1. What is a D-1 crewmember certification?
2. Are there other exceptions?

1. What is a D-1 crewmember certification?
   
   Performance of longshore work at U.S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exceptions. One such exception requires an employer to file an attestation stating that it is the prevailing practice for the activity at that port, there is no strike or lockout at the place of employment, and that notice has been given to U.S. workers or their representatives.
   
   
2. Are there other exceptions?
   
   Another exception requires that, before using alien crewmen to perform longshore activities in the State of Alaska, the employer will make a bona fide request for and employ U.S. longshore workers who are qualified and available in sufficient numbers from contract stevedoring companies, labor organizations recognized as exclusive bargaining representatives of United States longshore workers, and private dock operators.

1. Which visa classifications require the filing of a Labor Condition Application (LCA)?
2. What is the definition of a "specialty occupation"?
3. Can I file the LCA by fax?
4. How do I obtain H-1B Disclosure Information?
5. How do I file an H-1B complaint?
6. Is there a fee to file a Labor Condition Application (LCA) with the Department of Labor for the H-1B, H-1B1 or E-3 programs?
7. As an employer, attorney or agent how do I change my iCERT System account access information?
   
   

1. Which visa classifications require the filing of a Labor Condition Application (LCA)?
   An employer seeking to file an H-1B, H-1B1, or E-3 visa application must first file an LCA with the Department. The H-1B visa classification includes workers in specialty occupations and fashion models of distinguished merit and ability. The H-1B1 visa classification includes workers in specialty occupations and is limited to nationals of Singapore and Chile. The E-3 visa classification includes workers in specialty occupations and is limited to nationals of Australia.
   

   Posted February 17, 2011



2. What is the definition of a "specialty occupation"?
   For purposes of the H-1B, H-1B1 and E-3 programs, the Department's regulations define a specialty occupation as an occupation that requires theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor's degree or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States.
   

   Posted February 17, 2011



3. Can I file the LCA by fax?
   No. The Department does not accept LCAs filed by fax.
   

   Posted February 17, 2011



4. How do I obtain H-1B Disclosure Information?
   You can access H-1B disclosure information from our website at http://www.flcdatacenter.com.
   

   Posted February 17, 2011
   
   

5. How do I file an H-1B complaint?
   Complaints should be filed with the Wage and Hour Division local office which has jurisdiction over the physical location of the employer. Check the 'blue pages' in the local telephone book or http://www.dol.gov/whd/america2.htm#Map.
   
   The form to file a complaint (Form WH-4) can be downloaded at http://www.dol.gov/whd/forms/fts_wh4.htm
   
   Complaints on not fulfilling the attestations and pay go to the Wage and Hour Division, while complaints of fraudulent or misrepresented applications (e.g. the company does not exist or never employs the individuals, or someone who is not a representative of the employer signs the application) go to the Office of Inspector General (OIG) which then generally works with the Department of Justice (DOJ) to investigate. The Wage and Hour Division will forward fraud cases appropriately.
   

   Posted February 17, 2011
   

6. Is there a fee to file a Labor Condition Application (LCA) with the Department of Labor for the H-1B, H-1B1 or E-3 programs?
   No. There is no fee to the employer or worker to file an LCA with the Department of Labor.
   
   

   Posted March 27, 2012
   

7. As an employer, attorney or agent how do I change my iCERT System account access information?
   

   To change your iCERT System account access information, the OFLC Portal Technical Help Desk will need the following information on the business letterhead of the account holder:

   1. action to be taken on the account
   2. reason for the account change
   3. account username
   4. full name of the original contact person on the account (if different from the requestor)
   5. full name of the new contact person on the account (if applicable)
   6. name of the business
   7. current business phone number to contact
   8. current business e-mail address to contact
   9. Federal Employer Identification Number (FEIN)
   10. effective date of the change

    

   This request and any other technical assistance questions related to your iCERT System account may be e-mailed to the OFLC Portal Technical Help Desk at oflc.portal@dol.gov.Account change requests that cannot be e-mailed as PDFs may be sent to us via fax on (202) 693-2768 or U.S. mail to the following address:

   Office of Foreign Labor Certification
   Employment and Training Administration
   200 Constitution Avenue, NW, Room C-4312
   Washington, DC 20210
   Attn: LCA Program iCERT Account

   
   

   Posted March 27, 2012
   

1. How does an employer initiate the process to hire an H-1B, H-1B1 or E-3 worker?
2. How does an employer petition to file an LCA by mail?
3. May I use the same LCA to request multiple positions?
4. May one LCA list multiple places of employment?
5. How does an employer in the Commonwealth of Northern Mariana Islands (CNMI) initiate the process to hire an H-1B, H-1B1 or E-3 nonimmigrant worker?
   
   

1. How does an employer initiate the process to hire an H-1B, H-1B1 or E-3 worker?
   In order to employ a nonimmigrant worker in H-1B, H-1B1 or E-3 status, an employer must complete and file electronically the Labor Condition Application (LCA), through the iCERT Portal System no more than 6 months before the initial date of intended employment. Employers with physical disabilities or those who lack Internet access may file by mail but must first receive permission from the Office of Foreign Labor Certification (OFLC) to do so.
   

   Posted February 17, 2011




2. How does an employer petition to file an LCA by mail?
   Employers with physical disabilities or those who lack Internet access and cannot electronically file the ETA Form 9035E through the iCERT Portal System must petition the Administrator of OFLC for approval to file an LCA on the ETA Form 9035 in paper format by mail. The employer must send the written request to:

   Administrator, Office of Foreign Labor Certification
   Employment & Training Administration
   U.S. Department of Labor
   Room C-4312
   200 Constitution Avenue, NW
   Washington, DC 20210

   The employer's written request must establish the need to file by mail, and include an explanation of physical disability or lack of Internet access. The employer should be prepared to submit supporting documentation if requested by the OFLC.  The OFLC Administrator must approve the request before the employer may file by mail.

   Posted February 17, 2011





3. May I use the same LCA to request multiple positions?
   Yes. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification, and are either all part-time or all full-time positions. However, an employer must file separate LCAs for:

   1. Workers in different visa categories, e.g. an H-1B position and an E-3 position may not be requested on the same ETA Form 9035/9035E;
   2. Nonimmigrant workers in different job classifications, e.g. a computer systems analyst (Standard Occupational Code [SOC] 15-0051.00) and a software engineer (SOC 15-0032.00) must be listed on separate applications;
   3. Full-time or part-time positions; and/or
   4. Exempt and non-exempt nonimmigrant workers for H-1B dependent employers and/or willful violators as indicated in Item I of the LCA.

   Posted February 17, 2011




4. May one LCA list multiple places of employment?
   Yes. An employer's ETA Form 9035/9035E must list all of the places of intended employment that are identified at the time of filing.  The ETA Form 9035E (electronic format) can accommodate up to three places of intended employment.  For employers who have received pre-approval to submit an LCA by mail, since the ETA Form 9035 (paper format) can only accommodate one place of intended employment, the employer may submit an attachment identifying up to two additional worksites. An employer may file additional LCAs to identify additional places of employment beyond the three places listed on the original application.
   
   Employers should note that the LCA must reflect an appropriate prevailing wage that corresponds to each place of intended employment; i.e. it must be the prevailing wage for the area of intended employment as defined by the Department's regulations.
   

   Posted February 17, 2011




5. How does an employer in the Commonwealth of Northern Mariana Islands (CNMI) initiate the process to hire an H-1B, H-1B1 or E-3 nonimmigrant worker?
   The LCA filing process for an employer in the CNMI is the same as the LCA process outlined above.
   

   Posted February 17, 2011
   

1. When I submit an LCA through the iCERT Portal System, will I receive notification of the status of my application?
2. I just received a denial of an LCA giving the reason of an invalid Federal Employer Identification Number (FEIN) as assigned by the Internal Revenue Service (IRS). How do I correct this?
3. I am filing on behalf of a new company, created through a recent merger. How do I get the information to DOL to avoid a denial?
4. What contact information should I enter in Section D (Employer Point of Contact Information) of the LCA Form ETA 9035 & 9035E?

1. When I submit an LCA through the iCERT Portal System, will I receive notification of the status of my application?
   
   Yes. When you submit an LCA through the iCERT Portal System at http://icert.doleta.gov, you will receive a courtesy email confirming that your application has been submitted. You will also receive an email when your application has been processed, providing you with the final determination on your application. If you do not receive email notification of the final determination after seven (7) working days, you may check the status of your LCA by logging onto the iCERT Portal System. If you cannot obtain status of your LCA from the iCERT Portal System, please contact the LCA Help Desk at LCA.Chicago@dol.gov. For technical or system problems concerning the iCERT Portal System or submission of your LCA, please contact the iCERT Portal System Help Desk at OFLC.Portal@dol.gov.
   
   Please note: You may check the status of your LCA at any time after submission by logging onto the iCERT Portal System.
   

   Posted February 17, 2011
   
   

2. I just received a denial of an LCA giving the reason of an invalid Federal Employer Identification Number (FEIN) as assigned by the Internal Revenue Service (IRS). How do I correct this?

   Denial for the FEIN value means that the FEIN entered in Section C.12 of the ETA
   Form 9035E by the employer could not be currently verified by the OFLC as a valid nine digit FEIN assigned by the IRS. When the employer receives a denial of an LCA on this ground, it also receives additional instructions from Chicago National Processing Center (CNPC) on how to resubmit an LCA. In order for the employer to overcome the issue identified on the denial determination for any future LCAs submitted using the denied FEIN, the employer will first need to submit at least one document that clearly displays the FEIN and the name of the employer associated with the unique identification number. Such documents may include:

   • Documentation from IRS noting assignment of FEIN
   • Federal or State tax return (only acceptable with a preprinted label) or a preprinted tax coupon
   • Documentation from employer's financial institution showing employer's FEIN
   • Articles of incorporation, business license, or other certifications of business existence
   • Secretary of State or Corporation Commission registration documents
   • Official and/or government documents
   • Other documentation showing the FEIN and name of the employer

   In order to expedite the process, you may either fax, email as a PDF attachment, or mail the requested information to the following:

   FAX: (312) 353-6757. On the cover page of the fax, please write "LCA Business
   Verification Team Proof of Valid FEIN", or

   EMAIL: LCA.Chicago@dol.gov. In the Subject Line, please write "LCA Business Verification Team Proof of Valid FEIN", or

   MAIL: Attn: LCA Business Verification Team Proof of Valid FEIN
   U.S. Department of Labor
   Employment and Training Administration
   Office of Foreign Labor Certification,
   Chicago National Processing Center
   11 West Quincy Court
   Chicago, IL 60604-2105
   

   The employer will be notified via email after the requested information has been reviewed. Only then should the employer submit a new LCA.

   Posted June 17, 2010



3. I am filing on behalf of a new company, created through a recent merger. How do I get the information to DOL to avoid a denial?
   The employer who is a "new" company (created through a merger, acquisition, sale, etc.) may submit the documentation described above to establish its new FEIN. It may then file an LCA.
   

   Posted June 17, 2010



4. What contact information should I enter in Section D (Employer Point of Contact Information) of the LCA Form ETA 9035 & 9035E?
   The employer must enter the contact information of the employee who is authorized to act on behalf of the employer. This cannot be an agent or attorney, unless the agent or attorney is a direct employee of the employer.
   

   Posted June 17, 2010

1. What are the LCA requirements?
2. Under the Department's regulations, what are the employer's obligations with respect to hiring a national of Chile or Singapore?
3. Under the Department's regulations, what are the employer's obligations with respect to hiring an Australian national?
   
   

1. What are the LCA requirements?
   In order to prevent an adverse effect on the U.S. workforce, an employer applying to temporarily hire a nonimmigrant worker in H-1B, H-1B1 or E-3 status must attest that it has met or will meet the following requirements:

   • Wages: Pay the required wage to the workers for whom it will file a petition supported by the LCA for the duration of the authorized period of employment;
   • Working Conditions: Provide the nonimmigrant workers working conditions that will not adversely affect the working conditions of U.S. workers similarly employed, such as hours, shifts, vacation periods, and benefits based on the same criteria as those the employer offers to its U.S. workers;
   • No Strike/Lockout: Ensure that there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment at the time of filing the ETA Form 9035/9035E; and
   • Notice: Notify its U.S. workers that it intends to hire an H-1B, H-1B1 or E-3 nonimmigrant worker by either providing notice of the LCA to the bargaining representative (representing the workers of the employer in the same job classification and area of intended employment as the nonimmigrant worker), or where there is no bargaining representative, providing electronic notice of the filing of the LCA or by posting notice of the LCA in at least two conspicuous locations in the employer's place(s) of business in the area of intended employment. The notice must contain specific information about the nonimmigrant workers sought and the process for submitting allegations of misrepresentation or non-compliance related to the LCA. Since the ETA Form 9035/9035E contains this information, employers may choose to comply with the notice requirement by providing or posting a copy of the ETA Form 9035/9035E.

   In addition, the employer must provide the nonimmigrant worker(s) with a copy of the certified ETA Form 9035/9035E no later than the first day on which the foreign worker begins to work for the employer.
   
   An employer who is H-1B dependent or a willful violator must also attest that it has met or will meet the following requirements:

   • Displacement: Non-displacement of the U.S. workers in the employer's workforce;
   • Secondary Displacement: Non-displacement of the U.S. workers in another employer's workforce; and
   • Recruitment and Hiring: Recruitment of U.S. workers and hiring of U.S. workers applicant(s) who are equally or better qualified than the H-1B non-immigrant(s).

   Posted February 17, 2011





2. H-1B1

   Under the Department's regulations, what are the employer's obligations with respect to hiring a national of Chile or Singapore?
   For the most part, the obligations of an employer filing an LCA with the Department where the beneficiary is either a national of Chile or a national of Singapore in the H-1B1 visa category are virtually the same as those applicable to employers hiring H-1B workers.
   
   However, there are some differences in the H-1B1 visa category. The employer filing an LCA to hire a national of Chile or Singapore in the H-1B1 visa category must make one of the following appropriate notations on its ETA 9035: "H-1B1-Chile" or "H-1B1-Singapore".
   
   In addition, Section 20 CFR 655.700(d) of the Department's regulations provides a list of regulatory provisions that do not apply to the H-1B1 visa category, including: numerical visa cap provisions (note: the H-1B1 visa category is subject to a separate cap of 6,800 (1,400 for Chile and 5,400 for Singapore) initial visas annually); the provisions regarding the North American Free Trade Agreement; certain provisions for filing complaints; certain provisions regarding the H-1B dependent employers or willful violators; provisions regarding changes in the employer's corporate structure or identity; provisions regarding short-term placement of H-1B foreign workers outside the area of intended employment; the provision defining H-1B dependent employers and willful violators; provisions regarding exempt H-1B workers; certain non-displacement provisions applicable to H-1B dependent employers and willful violators; provisions regarding recruitment of U.S. workers applicable to H-1B dependent employers and willful violators; and certain public examination of records requirements. This section also includes specific filing procedures for employers applying to hire foreign workers in the H-1B1 visa category with paragraphs (5) and (6) of the section applying to Chile and Singapore, respectively.
   

   Posted February 17, 2011




3. E-3

   Under the Department's regulations, what are the employer's obligations with respect to hiring an Australian national?
   For the most part, the obligations of an employer filing an LCA with the Department where the beneficiary is an Australian national in the E-3 visa category are virtually the same as those applicable to employers hiring H-1B foreign workers.
   
   However, there are some differences for the E-3 visa category. The employer filing an LCA to hire an Australian national in the E-3 visa category must make the following notation on its ETA Form 9035/9035E - "E-3 Australia".

   In addition, Section 20 CFR 655.700(d) of the Department's regulations provides a list of regulatory provisions that do not apply to the E-3 visa category including: numerical visa cap provisions (note: the E-3 visa category is subject to a separate cap of 10,500 initial visas annually); the provisions regarding the North American Free Trade Agreement; certain provisions for filing complaints; certain provisions regarding the H-1B dependent employers or willful violators; provisions regarding changes in the employer's corporate structure or identity provisions regarding short-term placement of H-1B foreign workers outside the area of intended employment; the provision defining H-1B dependent employers and willful violators; provisions regarding exempt H-1B workers; certain non-displacement provisions applicable to H-1B dependent employers and willful violators; provisions regarding recruitment of U.S. workers applicable to H-1B dependent employers and willful violators; and certain public examination of records requirements. This section also includes specific filing procedures for employers applying to hire foreign workers in the E-3 visa category.

   Posted February 17, 2011

   
   

1. What is the required wage for purposes of the LCA program?
2. How does an employer determine the prevailing wage for purposes of the LCA program?
3. Why might an employer want to obtain a PWD from the National Prevailing Wage Center (NPWC)?
4. If an employer requests a PWD from the National Prevailing Wage Center (NPWC), does it have to obtain a determination from the NPWC before filing the LCA?
5. If an employer has received a prevailing wage determination from the NPWC how should the employer enter the PWD on the LCA?
6. When should an employer mark the box for "Other" in Item G.11 (prevailing wage source) of the ETA Form 9035/9035E?
7. What wage sources qualify as "independent authoritative sources" for purposes of determining the prevailing wage in the LCA program?
8. How should an employer identify a prevailing wage survey on the LCA?
9. What should the employer list as the prevailing wage if its elected wage source provides a wage that is lower than the applicable Federal, State or local minimum wage?
10. May an employer list the prevailing wage on the LCA in the form of an annual salary?
11. How should the employer list wage rates on the ETA 9035/9035E if the nonimmigrant is employed in a part-time capacity?
12. What are an H-1B employer's pay obligations with respect to a nonimmigrant worker in nonproductive status?
13. How can an employer enter an untitled custom survey on the LCA?
14. As an employer filing an LCA, where can I obtain a list of acceptable prevailing wage source surveys for Section G of the ETA Form 9035/9035E?

1. What is the required wage for purposes of the LCA program?
   The required wage is the wage the employer must pay to its foreign workers in the H-1B, H-1B1 and E-3 visa categories for the entire period of authorized employment, as approved by the Department. The required wage rate must be the higher of the actual wage rate (the rate the employer pays to all other individuals with similar experience and qualifications who are performing the same job), or the prevailing wage (a wage that is predominantly paid to workers in the same occupational classification in the area of intended employment at the time the application is filed). In addition, an employer is not permitted to pay a wage that is lower than a wage required under any other applicable Federal, State or local law.
   

   Posted February 17, 2011



2. How does an employer determine the prevailing wage for purposes of the LCA program?
   Although the Department's regulations governing the LCA process do not require an employer to use any specific wage methodology to determine the prevailing wage, they do require that the prevailing wage be based on the best information available at the time the employer files an application. An employer filing an LCA may, but is not required to, request a prevailing wage determination (PWD) from the OFLC's National Prevailing Wage Center (NPWC) by U.S. mail or through the iCERT Portal System. In the absence of a PWD issued by the NPWC, the employer may consider the following wage sources in determining the prevailing wage:
   1. A wage rate set forth in a collective bargaining agreement (CBA), or
   2. If the job opportunity is in an occupation which is not covered by a CBA:
   • A wage rate for the occupation and area of intended employment under the Davis-Bacon Act (DBA);
   • A wage rate for the occupation and area of intended employment issued under the McNamara-O'Hara Service Contract Act (SCA);
   • A wage rate produced by a survey conducted by an independent authoritative source that meets the requirements set forth in 20 CFR 655.731; or
   • A wage rate produced by another legitimate source of information, including the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) data available through the iCERT Portal System and the FLC Data Center.
   Under the American Competitiveness and Workforce Improvement Act (ACWIA), as implemented by the Department's regulations, the prevailing wage for employees of an institution of higher education, an affiliated or related nonprofit entity, a nonprofit research organization, or a governmental research organization must be based only on the wages of similarly employed employees of such institutions in the area of intended employment. The ACWIA wages may be accessed through the iCERT Portal System and the FLC Data Center.
   
   For more information on the process of obtaining a PWD from the NPWC, please consult the Prevailing Wage Determination Policy Guidance and the Prevailing Wage FAQs on the OFLC web site.
   
   

   Posted February 17, 2011




3. Why might an employer want to obtain a PWD from the National Prevailing Wage Center (NPWC)?
   Under the Department's regulations, the Department will deem the PWD from the NPWC as correct as to the amount of the wage in the event of an investigation by the Wage and Hour Division. However, this "safe harbor" does not protect an employer who has failed to pay the higher of the actual wage or the prevailing wage, and/or who has paid a wage that is lower than a wage required under any other applicable Federal, State or local law.
   

   Posted February 17, 2011
   

4. If an employer requests a PWD from the National Prevailing Wage Center (NPWC), does it have to obtain a determination from the NPWC before filing the LCA?
   No. The employer does not need to obtain the PWD from the NPWC prior to filing the LCA. However, if the employer requests a PWD, but does not wait to obtain the PWD before submitting the LCA, the employer must consider the following:
   • The employer may list the PWD from the NPWC as its prevailing wage source in Section G of the ETA Form 9035/9035E only if it has a PWD issued and valid on the day it submits the LCA. If the employer intends to file an LCA listing the NPWC-issued PWD as the source of the prevailing wage, it must wait until the NPWC actually issues the final PWD before submitting the LCA. The employer may not use iCERT tracking numbers and wage rates requested on the ETA 9141, in lieu of an actual final NPWC prevailing wage determination. Listing an NPWC-issued prevailing wage on an LCA operates as an endorsement of that wage and forecloses the employer's ability to appeal the PWD after filing the LCA.
   • If the employer wishes to qualify for the "safe harbor" discussed in the previous FAQ, the employer must request a PWD from the NPWC and file an LCA during the prevailing wage validity period specified on the ETA Form 9141. If the employer cannot wait for the NPWC to issue the PWD before filing its LCA, the employer may instead rely on another legitimate source of available wages so long as the employer retroactively compensates the H-1B, H-1B1 or E-3 nonimmigrant for the difference between the wage the employer paid in reliance on the other legitimate wage source and the prevailing wage, if higher. Please see 20 CFR 655.731(a)(2)(ii)(A)(2).

   Posted February 17, 2011




5. If an employer has received a prevailing wage determination from the NPWC how should the employer enter the prevailing wage determination on the LCA?
   ETA Form 9035/9035E instructions for Item G.7 require the employer to identify either the State, district or territory where the prevailing wage was issued or the agency which issued the prevailing wage. However, as of January 1, 2010, prevailing wage determinations are only provided by the NPWC. Accordingly, an employer who has received a prevailing wage determination from the NPWC by mail or through the iCERT Portal System must enter under item G.7 either "District of Columbia" (for the State/district/territory) or "NPWC" (for the National Prevailing Wage Center) or both. An employer who has received a PWD from the NPWC must also enter the prevailing wage tracking number under Item G.7a.
   

   Posted February 17, 2011




6. When should an employer mark the box for "Other" in Item G.11 (prevailing wage source) of the ETA Form 9035/9035E?

   Item G.11 of the ETA Form 9035/9035E specifically lists four prevailing wage sources: Occupational Employment Statistics (OES), Collective Bargaining Agreement (CBA), Davis-Bacon Act (DBA), and McNamara-O'Hara Service Contract Act (SCA). When an employer uses one of these sources, it must mark the box next to the prevailing wage source it used. When the employer uses a prevailing wage source not specifically listed in Item G.11, it must mark the box for "Other," and list the specific prevailing wage source used in item G.11b.

   Important note: Pursuant to the instructions accompanying the ETA Form 9035/9035E, if an employer obtained a prevailing wage using OES data from the Foreign Labor Certification Data Center Online Wage Library at http://www.flcdatacenter.com (not the National Prevailing Wage Center), then the employer must specify "OFLC Online Data Center" in item G.11b of the ETA Form 9035/9035E. Additionally, if the employer obtained a prevailing wage using the same OES data available from the iCERT Portal System, the employer should likewise specify "OFLC Online Data Center" in item G.11b of the ETA Form 9035/9035E.
   

   Posted February 17, 2011




7. What wage sources qualify as "independent authoritative sources" for purposes of determining the prevailing wage in the LCA program?
   The term "independent authoritative source" (defined in 20 CFR 655.715) refers to any professional, business, trade, educational or governmental association, organization, or other similar entity, which is not owned or controlled by the employer and which has recognized expertise in a particular occupational field. As explained above, for purposes of prevailing wage determinations, an employer may use or request the consideration (by the NPWC) of a published survey of wages produced by an independent authoritative source. The independent authoritative source survey must meet three main requirements:
   1. It must reflect the average wage (i.e. the weighted average or, if the survey provides a median rather than a weighted average, the median) paid to U.S. workers who are similarly employed in the area of intended employment;
   2. It must be based on recently collected data, e.g. data that was collected during the 24-month period before the date on which the survey was published; and
   3. The survey must be the most recent survey published by that independent authoritative source for the occupation in the area of intended employment.
   Please see 20 CFR 655.715. The Department published a non-comprehensive sample list of generally acceptable wage surveys applicable to LCA program on its Web site in the form of the ETA Form 9035CP - General Instructions for 9035 & 9035E; Appendix II: Sample of Acceptable Wage Survey Sources. Employers should note that the acceptability of a particular wage source is a determination that is made on a case-by-case basis.
   

   Posted February 17, 2011




8. How should an employer identify a prevailing wage survey on the LCA?
   An employer using an independent authoritative source survey or another legitimate source of wages (a prevailing wage survey) must mark "Other" in Item G.11 and specifically identify the prevailing wage source in Item G.11b of the ETA Form 9035/9035E. Where the employer is relying on a private survey as the source of the prevailing wage, the employer must enter both the company name and the survey title in Item G.11b. If the complete survey company name and the complete survey title do not fit into the available space in Item G.11b, the employer should enter as much information as possible to clearly identify the survey company name and the survey title.
   
   While an employer may abbreviate words contained in the survey company name and title where necessary to fit into the space provided in item G.11b, the information provided by the employer must be sufficient to ensure that both the survey company name and the survey title are obviously identifiable. If the title of a survey includes the year the survey was conducted, the employer should not include the year in the survey title entry in Item G.11.b but should only enter the year in Item G.11.a.
   
   
   

   Example: In 2009, Watson Wyatt published a survey entitled Survey Report on Top Management Compensation, May 29, 2009. The survey should have appeared in Section G under Items 11, 11.a and 11.b as follows:

   *Item 11. Prevailing wage source (Choose only one): Other
   *Item 11a. Year source published: 2009
   §Item 11b. If "OES" and SWA did not issue prevailing wage OR "Other" in question
   11, specify source: Watson Wyatt: Survey Report on Top Management
   Compensation

   (*)indicates the field response is required

   (§)indicates the field response is conditionally based on a response provided in a required field

   For additional information about prevailing wage survey entries, please refer to the ETA Form 9035CP - General Instructions for 9035 & 9035E; Appendix II: Sample of Acceptable Wage Survey Sources.
   

   Posted February 17, 2011




9. What should the employer list as the prevailing wage if its elected wage source provides a wage that is lower than the applicable Federal, State or local minimum wage?
   The Department's regulations require that the employer pay the H-1B nonimmigrant the greater of the actual wage (rate of pay) or the prevailing wage and prohibit an employer from paying less than a wage required by any applicable Federal, State or local law. Where the employer's elected wage source provides a wage that is lower than the applicable Federal, State or local minimum wage, the employer must list the highest applicable minimum wage in Section G of the ETA Form 9035/9035E as the prevailing wage. Please refer to the example below (based on the current Federal minimum wage):

   Example:

   *Item 9. Prevailing wage: $7.25
   *Item 11. Prevailing wage source (Choose only one): Other
   *Item 11.a Year source published: 2009
   §Item 11b. If "OES", and SWA/NPC did not issue prevailing wage OR "Other" in
   question 11, specify source: Federal Minimum Wage
   
   Important note: Employers may only list the most recent source of minimum wage information. In addition, an employer must retain documentation of the applicable minimum wage source consistent with the Department's regulations.
   

   (*)indicates the field response is required

   (§)indicates the field response is conditionally based on a response provided in a required field

   Posted February 17, 2011





10. May an employer list the prevailing wage on the LCA in the form of an annual salary?
    Yes. An employer may list the prevailing wage on the LCA in the form in which the employer intends to pay the wage, except where the job opportunity is for part-time employment, in which case the employer must list the prevailing wage as an hourly rate.
    
    

    Posted February 17, 2011




11. How should the employer list wage rates on the ETA 9035/9035E if the nonimmigrant is employed in a part-time capacity?
    Since the number of work hours for part-time employment may vary, the employer should enter the wage rates in both Item F.1 (Rate of Pay) and Item G.9 (Prevailing Wage) on the ETA 9035/9035E in the form of an hourly wage. The employer may use the example below as a model for converting annual wage rates into hourly wage rates. Employers may also use prevailing wage sources which provide hourly prevailing wage rates.

    Example: If the Rate of Pay minimum wage rate for a worker to be paid is $50,000 annually at 40 hours per week, the calculation is as follows:

    52 weeks x 40 hours per week= 2080 hours per year
    $50,000 per year/ 2080 hours per year= $24.04 per hour

    If the Rate of Pay minimum wage rate for a worker to be paid is $50,000 annually at 30 hours per week, the calculation is as follows:

    52 weeks x 30 hours per week= 1560 hours per year
    $50,000 per year/ 1560 hours per year = $32.05 per hour
    
    

    Posted February 17, 2011
    
    

12. What are an H-1B employer's pay obligations with respect to a nonimmigrant worker in nonproductive status?
    An H-1B employer is required to pay a nonimmigrant H-1B worker who is not working and is in nonproductive (not producing income for the employer) status as follows:
    • As to full-time salaried nonimmigrant workers, the employer must pay that worker the full pro-rata amount due.
    • As to full-time hourly wage nonimmigrant workers, the employer must pay that worker for a full-time workweek (40 hours, unless the employer can demonstrate that a different number of hours constitutes full-time employment).
    • Part-time nonimmigrant workers must be paid for at least the number of hours indicated on the USCIS petition, and where that number is represented by a range, the employer is required to pay for at least the average number of hours within the range normally worked by the nonimmigrant worker. The employer may not pay the nonimmigrant worker less than the amount corresponding to the minimum number of hours in the range.
    • An employer is not required to pay a nonimmigrant work for nonproductive status if it is based on a decision by the nonimmigrant worker to make him/herself unavailable to work (provided the worker's unavailability is due to conditions unrelated to employment which take the worker away from his/her duties at that worker's voluntary request or convenience or render the nonimmigrant unable to work in accordance with 20 CFR 655.731(c)(7)(ii), and the time is not subject to payment under the employer's benefit plan or other statutes).

    Posted February 17, 2011

    
    
13. How can an employer enter an untitled custom survey on the LCA?

    If an employer obtains and uses a custom-made survey that conforms to the prevailing wage source requirements contained at 20 CFR 655.731, the employer must mark “Other” in Item G.11 and specifically identify the prevailing wage source in Item G.11b of the ETA Form 9035/9035E. In Item G.11b, the employer must enter both the name of the company that provided the wage source, and the words “custom survey” to identify an untitled custom survey source. An employer may use acronyms and abbreviations to identify the company name so long as the employer includes sufficient information in Item G.11b to ensure that the company name is obviously recognizable and the words “custom survey” appear.
    
    Important Note:The words “custom survey” may only be entered on the ETA Form 9035/9035E when the employer is identifying a custom-made wage survey it has obtained for the occupation.

    Example: If the employer obtains and uses a custom-made wage survey conducted in 2012 from a company called “XYZ Wage Surveys, Incorporated”, the ETA Form 9035/9035E Section G.11 should be completed in the following manner:

    Item	Form Item Name	Example Entry on ETA Form 9035/9035E
    G.11	Prevailing wage source (choose only one)	Other
    G.11a	Year source published	2012
    G.11b	If “OES” and NPC did not issue prevailing wage OR “Other” in question 11, specify source:	XYZ Wage Surveys: Custom Survey

    
    

    Posted March 27, 2012

14. As an employer filing an LCA, where can I obtain a list of acceptable prevailing wage source surveys for Section G of the ETA Form 9035/9035E?
    

    The OFLC does not maintain a list of acceptable wage source survey instruments for purposes of processing the ETA Form 9035/9035E. An employer preparing an LCA must select a wage source that complies with the Department's regulations at 20 CFR 655.731 and identify that wage source on the ETA Form 9035/9035E. This information must be obviously recognizable from a revie w only of the information entered on the ETA Form 9035/9035E. When completing the application, the survey entry in Item G.11b must contain the name of the survey company and the exact title of the survey used. The survey title entered must be for the most recent applicable survey published.

    While the OFLC does not maintain a separate list of acceptable wage source survey instruments, the OFLC publishes on our web site LCA Disclosure Data on a quarterly and annual basis which includes certified LCAs with their Item G.11b wage source entries. The LCA Disclosure Data can be found here, and a table listing examples of commonly used prevailing wage surveys from FY 2011 LCAs is provided below. LCA Disclosure Data may be helpful to an employer as a list of potentially acceptable wage sources; however, the OFLC does not endorse specific wage source surveys or otherwise guarantee that wage source entries appearing in LCA Disclosure Data meet all regulatory requirements or will be approved in future-filedLCAs.

    Each employer must ensure that the wage source it relies on meets the regulatory requirements. For example, a wage source entry that was acceptable in a previous year may no longer reflect the current title of the latest wage survey publication or may no longer meet the requirements under 20 CFR 655.731. Wage survey source entries in Item G.11b must correspond to survey instruments ava ilable in the year entered in Item G.11a; the OFLC will deny an LCA where the wage survey source entry in Item G.11b does not match the year in Item G.11a. Moreover, wage survey source entries in Item G.11b must reflect the most recent publication of the specific survey at the time of LCA submission. The OFLC will deny an LCA with an otherwise acceptable wage survey source entry where, in Items G.11a and G.11b, the LCA identifies a version of the survey other than the most recent publication.

    Important Reminder: Acceptability of wage source entries in Item G.11b may vary due to abbreviations, spacing and special characters, since the OFLC's review of Item G.11b of the ETA Form 9035/9035E, the prevailing wage source, is limited to the information entered by an employer on the application. Upon submission of the application, employers attest that the prevailing wage information entered on the application complies with the Department's regulations at 20 CFR 655.731.

    Table: Examples of Commonly Used Prevailing Wage Surveys on FY 2011 LCAs
    from the LCA Disclosure Data*

    Item G.11a	Item G.11b
    2011	AAMC Survey of Resident Fellow Stipends & Benefits
    2011	Pearl Meyer & Partners CHIPS One Survey
    2011	Radford Global Technology Survey
    2011	Towers Watson General Industry Specialized Professional Compensation Survey Report
    2011	Dietrich Associates Inc. Fall Engineering Salary Survey
    2011	Human Resource Association of the National Capital Area Compensation Survey Report
    2011	CUPA Mid Level Administrative and Professional Salary Survey
    2011	Mercer US - Mercer Benchmark Database Finance, Accounting & Legal
    2011	The Survey Group: Software and Technology Survey
    2011	Culpepper Compensation Surveys & Services: Life Sciences Compensation Report

    * Note: The Department does not endorse specific wage source surveys or otherwise guarantee that wage source entries appearing in the examples will be approved in future LCAs.

Posted March 27, 2012

1. What must an employer do to comply with the notice requirement when there is no bargaining representative?

1. What must an employer do to comply with the notice requirement when there is no bargaining representative?
   Where there is no bargaining representative, the employer must post a notice meeting the requirements of 20 CFR 655.734. A copy of the completed ETA Form 9035 /9035E can serve as the notice, but is not required to be posted as long as all of the required information set forth at 20 CFR 655.734(a)(1)(ii) is in fact posted The notice must be posted on or within 30 days before the filing date. Each notice must remain posted for a total of 10 days.
   
   Posting may occur through one of two methods: hard copy notice or electronic notice. The hard copy notice must be posted in at least two conspicuous locations in each employment location where an H-1B, H-1B1, or E-3 nonimmigrant worker will be employed. Appropriate locations for posting notice include, but are not limited to, near Wage and Hour Division notices or Occupational Safety and Health Administration notices. If the employer is providing electronic notice, it must notify employees in the occupational classification for which the H-1B nonimmigrant is sought (including both the direct employees of the H-1B employer and employees of a secondary/downstream employer where the H-1B worker will actually be placed). Electronic notification may be provided by whatever means the H-1B employer and/or secondary employer normally uses to communicate with its workers including electronic postings (e.g., e-mail, bulletin board, and home web page). The same time frames that apply to electronic notice apply to hard copy notice.

   Posted February 17, 2011

1. Is an employer required to offer a certain minimum number of hours to an H-1B, H-1B1 or E-3 nonimmigrant worker?
   
   

1. Is an employer required to offer a certain minimum number of hours to an H-1B, H-1B1 or E-3 nonimmigrant worker?
   The employer must offer the nonimmigrant worker the number of hours specified in the USCIS petition (incorporating the LCA) and which constitute either full-time or part-time employment.
   

   Posted February 17, 2011

1. Is an employer who has already filed an LCA required to submit a new LCA if it changes its permanent business location, but remains within the same Metropolitan Statistical Area (MSA), i.e. within the same area of intended employment?
2. What are the employer's obligations when the employer transfers and/or assigns a nonimmigrant worker to a worksite listed on an approved LCA within the area of intended employment?
3. May an employer who previously filed an LCA file a subsequent LCA for the same beneficiary(ies) if the new LCA reflects a different period of employment than that listed on the initial application
4. What are the employer's obligations with respect to its nonimmigrant workers when there is a change in the employer's corporate structure or identity?
5. What is required with respect to a sworn statement when there is a change in an employer's corporate structure or identity?
6. How do I withdraw a certified LCA (ETA 9035/9035E) after receiving certification from the Department of Labor through the iCERT Portal System?
   
   

1. Is an employer who has already filed an LCA required to submit a new LCA if it changes its permanent business location, but remains within the same Metropolitan Statistical Area (MSA), i.e. within the same area of intended employment?
   If the new permanent business location is a place of employment within the meaning of 20 CFR 655.715 that was not contemplated at the time of filing, and the employer permanently relocates its nonimmigrant worker(s) to the new business location, the employer must post electronic or hard-copy notice(s) at those worksites on or before the date the H-1B nonimmigrant begins work. In addition, the employer may file a new LCA to reflect the new place of employment.
   

   Posted February 17, 2011

2. What are the employer's obligations when the employer transfers and/or assigns a nonimmigrant worker to a worksite listed on an approved LCA within the area of intended employment?
   The employer must ensure that there is no strike or lockout in the course of a labor dispute in the new place of employment in the same job classification before transferring the nonimmigrant worker to the new worksite that was previously identified on the approved LCA.
   Important note: H-1B-dependent employers and willful violators placing a non-exempt H-1B nonimmigrant worker(s) at a new place of employment also have an obligation to ensure that they are not displacing any U.S. worker(s) directly (in their own workforce) or secondarily (in the workforce of another employer at the place of employment). H-1B dependent employers and willful violators are defined in 20 CFR 655.736. Exempt H-1B nonimmigrants are defined in 20 CFR 655.737. Non-displacement obligations are described in 20 CFR 655.738.
   

   Posted February 17, 2011

3. May an employer who previously filed an LCA file a subsequent LCA for the same beneficiary(ies) if the new LCA reflects a different period of employment than that listed on the initial application?
   Yes. In addition, under the Department's regulations, employers who do not wish to be bound by the terms and conditions of an obsolete LCA may withdraw that LCA at any time before the expiration of its validity so long as the nonimmigrants covered by that LCA are not employed at the place of employment pursuant to that LCA, and the Department's Wage and Hour Division has not commenced an investigation of that particular LCA.

   Posted February 17, 2011

4. What are the employer's obligations with respect to its nonimmigrant workers when there is a change in the employer's corporate structure or identity?
   If an employing entity receives nonimmigrant workers under a valid and certified LCA from a previous employer as a result of a change in corporate structure or identity, the new employing entity is not required to file a new LCA (in order to continue to employ the nonimmigrant worker(s)), regardless of whether the new entity has the same Federal Employer Identification Number (FEIN), so long as the new employing entity:
   • Maintains a list of transferred nonimmigrant workers in its public access file(s); and
   • Maintains in a public access file a document containing all of the following:
   • The number of each affected LCA and date of certification;
   • A description of the new employing entity's actual wage system applicable to the transferred nonimmigrant workers;
   • The FEIN of the new employing entity (even if it is the same as the previous employer's);
   • A sworn Statement by the new employer or its authorized representative in which the new employing entity explicitly accepts all obligations and responsibilities inherent in the attestations of all affected (and valid) LCAs with respect to the transferred nonimmigrant workers. This statement must also include the new employing entity's acknowledgement of assuming all obligations, liabilities, and undertakings arising from or under attestations made in each certified and still effective LCA filed by the predecessor entity.

   No employing entity may use a transferred LCA to either hire new nonimmigrant workers or extend the status of any nonimmigrant worker. Instead, the new employing entity must initiate a new LCA process.
   

   Posted February 17, 2011

5. What is required with respect to a sworn statement when there is a change in an employer's corporate structure or identity?
   Any sworn statement made to the Department in connection with an approved LCA must be signed by the employer and, as listed on the LCA instructions (ETA Form 9035CP), should indicate that the employer is making such statement under penalty of perjury and understands that knowingly and willingly furnishing any false information, or aiding, abetting, or counseling another to do so is committing a federal offense, punishable by fine or imprisonment up to five years or both. The employer must maintain the sworn statement in its public access file.
   

   Posted February 17, 2011

6. How do I withdraw a certified LCA (ETA 9035/9035E) after receiving certification from the Department of Labor through the iCERT Portal System?

   An employer who received a certified LCA filed through the iCERT Portal System may withdraw a certified labor condition application (LCA) electronically through the iCERT Portal System, via email or written notice.
   
   A certified labor condition application (LCA) may be withdrawn at any time, provided the employee benefiting from the LCA is not currently working for the employer and the Administrator has not commenced an investigation. If an investigation has commenced, the LCA will remain pending until the investigation is complete.

   To withdraw a certified LCA using the iCERT Portal System, a Master account holder (Attorney/Employer) or Associate account holder (a subaccount user granted permission by the Master account holder) must login to the iCERT Portal System, select the certified LCA he or she wishes to withdraw and click the withdraw button. The user is required to select a withdrawal reason from a dropdown list and enter a case note explaining the reason for withdrawal. The system will ask the user to verify the request to withdraw the selected certified LCA. The user must click the verification button. Once the verification is made, the employer contact and the attorney contact, as listed on the LCA, will receive an email indicating the withdrawal was successful. If the user does not have the authority to withdraw the certified LCA, either because of LCA status or account status, the iCERT Portal System will not allow completion of the withdrawal. Withdrawing an LCA through the iCERT Portal System is the only option that guarantees confirmation once the withdrawal is complete.
   
   To withdraw a certified LCA via email, the employer must send the request to the LCA Help Center at: LCA.Chicago@dol.gov. The email subject line must include: Certified LCA Withdrawal Request. Please scan the certified LCA and attach it to the body of the email.
   
   In the body of the email, please provide: the employer's name and Federal Employer Identification Number (FEIN) if available, the LCA number, an explanation for why you are withdrawing the certified LCA, and provide a statement that no employee is working on the LCA pursuant to it being withdrawn. The user must access the iCERT Portal System to verify if the certified LCA was successfully withdrawn.
   
   To withdraw a certified LCA through written notice, the employer must send the written request to:
   Attn: LCA Withdrawal
   U.S. Department of Labor
   Employment and Training Administration
   Office of Foreign Labor Certification,
   Chicago National Processing Center
   11 West Quincy Court
   Chicago, IL 60604-2105
   
   Written notice must include: the employer's name and FEIN if available, the LCA case number, an explanation for why you are withdrawing the LCA, and verification that no employee is working on the LCA pursuant to it being withdrawn. The user must access the iCERT Portal System to verify if the certified LCA was successfully withdrawn.
   
   Please reference 20 Code of Federal Regulations 655.750(b) for further explanation of the requirements for withdrawing a certified LCA with the Department of Labor ETA.

   Posted June 17, 2010

1. What are an H-1B employer's obligations with respect to a nonimmigrant worker whose employment ends (e.g. termination, resignation, or move to another employer) prior to the end of the LCA validity period?

1. What are an H-1B employer's obligations with respect to a nonimmigrant worker whose employment ends (e.g. termination, resignation, or move to another employer) prior to the end of the LCA validity period?
   Under the Department's regulations, the employer is prohibited from charging a nonimmigrant worker a penalty fee outright or in the form of a deduction for ceasing employment early. However, in some circumstances, the employer may contract with the worker to receive liquidated damages in the event of a premature termination on the part of the worker. Employers should refer to DHS regulations for additional obligations.

   
   Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation.

   Posted February 17, 2011

1. I filed an application for temporary labor certification before the 2010 Final Rule was effective. What rule will apply?
   
   
   1. Employers who filed with DOL before March 15, 2010, and have a start date of need before June 1, 2010, will be processed in accordance with the 2008 Final Rule's
      transition procedures.
   2. Employers who filed with DOL on or after March 15, 2010, and have a start date of need before June 1, 2010, will be processed in accordance with the 2010 Final Rule's emergency procedures.
   3. Employers with a start date of need on or after June 1, 2010, will be processed in accordance with the 2010 Final Rule's normal procedures.

   March 29, 2010

1. Will the current special procedures for sheepherders, custom harvesters, and other unique agricultural occupations continue under this Final Rule?
2. Are employers engaged in itinerant custom combine activities exempt from any of the additional documentation requirements for H-2A Labor Contractors (H-2ALCs) beyond Migrant and Seasonal Agricultural Worker Protection Act (MSPA) registration?
3. How can an itinerant custom combine employer comply with the requirement that it submit fully executed work contracts with its Application for Temporary Employment Certification?

1. Will the current special procedures for sheepherders, custom harvesters, and other unique agricultural occupations continue under this Final Rule?
   
   Yes. The regulation explicitly states that such special procedures will continue.
   

   March 29, 2010




2. Are employers engaged in itinerant custom combine activities exempt from any of the additional documentation requirements for H-2A Labor Contractors (H-2ALCs) beyond Migrant and Seasonal Agricultural Worker Protection Act (MSPA) registration?
   
   The Training and Employment Guidance Letter (TEGL) No. 16-06, Change 1, establishes special procedures applicable to itinerant custom combine employers seeking H-2A certifications. The TEGL permits them to file one Application for Temporary Employment Certification covering one or more areas of intended employment based on a planned itinerary. As the TEGL notes, custom combine activities are exempt from MSPA registration and therefore are not required to provide a MSPA Farm Labor Contractor (FLC) Certificate of Registration. An itinerant custom combine employer, however, meets the definition of an "H-2A Labor Contractor" (H-2ALC) and must submit all of the other documentation required of H-2ALCs by regulation.

   February 13, 2013




3. How can an itinerant custom combine employer comply with the requirement that it submit fully executed work contracts with its Application for Temporary Employment Certification?
   
   We recognize that, due to the unique nature of custom combine activities, a custom combine employer operating on a planned itinerary may not have fully executed work contracts for all worksites before filing an Application for Temporary Employment Certification. Custom combine employers typically travel across vast distances bringing heavy machinery not available locally to meet the needs of fixed-sited agricultural business owners. Weather, crop growth, and other factors that cannot be anticipated on such long itineraries (e.g., across multiple states) may cause an employer's anticipated work to change during the course of the season. Moreover, when the unique custom combine machinery arrives in a local area, additional local fixed-site agricultural business owners may seek the employer's custom combine services. Nevertheless, the employer must have sufficient evidence of the work it expects to perform across the itinerary at the time it submits its application in support of its request for temporary workers.
   
   

   Given the unique characteristics of custom combine activities, the Department will consider an employer to have effectively satisfied the intent of the H-2A Labor Page 2 of 8 Contractor (H-2ALC) work contract documentation requirement if it provides alternative evidence of agreements to perform custom combine work for fixed-site agricultural business owners, such as letters of intent. Therefore, at the time of filing its Application for Temporary Employment Certification, the employer must provide copies of work contracts or similar agreements (e.g., letters of intent) with the agricultural business owners listed on the itinerary submitted with the application for which the custom combine employer intends to perform work. If an employer meets all other certification requirements, but is unable to substantiate the period of need requested or itinerary provided, the certification will be limited to the portion of the itinerary substantiated through work contracts or similar agreements.

   Under certain circumstances, such as when weather conditions prevent completing the custom combine activities approved on the itinerary during the period of need certified, an employer may request a short or long-term extension. The post-certification extension regulatory provision and request process is discussed in more detail in a separate Frequently Asked Question.

   Important Note: An employer augmenting its scheduled work within the approved areas of intended employment after certification should maintain an updated itinerary and retain copies of work contracts or similar agreements to ensure that accurate documentation is available in the event of a post-certification audit or upon request by authorized representatives of the Department.

   February 13, 2013

Wage Determinations

1. Will we be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?

Pre-Filing Recruitment

2. Does the 2010 Final Rule require employers to begin recruiting U.S. workers before filing their applications with the Department?

ETA Form 790

3. What form should I use to submit my job order to the SWA?
4. Can we put "n/a" on the ETA Form 790 if something doesn't apply?
5. Under the 2010 Final Rule I will be submitting my job order to the SWA for intrastate clearance. What documentation should I include with the Agricultural and Food Processing Clearance Order, the ETA Form 790?
6. When the employer submits the ETA Form 790 to the State Workforce Agency (SWA) during the requisite 60-75 day timeframe, what should the employer include along with it?
7. Is there information which must be listed in the ETA Form 790 and the ETA Form 790 Attachments that some employers may not realize is essential?
8. What assurance must I make regarding the wage rate paid to my workers and how should I list the assurance on the ETA Form 790 or Attachments?
9. How often must workers receive their paychecks? Do I have to identify the frequency of pay on the ETA Form 790 or Attachments?

Wage Disclosure
10. What wage rate should I list on my job order?
11. What wage should I list on my work contracts?

SWA Acceptance of Job Order
12. What do I do if the SWA doesn't accept my job order in time or I cannot reach an agreement with the SWA on the necessary changes to the job order?
13. If there are no deficiencies on the ETA Form 790, when will the SWA notify the employer?

Housing
14. When should I contact the State Workforce Agency (SWA) to inspect the housing I plan to provide to my workers?

Wage Determinations


1. Will we be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?
   
   No. The 2010 Final Rule does not require employers participating in the H-2A program to obtain a wage rate separate from completing and submitting a job order to the SWA.

   March 29, 2010



Pre-Filing Recruitment


2. Does the 2010 Final Rule require employers to begin recruiting U.S. workers before filing their applications with the Department?
   
   Yes. An employer participating in the H-2A program will be required to initiate pre-filing recruitment 75 to 60 days before the employer's first date of need by 2 submitting its job order to a SWA serving the area of intended employment as required under 20 CFR 655.121.
   

   March 29, 2010



ETA Form 790


3. What form should I use to submit my job order to the SWA?
   
   The employer should use the Agricultural and Food Processing Clearance Order, ETA Form 790 (the job order). Employers may download a PDF copy of the form from the Office of Foreign Labor Certification (OFLC) web site:
   http://www.foreignlaborcert.doleta.gov/form.cfm

   March 29, 2010




4. Can we put "n/a" on the ETA Form 790 if something doesn't apply?
   
   Yes. Employers are encouraged to submit a complete application containing as much detail as possible, including entering "n/a" where appropriate, so as to facilitate the adjudication of the application and minimize the chances of the application package being returned due to incomplete information.
   

   September 15, 2010




5. Under the 2010 Final Rule I will be submitting my job order to the SWA for intrastate clearance. What documentation should I include with the Agricultural and Food Processing Clearance Order, the ETA Form 790?
   
   An employer filing on its own behalf will only need to submit the ETA Form 790 and the attachments required by the form, as explained in the instructions. Thereafter, the SWA and/or the Certifying Officer may require the employer to submit documentation substantiating the appropriateness of any qualification(s) contained in the ETA Form 790. For example, if the employer is a Farm Labor Contractor, it must be prepared to submit a copy of a valid FLC Certificate of Registration, if requested.

   September 15, 2010




6. When the employer submits the ETA Form 790 to the State Workforce Agency (SWA) during the requisite 60-75 day timeframe, what should the employer include along with it?
   
   The employer is required to submit to the SWA the original ETA Form 790 along with all required attachments, as specified in the instructions to the form. The required attachments include, if applicable, an attachment describing special work schedule situations, an attachment describing in detail the job tasks and duties, and an attachment explaining the employer's handling of wage rate for each activity. The employer should also submit any additional attachments it creates to complete its response to one of the question(s) on the form or otherwise document its compliance with the required assurances described in 20 CFR 653.501 and 655.122. Upon receiving the ETA Form 790, the SWA may require the employer to submit documentation substantiating the appropriateness of any qualification(s) contained in the ETA Form 790.
   Please note:
   The employer must also send a copy of the ETA Form 790 submitted to the SWA with its Application for Temporary Employment Certification to the Chicago National Processing Center.

   September 15, 2011



7. Is there information which must be listed in the ETA Form 790 and the ETA Form 790 Attachments that some employers may not realize is essential?
   
   We frequently see problems in the following areas and would like to remind employers to include the information noted below in the ETA Form 790:
   • Item 2 - Worksite location(s) and directions must be clear and complete
   • Item 3 - Housing location(s) and directions must be clear and complete. If the employer is providing rental or public accommodations, an assurance must be submitted stating that all rental or public accommodations will meet all local, State or Federal housing standards
   • Item 14 - Referral instructions must include the name of the employer's point of contact, phone number and the hours when the person can be contacted regarding an application or interview
   • Item 15 - Job specifications must include as much detail as possible
   • Item 16 - Indicate all deductions to be made from the worker's paycheck. Note that while employers are required by law to deduct Federal and Social Security taxes in all States, in some States employers are not required to deduct for State taxes.
   • Item 17 - The employer must state the minimum amount of daily subsistence (meals costs) in Item 17 of ETA Form 790 or in the ETA Form 790 Attachments. The current minimum amount is available on the OFLC Web site at http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm

   February 29, 2012

8. What assurance must I make regarding the wage rate paid to my workers and how should I list the assurance on the ETA Form 790 or Attachments?
   
   The employer must identify the specific wage rate offered in Item 16 of the ETA Form 790. In addition, in almost all cases, the employer must specifically state the following assurance in Item 16 of the ETA Form 790 or the ETA Form 790 Attachments: "The employer will pay the highest of the Adverse Effect Wage Rate (AEWR), the prevailing hourly wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage, in effect at the time work is performed." Only an employer subject to an approved special procedure for an occupation or specific class of agricultural employment may be required to provide a different assurance.
   
   Simply stating a regulatory citation is not acceptable, as the ETA Form 790 and Attachments serve to fully apprise a worker of the job offered. The worker should not have to look up a regulatory provision to understand the terms and conditions of employment.

   February 29, 2012

9. How often must workers receive their paychecks? Do I have to identify the frequency of pay on the ETA Form 790 or Attachments?
   
   

   By regulation, the employer must pay workers at least twice monthly, or according to the prevailing practice in the area of intended employment, whichever is more frequent. The Office of Foreign Labor Certification (OFLC) has established the Agricultural Employment Practice Survey Library, which makes prevailing practice information available to employers. This library is available on our website at http://www.foreignlaborcert.doleta.gov/aowl_survey_pdf.cfm.
   The employer must identify the specific frequency of pay applicable to the job opportunity in Item 16 of the ETA Form 790, or in the ETA Form 790 Attachments. Simply stating the regulatory citation or the general rule is unacceptable, as the ETA Form 790 and Attachments serve to fully apprise a worker of the terms and conditions of employment.

   February 29, 2012

Wage Disclosure


10. What wage rate should I list on my job order?
    
    Under the 2010 Final Rule, an employer in the H-2A program is required to offer, advertise, recruit at and pay the highest of the AEWR, the prevailing hourly wage rate, the prevailing piece rate, the agreed-upon collective bargaining rate (if an employer is subject to a collective bargaining agreement (CBA)), or the Federal or State minimum wage rate, in effect at the time work is performed, for every hour or portion of an hour worked during a pay period, except where a special procedure is approved for an occupation or specific class of agricultural employment. Therefore, the employer must list the highest of these applicable rates. If an employer lists the AEWR and the SWA, before accepting the job order for intrastate clearance, determines that another applicable wage rate is higher, the SWA will issue to the employer a Notice of Deficiency directing the employer to modify its job order to reflect the higher applicable wage rate. Each employer who is subject to a CBA must attach a copy of the CBA to its job order. Employers should note that if they pay workers on a piece rate basis and at the end of the pay period the worker's earnings for that pay period, if re-calculated on an hourly basis, would result in an hourly wage that is below the required hourly wage, the employer must guarantee to pay the worker an additional amount bringing the worker's wages for that pay period up to the amount the worker would have been paid at the required hourly wage rate.
    

    March 29, 2010




11. What wage should I list on my work contracts?
    
    The wage rate listed on the work contract must be the same wage rate as the rate listed on the job order and approved by the SWA. If the employer intends to sign work contracts before the SWA accepts the job order for intrastate clearance and the SWA subsequently directs the employer to modify the wage rate listed on the job order, the employer will be required to also modify its work contracts to reflect the approved wage rate. The employer may contact its local SWA to inquire whether a wage rate higher than the AEWR is applicable to its job order.

    March 29, 2010



SWA Acceptance of Job Order


12. What do I do if the SWA doesn't accept my job order in time or I cannot reach an agreement with the SWA on the necessary changes to the job order?
    
    

    Under the 2010 Final Rule, the SWA has 7 calendar days after receiving an employer's job order to accept the job order for intrastate clearance or to notify the employer that the job order is deficient. If, after receiving a timely-filed job order, the SWA determines that the job order does not meet all of the regulatory and program requirements, the SWA must issue a Notice of Deficiency listing the job order deficiencies that must be corrected before the job order can be accepted. The employer will have 5 calendar days to respond to the SWA and correct the noted deficiencies. If the employer timely corrects the deficiencies, the SWA will send the employer a Notice of Acceptance within 3 calendar days after receiving the employer's response, and promptly place the job order in intrastate clearance. If the employer does not adequately correct the deficiencies, or fails to submit a timely response to the SWA, the SWA will issue a Notice of Denial.

    Where the employer has not been able to resolve the deficiencies regarding the job order with the SWA, the employer will be able to use the emergency filing procedures under 20 CFR 655.134 to submit its application and job order directly to the Chicago NPC so long as:

    1. The employer timely submitted the job order and after documented efforts to solicit a response from the SWA received no response by the 46th day before the employer's first date of need; or
    2. The employer timely submitted the job order and after receiving a Notice of Deficiency timely and in good faith submitted information aimed to correct the noted deficiencies, but the SWA did not respond to the employer's submission within 3 days of the receipt of the employer's submission, or by the 46th day before the employer's first date of need, whichever is later; or
    3. The employer timely submitted the job order and after receiving a Notice of Deficiency timely and in good faith submitted information aimed to correct the noted deficiencies, but the SWA did not consider the employer's timely submission sufficient to accept the job order and issued a Notice of Denial within 3 days after receipt of the employer's submission or by the 46th day before the employer's first date of need, whichever is later.

    March 29, 2010




13. If there are no deficiencies on the ETA Form 790, when will the SWA notify the employer?
    
    Under the regulations, the SWA is only required to send the employer a Notice of Deficiency, if applicable, within seven days of the date of submission. However, as a courtesy, the SWA will send the employer a Notice of Acceptance verifying placement of the job order and providing a copy of the approved job order. If seven days have passed and the employer has not received a Notice of Deficiency or Notice of Acceptance from the SWA, the employer may contact the SWA to inquire into the status of its submitted ETA Form 790.

    September 15, 2010



Housing


14. When should I contact the State Workforce Agency (SWA) to inspect the housing I plan to provide to my workers?
    
    An employer may request a pre-occupancy housing inspection well in advance of its date of need. Early contact with the SWA will provide the employer with time to resolve potential housing compliance issues without impacting the issuance of the temporary labor certification. The statute provides that an employer is not required to submit proof that its housing complies with applicable program requirements at the time of filing its Application for Temporary Employment Certification (ETA Form 9142). However, the Department cannot grant a temporary labor certification without proof, which is typically provided in the form of a confirmation from the SWA that the employer-provided housing has sufficient capacity and is in compliance with applicable requirements.
    
    We encourage an employer who has not already obtained the SWA's approval of its housing to contact the SWA to schedule the required pre-occupancy housing inspection as part of its initial preparations to submit an Application for Temporary Employment Certification. At the latest, the employer must request the housing inspection when submitting its job order (ETA Form 790) to the SWA.
    
    Note that where special procedures permit an employer to use mobile housing on a multi-State itinerary, the employer may contact the SWA with jurisdiction over the initial pre-occupancy location of the mobile housing to conduct the inspection. That SWA's inspection and approval serves to certify the mobile housing for the entire itinerary.

    February 13, 2013

1. What is the required time frame for filing an H-2A temporary labor certification application?
2. For purposes of the H-2A program, is the employer bound by the date on which the job order and/or application was postmarked, or the date on which it was received by the Department?
3. Under the H-2A program, how does the National Processing Center determine whether an application has been filed 45 days prior to the employer's date of need?

1. What is the required time frame for filing an H-2A temporary labor certification application?
   
   An employer must submit an application no later than 45 days before the employer's first date of need.

   March 29, 2010




2. For purposes of the H-2A program, is the employer bound by the date on which the job order and/or application was postmarked, or the date on which it was received by the Department?
   
   The relevant date for purposes of any time calculation or submission in connection with the filing of an Application for Temporary Employment Certification, including the application and the job order, is the date on which the Department receives the submission.

   September 15, 2010




3. Under the H-2A program, how does the National Processing Center determine whether an application has been filed 45 days prior to the employer's date of need?
   
   When determining whether an application has been filed "no less than 45 calendar before employer's date of need," as required by 20 CFR 655.130(b), the National Processing Center does not include the day the application was received in its calculation. Instead, the next day is counted as day one. For example, if an application is received at the National Processing Center on Tuesday, June 1, 2010, that date is not counted. Instead, Wednesday, June 2nd, is counted as day 1 of the timeframe and Thursday, June 3rd, as day 2; etc., up until Friday, July 16th, which is day 45. In this instance, provided the employer lists its date of need on its submitted application as July 16, 2010, or after, the employer has complied with 20 CFR 655.130(b).

   September 15, 2010

1. How do I file an application for a temporary labor certification in the H-2A program?
2. What form should I use to file my application?
3. How can I ensure that my application is processed as quickly as possible?


ETA Form 9142

4. Where do I find the NAICS Code requested in Section C, question 13 of the ETA Form 9142, and what is it?
5. Where do I find the SOC Code and SOC Occupation Title requested in Section B, questions 2 and 3 of the ETA Form 9142?
6. You added several new questions to the ETA Form 9142, including the year the company started, its gross annual revenue, and the number of non-family full-time equivalent (FTE) employees. Will applications be rejected if this information is not included? Should temporary/seasonal employees be included in the non-family FTE count?
7. What supporting documentation do I have to submit with my Application?
8. Can I file one H-2A application for work that will take place in multiple work locations?
9. Must an employer list the location of the worksite if it is already listed in the ETA Form 790?
10. I represent an association whose members are applying for H-2A workers. One member has the same start date of need as all other members, but has a different end date for the work contract. Can that member be included on the master application or must it file an individual application?
11. Can I file one H-2A application which involves an itinerary?
12. May I use correction tape or fluid ("white-out") to fix typographical errors on the ETA Form 9142?
13. Can a farm that has operations in two States with the same crop and period of need submit one Application for Temporary Employment Certification including both worksite locations?
14. Can an association that has members in two States with the same crop and period of need submit one Application for Temporary Employment Certification including all members?

1. How do I file an application for a temporary labor certification in the H-2A program?
   
   

   Employers may now submit their H-2A application either electronically OR via mail directly to the Chicago National Processing Center (NPC). The employer must choose only one method of submission. Duplicate applications, where the employer or authorized representative files electronically and submits that same application via U.S. mail, will be rejected.

   • Electronic Filing:

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

   • Mail Filing:

   The employer may mail the application package to the Chicago NPC at the following address:
   U.S. Department of Labor
   Employment and Training Administration
   Office of Foreign Labor Certification
   Chicago National Processing Center
   11 West Quincy Court
   Chicago, IL 60604- 2105
   ATTN: H-2A Program Unit

   December 10, 2012




2. What form should I use to file my application?
   An employer must use the Application for Temporary Employment Certification ETA Form 9142 and Appendix A.2. Employers may download the required forms in PDF format from the OFLC web site: http://www.foreignlaborcert.doleta.gov/form.cfm.
   

   March 29, 2010

3. How can I ensure that my application is processed as quickly as possible?
   An employer can minimize processing time by ensuring that its job order and Application for Temporary Employment Certification are complete and accurate, and by responding promptly to any request(s) from the State Workforce Agency (SWA) or Chicago NPC during job order and application processing.
   
   In addition, an employer should begin the temporary labor certification application process as early as the regulations permit. Absent an emergency situation, an employer may begin the process by submitting a job order to the SWA serving the area of intended employment as early as 75 calendar days before the date of need (but must submit its job order no fewer than 60 days before the date of need). As soon as the SWA approves the employer's job order, the employer may submit its completed Application for Temporary Employment Certification and a copy of the SWA-approved job order to the Chicago NPC. This non-emergency submission must occur no less than 45 days before the employer's date of need. Note that under certain circumstances (i.e., the SWA does not provide notice of acceptance or deficiencies within 7 calendar days after job order submission or the SWA and employer try but are unable to resolve a dispute about regulatory compliance of job order content), an employer may submit a copy of an unapproved job order to the Chicago NPC with its Application for Temporary Employment Certification.
   
   After reviewing the Application for Temporary Employment Certification and job order, the Chicago NPC will issue either a Notice of Acceptance or a Notice of Deficiency. An employer receiving a Notice of Acceptance should follow the recruitment instructions provided by the Certifying Officer (CO) and may submit the recruitment report and any other required documentation identified in the Notice of Acceptance to the Chicago NPC as soon as the employer has that documentation but must submit this documentation no later than the date specified by the CO. An employer receiving a Notice of Deficiency minimizes delay when it responds to the Notice of Deficiency quickly and completely. As soon as all certification requirements are met, the Chicago NPC can issue a certification.
   
   Important Note: We encourage employers to register for our e-mail notification program by contacting TLC.Chicago@dol.gov. Participation in our e-mail notification program is an effective way for employers or, if applicable, their authorized attorney or Page 4 of 8 agent to receive information about deficiencies more quickly, enabling them to more quickly respond.
   

   February 13, 2013



ETA Form 9142


4. Where do I find the NAICS Code requested in Section C, question 13 of the ETA Form 9142, and what is it?
   
   The North American Industry Classification System (NAICS) is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy. The NAICS coding system is maintained by the U.S. Census Bureau. A listing of NAICS codes can be found at http://www.census.gov/epcd/www/naics.html. The code selected by the employer should reflect the nature of the employer's business, not the job for which certification is sought.
   

   September 15, 2010




5. Where do I find the SOC Code and SOC Occupation Title requested in Section B, questions 2 and 3 of the ETA Form 9142?


The Standard Occupational Classification (SOC) system is a numerical code that classifies job opportunities into occupational categories for the purpose of collecting, calculating, or disseminating data. An employer may search the Bureau of Labor Statistics' 2010 SOC list, which lists occupations in alphabetical order (http://www.bls.gov/soc/2010/soc_alph.htm#F), or may search theDepartment's wage wizard at http://www.flcdatacenter.com/OesQuick.aspx to obtain the appropriate code. The code and occupation title selected by the employer should reflect the nature of the position for which certification is sought.
The SOC categories of occupations that are most likely to be identified with H-2A agricultural workers are:

45-2092.01 Nursery Workers
45-2092.02 Farmworkers and Laborers, Crop
45-2041.00 Graders and Sorters
45-2091.00 Agricultural Equipment Operators
45-2093.00 Farm Workers, Farm and Ranch Animals
45-2099.00 Agricultural Workers, All Other



September 15, 2011




6. You added several new questions to the ETA Form 9142, including the year the company started, its gross annual revenue, and the number of non-family full-time equivalent (FTE) employees. Will applications be rejected if this information is not included? Should temporary/seasonal employees be included in the non-family FTE count?
   
   Applications will not be rejected if questions, such as those listed above, are not answered as long as they are not required fields/items containing an asterisk(*). Additionally, temporary and/or seasonal workers should not be included in the non-family FTE count.
   

   September 15, 2010






7. What supporting documentation do I have to submit with my Application?
   
   As a general matter, the employer must submit along with its Application the SWA-approved job order (ETA Form 790), unless a specific exception applies.
   In addition, the employer is required to submit several documents prior to certification these documents may be submitted at the time the application is filed. If the employer does not have the documentation ready at the time it submits the application, the employer will be directed by the Notice of Acceptance to submit each of these documents before certification may be granted.
   
   1. Proof that the employer's housing is in compliance with applicable program requirements. See 20 CFR 655.122(d);
   2. Proof of workers' compensation insurance coverage as required under new section 20 CFR 655.122(e);
   3. A written and signed recruitment report on the date specified by the CO in the Notice of Acceptance.
   In addition, employers should note that if an employer is listing specific job qualifications on its job order and/or application, the CO has the authority, through a Notice of Deficiency, to request that the employer provide documentation evidencing the appropriateness of these job qualifications. See 20 CFR 655.122(b). However, an employer may choose to submit the justification for any qualifications required for the position at the time it files the application.
   Additional requirements apply to associations, H-2ALCs and agents, as explained below:
   
   Associations.If filing a master application, associations must list on the Application (or attachment to the Application) the names, addresses, total number of workers needed, crops and agricultural work performed for each employer who will employ H-2A workers under the master application. See 20 CFR 655.131 (b). If the association is filing as an agent (instead of as a joint employer), the association must obtain and submit each member's signature for the particular Application.
   
   H-2A Labor Contractors. Labor contractors seeking to file H-2A applications (H2ALCs)
   must submit the name and location of each fixed-site agricultural business to which the H-2ALC will provide H-2A workers, the expected beginning and ending dates of employment on each fixed site and a description of the crops and activities the workers will be performing on each site. The H-2ALC must submit copies of signed contracts with each fixed-site agricultural business to which it is providing H-2A workers and If those fixed-site businesses are providing housing and transportation to the workers, proof that the housing and transportation are in compliance with program
   regulations. See 20 CFR 655.132.
   
   The H-2ALCs must also provide a copy of a valid Farm Labor Contractor (FLC) Certificate of Registration, If the H-2ALC is considered an FLC within the meaning of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). In addition, an H2ALC must provide proof that it is able to meet its financial obligations under the H-2A program by submitting an original surety bond as required by 29 CFR 501.9.
   
   Agents. In addition, an agent must provide a copy of the agent agreement or other document demonstrating the agent's authority to represent the employer. This required document must be submitted with the application and is in addition to Sections E and I on ETA Form 9142 and Appendix A.2. Finally, an agent must submit a copy of a valid FLC Certificate of Registration, if required under MSPA. See 20 CFR 655.133.

   March 29, 2010




8. Can I file one H-2A application for work that will take place in multiple work locations?
   
   Yes. An employer's application may cover multiple work locations within an area of intended employment so long as they are within reasonable commuting distance from a place of the job opportunity for which the employer is seeking certification. If an employer belongs to an association, under the 2010 Final Rule the association may file a master application on behalf of the employer and its other members. A master application may cover multiple areas of intended employment and multiple work locations so long as: all workers covered by the application belong to the same occupation or will perform comparable work for the employer-members; the application reflects a single date of need for all workers; and all employer-members covered by the application are located in at most two contiguous states. Master Applications can only be filed by Associations acting as joint employers with their members. Finally, if the employer is an H-2A Labor Contractor (H-2ALC), the employer may file a single application covering multiple work locations within one area of intended employment.

   March 29, 2010




9. Must an employer list the location of the worksite if it is already listed in the ETA Form 790?
   
   Yes. Both the job order and the ETA Form 9142 must list each worksite where the workers will be working so that they may be apprised of the locations prior to applying for the job opportunity.

   September 15, 2010




10. I represent an association whose members are applying for H-2A workers. One member has the same start date of need as all other members, but has a different end date for the work contract. Can that member be included on the master application or must it file an individual application?
    
    Only associations filing as joint employers with their employer-members may file master applications. An employer who receives workers through a master application filed by an association must have the same initial date of need, i.e. the same start date, as all other employers listed in the master application. However, the employers' end dates may contain slight variances depending on their need for workers. Regardless of whether the employers covered by a master application have the same or different end dates of need, an association filing a master application must specify each employer's period of need on: the job order, i.e. the Agricultural and Food Processing Clearance Order ETA Form 790; the Application for Temporary Employment Certification, ETA Form 9142, and/or any attachments thereto; and the newspaper advertisements.

    March 29, 2010




11. Can I file one H-2A application which involves an itinerary?
    
    Unless an employer belongs to a group or occupation to which special procedures apply, itineraries involving work in more than one area of intended employment are not permitted.

    March 29, 2010




12. May I use correction tape or fluid ("white-out") to fix typographical errors on the ETA Form 9142?
    
    An employer may use correction tape or fluid to fix typographical errors on the Application for Temporary Employment Certification (ETA Form 9142), provided that its use of correction tape or fluid does not render the text illegible or ambiguous.
    
    In all fields of the Application for Temporary Employment Certification, employers may make any necessary corrections using a pen and striking a line through unwanted text directly on the ETA Form 9142. Pen-and-ink corrections that are initialed and dated by the employer are acceptable.
    
    Important Note: We encourage employers to use the fillable ETA Form 9142 and Appendix A.2 available on our Web site. Completing the form electronically enables the preparer to resolve typographical errors before printing the final document.

    February 13, 2013




13. Can a farm that has operations in two States with the same crop and period of need submit one Application for Temporary Employment Certification including both worksite locations?
    
    An Application for Temporary Employment Certification is limited to a single area of intended employment, unless the job opportunity is covered by an approved special procedure that permits work in multiple areas of intended employment. The H-2A regulation defines an area of intended employment as the geographic area within normal commuting distance of where the job opportunity is located. An employer may include multiple worksite locations, including worksites on different sides of State lines, on a single Application for Temporary Employment Certification as long as each worksite is within a single area of intended employment (i.e., within normal commuting distance). If the worksites are beyond a reasonable commuting distance, then a separate application must be filed for those worksites.
    
    There is no specific distance that constitutes a maximum normal commuting distance because various factors specific to the worksite area determine what length of commute is normal. For example, the quality of the public transportation network impacts the length of commute considered normal. To provide an employer with some measure of normal commuting distance, the Department has determined that any place within a Metropolitan Statistical Area (MSA) (including a multistate MSA) is within normal commuting distance. The borders of an MSA are not controlling, however, for identifying normal commuting distance; a location outside of an MSA may be within normal commuting distance of a location inside the MSA (e.g., close to the border of the MSA).
    
    The Chicago National Processing Center (NPC) will consult with the applicable State Workforce Agency in determining what constitutes the maximum normal commuting distance for a given geographic area.

    February 13, 2013




14. Can an association that has members in two States with the same crop and period of need submit one Application for Temporary Employment Certification including all members?
    
    In most cases, an Application for Temporary Employment Certification is limited to a single area of intended employment. However, provided that certain conditions are met, an association may file a Master Application on behalf of its employer-members in multiple areas of intended employment:
    
    • The association must file as a joint employer with its employer-members;
    • All employer-members must be located in no more than two contiguous States;
    • The application covers the same occupation or comparable work with employermembers; and
    • A single date of need is provided for all workers requested in the application.

    February 13, 2013

  Housing

1. Is the H-2A employer required to provide housing to U.S. workers who live within normal commuting distance from the worksite, but live in a homeless shelter or no longer want to pay rent?
2. What if the SWA refuses to do housing inspections?
3. Does public rental housing need to be inspected by the SWA?


  Workers' Compensation

4. When do I need to submit proof of workers' compensation insurance coverage?
5. What documentation should I submit as evidence of workers' compensation insurance coverage?
6. My workers' compensation insurance coverage expires prior to my end date of need. What documentation should I submit as proof of coverage for the entire period of need requested on the application?


  Meals

7. Under the 2010 Final Rule the employer is required to provide to its workers either three meals a day or free and convenient cooking and kitchen facilities. What constitutes a meal for purposes of the 2010 Final Rule?


  Transportation and Daily Subsistence

8. What is the definition of daily subsistence for purposes of travel payments/reimbursement?
9. For the purposes of travel-related payments/reimbursements, what costs are the employer's responsibility?


  Rates of Pay

10. Will I have to pay for the worker's daily subsistence before the worker begins his or her inbound trip to my worksite?
11. Will the employer be required to pay the AEWR?
12. May an employer require productivity standards if the work is paid on a piece-rate basis?
13. Will employers subject to the 2010 Final Rule be obligated to adjust the approved wage rate if the wage rates increase during the contract period?
14. What federal tax withholdings are applicable to H-2A workers?
15. What is the required wage for H-2A sheepherders? Can they be paid more than the prevailing wage rate?


Adverse Effect Wage Rate

16. The new annual Adverse Effect Wage Rate (AEWR) has been published and the AEWR applicable to my job opportunity has gone down. What am I required to pay?


No Strike or Lockout

17. Under the 2010 Final Rule I am not allowed to import H-2A workers if my domestic workers are on strike or if they are being locked out. Is there a threshold number of workers that must be on strike for this prohibition to apply?
18. What if my domestic workers go on strike after I've already applied to bring in the foreign workers?
19. What happens if my domestic workers go on strike or are being locked out after I have received a labor certification and my H-2A workers are on their way to the worksite or are already working on the farm?


Fifty Percent Rule

20. I am applying for a temporary employment certification to import H-2A workers to work on my farm and I understand that under the 2010 Final Rule, there is a different requirement regarding the duration of the period during which I have to receive referrals of U.S. workers. How does the new requirement work?
21. Am I required to hire every U.S. worker who applies, or is referred to me by the SWA, during the first 50 percent of the contract period?
22. What are my options if the newly hired U.S. workers under the 50 percent rule become unavailable after I have displaced some or all of my H-2A workers?
23. What is meant by an employer not being "otherwise associated with" other employers applying to import H-2A workers?
24. Should an employer who wishes to claim the small business exemption submit documentation substantiating eligibility with its application and/or job order?
25. What is a small business exemption to the 50 percent rule?


Job Qualifications and Requirements

26. Last year the CO asked me to reduce the experience requirement I listed on my Application for Temporary Employment Certification. How can I tell whether my proposed experience requirement is acceptable?
27. Can an employer require that workers who apply for the job opportunity pass a background check (such as a credit or criminal background check) and/or a drug test as a condition of employment?


Contract Impossibility Provision

28. What is the minimum acceptable language I need to include in my job order submitted to the State Workforce Agency (SWA) as well as other work contracts with employees to address situations where fulfillment of the contract is impossible due to reasons beyond my control?


Reimbursements

29. When is an employer that has not advanced transportation and subsistence costs to a worker required to reimburse the worker for those costs?
30. What pre-employment costs are required to be reimbursed by the Fair Labor Standards Act (FLSA), other than inbound transportation?
31. Is the employer required to reimburse the worker for the worker's passport?

  Housing

1. Is the H-2A employer required to provide housing to U.S. workers who live within normal commuting distance from the worksite, but live in a homeless shelter or no longer want to pay rent?
   
   The regulations require the employer to provide housing only for those workers who are not reasonably able to return to their residence the same day. A homeless shelter does not qualify as a person's "residence" because a shelter, by its very nature, is temporary. Therefore, in an instance where a worker is living in a homeless shelter, the employer must offer such worker housing. However, the employer is not required under the regulations to provide housing to a worker who is able to return to his or her residence within the same day but who no longer wants to incur the price of rent.
   

   September 15, 2010




2. What if the SWA refuses to do housing inspections?
   
   SWAs receive grants from the Employment and Training Administration to perform all of the duties necessary under the Office of Foreign Labor Certification's (OFLC) programs, including conducting housing inspections in a timely manner. The regulations now permit employers to request the housing inspections well in advance of the date of need. If a SWA refuses to conduct the housing inspection, employers should contact the Chicago National Processing Center.
   

   September 15, 2010




3. Does public rental housing need to be inspected by the SWA?
   
   

   No, as long as the public rental housing meets applicable local, state or federal standards. The employer must provide documentation to the satisfaction of the Certifying Officer that the housing complies with the applicable standard. At a minimum, the employer must provide a written assurance that the public rental housing provided meets all local, State, and Federal standards for such accommodations.

   
   

   September 15, 2011


  Workers' Compensation

4. When do I need to submit proof of workers' compensation insurance coverage?
   
   Pursuant to 20 CFR 655.122(e)(2), the employer is required to submit proof of workers' compensation insurance coverage before certification. The employer is encouraged to include the documentation when submitting its application. If the employer does not have the documentation ready at the time it submits the application, the employer will be directed by a Notice of Acceptance to submit the documentation by a specific date before certification may be granted.
   

   September 15, 2010




5. What documentation should I submit as evidence of workers' compensation insurance coverage?
   
   The employer must submit documentation that adequately demonstrates that it has the required workers' compensation insurance coverage for the entire period of need requested on the application. (See 20 CFR 655.122(e))
   
   The documentation submitted must demonstrate that the employer's workers' compensation insurance coverage is in compliance with State law and covers injury and disease arising out of and in the course of the worker's employment. In addition, the documentation submitted must contain the name of the insurance carrier, the insurance policy number, and proof of insurance for the period of need stated on the application, or, if appropriate, proof of State law coverage.
   
   Examples of acceptable documentation of workers' compensation insurance coverage include, but are not limited to, the following:
   
   • Association for Cooperative Operations Research and Development (ACORD) Certificate of Insurance
   • State Workers' Compensation Fund Certificate or equivalent
   • Certificate of Insurance indicating worker's compensation coverage (copy of policy)

   September 15, 2010




6. My workers' compensation insurance coverage expires prior to my end date of need. What documentation should I submit as proof of coverage for the entire period of need requested on the application?
   
   If the employer's current workers' compensation insurance coverage will expire before the end date of need requested on the application, the employer must submit a signed and dated written statement showing its intent to renew and maintain coverage for entire period of need requested on the application. The written statement must be submitted in addition to the documentation of the employer's current coverage described above. Also, the employer must retain the proof of renewed coverage in its file and be prepared to submit such documentation if requested.

   September 15, 2010



  Meals

7. Under the 2010 Final Rule the employer is required to provide to its workers either three meals a day or free and convenient cooking and kitchen facilities. What constitutes a meal for purposes of the 2010 Final Rule?
   
   An employer providing three meals a day to its workers must provide a reasonable balance of food groups and nutrients intended to supply sufficient nutrition to the workers three times a day. The Department advises employers to consult the United States Department of Agriculture's Dietary Guidelines for Americans 2005 report (in effect until the publication of the new report in 2010) that may be accessed or downloaded through the following web site: http://www.cnpp.usda.gov/Publications/DietaryGuidelines/2005/2005DGPolicyDocument.pdf
   In addition, the employer may only charge the workers for the actual cost of the meals and may not profit from the provision of food. This amount may not exceed the amount specified in 20 CFR 655.173, currently set at $10.64 for three meals a day, absent a successful petition for a higher meal charge.

   September 15, 2010



  Transportation and Daily Subsistence

8. What is the definition of daily subsistence for purposes of travel payments/reimbursement?
   
   Daily subsistence includes, but is not limited to, the reasonable cost of food and lodging incurred during the worker's inbound trip from the point of recruitment to the employer's worksite, notwithstanding any unauthorized detours, and during the worker's outbound trip from the employer's worksite to the worker's home or subsequent employment, notwithstanding any unauthorized detours, whichever is applicable.

   September 15, 2010

9. For the purposes of travel-related payments/reimbursements, what costs are the employer's responsibility?
   
   

   When an employer is unable to find sufficient workers locally to perform the work it requires, bringing a worker to the employer's worksite benefits the employer and, therefore, the costs associated with the worker's travel to the employer's worksite are the employer's responsibility. By regulation, an employer is responsible for providing, paying in advance, or reimbursing a worker for the reasonable costs of transportation and daily subsistence between the employer's worksite and the place from which the worker comes to work for the employer, if the worker completes 50 percent of the work contract period, and upon the worker completing the contract, return costs.  Where a worker must travel to obtain a visa so that the worker may enter the U.S. to come to work for the employer, the employer must pay for the transportation and daily subsistence costs of that part of the travel as well. The Department has interpreted the regulation to require the employer to assume responsibility for the reasonable costs associated with the worker's travel, including transportation, food, and, in those cases where it is necessary, lodging.

   If not provided by the employer, the amount an employer must pay for transportation and, where required, lodging must be no less than (and is not required to be more than) the most economical and reasonable costs. Moreover, the employer is responsible for those costs necessary for the worker to travel to the worksite if the worker completes 50 percent of the work contract period, but is not responsible for unauthorized detours or unnecessary costs, and if the worker completes the contract, return transportation and subsistence costs. For example:

   • The employer is not responsible for the cost of a worker's lodging when the worker chooses to arrive earlier than required for a visa appointment at the U.S. Consulate. If the appointment is so early in the morning, that the worker could not reasonably be expected to travel to the consulate that same day, the employer will be liable for the cost of lodging the night before the appointment.
   • The employer is responsible for the cost of a worker's lodging where, after the worker attends a required appointment at the U.S. Consulate, the worker must remain nearby overnight while waiting for the U.S. Consulate to issue the visa.
   • The employer is responsible for the cost of aworker's lodging from the time the worker leaves the U.S. Consulate to the time he arrives at the worksite. The employer is also responsible for the worker's return transportation and subsistence costs upon the worker completing the work contract.

   The amount an employer must pay for food is at least as much as the employer would charge the worker for providing the worker with three meals a day during employment and no more than a maximum amount established annually based on the standard rate for the Continental United States (CONUS) for meals and incidental expenses as published by General Services Administration (GSA). The current minimum and maximum amounts for meals and incidental expenses are available on the OFLC website at http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm.

   Please note that the FLSA applies independently of H-2A and imposes obligations on employers regarding the payment of wages.

   February 29, 2012



  Rates of Pay

10. Will I have to pay for the worker's daily subsistence before the worker begins his or her inbound trip to my worksite?
    
    No. The employer is only responsible for the cost of the worker's daily subsistence from the time the worker departs the place from which the worker has come to work for the employer (generally, the worker's home or place from which the worker was recruited) until the time the worker arrives at the employer's worksite.

    September 15, 2011

11. Will the employer be required to pay the AEWR?
    
    Yes, if the AEWR is the highest applicable wage rate. In most cases the published AEWR will be the correct baseline wage. However, sometimes the prevailing wage for the crop and location or the CBA wage rate or the Federal or State minimum wage rates will be higher than the AEWR, in which case the employer must pay the higher rate. If an employer wishes to pay a piece-rate, it must nevertheless guarantee that workers will be paid a minimum equal to the appropriate hourly wage.

    March 29, 2010




12. May an employer require productivity standards if the work is paid on a piece-rate basis?
    
    Yes. If the employer pays by the piece rate and specifies the productivity standard in the job offer. Any productivity standard required by an employer may be no more than those required by the employer in 1977, unless the OFLC Administrator approves a higher minimum, or, if the employer first applied for an H-2 temporary labor certification after 1977, such standards must be no more than those normally required by other employers for the activity in the area of intended employment at the time the employer filed its first application.

    March 29, 2010




13. Will employers subject to the 2010 Final Rule be obligated to adjust the approved wage rate if the wage rates increase during the contract period?
    
    Yes. All employers in the H-2A program are required to offer, recruit at and pay the highest applicable wage rate. An H-2A employer who has filed an application under the 2010 Final Rule will be required to adjust to a higher wage at any time between the date on which it submits its job order to the SWA and/or signs a work contract (whichever is earlier) until the end of the contract period. This applies only to applications filed under the 2010 Final Rule. Employers who filed applications under the 2008 Final Rule will continue to apply that rule's wage rates and principles (i.e. must pay the wage rate at the time of recruitment). If the Department publishes a new AEWR and the new AEWR is higher than the approved wage rate listed on the employer's job order and/or work contract, the employer will be required to adjust the offered wage to the higher AEWR. Similarly, if an applicable prevailing wage is increased during the contract period and the Department notifies employers of the increase, all employers whose approved wage rate (listed on the job order and/or work contract) is lower than the new prevailing wage will be required to adjust to the higher prevailing wage rate. The Department's notification will state the effective date of the wage increase upon which all affected employers will be required to adjust to the higher wage.

    March 29, 2010

14. What federal tax withholdings are applicable to H-2A workers?
    
    

    Questions regarding the taxation and Federal withholding from H-2A workers fall under the jurisdiction of the Internal Revenue Service (IRS). IRS guidance states that foreign agricultural workers temporarily admitted into the United States on H-2A visas are exempt from Federal Unemployment Tax, U.S. Social Security and Medicare taxes on compensation paid to them for services performed in connection with the H-2A visa. Additionally, IRS guidance states that compensation paid to H-2A workers for services performed in connection with the H-2A visa is not considered to be “wages” for purposes of Federal income tax withholding, and is therefore not subject to mandatory withholding.

    The IRS requires an employer to begin backup withholding if the H-2A worker does not have a Social Security Number or Individual Taxpayer Identification Number and the aggregate annual payments made to the worker are $600 or more. For more information on Federal withholdings for H-2A workers, see the IRS website at http://www.irs.gov/businesses/small/international/article/0,,id=96422,00.html. Employers should consult the IRS website to ensure that the IRS has not updated their guidance in regards to this issue.

    An H-2A worker may request voluntary Federal income tax withholding. Such a request must be evidenced by a signed form W-4 provided by the worker to the employer. Note: Only Federal income tax is to be withheld. Withholding for Social Security or Medicare is not permitted, and the employer may be held responsible for reimbursement of improperly withheld amounts (see below).

    Since State income tax law varies, the employer should consult with the appropriate State tax authorities to determine whether the wages of H-2A workers are subject to state income taxes.

    It is important to remember that the H-2A regulations at 20 CFR 655.122(m) and 655.122(p) require the H-2A employer to pay wages when due and to ensure that all wage payments to H-2A workers are received free and clear of any improper deductions. Wages either improperly withheld or withheld based on a voluntary agreement but not remitted to the appropriate agency may be considered improper deductions.

    If Federal income tax or U.S. Social Security and Medicare taxes have been improperly withheld from H-2A workers and remitted to the appropriate government agency, the Wage and Hour Division will take into consideration employer reimbursement or assistance provided to the workers to recapture such amounts in determining violations and potential penalties. The employer can evidence reimbursement to H-2A workers and the employer may seek a refund of over reported amounts using Form 941-X, Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund (see http://www.irs.gov/pub/irs-pdf/f941x.pdf). An alternate method exists in which the employer provides documented assistance to H-2A workers in completing Form 843, Claim for Refund and Request for Abatement (see www.irs.gov/pub/irs-pdf/f843.pdf); however, the IRS indicates that workers will need to provide copies of their W-2, H-2A visa, I-94 (indicating date of arrival/departure), and a statement indicating that the withheld taxes need to be returned (either from the employer or employee, who would indicate that this was requested of the employer but not provided).

    Additionally, the National Taxpayer Advocate and Low Income Taxpayer Clinics are potential sources of targeted assistance to the worker regarding proper tax withholding, as indicated per http://www.irs.gov/advocate/index.html?portlet=110

    May 15, 2012

15. What is the required wage for H-2A sheepherders? Can they be paid more than the prevailing wage rate?
    
    The Agricultural Online Wage Library, available at http://www.foreignlaborcert.doleta.gov/aowl.cfm, reflects the current prevailing wage rate for agricultural occupations, including sheepherders. A sheepherding employer is required to pay at least the prevailing wage rate which for occupations that are characterized by other than a reasonably regular workday, such as sheepherding, is deemed to be the Adverse Effect Wage Rate. The employer must also comply with any mandatory state monthly minimum wage rates for the occupation. The employer may but is not required to pay the workers more than the required wage rate.

    February 13, 2013



Adverse Effect Wage Rate

16. The new annual Adverse Effect Wage Rate (AEWR) has been published and the AEWR applicable to my job opportunity has gone down. What am I required to pay?
    
    The employer is required under the regulations to offer, advertise, and pay a wage that is the highest of the AEWR, the prevailing hourly wage or piece rate, the agreed upon collective bargaining wage, or the Federal or state minimum wage, in effect at the time the work is performed. Where the new AEWR is still the highest rate, an employer may pay the new, lower AEWR. If, however, the new AEWR is lower than the prevailing hourly wage or piece rate, the agreed upon collective bargaining wage, or the Federal or State minimum wage in effect, the highest of the those wage rates will become the employer's new minimum wage rate requirement.

    February 29, 2012

No Strike or Lockout

17. Under the 2010 Final Rule I am not allowed to import H-2A workers if my domestic workers are on strike or if they are being locked out. Is there a threshold number of workers that must be on strike for this prohibition to apply?
    
    Yes. The prohibition against importing foreign workers when the employer's domestic workers are on strike or are being locked out applies to any labor dispute involving two or more domestic workers. Any employer engaged in such a dispute at the time the employer seeks to apply for the labor certification may not apply to import H-2A foreign workers.

    September 15, 2010




18. What if my domestic workers go on strike after I've already applied to bring in the foreign workers?
    
    Section 218(b) of the Immigration and Nationality Act (INA) requires the Secretary to deny a labor certification if there is a strike or lockout in the course of a labor dispute. An employer seeking to employ H-2A workers must agree that it will abide by the requirements and assurances outlined in 20 CFR 655.135, including that the worksite does not have workers on strike or being locked out in the course of a labor dispute. Therefore, if the employer's workers go on strike after the employer filed its application but before the labor certification is granted, the employer must notify the Department of the strike or lockout and/or withdraw its application until such a time as the labor dispute is resolved.

    September 15, 2010



19. What happens if my domestic workers go on strike or are being locked out after I have received a labor certification and my H-2A workers are on their way to the worksite or are already working on the farm?
    
    Absent material misrepresentation or fraud in connection with the application within the meaning of the 2010 Final Rule, the employer may continue to employ H-2A workers notwithstanding a strike by its non-H-2A workers. Lock-outs resulting from a labor dispute will be analyzed on a case by case basis to determine whether they warrant debarment under 20 CFR 655.182(d). Also, if a lock-out meets the definition of a layoff and if it occurs within 60 days of the first date of need, section 20 CFR 655.135(g) requires that the U.S. workers be offered the job opportunity listed in the Application for Temporary Employment Certification before the H-2A workers. Therefore, unless the employer has sufficient work to be performed by all the laid-off U.S. workers and the H-2A workers, the employer will need to dismiss the H-2A workers.

    September 15, 2010


Fifty Percent Rule

20. I am applying for a temporary employment certification to import H-2A workers to work on my farm and I understand that under the 2010 Final Rule, there is a different requirement regarding the duration of the period during which I have to receive referrals of U.S. workers. How does the new requirement work?
    
    Under the 2010 Final Rule, the Department reinstated a long-standing H-2A program component from the 1987 Final Rule that requires employers to continue to consider for employment and hire any qualified and eligible U.S. worker who applies for the position up until the end of the first half of the contract period, as identified on the Agricultural and Food Processing Clearance Order, ETA Form 790, as well as on the Application for Temporary Employment Certification, ETA Form 9142. This program component is referred to as the 50 percent rule. Previously, under the 2008 Final Rule, employers were only required to accept U.S. applicants for the first 30 days of the contract period.

    September 15, 2010

21. Am I required to hire every U.S. worker who applies, or is referred to me by the SWA, during the first 50 percent of the contract period?
    
    For as long as an H-2A worker is employed in a certified position during the first 50 percent of the contract period, the employer must provide employment to any able, willing, qualified and available U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed, regardless of the number of H-2A workers covered by the employer's certification. The start of the work contract timeline is calculated from the first date of need stated on the Application for Temporary Employment Certification under which the foreign worker who is in the job was hired.
    
    An employer may continue to employ its H-2A workers under the work contract so long as it complies with all requirements of the H-2A program with respect to the H-2A workers and workers in corresponding employment. The employer may also choose to displace its H-2A workers with the newly hired U.S. workers so long as it pays for the H-2A workers' return transportation and subsistence in accordance with 20 CFR 655.122(h)(2). In the event the employer decides to displace its H-2A employees as a result of hiring U.S. workers, the employer is not liable for the payment of the three-fourths guarantee to the displaced H-2A workers.

    October 1, 2010




22. What are my options if the newly hired U.S. workers under the 50 percent rule become unavailable after I have displaced some or all of my H-2A workers?
    
    If all of the H-2A workers have been displaced, and some or all of the U.S. workers hired as a result of the 50 percent rule become unavailable, i.e., abandon the position or are terminated for cause, during the first 50 percent of the work contract period, the employer is under no obligation, but may continue, to hire any able, willing, qualified and available U.S. workers. However, so long as the employer continues to employ at least one H-2A worker in a certified position during the first 50 percent of the contract period, the employer must continue to hire any able, willing, qualified and available U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed, regardless of the number of U.S. workers hired under the 50 percent rule who become unavailable.
    
    If some or all of the newly hired U.S. workers become unavailable after the first 50 percent of the work contract period, the employer may, but is not obligated to, hire additional able, willing, qualified and available U.S. workers and/or engage in additional recruitment of U.S. workers.
    
    Note: An employer whose Application for Temporary Employment Certification is approved for the full number of workers requested may not apply to the National Processing Center for a redetermination of its need based on the unavailability of U.S. workers. Pursuant to the Department's regulations at 20 CFR 655.166, this option is only available to employers whose certifications were initially denied or whose applications were partially certified.

    October 1, 2010



23. What is meant by an employer not being "otherwise associated with" other employers applying to import H-2A workers?
    As discussed above, an employer who is a member of an association which has applied for a labor certification on behalf of its members is not exempt from the 50 percent rule. Similarly, an employer who technically is not a member of an association but otherwise maintains a relationship with other employers who are either members of an association that has applied for a labor certification and/or who have individually applied for a labor certification, such that this employer together with the other employers forms an informal group that effectively operates as an association - i.e., shares employees - would be considered to have "otherwise associated with other employers" and thus would not be exempt from the 50 percent rule.

    September 15, 2010



24. Should an employer who wishes to claim the small business exemption submit documentation substantiating eligibility with its application and/or job order?
    The Department is not requiring that an employer submit supporting documentation with its application at the time of filing, but the employer must in the application certify to the Certifying Officer that the small business exemption applies and be prepared to provide documentation in support of such a claim if requested through an audit or investigation. However, the employer should notify the SWA if it wishes to claim the exemption at the time it submits the job order for intrastate clearance and include such documentation as the SWA requires. This will ensure that the SWA will not refer applicants to that employer for the duration of the 50 percent of the contract period.

    September 15, 2010

25. What is a small business exemption to the 50 percent rule?
    The small business exemption allows certain employers to forgo compliance with the requirement to consider for employment and hire qualified and eligible U.S. workers during the first half of the contract period. The exemption is available to an employer who 1) did not use more than 500 man-days (defined at 29 U.S.C.§203(u)) of agricultural labor during each calendar quarter of the preceding calendar year, 2) is not a member of an association that is applying for temporary employment certifications under the H-2A program on behalf of its members, and 3) has not otherwise associate

    September 15, 2011

Job Qualifications and Requirements

26. Last year the CO asked me to reduce the experience requirement I listed on my Application for Temporary Employment Certification. How can I tell whether my proposed experience requirement is acceptable?
    Each job qualification and requirement listed on the Application for Temporary Employment Certification and used to recruit U.S. workers must be bona fide and consistent with the normal and accepted qualifications required by employers that do not use H-2A workers in the same or comparable occupations and crops. The Office of Foreign Labor Certification (OFLC) has established the Agricultural Employment Practice Survey Library, which makes acceptable experience requirements available to employers. This library is available on our website at http://www.foreignlaborcert.doleta.gov/aowl_survey_pdf.cfm. The information provided in the library is collected through the State Workforce Agencies (SWAs), typically through surveys of employers to determine current practices. Surveyed employers are asked to report the basic acceptable experience necessary to perform the job, as this is consistent with the standard applied to employers seeking H-2A workers for testing the U.S. labor market.
    
    SWAs conduct employer surveys on the acceptability of job requirements during the course of each year. Employers are strongly encouraged to check this webpage for any updates prior to preparing and submitting an agricultural job offer under the H-2A program.

    February 29, 2012



27. Can an employer require that workers who apply for the job opportunity pass a background check (such as a credit or criminal background check) and/or a drug test as a condition of employment?

    Employers are not prohibited from including a requirement in the job opportunity that the applicant must pass a specific background check and/or drug test. However, the requirement that the worker pass a particular background check or drug test will be reviewed on a case-specific basis against the regulatory standard of review that all job requirements must be bona fide and consistent with the normal and accepted qualifications required by non-H-2A employers in the same or comparable occupations and crops. The State Workforce Agency (SWA) receiving the employer’s job offer assists the OFLC Certifying Officer in making determinations as to what are normal and accepted job qualifications and requirements required by non-H-2A employers in that area in the same or comparable occupations or crops.

    The results of a background check or drug test may not be used to automatically reject a U.S. worker for agricultural work. Rather, the results of the background check or drug test may be used to reject a worker only if they provide a lawful job-related reason to do so. For example, while a sex offense conviction may be a lawful job-related reason to reject a worker who is applying to work at a “pick-your-own” fruit farm, a Driving Under the Influence (DUI) conviction is very unlikely to be. An employer requiring a background check or drug test should be prepared to provide documentation, if requested by the SWA or the OFLC Certifying Officer, establishing the nexus between the background check or drug test to be conducted and the nature of the job opportunity.

    If an employer chooses to disclose in the job order that it will be conducting a criminal background check, the employer’s job order must also identify the specific criminal issue(s) for which the employer could lawfully reject an applicant due to the nature of the job opportunity. A general statement about conducting a criminal background check without any further explanation is unacceptable, as it fails to adequately apprise U.S. workers of the job opportunity and applicable conditions of employment.

    December 6, 2011


Contract Impossibility Provision

28. What is the minimum acceptable language I need to include in my job order submitted to the State Workforce Agency (SWA) as well as other work contracts with employees to address situations where fulfillment of the contract is impossible due to reasons beyond my control?

    The employer, upon receiving approval from the Chicago National Processing Center Certifying Officer, may terminate its work contract before the end date if the services of the worker are no longer required for reasons beyond the control of the employer due to fire, weather, or other Act of God that makes the fulfillment of the contract impossible. The regulations refer to this as the “contract impossibility” provision. Since the contract impossibility provision obligates the employer to certain actions and affects the wages and working conditions of the workers it employs, the employer must disclose this provision in the job order that is submitted to the SWA as well as work contracts to prospective applicants.

    To help employers appropriately disclose the contract impossibility provision, the following suggested language can be included in the job order as well as work contracts with its employees:

    “Contract Impossibility: The work contract may be terminated before the end date of work specified in the work contract if the services of the workers are no longer required for reasons beyond the control of the employer due to fire, weather, or other Act of God that makes fulfillment of the contract impossible, as determined by the U.S. Department of Labor. In the event that the work contract is terminated, the employer assures that the three-fourths guarantee will be fulfilled for the time that has elapsed from the start date of work specified in the work contract to the date of termination. The employer also assures that it will make efforts to transfer the worker to other comparable employment acceptable to the worker and, where applicable, consistent with existing immigration laws.

    In situations where a transfer is not affected, the employer will return the workers at the employer’s expense to the place from which the worker, disregarding intervening employment, came to work for the employer or transport the worker to his/her next certified H-2A employer, whichever the worker prefers. The employer will also reimburse the worker the full amount of any deductions made by the employer from the worker’s pay for transportation and subsistence expenses to the place of employment, and pay the worker for any transportation and subsistence expenses incurred by the worker to that employer’s place of employment.

    The amounts the employer will pay for subsistence expenses shall be a minimum of $______ per day and a maximum of $______ per day for workers with documentation of actual expenses. The amount of the transportation payment must not be less (and is not required to be more) than the most economical and reasonable common carrier transportation charges for the distances involved. The requirement will be nullified if the worker has contracted with a subsequent employer who has agreed to provide or pay for the worker's transportation and subsistence expenses from the present employer’s worksite to the subsequent employer’s worksite.”

    For the minimum and maximum amounts for subsistence expenses, the employer can find the current amounts to be included in the job order on the OFLC website at http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm
    

    December 6, 2011

    
    Contract Impossibility Provision
    
29. When is an employer that has not advanced transportation and subsistence costs to a worker required to reimburse the worker for those costs?
    Under section 655.122(h)(1) and (p) of the H-2A regulations, consistent with the Fair Labor Standards Act (FLSA), a covered employer must reimburse a worker for inbound transportation costs by the first payday to the extent that those costs effectively bring a Page 6 of 8 worker's wages below the FLSA minimum wage during the first workweek of employment.
    
    After that, when the worker completes 50 percent of the work contract period, an employer is obligated to fully reimburse the worker for the reasonable costs incurred by the worker for transportation and daily subsistence from the place from which the worker came to work for the employer. Some employers may choose to fully reimburse workers before they have a regulatory obligation to do so, i.e., upon the worker's arrival. Those employers may, through reasonable deductions that do not bring the worker's wages below the FLSA minimum wage, recoup the cost until obligated, by regulation, to fully reimburse the workers when 50 percent of the contract period has elapsed. As with all deductions not required by law, this must be disclosed in the job offer.

    February 13, 2013



30. What pre-employment costs are required to be reimbursed by the Fair Labor Standards Act (FLSA), other than inbound transportation?
    Under the FLSA, covered employers may not require workers to pay for expenses that are for the primary benefit of the employer, through deductions or otherwise, when doing so would effectively bring a worker's wages below the FLSA minimum wage during the first workweek of employment. Therefore, any pre-employment costs found to be primarily for the benefit of the employer must be reimbursed to the extent that they bring a worker's wages below the FLSA minimum wage.
    
    The Department's view on costs that are primarily for the benefit of the employer in the context of the H-2B non-agricultural program is discussed in detail in the Wage and Hour Division's Field Assistance Bulletin No. 2009-2, which is available at http://www.dol.gov/whd/FieldBulletins/FieldAssistanceBulletin2009_2.htm. The Department will view costs the same way in the H-2A program.

    February 13, 2013



31. Is the employer required to reimburse the worker for the worker's passport?
    No. The employer is not required to reimburse workers for fees associated with obtaining or maintaining a worker's passport. Employers are not responsible for costs that are for the primary benefit of the worker. Government-required passport fees are considered costs primarily for the benefit of the worker as the worker may use the passport for purposes other than employment.

    February 13, 2013

1. What is the difference between an H-2A Labor Contractor and a Farm Labor Contractor?


2. Are employers who are engaged in certain occupations exempt from the H-2A Labor Contractor designation and obligations?
   
   
3. I am an employer needing to file an H-2A application as a labor contractor with the Chicago National Processing Center. What are the minimum requirements of obtaining a surety bond in order for it to be accepted?


4. How do I determine the amount of coverage for the surety bond?

Surety Bonds

5. May an H-2A Labor Contractor use the same surety bond to support Applications for Temporary Employment Certification in different years?


6. Can I ask the Chicago National Processing Center (NPC) to return my original surety bond after my Application for Temporary Labor Certification is denied or withdrawn?
7. Why are separate surety bonds required for H-2A Labor Contractors (H-2ALCs) to support each Application for Temporary Employment Certification?

1. What is the difference between an H-2A Labor Contractor and a Farm Labor Contractor?
   
   An H-2A Labor Contractor (H-2ALC) is any person who meets the definition of employer under 20 CFR 655.103(b) and is not a fixed-site employer, an agricultural association, or an employee of a fixed-site employer or agricultural association, who recruits, solicits, hires, employs, furnishes, houses, or transports any worker(s) subject to section 218 of the Immigration and Nationality Act.
   
   A Farm Labor Contractor (FLC), as defined under the Migrant and Seasonal Worker Protection Act (MSPA), is any person, other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association, who, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity.
   
   MSPA applies separately from the Department's H-2A regulations at 20 CFR part 655, Subpart B.Under the requirements of MSPA, FLCs (and any employee who performs farm labor contracting functions) must register with the Department before recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.Agricultural employers and associations (and their employees) need not register as FLCs.

   September 15, 2010

2. Are employers who are engaged in certain occupations exempt from the H-2A Labor Contractor designation and obligations?
   
   No. Any employer who fits the definition of an H-2ALC must identify itself as such on both the ETA Form 790 and the ETA Form 9142 and meet all of the obligations and requirements applicable to H-2ALCs, as set out in 20 CFR 655.132. Employers who are H-2ALCs and who belong to occupations for which special procedures have been established will continue to submit their applications in accordance with those special procedures. However, the H-2ALC must comply with all the requirements set forth in §655.132, unless the particular requirement is superseded by the special procedures.

September 15, 2011

3. I am an employer needing to file an H-2A application as a labor contractor with the Chicago National Processing Center. What are the minimum requirements of obtaining a surety bond in order for it to be accepted?
   
   

   As a prospective employer filing as an H-2A Labor Contractor (H-2ALC), you are required to obtain a surety bond demonstrating your ability to meet payroll and other financial obligations to your employees contained in the terms and conditions of the agricultural job order and the Application for Temporary Employment Certification (ETA Form 9142). The original bond instrument issued to you by the surety must be submitted with the ETA Form 9142to the Chicago National Processing Center. Copies of the original bond instrument will not be accepted.

   At a minimum, the bond instrument issued to you by the surety must:

   1. Identify the surety’s name, address, phone number, and contact person;
   2. Specify the amount of the bond based on the number of workers to be employed;
   3. State that the aggregate liability of the surety shall not exceed the amount of the bond;
   4. State that the bond must be payable to the “Administrator, Wage and Hour Division, United States Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210“;
   5. Obligate the surety to pay any sums for (a) wages and benefits owed to an H-2A worker or worker engaged in corresponding employment, or (b) to a U.S. worker improperly rejected or improperly laid off or displaced, based on a final decision finding a violation(s) of the regulation relating to the certified ETA Form 9142 the bond is intended to cover;
   6. Specify the date of issuance and expiration covering liability incurred during the period of employment listed on the certified ETA Form 9142. The bond may be amended to cover any extensions requested by the H-2ALC employer and approved by DHS and/or the Chicago NPC;
   7. Contain a designation or company seal used by the surety for the bond;
   8. State that the bond will remain in force for a period of no less than 2 years from the date on which the certified ETA Form 9142 expires; and
   9. State that the bond may not be canceled or terminated unless 45 days notice is provided by the surety, in writing, to the Administrator, Wage and Hour Division, using the same address provided in Item 3 above.

   Important Reminder: If the Wage and Hour Division commences any enforcement action under the regulations against an H-2ALC employer or any successor in interest within 2 years from the expiration date of the certified ETA Form 9142, the bond shall remain in force until the conclusion of such action and any related appeal or related litigation.

   December 6, 2011

4. How do I determine the amount of coverage for the surety bond?

   The amount of coverage disclosed on the surety bond depends on the number of workers you plan to employ under the H-2A temporary labor certification. The table below provides the amount of coverage required in relation to the range of workers to be employed.

   
   

   Bond Amount	Number of Workers to be Employed
   $5,000	less than 25 workers
   $10,000	25 to 49 workers
   $20,000	50 to 74 workers
   $50,000	75 to 99 workers
   $75,000	100 or more workers

   
   

   Important Reminder: When it is shown based on objective criteria that the amount of the surety bond is insufficient to meet potential liabilities, the Administrator, Wage and Hour Division, may require that an H-2ALC employer obtain a surety bond with a higher amount of coverage after notice and an opportunity for a hearing.

   December 6, 2011

   Surety Bonds
5. May an H-2A Labor Contractor use the same surety bond to support Applications for Temporary Employment Certification in different years?

   No. A new, separate bond is required for each Application for Temporary Employment Certification.

   The regulations governing the H-2A program require an H-2A Labor Contractor (H-2ALC) to submit an original surety bond, i.e. one with a raised seal or other indicator evidencing it is an original, for each Application for Temporary Employment Certification filed with the Department.

   Submitting a copy of a surety bond or a surety bond without an original indicator is not sufficient to satisfy the regulations. Also, submitting a rider or evidence of a "continuous" bond, even if an original document, is not sufficient to satisfy the regulations. Such documents provide evidence of an existing bond rather than a new bond specific to the application. The requirement of a new original surety bond to support each Application for Temporary Labor Certification allows the Chicago National Processing Center (NPC) to ensure that the amount of the bond coverage appropriately corresponds to the number of workers requested on the employer's ETA Form 9142. Additionally, in the event of a violation, a separate bond for each application is critical to the effective enforcement of the H-2ALC's wage obligations against the surety that agreed to be legally responsible.

   Each surety bond must comply with all requirements outlined in the regulations. These requirements include the bond: (1) identifying the issuer, the name, address, phone number, and contact person for the surety; (2) specifying the amount of the bond, the date of issuance and expiration and any identifying designation used by the surety for the bond; (3) being payable to the Administrator, Wage and Hour Division, United States Department of Labor; and (4) remaining in force for a period of no less than 2 years from the date on which the labor certification expires. Additional information about surety bonds may be found in other Frequently Asked Questions (FAQs) posted here.

   Important Reminder: The employer must submit the original surety bond to the Chicago NPC at the time of filing its Application for Temporary Employment Certification.
   

   February 29, 2012

6. Can I ask the Chicago National Processing Center (NPC) to return my original surety bond after my Application for Temporary Labor Certification is denied or withdrawn?

   Yes. If an Application for Temporary Labor Certification is denied or withdrawn and the Chicago NPC receives a written request from the employer or the employer's authorized agent for the original surety bond that was submitted with the application, the Chicago NPC will return the original surety bond using regular mail.

   February 29, 2012

7. Why are separate surety bonds required for H-2A Labor Contractors (H-2ALCs) to support each Application for Temporary Employment Certification?

   The requirement of a new original surety bond to support each Application for Temporary Employment Certification allows the Chicago National Processing Center (NPC) to ensure that the amount of the bond coverage appropriately corresponds to the number of workers requested on the employer's ETA Form 9142, as outlined in 29 CFR 501.9. Additionally, in the event there is a finding of a violation, the requirement that a separate bond meet the face value parameters specified in 29 CFR 501.9 for each application is critical to the effective enforcement of an H-2ALC's wage obligations against the surety that agreed to be legally responsible with regard to the wages owed to the workers under that particular application.

   February 13, 2013

Interviews

1. I have received referrals from the SWAs who know very little about the job opportunity. Under the Department's regulations, may I reject those workers for not being fully apprised of the job opportunity?
2. Some U.S. workers tell me during the pre start-date interview that they cannot commit to beginning work on the application's start date or may not be able to work for the entire period of need. Are these workers considered "willing and available"?


Employment Verification

3. May I continue to rely on the SWA to verify the employment eligibility of the applicants it refers to my job opportunity?


Recruitment/ Recruitment Report

4. I do not have enough time to complete all of the required advertising listed in the Notice of Acceptance before the recruitment report due date. Do I submit the recruitment report before completing all of the required advertising, or do I wait to submit the recruitment report until all recruitment is complete?
5. How does an employer determine whether a specific newspaper is appropriate for the two local newspaper advertisements required?


Newspaper Advertisement

6. The Notice of Acceptance I received instructs me to place advertisements in other States. What job order number and State Workforce Agency (SWA) contact information should I put in the advertisements?


7. I am located in a rural area that does not have a newspaper with a Sunday edition. What are my advertising requirements?

Interviews

1. I have received referrals from the SWAs who know very little about the job opportunity. Under the Department's regulations, may I reject those workers for not being fully apprised of the job opportunity?
   
   No. Under the 2010 Final Rule and historically in the H-2A program, the employer has an affirmative obligation to apprise all workers, including H-2A workers and workers in corresponding employment of all material terms and conditions of employment. The Department's regulations, at 20 CFR 655.122(q), additionally require each employer to provide its H-2A workers and workers in corresponding employment with a copy of the work contract (or in the absence of a separate work contract, with a copy of the application and job order) in a language understood by the worker. Finally, rejections of U.S. workers who apply for the job must be only for lawful, job-related reasons - not being aware of all the terms and conditions of employment is not a lawful, job-related reason to not hire an otherwise qualified and eligible U.S. worker.

   September 15, 2010



2. Some U.S. workers tell me during the pre start-date interview that they cannot commit to beginning work on the application's start date or may not be able to work for the entire period of need. Are these workers considered "willing and available"?
   
   No. A willing and available worker anticipates being available on the start date and throughout the period of need.

   February 13, 2013

Employment Verification

3. May I continue to rely on the SWA to verify the employment eligibility of the applicants it refers to my job opportunity?
   
   Under the Immigration and Nationality Act (INA), the employer is responsible for verifying the employment eligibility of all of its hires. Department of Homeland Security (DHS) regulations do not require State agencies to verify the employment eligibility of job applicants they refer to employers but do permit employers to rely on employment verification voluntarily performed by a State employment agency under certain limited circumstances. Under the 2008 Final Rule the Department required the SWAs to perform I-9 verification on all applicants being referred to job openings for which H-2A workers were sought. Under the 2010 Final Rule, the SWAs will no longer be required to conduct I-9 employment eligibility verification of job applicants referred to job opportunities for which H-2A workers are sought. Employers should carefully examine the requirements under the INA and the DHS regulations to ascertain their obligations and ensure compliance with respect to employment eligibility verification.

   March 29, 2010

Recruitment/ Recruitment Report

4. I do not have enough time to complete all of the required advertising listed in the Notice of Acceptance before the recruitment report due date. Do I submit the recruitment report before completing all of the required advertising, or do I wait to submit the recruitment report until all recruitment is complete?
   
   The Notice of Acceptance contains the recruitment instructions and the due date for the first recruitment report. The employer should begin recruitment when it receives the Notice of Acceptance and then submit the first recruitment report by the due date provided. We understand that an employer may not have time to complete the required recruitment before submitting its first recruitment report. The regulation provides for the employer to continue recruiting after submitting the first recruitment report. Specifically, an employer must continue to maintain and update its recruitment report during the first 50 percent of the contract period and be prepared to submit the updated recruitment report, if requested.

   February 29, 2012



5. How does an employer determine whether a specific newspaper is appropriate for the two local newspaper advertisements required?
   
   When choosing where to place the two required newspaper advertisements in the area of intended employment, an employer must ensure that the publication it selects meets the following regulatory criteria:
   • It is a newspaper;
     Note: A newspaper contains news articles, editorials, feature articles and some advertising. A publication primarily consisting of advertising is not a newspaper.
   • It maintains general circulation;
     Note:A newspaper maintains general circulation when it is sold to the public in general.
   • It serves the area of intended employment; and
   • It is appropriate to the occupation and the workers likely to apply for the job opportunity.
   A newspaper that is circulated on a weekly basis, or less frequently than weekly (e.g., monthly), is not acceptable. Factors such as the cost of an advertisement or advertisement presentation format, however, do not necessarily indicate that a newspaper is more or less appropriate for the labor market test. The employer should be prepared, if asked, to explain how the publication it selected meets the regulatory criteria.
   
   In some cases the SWA may, but is not required by regulation to, include the name of appropriate newspaper(s) in its letter to the employer accepting the job order.
   
   Important Note: If an employer needs assistance identifying a newspaper of general circulation in the area of intended employment, the employer may direct an inquiry to the Chicago National Processing Center Help Desk: TLC.Chicago@dol.gov.

   February 13, 2013




Newspaper Advertisement


6. The Notice of Acceptance I received instructs me to place advertisements in other States. What job order number and State Workforce Agency (SWA) contact information should I put in the advertisements?
   
   All advertisements should contain the same job order number. The job order number in all advertisements is the job order number the SWA serving the area of intended employment (the order holding office) assigns to the employer's ETA Form 790. It has been our practice to accept a statement in out-of-state advertisements directing prospective applicants to apply for the job opportunity at the nearest local office of the SWA. This statement, combined with the employer's own contact information listed in the advertisement, provide sufficient contact information for an applicant to connect with the job opportunity. The employer is not required to research and identify in the advertisement the specific SWA name or contact information for the local out-of-state SWA office.

   February 29, 2012

7. I am located in a rural area that does not have a newspaper with a Sunday edition. What are my advertising requirements?
   
   The Certifying Officer (CO) will outline the employer's recruitment requirements in the Notice of Acceptance. When a job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the CO may direct the employer, in place of a Sunday edition, to advertise in the regularly published daily edition with the widest circulation in the area of intended employment.

   February 29, 2012

Amendments

1. If an employer or association of employers realizes that it needs either more or fewer H-2A workers than stated on the ETA Form 9142, how late in the process can it request a change?If an employer or association of employers realizes that it needs either more or fewer H-2A workers than stated on the ETA Form 9142, how late in the process can it request a change?
2. Can I amend the period of employment or change the number of workers on my H-2A application before it is certified?


Withdrawals

3. May I withdraw a job order I submitted to the SWA once it has been accepted into intrastate clearance?
4. May I withdraw my Application for Temporary Employment Certification and job order after filing an Application for Temporary Employment Certification with the Chicago NPC?
5. May I withdraw my Application for Temporary Employment Certification and job order after I receive a Notice of Acceptance from the Chicago NPC?

Amendments


1. If an employer or association of employers realizes that it needs either more or fewer H-2A workers than stated on the ETA Form 9142, how late in the process can it request a change?
   
   Employers may request to amend, i.e., to either increase or decrease, the number of workers requested in their initial application at any time before final determination. Employers may request an increase in the number of workers without additional recruitment as long as the increase is no more than 20 percent of the original number requested or 50 percent in the case of an employer requesting less than 10 workers. For requests for increases above the percentages prescribed, without additional recruitment, the employer must demonstrate that the need for additional workers could not have been foreseen, and the crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period.

   September 15, 2010




2. Can I amend the period of employment or change the number of workers on my H-2A application before it is certified?
   
   Yes, the employer may request amendments to either the period of employment or change the number of workers before a certification decision is issued by the Chicago National Processing Center (NPC).
   Submit a written amendment request directly to the Chicago NPC.
   
   The employer may e-mail the request directly to the Chicago NPC using the address: h2a.amend&extend.chicago@dol.gov, with the words "H-2A Amendment Request" contained in the subject line of the e-mail.
   
   Employers without internet access may send a written request by facsimile to (312) 886-1688 (ATTN: H-2A Amendment Request) or by U.S. mail to the following address:
   U.S. Department of Labor
   Employment and Training Administration
   Office of Foreign Labor Certification,
   Chicago National Processing Center
   11 West Quincy Court
   Chicago, IL 60604-2105
   ATTN: H-2A Amendment Request
   
3. If you are requesting a change in the period of employment or an increase in the number of workers by more than 20% (more than 50% if you originally requested less than 10 workers), attach to the amendment request a statement and any other documentation (e.g., state/local weather reports, crop yield data) demonstrating how the need for the change in the period of employment or workers requested could not have been foreseen, and a description of how the crops or commodities will be in jeopardy if approval is not granted immediately.
4. The employer will receive a courtesy notification from the Chicago NPC acknowledging receipt of the amendment request within 48 hours and providing a date on which a decision will be made on the request or stating whether additional information is needed from the employer.
   
   Important Reminders:
   
   1. The Chicago NPC may require additional recruitment for U.S. workers as a condition of approving your amendment request, particularly in circumstances where the request will increase in the number of workers by more than 20% or more than 50% if you originally requested less than 10 workers.
   
   2. If you are requesting a delay in the expected start date of work, please remember to include in your written notification to the Chicago NPC a statement indicating whether any U.S. workers have already departed for your place of work and, if so, an assurance that all workers who are already traveling will be provided housing and meals, without cost to the workers, until work begins.
   

September 9, 2011





September 9, 2011



Withdrawals


5. May I withdraw a job order I submitted to the SWA once it has been accepted into intrastate clearance?
   
   Yes. An employer who submitted a job order in connection with a future H-2A application may withdraw it once it has been accepted for intrastate clearance but before the employer files an Application for Temporary Employment Certification, ETA Form 9142 with the Chicago National Processing Center, but the employer's withdrawal of the job order does will not nullify existing obligations to workers who were recruited in connection with that job order. If the employer received SWA referrals pursuant to the withdrawn job order and successfully recruited U.S. workers, the employer will be bound by the terms and conditions of employment reflected in the job order with respect to those workers, including but not limited to wages, housing, and transportation.
   

   September 15, 2010




6. May I withdraw my Application for Temporary Employment Certification and job order after filing an Application for Temporary Employment Certification with the Chicago NPC?
   
   Yes. An employer may withdraw its Application for Temporary Employment Certification and job order submitted in connection with the application, after the job order is accepted by the SWA and placed intrastate clearance, but before the Certifying Officer issues a Notice of Acceptance. However, the employer will be required to comply with the terms and conditions of employment contained in the job order with respect to workers recruited in connection with that application and job order.

   September 15, 2010




7. May I withdraw my Application for Temporary Employment Certification and job order after I receive a Notice of Acceptance from the Chicago NPC?
   
   Yes. An employer may withdraw its Application for Temporary Employment Certification and job order submitted in connection with the application after the Certifying Officer issues a Notice of Acceptance. The employer will be required to comply with the terms and conditions of employment contained in the application and job order with respect to workers recruited in connection with that application and/or job order.

   September 15, 2010

1. Since I will be submitting supporting documentation before certification, will I still need to keep certain documents after I receive a labor certification?
   
   Yes. In addition to providing supporting documentation before certification, each employer participating in the H-2A program is required to retain certain documentation for a period of 3 years from the date of certification. The document retention requirements may be found under the new section 20 CFR 655.167.

   March 29, 2010

1. How can I appeal a refusal to accept my application or a denial of my application?
2. May an employer appeal a wage determination in the H-2A program?

1. How can I appeal a refusal to accept my application or a denial of my application?
   
   If an employer wishes to appeal the CO's issuance of a Notice of Deficiency before certification, the employer must within 5 days of the receipt of the Notice of Deficiency file by facsimile or other means normally assuring next day delivery a written request for an expedited administrative review or a de novo administrative hearing to the Chief Administrative Law Judge of the Department of Labor and simultaneously 9 serve the CO. If an employer wishes to appeal the CO's issuance of a Final Determination letter denying the temporary labor certification, the employer must within 7 calendar days of the receipt of the Final Determination letter file a written request by facsimile or other means normally assuring next day delivery with the Chief Administrative Law Judge of the Department of Labor and simultaneously serve the CO. See sections 20 CFR 655.141 and 655.164.

   March 29, 2010




2. May an employer appeal a wage determination in the H-2A program?
   
   Not directly. The H-2A regulations do not contain a provision for appealing wage determinations. However, if the SWA and the employer do not agree on the correct wage that must be offered, and the employer complies with all requirements of the 2010 Final Rule (described more fully below) the Certifying Officer (CO) at the Chicago NPC ultimately may make the determination on the wage that must be offered. If the matter is not resolved with the CO, the employer may follow the appeal procedures in the 2010 Final Rule and request an appeal from either a Notice of Deficiency or a Final Determination denying the employer's application.

   March 29, 2010

1. Can the H-2A labor certification be valid for more than one year under the new rule?
   
   Each H-2A labor certification is valid for the period of employment provided on the application. In order to qualify for a temporary labor certification, the employer's period of need, including any subsequently granted extensions, may not exceed one year except in extraordinary circumstances.

   March 29, 2010

1. Can an employer file a single Application for Temporary Employment Certification for staggered dates of need?
2. My workers currently inside the U.S. are able to start work on the start date listed on my certified Application for Temporary Labor Certification. Those workers coming to my place of employment from outside the U.S., however, may be delayed due to visa processing and travel time and may each arrive on different days, since they each have different travel schedules. Do I need to amend the start date on my Application for Temporary Labor Certification so that all workers start on the same date? Will the Department think I have staggered dates of need?

1. Can an employer file a single Application for Temporary Employment Certification for staggered dates of need?
   
   No. An application must contain a single date of need for all workers under that application. Under the H-2A program, a date of need is defined as the first date the employer requires the services of H-2A and U.S workers as indicated in the Application for Temporary Employment Certification. The date is not an indication of the first date of need for some workers, but for all the workers that are the subject of the application. We expect that the filing of an Application indicates that the employer has full-time work available for all positions it is requesting for that single start date and that all information reflects the employer's true need. Changing the date of need for some or all workers invalidates the validity of the labor market test, which eliminates the Department's basis for granting the labor certification. A different date was not advertised to U.S. workers, in particular those who, if they had been apprised of the later date, could have made themselves available for the job opportunity, and therefore made the approval of the certification unnecessary. Where the employer has staggered dates of need, the employer must file a separate application for each date of need.

   July 22, 2011





2. My workers currently inside the U.S. are able to start work on the start date listed on my certified Application for Temporary Labor Certification. Those workers coming to my place of employment from outside the U.S., however, may be delayed due to visa processing and travel time and may each arrive on different days, since they each have different travel schedules. Do I need to amend the start date on my Application for Temporary Labor Certification so that all workers start on the same date? Will the Department think I have staggered dates of need?
   
   

   As discussed further in a separate Frequently Asked Question (FAQ), where an employer requires workers to begin work on different dates, the employer has staggered dates of need and must file a separate Application for Temporary Employment Certification for each of the different start dates of need.

   An employer that intends for all of its workers to begin work on the same date, but finds that some workers are unable to arrive in time due to minor travel delays, is different from an employer that requires workers to begin work on different dates. We recognize that these employers make every effort to ensure that all workers arrive in time to be ready to work on the start date listed on the Application for Temporary Employment Certification. The regulatory provision for requesting a delayed start date applies when the employer wishes to delay the start date of all workers covered by the Application for Temporary Employment Certification. It does not cover minor travel delays or slower than expected processing times at USCIS or a U.S. Consulate for workers coming from outside the U.S.; however, these delays should not delay any other worker's start date or the employer's start date of work.

   The employer's application also does not need to be amended when minor differences in worker travel schedules, such as those described above, mean workers will arrive within a few days of each other or the start date of need.

   Important Reminder: The employer's positive recruitment obligations continue through the date the H-2A workers depart for the employer's place of work. Unless the SWA is informed in writing of a different date, the date that is the third day before the employer's start date will be considered the date the H-2A workers depart for the employer's place of work.

   February 29, 2012

1. I am an employer in the entertainment industry.  In filing my Application for Temporary Employment Certification, should I follow the special procedures contained in the Training and Employment Guidance Letter 31-05 for entertainers, or should I follow the 2008 H-2B regulations?
2. What defines a Metropolitan Statistical Area (MSA)?

1. I am an employer in the entertainment industry.  In filing my Application for Temporary Employment Certification, should I follow the special procedures contained in the Training and Employment Guidance Letter 31-05 for entertainers, or should I follow the 2008 H-2B regulations?
   
   The 2008 H-2B regulations contain a provision that permits the continuation of special procedures that were in place prior to the regulations' effective date of January 18, 2009. The Department continues to honor special procedures contained in Training and Employment Guidance Letter (TEGL) 31-05 to the extent they are consistent with the 2008 H-2B regulations.  The Department is not, however, able to honor the special procedures in areas in which they are in direct contravention of the 2008 H-2B regulations, as outlined in these FAQs.

   September 16, 2010




2. What defines a Metropolitan Statistical Area (MSA)?
   
   MSAs are geographic entities defined by the U.S. Office of Management and Budget for use by Federal statistical agencies in collecting, tabulating, and publishing Federal statistics. A metro area contains a core urban area of 50,000 or more population, and a micro area contains an urban core of at least 10,000 (but less than 50,000) population. Each metro or micro area consists of one or more counties and includes the counties containing the core urban area, as well as any adjacent counties that have a high degree of social and economic integration (as measures by commuting to work) with the urban core. For more information on MSAs, please visit the U.S. Census Bureau at http://www.census.gov/population/www/estimates/metroarea.html

1. Where do I find the NAICS Code that the ETA 9142 asks for on page 2, Section C, Item 13 and what is it?
2. Where do I find the SOC (ONET/OES) Code and SOC (ONET/OES) Occupation Title requested on page 1, Section B questions 2 and 3 of the new ETA Form 9142?
3. The employer completes a narrative statement regarding item 9 of ETA Form 9142, but must retain the supporting documents. Can these 3 documents be submitted with the application instead of in response to the National Processing Center (NPC)'s Request for Information (RFI)?
4. Where do we send the completed Application for Temporary Employment Certification?

1. Where do I find the NAICS Code that the ETA 9142 asks for on page 2, Section C, Item 13 and what is it?
   
   "NAICS" stands for the North American Industry Classification System, which is a coding system that classifies all businesses into specific categories enabling statisticians and others in the government and in the private sector to identify trends and keep track of information based on industries. The accompanying instructions to the Form ETA9142 provide the web address for the Census Bureau, which maintains the NAICS coding system. The code selected by the employer should reflect the nature of the employer's business, not the job for which certification is sought. A listing of NAICS codes can be found at http://www.census.gov/epcd/www/naics.html

   April 2009




2. Where do I find the SOC (ONET/OES) Code and SOC (ONET/OES) Occupation Title requested on page 1, Section B questions 2 and 3 of the new ETA Form 9142?
   
   Link to http://www.flcdatacenter.com/OesQuick.aspx and click on the drop down box under "OR Select an occupation from the list:" The number on the left is the SOC code and the title to the right is the Occupation Title.
   

   April 2009




3. The employer completes a narrative statement regarding item 9 of ETA Form 9142, but must retain the supporting documents.  Can these 3 documents be submitted with the application instead of in response to the National Processing Center (NPC)'s Request for Information (RFI)?
   
   No. These documents will be requested under the RFI process outlined in 20 CFR 655.23(c) if the employer has made all necessary attestations and assurances but failed to comply with one or more of the certification criteria set forth in 20 CFR 655.23(b). If the regulatory requirements for certification are met, the petition will be certified and the employer should keep any supporting documents demonstrating temporary need for three years from the date of certification in case of a post certification audit. Supporting evidence is not defined by the regulations, but the Department has historically considered charts of permanent and temporary employees, payroll records, and signed contracts setting forth the dates of employment to demonstrate temporary need.

   April 2009




4. Where do we send the completed Application for Temporary Employment Certification?
   
   The completed application must be sent directly to the Chicago National Processing Center. The address is:
   U.S. Department of Labor
   Employment and Training Administration
   Office of Foreign Labor Certification,
   Chicago National Processing Center
   11 West Quincy Court
   Chicago, IL 60604-2105
   

   April 2009

Recruitment Obligations


1. What is my prefiling recruitment obligation and when must I place the first ad?
2. When can I begin my recruitment activities?
3. Can I combine several H-2B job opportunities into one advertisement?
4. How long must my recruitment run?
5. When is the deadline for submitting the Recruitment Report and the Application for Temporary Employment Certification (ETA 9142) along with Appendix B.1?
6. The SWA says they will not place my job order but that I must place it myself, is that right?
7. The SWA states that I must keep my job order active for 30 days, must I?
8. What should the Recruitment Report contain?
9. Do I submit newspaper ad tear sheets with the Recruitment Report which is now filed directly with your office?
10. Do I need to submit copies of resumes or applications with my Application for Temporary Employment Certification?
11. Do I need to submit copies of resumes or applications with my Application for Temporary Employment Certification?
12. What are the SWA obligations with respect to contacting labor unions?
13. Pursuant to the Final Rule, employers and their attorneys or agents are prohibited form seeking or receiving "payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer's attorneys' or agent fees,... or recruitment costs."  This includes any monetary payments, wage concessions, kickbacks, bribes, tributes, in kind payments, and free labor. Does this prohibition apply to petitions that were filed prior to January 18, 2009 and does it apply only to workers abroad or in country as well?

1. What is my prefiling recruitment obligation and when must I place the first ad?
   
   An employer may not place a newspaper advertisement until it has received a prevailing wage (from the State Workforce Agency (SWA) during the transition period or from the Chicago NPC after the transition period). Once an employer has received a prevailing wage it can submit a job order to the SWA serving the area of intended employment and then publish two print advertisements, one of which should be on a Sunday unless no Sunday edition exists (see 20 CFR 655.15(f) for exceptions) during the time the job order is posted with the SWA. The job order cannot be placed more than 120 days prior to the date of need. In addition, if the employer is a party to a collective bargaining agreement governing the job classification that is subject of the H2B application, then the employer must formally contact the local union and maintain copies of 4 correspondence and/or dated logs demonstrating contact with the union, result of such contact, and the number of qualified referrals received from the union. Likewise, if the employer laid off any employees in the same job occupation within 120 days of the first date of need, the employer must document that it has notified or will notify each laid off worker of the job opportunity and has considered or will consider each laid off worker who has expressed interest in the opportunity, and the result of the notification and consideration. Finally, the employer must prepare a Recruitment Report and submit it with the Application for Temporary Employment Certification. The Recruitment Report cannot be prepared any earlier than 2 calendar days after the last date on which the job order was posted and no earlier than 5 calendar days after the last newspaper advertisement was published.

   April 2009




2. When can I begin my recruitment activities?
   
   No earlier than 120 days prior to the first date of need.
   

   April 2009






3. Can I combine several H-2B job opportunities into one advertisement?
   
   No. Each job opportunity must have its own advertisement in order to sufficiently apprise potential workers of the job duties.

   April 2009






4. How long must my recruitment run?
   
   The job order must be posted with the State Workforce Agency in the area of intended employment for no less than 10 full days. The newspaper advertisements must be published while the job order is posted.

   April 2009




5. When is the deadline for submitting the Recruitment Report and the Application for Temporary Employmen Certification (ETA 9142) along with Appendix B.1?
   
   The regulations do not specify the last date an employer can submit an application. The regulations do, however, specify the earliest an employer can begin recruitment (120 days prior to first date of need) and the earliest that a Recruitment Report can be created (2 calendar days after the last date on which the job order was posted and 5 calendar days after the last newspaper advertisement was published). The Recruitment Report is necessary to filing a completed Application for Temporary Employment Certification; therefore, an application may not be filed until at least that time that a recruitment report can 5 be completed. The Recruitment Report and Application for Temporary Employment Certification should not be submitted to the Chicago National Processing Center until all qualified U.S. worker applicants have been considered.

   April 2009




6. The SWA says they will not place my job order but that I must place it myself, is that right?
   
   Many SWAs now have automated self service systems. In those instances, you will be required to place the order yourself, however, you must contact the SWA immediately upon placing the job order and let them know that you have placed an H2B job order. Your job order must state that it is being filed in support of a future H2B application.

   April 2009




7. The SWA states that I must keep my job order active for 30 days, must I?
   
   The Department of Labor requires that employers post their job orders and keep them active for at least 10 days. If a SWA requires a longer period, then the employer must comply with this requirement and continue to accept referrals. In such an instance, the employer cannot submit its application to the Department until the earliest that a Recruitment Report can be created, i.e. 2 calendar days after the last date on which the job order was posted and 5 calendar days after the last newspaper advertisement is published. The Recruitment Report is necessary to filing a completed Application for Temporary Employment Certification; therefore, an application may not be filed until at least 2 days after the end of the required posting period. Employers seeking to file applications for temporary labor certification for H2B workers should therefore determine the requirements for posting in the applicable SWA well in advance of the intended employment to ensure compliance. Employers are also reminded that they must keep the job order active until all print advertisements have been published.

   April 2009




8. What should the Recruitment Report contain?
   
   The Recruitment Report must identify each recruitment source by name; list the name and contact information for each U.S. worker who applied or was referred, and the disposition of each worker, including any applicable laid off workers; indicate whether the worker was hired or not and if the worker was not hired, list the lawful job related reasons for not hiring the worker. There is no required format or form for a recruitment report other than it contain these elements.

   April 2009




9. Do I submit newspaper ad tear sheets with the Recruitment Report which is now filed directly with your office?
   
   An employer is not required to submit evidence of the placement of such advertisements, such as newspaper tear sheets, with the Application for Temporary Employment Certification. The employer must attest to the dates on which the advertisements were placed, and must maintain copies of the newspaper pages, tear sheets, or other proof of publication containing the text of the advertisement and dates of publication for 3 years from the date of certification, to be presented to the Department in the event of a request for additional information prior to adjudication, an audit or other investigation.
   

   April 2009




10. Do I need to submit copies of resumes or applications with my Application for Temporary Employment Certification?
    
    No. An employer is not required to submit copies of resumes or job application forms completed by job applicants with its Application for Temporary Employment Certification. However, the employer must maintain for 3 years resumes and evidence of contact with each U.S. worker who applied or was referred to the job opportunity, to be provided to the Department in response to an RFI, audit, or other investigation.

    April 2009




11. What are the employer's obligations with respect to contacting labor unions?
    
    The H2B regulations at 20 CFR 655.15(g) require an employer that is a party to a collective bargaining agreement (CBA) covering the job classification that is the subject of the H2B labor certification application to formally contact the local union that is a party to the CBA. Such contact may be by U.S. mail or other effective means during the same period of time that the SWA is circulating a copy of the employer's job offer within the state. After contact, the employer must maintain dated logs demonstrating: (1) that the union was contacted and notified timely of the position openings; (2) whether the union referred qualified U.S. worker(s); (3) the number of U.S. workers that were referred, if applicable; and (4) whether or not the union was responsive to the employer's request.

    April 2009




12. What are the SWA obligations with respect to contacting labor unions?
    
    The Department strongly recommends that a SWA, which has knowledge that the employer's job opportunity is in an occupation that is traditionally unionized, circulate a copy of the intrastate job order to all applicable unions and other sources of recruitment and apprise these sources of the available position(s) within the area of intended employment. To ensure that the labor unions and other sources of recruitment will have a sufficient amount of time to apprise their members to apply for the available position(s), we strongly recommend that the SWA contact the union on the first day that it places the intrastate job order on its active file for recruitment and request that referrals of applicants be made to the SWA within the active recruitment period. Last, the SWA should allow a reasonable period of time, e.g., 3 calendar days after the close of the job order, for referrals sent the day the order closed to be received and considered by the SWA. In accordance with 20 CFR 655.15(e)(1), the SWA must place the job order no more than 120 calendar days before the employer's date of need for H2B workers for a period of not less than 10 calendar days.

    April 2009




Recruitment Fees


13. Pursuant to the Final Rule, employers and their attorneys or agents are prohibited form seeking or receiving "payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer's attorneys' or agent fees, or recruitment costs." This includes any monetary payments, wage concessions, kickbacks, bribes, tributes, in kind payments, and free labor. Does this prohibition apply to petitions that were filed prior to January 18, 2009 and does it apply only to workers abroad or in country as well?
    
    Applications that were filed before January 18, 2009 are being adjudicated under the regulations in effect at the time of filing. The prohibition on seeking or receiving payment from the employee for any activity relating to the obtaining of the labor certification therefore does not apply to them. For those applications filed on or after January 18, 2009, the prohibition applies to recruiter and other fees charged to any foreign workers, whether in the U.S. or abroad, relating to the obtaining of the labor certification.

    April 2009

1. Who qualifies as an entertainer for H-2B status?
2. As an employer of entertainers who enter the US in H-2B status, where do I file?
3. I hire musicians from Canada. Has how their recruitment changed?
4. I hire workers in the Virgin Islands. There used to be special procedures for them. Are they still in place?
5. My workers appear in several places. I used to be able to file one application and submit an itinerary. Can I still do that?
6. Has when I may file an H-2B application changed?
7. How do I begin the filing process?
8. How do I get a prevailing wage if I have multiple worksites?
9. I have just received my prevailing wage from the NPC. Can I offer that salary only to my H-2B workers?
10. Do I follow the regulations and recruit before I file the application?
11. When do I recruit?
12. How do I recruit?
13. How long will the SWA job order be open?
14. Can I reject workers who are not willing to join the itinerary? For example, I have worksites in 6 states. If a worker sees the recruitment in the third state, can he join for just that state?
15. Where do I file my application?
16. How do I include my itinerary with the application?
17. Once the CNPC has my application, what can I expect?

1. Who qualifies as an entertainer for H-2B status?
   
   Occupations in the entertainment industry, for purposes of applying for a labor certification for H-2B workers, shall include performers and all technical and support personnel involved with a performance, including carnival workers.
   

   June 2009




2. As an employer of entertainers who enter the US in H-2B status, where do I file?
   
   All H-2B applications are filed with the Certifying Officer at the Chicago National Processing Center (CNPC). Employers are no longer required to submit applications for H-2B temporary employment of foreign workers to one of the Offices Specializing in Entertainment (OSEs) in New York, New York; Austin, Texas; or Sacramento, California.
   

   June 2009




3. I hire musicians from Canada. Has how their recruitment changed?
   
   It has not changed.  As discussed in TEGL 31-05, where you recruit depends on where the musicians appear. Canadian musicians who enter the US to perform within a 50-mile area adjacent to the Canadian border for a period of 30 days or less are pre-certified and are not subject to these procedures. In such cases, employers may file petitions to employ nonimmigrant workers (I-129) directly with USCIS in accordance with that agency's guidelines; no pre-recruitment is necessary. If the entertainers you seek to bring to the US in H-2B status are not able to fall within this limited exemption, you must follow the procedures outlined in the H-2B regulations, subject only to special procedures outlined in TEGL 31-05 (such as an itinerary).
   

   June 2009




4. I hire workers in the Virgin Islands. There used to be special procedures for them. Are they still in place?
   
   Yes. There continue to be in place the special procedures with respect to the amount of time that an H-2B worker in the entertainment industry may enter the U.S. Virgin Islands. The Virgin Islands Nonimmigrant Alien Adjustment Act of 1981, Pub. L. 97-271, limits temporary employment of entertainers in the U.S. Virgin Islands to periods not to exceed 45 days. Therefore, the period of labor certification for such applications may not exceed 45 days.
   

   June 2009




5. My workers appear in several places.  I used to be able to file one application and submit an itinerary.  Can I still do that?
   
   An employer seeking H-2B workers in the entertainment industry may still utilize an itinerary when filing an application.  The application must include an itinerary of locations and duration of work in each location.
   

   June 2009




6. Has when I may file an H-2B application changed?
   
   Yes. The final regulation requires employers, including those seeking H-2B workers in the entertainment industry, to file their H-2B application after completion of the recruitment report detailing their efforts and the outcome of U.S. worker applicants. The creation of the required recruitment report cannot occur, pursuant to 20 CFR 655.15(j)(1), until after the completion of the US worker recruitment, specifically no earlier than 2 days after the last date on which the job order was posted and at least 5 days after the last date on which the newspaper or journal ad was placed. Recruitment may not start until 120 days prior to the employer's date of need.
   

   June 2009




7. How do I begin the filing process?
   
   Before recruiting US workers, the employer must request and obtain a prevailing wage determination from the CNPC, in accordance with the procedures specified at 20 CFR 655.10. The rate must be valid either on the date recruitment begins or on the date of filing a complete ETA Form 9142. The employer will request a prevailing wage determination by completing the ETA Form 9141, Application for Prevailing Wage Determination, and including a listing of all worksites covered by the job opportunity. The CNPC will enter its wage determination on the ETA Form 9141, indicate the sources, and return the form with its endorsement to the employer within 30 days of receipt of the request. The validity period of the wage determination may be for no more than 1 year or less than 3 months from the wage determination date.
   

   June 2009




8. How do I get a prevailing wage if I have multiple worksites?
   
   The employer must list all worksites within an area of intended employment on its ETA Form 9141 when requesting a prevailing wage. If the job opportunity involves multiple worksites within an area of intended employment and different prevailing wage rates exist for the same opportunity within the area of intended employment, the prevailing wage shall be the highest wage among all relevant worksites. Employers submitting a prevailing wage determination covering itinerary locations will receive a wage determination for each location listed on the itinerary for work to be performed in that location.
   

   June 2009




9. I have just received my prevailing wage from the NPC. Can I offer that salary only to my H-2B workers?
   
   Pursuant to statute and regulation, the employer must offer the wage determination from the NPC (or higher) to both its H-2B workers and any similarly employed U.S. worker hired in response to the recruitment required by the regulations and these special handling procedures.
   

   June 2009




10. Do I follow the regulations and recruit before I file the application?
    
    All H-2B recruitment is undertaken prior to submission of the application. Employers file with the CNPC only after completing the recruitment report detailing their efforts and the outcome of U.S. workers who applied, or on whose behalf an application was made, for the job opportunity.
    

    June 2009




11. When do I recruit?
    
    Recruitment of US workers may not commence more than 120 days before the employer's start date of need for the H-2B workers. An employer seeking H-2B workers may file with the CNPC only after completing the recruitment report as noted above. The creation of a recruitment report cannot occur, pursuant to 20 CFR 655.15(j)(1), until after the completion of the recruitment period, specifically no earlier than 2 days after the last date on which the state job order was posted and at least 5 days after the last date on which the newspaper or journal ad was placed.

    June 2009




12. How do I recruit?
    
    An employer seeking certification for H-2B job opportunities, including opportunities in the entertainment industry, must undertake the following recruitment steps:
    
    
    1. Submit a job order to the SWA serving the area of intended employment as specified in 20 CFR 655.15(e). Where the job opportunity requires the work to be performed in more than one state based on an itinerary, the job order should be submitted to the SWA having jurisdiction over the area where the employment will begin. The SWA receiving the job order shall promptly transmit, on behalf of the employer, a copy of the active job order to all states listed as anticipated worksites. When submitting the job order to the SWA, the employer must clearly identify it as a job order to be placed in connection with a future application for H-2B workers.
       
       
    2. Publish advertisements on 2 separate days, which may be consecutive, one of which must be a Sunday advertisement, in a newspaper of general circulation serving the area of intended employment as specified in 20 CFR 655.15(f). The employer may satisfy this requirement by advertising the job opportunity in a national publication that is likely to bring responses from U.S. workers.
       
       
    3. Where the employer is a party to a collective bargaining agreement governing the job classification that is subject of the H-2B labor certification, the employer must contact the local union that is party to the agreement as specified in 20 CFR 655.15(g)
       
       At the conclusion of the recruitment period, the employer shall prepare a written recruitment report as specified in 20 CFR 655.15(j), to be submitted with the application.

       June 2009



13. How long will the SWA job order be open?
    
    The SWA must keep the job order open for a period of not less than 10 calendar days. If the SWA requires a longer period in order to adequately recruit US workers for the job opportunity (e.g., 30 calendar days), the employer must comply with the requirement and continue to accept referrals of US workers until the end of the recruitment period.

    June 2009



14. Can I reject workers who are not willing to join the itinerary? For example, I have worksites in 6 states. If a worker sees the recruitment in the third state, can he join for just that state?
    
    He can if you are willing to have him join in only that state, and the certification will be reduced accordingly for the entire itinerary. If you prefer, you may reject that worker, unless he is in fact willing to work for the rest of the itinerary.

    June 2009



15. Where do I file my application?
    
    Temporary labor certification applications for foreign workers in the entertainment industry shall be filed by employer with the CNPC at the following address:
    U.S. Department of Labor
    Employment and Training Administration
    Office of Foreign Labor Certification,
    Chicago National Processing Center
    11 West Quincy Court
    Chicago, IL 60604-2105
    Attn: CNPC Certifying Officer, H-2B Application for Entertainers

    June 2009



16. How do I include my itinerary with the application?
    
    When filed, the application must include: A completed ETA Form 9142, Application for Temporary Employment Certification signed by the employer; an itinerary of locations and duration of work in each location, where there is more than one worksite, and a wage offer for each location listed on the itinerary for work performed in that location which can submitted as an attachment to the ETA Form 9142. The completed application must also include a copy of the recruitment report completed in accordance with 20 CFR 655.15(j).

    June 2009



17. Once the CNPC has my application, what can I expect?
    
    The CNPC will make a determination to either grant or deny the Application for Temporary Employment Certification. The CNPC will notify the employer in writing (either electronically or by US Mail) of the labor certification determination. The CNPC will review complete applications for an absence of errors that would prevent certification and for compliance with the criteria for certification. Criteria for certification include whether the employer has established the need for the nonagricultural services or labor to be performed is temporary in nature; established that the number of worker positions being requested is justified and represent bona fide job opportunities; made all the assurances and met all the obligations required by § 655.22; and complied with all requirements of the program. If the CNPC determines that the employer has made all necessary attestations and assurances, but the application fails to comply with one or more of the criteria for certification, the CNPC will issue a Request for Information (RFI) to the employer. The CNPC will issue the written (RFI) within 7 calendar days of the receipt of the application, and send it by means normally assuring next-day delivery.

    June 2009

1. What labor certification programs are affected by the new prevailing wage process administered by the NPWHC?

2. How can I check the status of a prevailing wage application I filed using the iCERT System?

1. What labor certification programs are affected by the new prevailing wage process administered by the NPWHC?
   
   As described in the Department's December 4, 2009, Federal Register Notice (74 FR 63796), the National Prevailing Wage and Helpdesk Center (NPWHC) will process Prevailing Wage Determination (PWD) requests for H-1B, H-1B1 (Chile/Singapore), H-1C (if reauthorized by Congress), H-2B, E-3 (Australia) programs, and the permanent labor certification program (PERM).

March 24, 2010



2. How can I check the status of a prevailing wage application I filed using the iCERT System?
   
   You can check the status of your case through your iCERT System account at http://icert.doleta.gov.

March 15, 2011

1. Will employers seeking H-2A labor certifications be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?
2. Will the NPWHC accept PWD requests via electronic means?
3. I submitted a prevailing wage request via the iCERT System. Should I also mail a copy of the ETA 9141 to the NPWC?
4. I want to mail in a request for a PWD, where do I send it? What is the correct address and zip code?
5. My office is located in Washington, DC. Can I bring my PWD request to the NPWHC?

1. Will employers seeking H-2A labor certifications be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?
   
   No. The NPWHC is not set up to receive walk-in applications from the public. Requests for PWDs should be filed either electronically using the iCERT system or mailed to the NPWHC.

March 24, 2010

2. Will the NPWHC accept PWD requests via electronic means?
   Electronic filing is strongly recommended.  The Department's iCert Portal has been updated to allow users to electronically submit ETA Form 9141, requests for PWDs, to the NPWHC.  To access the iCert Portal go to: http://icert.doleta.gov/.

March 24, 2010



3. I submitted a prevailing wage request via the iCERT System. Should I also mail a copy of the ETA 9141 to the NPWC?
   
   No. Please submit only one ETA 9141 per prevailing wage request. In order to reduce the number of duplicate PWDs, employers must not mail copies of ETA 9141s that were submitted via the iCERT System. In addition, employers should not submit multiple requests, via the iCERT System or mail, for the same PWD request.

March 15, 2011



4. I want to mail in a request for a PWD, where do I send it? What is the correct address and zip code?
   
   To mail a request for a PWD, an employer must send a completed ETA Form 9141 to the NPWHC. The complete address and zip code for the NPWHC is:
   
   U.S. Department of Labor
   Employment and Training Administration
   Office of Foreign Labor Certification
   National Prevailing Wage and Helpdesk Center
   Attn: PWD Request
   1341 G Street, NW
   Suite 201
   Washington, DC 20005-3105

March 24, 2010



5. My office is located in Washington, DC. Can I bring my PWD request to the NPWHC?
   
   No The NPWHC is not set up to receive walk-in applications from the public. Requests for PWDs should be filed either electronically using the iCERT system or mailed to the NPWHC.

March 24, 2010

1. What form should I use to request a Prevailing Wage Determination?
2. Will suggestions for changes to the ETA Form 9141 be considered?
3. Are there any items on the ETA 9141 that requestors are routinely leaving incomplete and may cause a delay in processing or result in the request being voided?

1. What form should I use to request a Prevailing Wage Determination?
   An employer must use ETA Form 9141 to request a PWD from the NPWHC. This form is available in the Forms and Instructions section of the OFLC website: http://www.foreignlaborcert.doleta.gov/form.cfm

March 24, 2010




2. Will suggestions for changes to the ETA Form 9141 be considered?
   
   The current ETA Form 9141 was approved by OMB through November 30, 2011. Any modifications to the form would be subject to the procedures mandated by the Paperwork Reduction Act (PRA), which provides for notice and comment on such modifications.  Any changes to the form would not go into effect until after the PRA process was complete.

March 24, 2010




3. Are there any items on the ETA 9141 that requestors are routinely leaving incomplete and may cause a delay in processing or result in the request being voided?
   
   Yes. As a general rule, requestors must complete all required items on the ETA 9141. Although entries may vary based on the visa classification supported by the application, there are items on the ETA 9141 that requestors are routinely leaving incomplete or incorrect. Such items include:
   • Item D.a.6, job duties. In item D.a.6., the employer must provide a description that details the duties with enough specificity to issue a prevailing wage determination under a relevant Standard Occupational Code (SOC). To do this, the employer must specify the field(s) and/or product(s)/industry(ies) involved, any equipment the employee will use, and pertinent working conditions.
   • Items D.b.1-1b, education. In item D.b.1, mark only one U.S. diploma or degree as the employer's minimum requirement. If you choose "Other degree", indicate in item D.b.1a the specific U.S. diploma or degree (e.g., JD, MD, DDS, etc.). If the position requires a degree, in item D.b.1b indicate the major(s) and/or field(s) of study for the required degree.
   • Items D.b.4-4b, employment experience. If the employer checks 'No' to the experience question or leaves it blank, but indicates the number of months of experience required, we will consider that as a 'Yes'. In addition, if the job duties (item D.a.6) or the special requirements (item D.b.5) indicate that the position requires employment experience, the requestor must ensure it corresponds with the answers to items D.b.4-4b.
   • Items D.c.1-6, place of employment. "N/A" is not an acceptable answer for place of employment, and the ETA 9141 will be voided and returned to the requestor. The employer must provide the complete street address, city, county, and state for the location where the work will be performed.
   • Item D.c.3, the city of the place of employment. Enter the appropriate city for the worksite address. For Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, enter the city or town, as appropriate.
   • Item D.c.4, the county of the place of employment. Enter the appropriate county, not country (USA), for the worksite address. For Alaska, enter the appropriate borough or census area. For Louisiana, enter the appropriate parish. If the city is not part of any county, enter the city as the county.
   • Item D.c.7 and D.c.7a, multiple worksites. If there are multiple worksites, identify the geographic place(s) of employment indicating each Metropolitan Statistical Areas (MSAs) or the county (or independent city(ies)/township(s)/borough(s)/parish(es) as appropriate) and the corresponding state(s) where the employee will work. The employer must provide enough geographic detail to cover all the known worksite locations of intended employment. The NPWC does not require employers to input every physical address worksite for the prevailing wage determination. The NPWC deems it sufficient to provide the appropriate MSA or the county (or independent city(ies)/township(s)/borough(s)/parish(es) as appropriate) and the corresponding state(s) where the employee will work.

   March 15, 2011

1. Once I submit a PWD request, how long will it take to receive a determination?
2. How can I request that the National Prevailing Wage Center issue me an hourly wage instead of an annual wage?
3. Once the NPWHC makes a PWD, how will I receive it?
4. I received a PWD from the NPWHC, but I misplaced it. How can I get a duplicate copy of the PWD?
5. What do I do once I receive my PWD?
6. Why did the PWD I received have a different SOC than the one I suggested on the ETA 9141 item D.a.2. and 2a.?
7. I included multiple worksites on the ETA Form 9141 and I received wages for all of the worksites. Is the wage listed on page 4 of the ETA Form 9141 (Item E.4) the required prevailing wage?
8. Does a prevailing wage determination expire?

1. Once I submit a PWD request, how long will it take to receive a determination?
   
   The NPWHC is working to provide Prevailing Wage Determinations as quickly as possible, in a first in, first out order.   However, determination times may fluctuate as the Department works to centralize processing of PWD requests at the NPWHC.  Therefore, we continue to encourage requestors to submit their ETA Forms 9141 at least 60 days in advance of the employers' initial recruitment efforts.

March 24, 2010



2. How can I request that the National Prevailing Wage Center issue me an hourly wage instead of an annual wage?
   
   The employer may request an hourly wage by entering "Request Hourly Wage" in the Job Duties block (D.a.6) of the ETA Form 9141.
   Please note: Due to the nature of some occupations where the norm for the occupation is not the standard 2080 hour work year, the Occupational Employment Statistics (OES) survey does not provide an hourly wage. In such instances, the NPWC will not be able to issue the requested hourly wage, as will be indicated in a note on the prevailing wage determination.

Revised June 21, 2012



3. Once the NPWHC makes a PWD, how will I receive it?
   
   The Department's strong preference is for the electronic transmittal of PWDs. Therefore, we encourage all requestors to include their email addresses on the ETA Form 9141, under item B15. Once a determination is made, the NPWHC will email the requestor an electronic copy of the PWD.  In order to receive emails from the NPWHC, requestors should ensure that the domain@dol.gov is not blocked by their internet email provider.
   
   If the requestor does not provide an email address on its ETA Form 9141, item B15, the NPWHC will send the PWD to the requestor's mailing address by regular mail.
   

   March 24, 2010
   
   

4. I received a PWD from the NPWHC, but I misplaced it. How can I get a duplicate copy of the PWD?
   
   To request a duplicate PWD, send an email to FLC.PWD@dol.gov. The NPWHC will send an exact duplicate of the PWD to the requestor named on the ETA Form 9141.
   

   March 24, 2010
   
   

5. What do I do once I receive my PWD?
   
   Once an employer receives a PWD, the employer may begin recruitment or file an application for foreign labor certification, depending on the program.  The employer must follow program specific rules and regulations for filing foreign labor certification applications. In addition, employers may refer to OFLC's website: www.foreignlaborcert.doleta.gov for more information on labor certification programs.
   

   March 24, 2010



6. Why did the PWD I received have a different SOC than the one I suggested on the ETA 9141 item D.a.2. and 2a.?
   
   The NPWC assigns a SOC based on a review of the job duties (item D.a.6.) and special requirements (item D.b.5.) listed on the ETA 9141. In addition, we may consider other items on the ETA 9141 such as the education requirements (D.b.1-1b.) or employment experience (D.b.4-4b).

   March 15, 2011




7. I included multiple worksites on the ETA Form 9141 and I received wages for all of the worksites. Is the wage listed on page 4 of the ETA Form 9141 (Item E.4) the required prevailing wage?
   
   

   The wage entered on page 4 of the ETA Form 9141 corresponds to the worksite location listed in D.c.1 to 6. The NPWC must provide wages for each location listed in the application. However, the NPWC does not dictate how the employer should use those wages to comply with the applicable program regulations and guidance. The employer, therefore, must ensure that it offers a wage that complies with the appropriate regulation and program specific guidance.

   March 15, 2011



8. Does a prevailing wage determination expire?
   
   

   Yes. Each prevailing wage determination issued by the NPWC has a validity period which can range from no less than 90 days to one year. The validity period of a PWD is the period between the determination date and the expiration date, as listed in Items E.8 and E.9 of the approved Application for Prevailing Wage Determination (ETA Form 9141).

   March 15, 2011