, the employer will place the job order with the SWA having jurisdiction where employment will begin
The SWA will then transmit the job order to all states listed in the application as anticipated worksites 18

19. Pre-Filing Recruitment Activity 1. SWA Job Order
Major SWA Responsibilities
Receiving employer job order to be placed in connection with a future application for H-2B workers
Reviewing employer’s job order for obvious errors or omissions and compliance with content requirements at 20 CFR
Where necessary, providing written notification to the employer of any deficiencies or corrections 19

20. Pre-Filing Recruitment Activity 1. SWA Job Order
Major SWA Responsibilities
Placing job order on active file for intrastate clearance
Providing the employer with proof of publication containing the text of the job order and the start and end dates of posting
Maintaining active job order for a period of not less than 10 days; although SWAs have authority to require longer recruitment period
Promptly transmitting, on behalf of the employer, a copy of its active job order to other States contained in the same area of intended employment (if applicable)
Instructing other SWAs to keep its own job order open until the end of the recruitment period in the original job order and refer each eligible U.S. worker who applies for the job opportunity 20

21. Pre-Filing Recruitment Activity 1. SWA Job Order
Major SWA Responsibilities
Maintaining record of referrals of U.S. workers and any actions subsequently taken (e.g., hired, not hired)
Providing notification to the Chicago NPC of any “questionable” refusals to hire
Referring for employment individuals whom they have verified identity and employment eligibility through the process for employment verification of all workers that is established by INA § 274A(b)
Providing documentation to the employer certifying the employment verification that satisfies the standards of INA § 274A(a)(5) and its implementing regulations at 8 CFR 274a.6 21

22. Pre-Filing Recruitment Activity 2. Newspaper Advertisements
Employer must place an advertisement on 2 separate days, one of which must be a Sunday, in a newspaper of general circulation in the area of intended employment
The advertisements must be published in a newspaper:
Of general circulation serving the area of intended employment that has a reasonable distribution; AND
Is appropriate to the occupation and the workers likely to apply for the position
Advertisements must be published only after the job order is accepted by the SWA for intrastate/interstate clearance
Advertisements must satisfy the requirements of 20 CFR 22

23. Pre-Filing Recruitment Activity 2. Newspaper Advertisements
If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the employer must advertise in a regularly published daily edition with the widest circulation in the area of intended employment
Employer may use a professional, trade or ethnic publication if such publication is more appropriate to the occupation and workers likely to apply for the job opportunity
The requirement to place a newspaper advertisement on a Sunday cannot be waived under this circumstance. 23

24. Pre-Filing Recruitment Activity 2. Newspaper Advertisements
Advertising Requirements
Employer’s name and appropriate contact information for applicants to send resumes directly to the employer
Geographic area(s) of employment with specificity to apprise US workers of any travel requirements
If transportation to the worksite(s) will be provided, the advertisement must say so
A description of the job opportunity with particularity
Minimum education and experience requirements
Work hours and days, expected start and end dates of employment and whether overtime will be offered
Wage offer
That the positions is temporary and total number of job openings 24

25. Pre-Filing Recruitment Activity 3. Labor Organizations
An employer that is part of a CBA must contact the union that is a party to the CBA for referrals of qualified U.S. workers
The contact must be by U.S. mail or other effective means
The employer must maintain dated logs demonstrating:
The union was contacted and notified of the openings;
Whether the union referred qualified workers and the number of workers referred or
Whether the union was non-responsive 25

26. Pre-Filing Recruitment Activity 4. Layoff
If there has been a layoff of U.S. workers within days of the first date of need, the employer must:
Document that it notified or will notify each laid off worker;
Document that the employer has considered or will consider each laid off worker who expresses interest in the opportunity, AND
Document the results of the notification and consideration 26

27. Pre-Filing Recruitment Activity
Recruitment Report
In order to allow sufficient time for the interested workers to respond, the employer must wait to prepare a recruitment report until:
No fewer than 2 calendar days after the date the last job order was posted; and
No fewer than 5 calendar days after the date of the last newspaper advertisement
The written recruitment report must be prepared, signed and dated by the employer 27

28. Pre-Filing Recruitment Activity
Recruitment Report (cont’d.)
Recruitment report must contain the following information:
Identification of each recruitment source by name
Name/contact information of each U.S. worker who applied for the job and the disposition of each worker
Name/contact information of each former U.S. employee contacted and the disposition of each former employee
Explanation of the lawful job-related reason(s) for not hiring each U.S. worker (if applicable) 28

29. ETA Form 9142 Employer Attestations
As part of the ETA 9142 application, the employer must attest that it will abide by the following:
The employer is offering terms and conditions normal to U.S. workers similarly employed
The specific job opportunity is not vacant because the former occupant(s) is(are) on strike or lockout in the course of a labor dispute
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 has conducted recruitment according to the regulations 29

30. ETA Form 9142 Employer Attestations
During the period of employment, the employer will comply with Federal, State and local employment- related laws and regulations
The offered wage equals or exceeds the highest of the prevailing wage, Federal, State or local minimum wage
Upon separation of employment with the employer, will notify DHS no later than 2 work days after the separation is discovered 30

31. ETA Form 9142 Employer Attestations
Wage is not based on commission, bonuses, or other incentives, unless the employer guarantees a wage paid on a weekly, bi-weekly or monthly basis that exceeds the prevailing wage, or the legal Federal, State or local minimum wage
The employer has contractually forbidden any FLC or recruiter to seek or receive payments from prospective employees
The job opportunity is a bona fide, full-time temporary position 31

32. ETA Form 9142 Employer Attestations
The employer has not laid off and will not lay offer any similarly employed U.S. workers within calendar days before the date of need and calendar days after the date of need, except where the employer attests that it has contacted or will contact the laid off U.S. workers
The employer and its attorney/agent have not sought or received payment from a prospective H-2B employee
The employer will not place any H-2B workers outside of the area of intended employment listed on the ETA Form 9142 32

33. ETA Form 9142 Employer Attestations
Unless the worker is sponsored by another employer, the employer will inform the worker that he/she is required to leave the U.S. at the end of the authorized period of stay
The dates of need, reason for temporary need, and number of positions being requested for labor certification have been truly and accurately stated on the application 33

34. ETA Form 9142 Special Employer Attestations for Job Contractors
If the employer is a job contractor, the employer must attest that it will not place any H-2B workers with any other employer or at another employer worksite unless:
The employer applicant makes a bona fide inquiry as to whether the other employer has displaced or intends to displace any similarly employed U.S. workers within 120 days before through 120 days after the beginning date of need
All worksites are listed on the ETA Form 9142, including amendments or modifications 34

35. NPC Application Processing General Provisions
Employer will submit the following documents to the NPC
A completed ETA Form 9142 with Appendix B.1
An initial recruitment report
Upon receipt of the application, the NPC shall . . .
Review for obvious inaccuracies or omissions
Review for compliance with criteria for certification
If the Chicago NPC determines that the application fails to comply with one or more criteria for certification, the CO will issue a Request for Further Information (RFI) to the employer within 7 calendar days 35

36. NPC Application Processing General Provisions
Criteria for certification include, but are not limited to, whether the employer has:
Established that the need for nonagricultural services or labor is temporary in nature
Established that the number of positions being requested is justified and represent bona fide job opportunities
Made all assurances
Met all obligations required by 20 CFR
Complied with all requirements of the program 36

37. NPC Application Processing RFI Requirements
The RFI must:
Specify the reason(s) why the application was not sufficient to grant temporary labor certification, citing relevant regulatory standards/special procedures;
Specify a date, no later than 7 calendar days from the date of the written RFI, that supplemental information and documentation must be received; and
State that, upon receipt of a response, or expiration of the deadline, the CO will review the existing application as well as any supplemental materials and issue a Final Decision
Unless otherwise noted, any notice or request sent by the NPC to an applicant requiring a response shall be sent by means normally assuring next-day delivery, to afford the applicant sufficient time to respond 37

38. NPC Application Processing Issuance of Determinations
NPC Certifying Officer (CO) will make a determination either to grant or deny the ETA Form 9142
CO will certify where the employer has met all the regulatory requirements defined 20 CFR (b)
CO will determine that employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed US workers; and that an insufficient number of qualified U.S. workers are available for the job opportunity
CO will notify employer in writing (either electronically or by U.S. mail) of the labor certification determination 38

39. Issuance of Determinations Full Certification
Employer or employer’s agent or attorney will receive the following documents from USDOL
Final Determination letter
ETA Form 9142
Employer must file the certified ETA Form 9142 and any other documentation
With the appropriate USCIS office (see for more information) 39

40. Issuance of Determinations Partial Certification
CO may reduce either the period of need and/or the number of H-2B workers being requested for certification
Employer or employer’s agent or attorney will receive the same documents from USDOL as those for “Full Certification”
Determination letter will include the following:
Reason(s) partial certification is being granted citing the relevant regulatory standards and/or special procedures
If applicable, address the availability of US workers
Notice of opportunity to request administrative review
Statement indicating that if the employer does not request administrative review, the partial labor certification is final and the Department will not further consider the application 40

41. Issuance of Determinations Denials
Employer or employer’s agent or attorney will receive the following documents from USDOL
Final Determination letter
Determination letter will include the following:
Reason(s) certification is denied, citing the relevant regulatory standards and/or special procedures
If applicable, address the availability of US workers
Notice of opportunity to request administrative review
Statement indicating that if the employer does not request administrative review, the denial is final and the Department will not further consider the application 41

42. Denials Administrative Review
An employer that wishes to appeal its denied application must request review by the Board of Alien Labor Certification Appeals (BALCA) within 10 calendar days of the determination
The request must:
Be sent to BALCA with a simultaneous copy to the CO who denied the application
Clearly identify the temporary labor certification determination for which review is sought
Set forth the particular grounds for the request
The appeal may only contain legal arguments and evidence that was actually submitted to the CO 42

43. Denials Administrative Review
Within 5 business days of receipt of the appeal, the counsel for the CO may submit a brief in support of the CO’s decision via overnight delivery
The Chief of the ALJ may designate a single member or a three member panel of BALCA to consider the case
The BALCA may:
Affirm the denial;
Direct the CO to grant certification; OR
Remand to the CO for further action
BALCA should notify the employer, CO and counsel for the CO of its decision within 5 business days of submitted of the CO’s brief or 10 days after receipt of the appeal file, whichever is earlier 43

44. Issuance of Determinations Validity and Scope of Labor Certification
The certified ETA Form 9142 (as originally filed or amended) may not be transferred from one employer to another and is valid only for the . . .
Beginning and end dates of employment
Number of H-2B workers
Area(s) of intended employment
Specific services or labor to be performed
Employer specified on the ETA Form 9142 44

45. Post-Determination Actions Notice of Departure to Workers
Limit to Worker’s Stay
A foreign worker may not remain in the US beyond his/her . . .
Authorized period of stay established by DHS; or
Separation from employment prior to completion of H-2B work contract
Absent an extension or change in worker’s status by DHS, the period of stay is based upon validity period of DOL labor certification
Notice to Worker
Employers must notify each H-2B worker upon starting work of the requirement to register his/her departure from the US at the conclusion of employment
Registration is required for H-2B workers departing the US by land at the place and in the manner prescribed by DHS 45

46. Program Integrity Provisions
Conduct audit examinations on certified applications
Require pre-filing supervised recruitment based on
Material misrepresentation
Failure to recruit in good faith
Violated program requirements
Debar employers, attorneys, or agents for up to 3 years based on substantial program violation or fraud
New enforcement authority for ESA Wage and Hour Division including civil monetary penalties 46

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