Procedures for H-2B Temporary Labor Certification in Non-Agricultural Occupations, 19961-19965 [E7-7521]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 72, Number 76 (Friday, April 20, 2007)]
[Notices]
[Pages 19961-19965]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7521]


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DEPARTMENT OF LABOR

Employment and Training Administration


Procedures for H-2B Temporary Labor Certification in Non-
Agricultural Occupations

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice.

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SUMMARY: This notice updates procedures for State Workforce Agencies 
and ETA National Processing Centers to process H-2B labor certification 
applications in non-agricultural occupations.

SUPPLEMENTARY INFORMATION:

I. References

    Immigration and Nationality Act (INA) Section 101(a)(15)(H)(ii)(b), 
Title

[[Page 19962]]

20 Code of Federal Regulations (CFR) parts 652 and 655; Title 8 CFR 
214.2(h)(6); 70 FR 41430, Jul. 19, 2005; General Administration Letter 
(GAL) 01-95, Procedures for H-2B Temporary Labor Certification in 
Nonagricultural Occupations; GAL 01-95, Change 1, Procedures for H-2B 
Temporary Labor Certification in Nonagricultural Occupations; and Field 
Memorandum (FM) 25-98, H-2B Temporary Non-Agricultural Labor 
Certification Program Requirements.

II. Background

    The H-2B non-immigrant program permits employers to hire foreign 
workers to come to the United States (U.S.) and perform temporary non-
agricultural services or labor on a one-time, seasonal, peakload, or 
intermittent basis. The H-2B visa classification requires a temporary 
labor certification from the Secretary of Labor advising the Department 
of Homeland Security's United States Citizenship and Immigration 
Services (USCIS) as to whether qualified U.S. workers are available and 
whether the alien's employment will adversely affect the wages and 
working conditions of similarly employed U.S. workers, or a notice that 
such certification cannot be made, prior to filing an H-2B visa 
petition with USCIS. Historically, H-2B applications for non-
agricultural occupations were processed through the Employment and 
Training Administration's (ETA) Regional Offices. However, in December 
2004, the Department opened two new National Processing Centers (NPCs), 
one each located in Atlanta and Chicago. These Centers have been 
designated to process applications to employ foreign workers for 
temporary positions under the H-2B program. The Department published a 
notice in the Federal Register (70 FR 41430, Jul. 19, 2005), clarifying 
that employers must file two (2) originals of the ETA Form 750, Part A, 
directly with the State Workforce Agency (SWA) serving the area of 
intended employment and, once reviewed, the SWA will send the complete 
application to the appropriate NPC. That process does not apply to 
employer applications for boilermakers, entertainers, logging, and 
professional team sports, which were given special filing instructions 
in the notice.

III. Procedures for H-2B Applications

    Attachment A outlines procedures that the SWAs and NPCs must use in 
making temporary labor certification determinations under the H-2B 
program. This guidance replaces and supersedes prior operating 
procedures issued under GAL 01-95, GAL 01-95, Change 1, and FM 25-98. 
It works in concert with the new centralized filing process at the NPCs 
to ensure greater consistency in the processing of H-2B applications. 
Special handling procedures for certain non-agricultural occupations, 
such as forestry workers and boilermakers, will be issued through 
separate guidance letters by the National Office.

IV. Action Required

    NPC Directors and SWA Administrators are directed to provide Center 
and SWA staff involved in the processing of H-2B applications with a 
copy of these procedures.

V. Inquiries

    Questions from State Workforce Agency staff should be directed to 
the appropriate NPC Certifying Officer. This information is also 
released in the form of a Training and Employment Guidance Letter 
(TEGL) which is available at: https://www.doleta.gov/directives.

    Signed at Washington, DC, this 6th day of April, 2007.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration, Labor.

Attachment A: Procedures for H-2B Certification of Temporary Non-
Agricultural Occupations

I. General Provisions

    A. The regulations of the United States Citizenship and Immigration 
Service (USCIS), 8 CFR 214.2(h)(6), apply to employers who wish to 
import non-agricultural workers to perform services or labor in 
temporary jobs within the United States (U.S.). Section 214(c)(1) of 
the Immigration and Nationality Act (INA) requires the Department of 
Homeland Security (DHS) to consult with appropriate agencies of the 
government before granting H-2B petitions;
    B. USCIS regulations state that employers who file H-2B petitions 
(except for temporary employment on Guam) must include a certification 
from the DOL stating that qualified workers are not available in the 
U.S., and the foreign worker's employment will not adversely affect the 
wages and working conditions of similarly employed U.S. workers;
    C. The H-2B non-immigrant program permits employers to hire foreign 
workers to perform temporary non-agricultural work within the U.S. on a 
one-time occurrence, seasonal, peakload, or intermittent basis (8 CFR 
214.2(h)(6)(ii)(B));
    D. The DOL regulations at 20 CFR Part 655, Subpart A--Labor 
Certification Process for Temporary Employment in Occupations Other 
Than Agriculture, Logging or Registered Nurses in the United States (H-
2B Workers), governs the labor certification process for temporary 
employment in the U.S. under the H-2B classification, and requires that 
the Regional Administrator (now National Processing Center (NPC)) 
Certifying Officer of the Employment and Training Administration (ETA) 
issue temporary labor certifications on behalf of the Secretary of 
Labor;
    E. An H-2B temporary labor certification is advisory to USCIS and, 
where the employer is notified by the NPC Certifying Officer that 
certification is denied or cannot be made, the employer may submit 
countervailing evidence, according to 8 CFR Part 214.2(h)(6)(iv)(E), 
directly to USCIS. There is no provision for reconsideration or appeal 
of the determination made by the DOL through the NPC Certifying 
Officer.

II. Standards for Determining the Temporary Nature of a Job Opportunity 
Under the H-2B Classification

    A. 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 (Matter of Artee Corp., 18 I&N Dec. 366 (Comm. 
1982));
    B. Part-time employment does not qualify as employment for 
temporary labor certification under the H-2B program. Only full-time 
employment can be certified;
    C. The Federal regulations at 8 CFR Part 214.2(h)(6)(ii) state that 
the period of the petitioner's need must be a year or less, although 
there may be extraordinary circumstances where the temporary services 
or labor might last longer than one year. If there are unforeseen 
circumstances where the employer's need exceeds one year, a new 
application for temporary labor certification is required for each 
period beyond one year. However, an employer's seasonal or peakload 
need of longer than 10 months, which is of a recurring nature, will not 
be accepted;
    D. The employer's need for temporary non-agricultural services or 
labor must be justified to the NPC Certifying Officer under one of the 
following standards: (1) A one-time occurrence, (2) a seasonal need, 
(3) a peakload need, or (4) an intermittent need.

[[Page 19963]]

    1. One-Time Occurrence. The petitioner must establish that either 
(1) it has not employed workers to perform the services or labor in the 
past and that it will not need workers to perform the services or labor 
in the future, or (2) it has an employment situation that is otherwise 
permanent, but a temporary event of short duration has created the need 
for a temporary worker(s);
    2. Seasonal Need. The petitioner must establish that the services 
or labor is traditionally tied to a season of the year by an event or 
pattern and is of a recurring nature. The petitioner shall specify the 
period(s) of time during each year in which it does not need the 
services or labor. The employment is not seasonal if the period during 
which the services or labor is not needed is unpredictable or subject 
to change or is considered a vacation period for the petitioner's 
permanent employees;
    3. Peakload Need. The petitioner must establish that (1) it 
regularly employs permanent workers to perform the services or labor at 
the place of employment and that it needs to supplement its permanent 
staff at the place of employment on a temporary basis due to a seasonal 
or short-term demand, and (2) the temporary additions to staff will not 
become a part of the petitioner's regular operation; or
    4. Intermittent Need. The petitioner must establish that it has not 
employed permanent or full-time workers to perform the services or 
labor, but occasionally or intermittently needs temporary workers to 
perform services or labor for short periods.

III. Application Filing Procedures

    A. An employer desiring to use foreign workers for temporary non-
agricultural employment must file a complete ETA Form 750, Part A, 
Offer of Employment portion of the Application for Alien Employment 
Certification with the State Workforce Agency (SWA) serving the area of 
intended employment. If the application includes worksite locations 
within a Metropolitan Statistical Area (MSA) covering multiple SWAs, 
the employer may submit a single application to the SWA where the 
employment will begin. In those instances where the employment crosses 
NPC jurisdictions as well, the NPC that has jurisdiction over the SWA 
where the employment will begin shall process the application.
    The U.S. Census Bureau maintains a current listing of all MSAs as 
well as maps by state at the following Web site: https://www.census.gov/
population/www/estimates/metroarea.html.
    B. An association or other organization of employers is not 
permitted to file master applications on behalf of its membership under 
the H-2B program;
    C. Job contractors typically supply labor to one or more employers 
as part of signed work contracts or labor services agreements. The 
temporary or permanent nature of the work to be performed in such 
applications will be determined by examining the job contractor's need 
for such workers, rather than the needs of its employer customers;
    D. Every H-2B application shall include:
    1. Two (2) originals of the ETA Form 750, Part A, Offer of 
Employment portion of the Application for Alien Employment 
Certification, signed and dated by the employer. Part B, Statement of 
Qualifications of the Alien, is not required to be completed;
    2. Documentation of any efforts to advertise and recruit U.S. 
workers prior to filing the application with the SWA;
    3. A detailed statement explaining (a) why the job opportunity and 
number of workers being requested reflect a temporary need, and (b) how 
the employer's request for the services or labor meets one of the 
standards of a one-time occurrence, a seasonal need, a peakload need, 
or an intermittent need. This statement of temporary need must be 
submitted separately on the employer's letterhead with signature. A 
labor shortage, however severe, does not alone establish a temporary 
need. One of the four temporary need standards must be satisfied;
    4. Supporting evidence and documentation that justifies the chosen 
standard of temporary need must be submitted. Examples of supportive 
evidence or documentation for the most common standards of seasonal and 
peakload need include, but are not limited to, the following:
    a. Signed work contracts, letters of intent from clients, and/or 
monthly invoices from previous calendar year(s) clearly showing that 
work will be performed for each month during the requested period of 
need on the ETA Form 750, Part A, Item--18b. This type of documentation 
will demonstrate that the employer's need for the work to be performed 
is tied to a season(s) of the year and will recur next year on the same 
cycle;
    b. Annualized and/or multi-year work contracts or work agreements 
that are supplemented with signed work contracts specifying the actual 
dates when work will commence and end during each year of service;
    c. Summarized monthly payroll reports for a minimum of one previous 
calendar year that identifies, for each month and separately for full-
time permanent and temporary employment in the requested occupation, 
the total number of workers or staff employed, total hours worked, and 
total earnings received. Such documentation must be signed by the 
employer attesting that the information being presented was compiled 
from the employer's actual accounting records or system. Employers 
should be prepared to provide the documents utilized to generate the 
summarized monthly payroll reports if requested by the NPC Certifying 
Officer.
    Examples of insufficient documentation: Work contracts with no 
clear termination date and contracts with temporary workers. 
Applications supported solely by weather charts, event calendars, hotel 
occupancy rates, or annual/quarterly tax reports (e.g., IRS Form 941) 
will not be sufficient to prove a temporary need. Staffing charts, 
graphs, or other documentation, which do not correspond with the 
requested period of need on the ETA Form 750, Part A, Item--18b, will 
also not be sufficient to prove a temporary need.
    E. To allow for enough time for the recruitment of U.S. workers and 
sufficient time for processing by the states and NPCs, the SWAs shall 
advise employers to file requests for temporary labor certification at 
least 60 days before the worker(s) is needed in order to receive a 
timely determination;
    F. Unless the NPC Certifying Officer specifies otherwise, the SWA 
shall return to the employer any request for temporary labor 
certification filed by the employer more than 120 days before the 
worker(s) is needed and advise them to re-file the application no more 
than 120 days before the worker(s) is needed. This is necessary since 
the availability of temporary U.S. workers changes over short periods 
of time and an adequate test of the labor market cannot be made during 
a longer period;
    G. More than one worker may be requested on the ETA Form 750, Part 
A, Item 18a, if they are to do the same type of work on the same terms 
and conditions, in the same occupation, in the same area(s) of intended 
employment during the same period. The total number of workers 
requested by the employer must also be specified in the advertisement 
and the job order required under Section IV of these instructions;
    H. If the employer's representative files the application, the 
employer must sign the ``Authorization of Agent of Employer'' statement 
on the ETA Form 750, which authorizes the agent to act on the 
employer's behalf. An attorney must file a Notice of Appearance (Form

[[Page 19964]]

G-28) naming the attorney's client(s). The employer is fully 
responsible for the accuracy of all representations made by the agent 
on the employer's behalf;
    I. When the job opportunity requires work to be done at multiple 
locations either within the jurisdiction of the SWA or within a MSA 
that covers multiple SWAs, the application must include the names and 
physical addresses of each location. This requirement also applies to 
job contractors filing H-2B applications.

IV. SWA Processing Instructions

    A. The SWA shall review the job offer for completeness. A job 
opportunity containing a wage offer below the prevailing wage will not 
be accepted. The SWA shall determine the prevailing wage, guided by the 
regulations at 20 CFR Part 656.40 and in accordance with Employment and 
Training Administration, Prevailing Wage Determination Policy Guidance, 
Non-agricultural Immigration Programs, Revised May 9, 2005 (https://
www.foreignlaborcert.doleta.gov/pdf/Policy_Nonag_Progs.pdf);
    B. If the job offer is less than full-time, offers to pay a wage 
below the prevailing wage, contains unduly restrictive job requirements 
or a combination of duties not normal to the occupation, or has terms 
and conditions of employment which otherwise inhibit the effective 
recruitment and consideration of U.S. workers for the job, or is 
otherwise unacceptable, the SWA shall advise the employer to correct 
the deficiencies before commencing the recruitment;
    C. When commencing recruitment, the SWA shall prepare a job order, 
using the information on the application, and place it into the SWA job 
bank system for 10 calendar days. During this period, the SWA should 
refer qualified applicants who contact the local offices and those in 
its active job files. If the application indicates that work will be 
performed in multiple locations within a MSA and one or more locations 
are outside the jurisdiction of the SWA, the SWA shall clear the job 
order for 10 calendar days with the appropriate state(s) where the work 
is to be performed and accept for referral to the employer qualified 
applicants from the state(s);
    D. During the 10-day posting of the job order, the employer shall 
advertise the job opportunity in a newspaper of general circulation for 
3 consecutive calendar days or in a readily available professional, 
trade or ethnic publication, whichever the SWA determines is most 
appropriate for the occupation and most likely to bring responses from 
U.S. workers. If the job opportunity is located in a rural area that 
does not have a newspaper with a daily edition, the employer shall use 
a daily edition with the widest circulation in the nearest urban area 
or such other publication as determined by the SWA;
    E. The employer advertisement must:
    1. Identify the employer's name and direct applicants to report or 
send resumes to the SWA for referral to the employer;
    2. Describe the job opportunity with particularity, including 
duties to be performed, work hours and days, rate of pay, and the 
duration of the employment;
    3. State the employer's minimum job requirements;
    4. Offer wages, terms, and conditions of employment which are not 
less favorable than those offered to the alien and are consistent with 
the nature of the occupation, activity, and industry; and
    5. State the total number of job openings the employer intends to 
fill.
    F. The employer shall document that union and other recruitment 
sources, appropriate for the occupation and customary in the industry, 
were contacted and either unable to refer qualified U.S. workers or 
non-responsive to the employer's request. Such documentation must be 
signed by the employer;
    G. The employer shall provide the SWA with copies of newspaper 
pages (e.g., tear sheets) or other proof of publication (e.g., 
affidavit of publication, invoices or other electronic verification) 
furnished by the newspaper for each day the advertisement was 
published. In addition, the employer shall submit to the SWA a written, 
detailed recruitment report that is signed by the employer. The written 
recruitment report must:
    1. Identify each recruitment source by name;
    2. State the name, address, and telephone number and provide 
resumes (if submitted to the employer) of each U.S. worker who applied 
for the job; and
    3. Explain the lawful job-related reason(s) for not hiring each 
U.S. worker.
    H. After the recruitment period, the SWA shall send the 
application, results of recruitment, prevailing wage findings, and all 
other supporting documentation to the appropriate NPC Certifying 
Officer;
    I. Based on the results of the employer's and SWA recruitment 
efforts, the NPC Certifying Officer shall determine whether there are 
other appropriate sources of workers from which the employer should 
have recruited in order to obtain qualified U.S. workers. If further 
recruitment is warranted, the NPC Certifying Officer shall return the 
application to the SWA with specific instructions for additional 
recruitment.

V. NPC Temporary Labor Certification Determinations

    A. The NPC Certifying Officer shall determine whether to grant or 
deny the temporary labor certification or to issue a notice that such 
certification cannot be made based on whether or not:
    1. The nature of the employer's need is temporary and justified 
based on a one-time occurrence, seasonal, peakload, or intermittent 
basis. To determine this, the NPC Certifying Officer shall take into 
account the duration of the employment opportunity identified on the 
ETA Form 750, Part A, the employer's statement of temporary need, and 
all evidence and documentation submitted with the application intended 
to substantiate the chosen standard of temporary need.
    2. Qualified U.S. workers are available for the temporary job 
opportunity.
    a. To determine if a U.S. worker is available, the NPC Certifying 
Officer shall consider U.S. workers living or working in the area of 
intended employment, and may also consider U.S. workers who are willing 
to move from elsewhere to take the job at their own expense, or at the 
employer's expense, if the prevailing practice among employers who 
employ workers in the occupation is to pay such relocation expenses;
    b. The NPC Certifying Officer shall consider a U.S. worker able and 
qualified for the job opportunity if the worker by education, training, 
experience, or a combination thereof, can perform the duties involved 
in the occupation as customarily performed by other U.S. workers 
similarly employed and is willing to accept the specific job 
opportunity; and
    c. To determine if U.S. workers are available for job opportunities 
that will be performed in more than one location, workers must be 
available in each location on the dates specified by the employer.
    3. The employment of the alien will not adversely affect the wages 
and working conditions of similarly employed U.S. workers. To determine 
this, the NPC Certifying Officer shall consider such factors as local 
or regional labor market information, special circumstances of the 
industry, organization, and/or occupation, the prevailing wage rate for 
the occupation in the area of intended employment,

[[Page 19965]]

and prevailing working conditions, such as hours of work; and
    4. The job opportunity contains requirements or conditions which 
preclude consideration of U.S. workers or which otherwise prevent their 
effective recruitment, such as:
    a. The job opportunity is vacant because the former occupant is on 
strike or locked out in the course of a labor dispute involving a work 
stoppage or the job is at issue in a labor dispute involving a work 
stoppage;
    b. The job opportunity's terms, conditions, and/or occupational 
environment are contrary to Federal, state, or local law;
    c. The employer has no location within the U.S. to which domestic 
workers can be referred and hired for employment;
    d. The employer will not pay a wage or salary for the job to be 
performed;
    e. The job's requirements are unduly restrictive or represent a 
combination of duties not normal to the occupation; or
    f. The employer has not recruited U.S. workers according to DOL 
policies and procedures.
    B. If the NPC Certifying Officer issues a notice that a 
certification is denied or cannot be made, the Final Determination 
letter shall:
    1. Detail the reasons why certification cannot be made;
    2. If applicable, address the availability of U.S. workers in the 
occupation as well as the prevailing wages and working conditions of 
similarly employed U.S. workers in the occupation;
    3. Indicate the specific DOL policies the employer should have, but 
did not, follow; and
    4. Advise the employer of the right to appeal by submit 
countervailing evidence directly to the USCIS.
    C. If the NPC Certifying Officer issues a temporary labor 
certification, it shall be for the entire duration of the temporary 
employment opportunity identified on the ETA Form 750, Part A. If 
extraordinary circumstances establish a need that requires the non-
agricultural services or labor for more than one year, a new 
application must be filed;
    D. The date on the temporary labor certification shall be the 
beginning and ending dates of certified employment and the date 
certification was granted.
    The beginning date of certified employment may not be earlier than 
the date certification was granted.

VI. Document Transmittal

    A. After making a temporary labor certification determination, the 
NPC Certifying Officer shall notify the employer, in writing, of the 
final determination;
    B. If certification is granted, the NPC Certifying Officer shall 
send the certified application containing the official temporary labor 
certification stamp and a Final Determination letter to the employer 
or, if appropriate, the employer's agent or attorney. The Final 
Determination letter shall direct the employer to submit all documents 
together with the employer's petition to the appropriate USCIS Office;
    C. If a notice is issued that certification has been denied or 
cannot be made, the NPC Certifying Officer shall return one copy of the 
Application for Alien Employment Certification, ETA Form 750, 
supporting documents, and the Final Determination letter to the 
employer, or, if appropriate, to the employer's agent or attorney.

VII. Appeal of Notice That A Certification Cannot Be Made

    A. The finding by the NPC Certifying Officer, that a certification 
cannot be made, is the final decision of the Secretary of Labor and is 
advisory to the USCIS. There is no provision for reconsideration or 
appeal of the decision within DOL;
    B. In accordance with the USCIS regulations at 8 CFR Part 
214.2(h)(6)(iv)(E), the employer may submit countervailing evidence 
directly to the USCIS that qualified persons in the U.S. are not 
available, that the employer's need for the duties to be performed is 
represented as temporary, that wages and working conditions of U.S. 
workers will not be adversely affected, and that the DOL's employment 
policies were observed.

VIII. Validity of Temporary Labor Certifications

    A temporary labor certification is valid only for the number of 
aliens, the occupation, the area of employment, the specific occupation 
and duties, the period of time, and the employer specified on the 
Application for Alien Employment Certification, ETA Form 750.

[FR Doc. E7-7521 Filed 4-19-07; 8:45 am]
BILLING CODE 4510-FN-P