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e-CFR data is current as of August 6, 2020

Title 20Chapter VPart 655Subpart A → Subject Group


Title 20: Employees' Benefits
PART 655—TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES
Subpart A—Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)


Application for Temporary Employment Certification Filing Procedures

§655.15   Application filing requirements.

All registered employers that desire to hire H-2B workers must file an Application for Temporary Employment Certification with the NPC designated by the Administrator, OFLC. Except for employers that qualify for emergency procedures at §655.17, employers that fail to register under the procedures in §655.11 and/or that fail to submit a PWD obtained under §655.10 will not be eligible to file an Application for Temporary Employment Certification and their applications will be returned without review.

(a) What to file. A registered employer seeking H-2B workers must file a completed Application for Temporary Employment Certification (ETA Form 9142B and the appropriate appendices and valid PWD), a copy of the job order being submitted concurrently to the SWA serving the area of intended employment, as set forth in §655.16, and copies of all contracts and agreements with any agent and/or recruiter, executed in connection with the job opportunities and all information required, as specified in §§655.8 and 655.9.

(b) Timeliness. A completed Application for Temporary Employment Certification must be filed no more than 90 calendar days and no less than 75 calendar days before the employer's date of need.

(c) Location and method of filing. The employer must submit the Application for Temporary Employment Certification and all required supporting documentation to the NPC either electronically or by mail.

(d) Original signature. The Application for Temporary Employment Certification must bear the original signature of the employer (and that of the employer's authorized attorney or agent if the employer is so represented). If the Application for Temporary Employment Certification is filed electronically, the employer must satisfy this requirement by signing the Application for Temporary Employment Certification as directed by the CO.

(e) Requests for multiple positions. Certification of more than one position may be requested on the Application for Temporary Employment Certification as long as all H-2B workers will perform the same services or labor under the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment.

(f) Separate applications. Except as otherwise permitted by this paragraph (f), only one Application for Temporary Employment Certification may be filed for worksite(s) within one area of intended employment for each job opportunity with an employer for each period of employment. Except where otherwise permitted under §655.4, an association or other organization of employers is not permitted to file master applications on behalf of its employer-members under the H-2B program.

(1) Subject to paragraph (f)(2) of this section, if a petition for H-2B nonimmigrants filed by an employer in the seafood industry is granted, the employer may bring the nonimmigrants described in the petition into the United States at any time during the 120-day period beginning on the start date for which the employer is seeking the services of the nonimmigrants without filing another petition.

(2) An employer in the seafood industry may not bring H-2B nonimmigrants into the United States after the date that is 90 days after the start date for which the employer is seeking the services of the nonimmigrants unless the employer conducts new recruitment, that begins at least 45 days after, and ends before the 90th day after, the certified start date of need as follows:

(i) Completes a new assessment of the local labor market by—

(A) Listing the job orders in local newspapers on 2 separate Sundays; and

(B) Placing new job orders for the job opportunity with the State Workforce Agency serving the area of intended employment and posting the job opportunity at the place of employment for at least 10 days; and

(C) Offering the job to an equally or better qualified United States worker who—

(1) Applies for the job; and

(2) Will be available at the time and place of need.

(3) In order to comply with this provision, employers in the seafood industry must—

(1) Sign and date an attestation form stating the employer's compliance with this subparagraph. The attestation form is available at http://www.foreignlaborcert.doleta.gov/form.cfm;

(2) Provide each H-2B nonimmigrant worker seeking admission to the United States a copy of the signed and dated attestation, with instructions that the worker must present the documentation upon request to the Department of State's consular officers when they apply for a visa and/or the Department of Homeland Security's U.S Customs and Border Protection officers when seeking admission to the United States. Without this attestation, an H-2B nonimmigrant may be denied a visa or admission to the United States if seeking to enter at any time other than the start date stated in the petition. (The attestation is not necessary when filing an amended petition based on a worker who is being substituted in accordance with DHS regulations.) The attestation presented by an H-2B nonimmigrant worker must be the official attestation downloaded from OFLC's Web site and may not be altered or revised in any manner; and

(3) Retain the additional recruitment documentation, together with their prefiling recruitment documentation, for a period of 3 years from the date of certification, consistent with the document retention requirements under §655.56. Seafood industry employers who conduct the required additional recruitment should not submit proof of the additional recruitment to the Office of Foreign Labor Certification.

(g) One-time occurrence. Where a one-time occurrence lasts longer than 1 year, the CO will instruct the employer on any additional recruitment requirements with respect to the continuing validity of the labor market test or offered wage obligation.

(h) Information dissemination. Information received in the course of processing a request for an H-2B Registration, an Application for Temporary Employment Certification or program integrity measures such as audits may be forwarded from OFLC to WHD, or any other Federal agency as appropriate, for investigative and/or enforcement purposes.

§655.16   Filing of the job order at the SWA.

(a) Submission of the job order. (1) The employer must submit the job order to the SWA serving the area of intended employment at the same time it submits the Application for Temporary Employment Certification and a copy of the job order to the NPC in accordance with §655.15. If the job opportunity is located in more than one State within the same area of intended employment, the employer may submit the job order to any one of the SWAs having jurisdiction over the anticipated worksites, but must identify the receiving SWA on the copy of the job order submitted to the NPC with its Application for Temporary Employment Certification. The employer must inform the SWA that the job order is being placed in connection with a concurrently submitted Application for Temporary Employment Certification for H-2B workers.

(2) In addition to complying with State-specific requirements governing job orders, the job order submitted to the SWA must satisfy the requirements set forth in §655.18.

(b) SWA review of the job order. The SWA must review the job order and ensure that it complies with criteria set forth in §655.18. If the SWA determines that the job order does not comply with the applicable criteria, the SWA must inform the CO at the NPC of the noted deficiencies within 6 business days of receipt of the job order.

(c) Intrastate and interstate clearance. Upon receipt of the Notice of Acceptance, as described in §655.33, the SWA must promptly place the job order in intrastate clearance, and in interstate clearance by providing a copy of the job order to other states as directed by the CO.

(d) Duration of job order posting and SWA referral of U.S. workers. Upon receipt of the Notice of Acceptance, any SWA in receipt of the employer's job order must keep the job order on its active file until the end of the recruitment period, as set forth in §655.40(c), and must refer to the employer in a manner consistent with §655.47 all qualified U.S. workers who apply for the job opportunity or on whose behalf a job application is made.

(e) Amendments to a job order. The employer may amend the job order at any time before the CO makes a final determination, in accordance with procedures set forth in §655.35.

§655.17   Emergency situations.

(a) Waiver of time period. The CO may waive the time period(s) for filing an H-2B Registration and/or an Application for Temporary Employment Certification for employers that have good and substantial cause, provided that the CO has sufficient time to thoroughly test the domestic labor market on an expedited basis and to make a final determination as required by §655.50.

(b) Employer requirements. The employer requesting a waiver of the required time period(s) must submit to the NPC a request for a waiver of the time period requirement, a completed Application for Temporary Employment Certification and the proposed job order identifying the SWA serving the area of intended employment, and must otherwise meet the requirements of §655.15. If the employer did not previously apply for an H-2B Registration, the employer must also submit a completed H-2B Registration with all supporting documentation, as required by §655.11. If the employer did not previously apply for a PWD, the employer must also submit a completed PWD request. The employer's waiver request must include detailed information describing the good and substantial cause that has necessitated the waiver request. Good and substantial cause may include, but is not limited to, the substantial loss of U.S. workers due to Acts of God, or a similar unforeseeable man-made catastrophic event (such as an oil spill or controlled flooding) that is wholly outside of the employer's control, unforeseeable changes in market conditions, or pandemic health issues. A denial of a previously submitted H-2B Registration in accordance with the procedures set forth in §655.11 does not constitute good and substantial cause necessitating a waiver under this section.

(c) Processing of emergency applications. The CO will process the emergency H-2B Registration and/or Application for Temporary Employment Certification and job order in a manner consistent with the provisions of this subpart and make a determination on the Application for Temporary Employment Certification in accordance with §655.50. If the CO grants the waiver request, the CO will forward a Notice of Acceptance and the approved job order to the SWA serving the area of intended employment identified by the employer in the job order. If the CO determines that the certification cannot be granted because, under paragraph (a) of this section, the request for emergency filing is not justified and/or there is not sufficient time to make a determination of temporary need or ensure compliance with the criteria for certification contained in §655.51, the CO will send a Final Determination letter to the employer in accordance with §655.53.

§655.18   Job order assurances and contents.

(a) General. Each job order placed in connection with an Application for Temporary Employment Certification must at a minimum include the information contained in paragraph (b) of this section. In addition, by submitting the Application for Temporary Employment Certification, an employer agrees to comply with the following assurances with respect to each job order:

(1) Prohibition against preferential treatment. The employer's job order must offer to U.S. workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2B workers. Job offers may not impose on U.S. workers any restrictions or obligations that will not be imposed on the employer's H-2B workers. This does not relieve the employer from providing to H-2B workers at least the minimum benefits, wages, and working conditions which must be offered to U.S. workers consistent with this section.

(2) Bona fide job requirements. Each job qualification and requirement must be listed in the job order and must be bona fide and consistent with the normal and accepted qualifications and requirements imposed by non-H-2B employers in the same occupation and area of intended employment.

(b) Contents. In addition to complying with the assurances in paragraph (a) of this section, the employer's job order must meet the following requirements:

(1) State the employer's name and contact information;

(2) Indicate that the job opportunity is a temporary, full-time position, including the total number of job openings the employer intends to fill;

(3) Describe the job opportunity for which certification is sought with sufficient information to apprise U.S. workers of the services or labor to be performed, including the duties, the minimum education and experience requirements, the work hours and days, and the anticipated start and end dates of the job opportunity;

(4) Indicate the geographic area of intended employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor;

(5) Specify the wage that the employer is offering, intends to offer, or will provide to H-2B workers, or, in the event that there are multiple wage offers, the range of wage offers, and ensure that the wage offer equals or exceeds the highest of the prevailing wage or the Federal, State, or local minimum wage;

(6) If applicable, specify that overtime will be available to the worker and the wage offer(s) for working any overtime hours;

(7) If applicable, state that on-the-job training will be provided to the worker;

(8) State that the employer will use a single workweek as its standard for computing wages due;

(9) Specify the frequency with which the worker will be paid, which must be at least every 2 weeks or according to the prevailing practice in the area of intended employment, whichever is more frequent;

(10) If the employer provides the worker with the option of board, lodging, or other facilities, including fringe benefits, or intends to assist workers to secure such lodging, disclose the provision and cost of the board, lodging, or other facilities, including fringe benefits or assistance to be provided;

(11) State that the employer will make all deductions from the worker's paycheck required by law. Specify any deductions the employer intends to make from the worker's paycheck which are not required by law, including, if applicable, any deductions for the reasonable cost of board, lodging, or other facilities;

(12) Detail how the worker will be provided with or reimbursed for transportation and subsistence from the place from which the worker has come to work for the employer, whether in the U.S. or abroad, to the place of employment, if the worker completes 50 percent of the period of employment covered by the job order, consistent with §655.20(j)(1)(i);

(13) State that the employer will provide or pay for the worker's cost of return transportation and daily subsistence from the place of employment to the place from which the worker, disregarding intervening employment, departed to work for the employer, if the worker completes the certified period of employment or is dismissed from employment for any reason by the employer before the end of the period, consistent with §655.20(j)(1)(ii);

(14) If applicable, state that the employer will provide daily transportation to and from the worksite;

(15) State that the employer will reimburse the H-2B worker in the first workweek for all visa, visa processing, border crossing, and other related fees, including those mandated by the government, incurred by the H-2B worker (but need not include passport expenses or other charges primarily for the benefit of the worker);

(16) State that the employer will provide to the worker, without charge or deposit charge, all tools, supplies, and equipment required to perform the duties assigned, in accordance with §655.20(k);

(17) State the applicability of the three-fourths guarantee, offering the worker employment for a total number of work hours equal to at least three-fourths of the workdays of each 12-week period, if the period of employment covered by the job order is 120 or more days, or each 6-week period, if the period of employment covered by the job order is less than 120 days, in accordance with §655.20(f); and

(18) Instruct applicants to inquire about the job opportunity or send applications, indications of availability, and/or resumes directly to the nearest office of the SWA in the State in which the advertisement appeared and include the SWA contact information.

§655.19   Job contractor filing requirements.

(a) Provided that a job contractor and any employer-client are joint employers, a job contractor may submit an Application for Temporary Employment Certification on behalf of itself and that employer-client.

(b) A job contractor must have separate contracts with each different employer-client. Each contract or agreement may support only one Application for Temporary Employment Certification for each employer-client job opportunity within a single area of intended employment.

(c) Either the job contractor or its employer-client may submit an ETA Form 9141, Application for Prevailing Wage Determination, describing the job opportunity to the NPWC. However, each of the joint employers is separately responsible for ensuring that the wage offer listed on the Application for Temporary Employment Certification, ETA Form 9142B, and related recruitment at least equals the prevailing wage rate determined by the NPWC and that all other wage obligations are met.

(d)(1) A job contractor that is filing as a joint employer with its employer-client must submit to the NPC a completed Application for Temporary Employment Certification, ETA Form 9142, that clearly identifies the joint employers (the job contractor and its employer-client) and the employment relationship (including the actual worksite), in accordance with the instructions provided by the Department of Labor. The Application for Temporary Employment Certification must bear the original signature of the job contractor and the employer-client and be accompanied by the contract or agreement establishing the employers' relationship related to the workers sought.

(2) By signing the Application for Temporary Employment Certification, each employer independently attests to the conditions of employment required of an employer participating in the H-2B program and assumes full responsibility for the accuracy of the representations made in the application and for all of the responsibilities of an employer in the H-2B program.

(e)(1) Either the job contractor or its employer-client may place the required job order and conduct recruitment as described in §§655.16 and 655.43 through 655.46. Also, either one of the joint employers may assume responsibility for interviewing applicants. However, both of the joint employers must sign the recruitment report that is submitted to the NPC with the Application for Temporary Employment Certification, ETA Form 9142B.

(e)(1) Either the job contractor or its employer-client may place the required job order and conduct recruitment as described in §655.16 and §§655.42 through 655.46. Also, either one of the joint employers may assume responsibility for interviewing applicants. However, both of the joint employers must sign the recruitment report that is submitted to the NPC with the Application for Temporary Employment Certification, ETA Form 9142B.

(2) The job order and all recruitment conducted by joint employers must satisfy the content requirements identified in §§655.18 and 655.41. Additionally, in order to fully apprise applicants of the job opportunity and avoid potential confusion inherent in a job opportunity involving two employers, joint employer recruitment must clearly identify both employers (the job contractor and its employer-client) by name and must clearly identify the worksite location(s) where workers will perform labor or services.

(3)(i) Provided that all of the employer-clients' job opportunities are in the same occupation and area of intended employment and have the same requirements and terms and conditions of employment, including dates of employment, a job contractor may combine more than one of its joint employer employer-clients' job opportunities in a single advertisement. Each advertisement must fully apprise potential workers of the job opportunity available with each employer-client and otherwise satisfy the advertising content requirements required for all H-2B-related advertisements, as identified in §655.41. Such a shared advertisement must clearly identify the job contractor by name, the joint employment relationship, and the number of workers sought for each job opportunity, identified by employer-client name and location (e.g., 5 openings with Employer-Client 1 (worksite location), 3 openings with Employer-Client 2 (worksite location)).

(ii) In addition, the advertisement must contain the following statement: “Applicants may apply for any or all of the jobs listed. When applying, please identify the job(s) (by company and work location) you are applying to for the entire period of employment specified.” If an applicant fails to identify one or more specific work location(s), that applicant is presumed to have applied to all work locations listed in the advertisement.

(f) If an application for joint employers is approved, the NPC will issue one certification and send it to the job contractor. In order to ensure notice to both employers, a courtesy copy of the certification cover letter will be sent to the employer-client. (g) When submitting a certified Application for Temporary Employment Certification to USCIS, the job contractor should submit the complete ETA Form 9142B containing the original signatures of both the job contractor and employer-client.

[42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62446, Nov. 15, 2019]

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