§ 655.130 - Application filing requirements.

§ 655.130 Application filing requirements.

Cross Reference

Link to an amendment published at 89 FR 34062, Apr. 29, 2024.

All employers who desire to hire H-2A foreign agricultural workers must apply for a certification from the Secretary by filing an Application for Temporary Employment Certification with the NPC designated by the OFLC Administrator. This section provides the procedures employers must follow when filing.

(a) What to file.

(1) An employer that desires to apply for temporary agricultural labor certification of one or more nonimmigrant workers must file a completed Application for Temporary Employment Certification, all supporting documentation and information required at the time of filing under §§ 655.131 through 655.

135

137, and, unless a specific exemption applies, a copy of Form ETA-790/790A, submitted as set forth in § 655.121(a).

(2) The Application for Temporary Employment Certification must include the employer's legal name, trade name(s), and a valid FEIN as well as a valid place of business (physical location) in the United States and a means by which it may be contacted by prospective U.S. applicants for employment. For each employer of any H-2A worker sponsored under the Application for Temporary Employment Certification or any worker in corresponding employment, the Application for Temporary Employment Certification must include the identity, location, and contact information of all persons who are the owners of that entity.

(3) For each place of employment identified in the job order, the Application for Temporary Employment Certification must include the identity, location, and contact information of all persons and entities, if different than the employer(s), who are the operators of the place of employment, and of all persons who manage or supervise any H-2A worker sponsored under the Application for Temporary Employment Certification or any worker in corresponding employment, regardless of whether those managers or supervisors are employed by the employer or another entity.

(4) If the information specified in paragraphs (a)(2) and (3) of this section changes during the work contract period, the employer must update its records to reflect the change. The employer must continue to keep this information up to date until the end of the work contract period, including any extensions. The employer must retain the updated information in accordance with § 655.167(c)(9) and must make this updated information available in the event of a post-certification audit or upon request by the Department. The Department may share the information it receives from employers with any other Federal agency, as appropriate for investigative or enforcement purpose, as set forth in paragraph (f) of this section.

(b) Timeliness. A completed Application for Temporary Employment Certification must be filed no less than 45 calendar days before the employer's first date of need.

(c) Location and method of filing —

(1) Electronic filing. The employer must file the Application for Temporary Employment Certification and all required supporting documentation with the NPC using the electronic method(s) designated by the OFLC Administrator. The NPC will return without review any application submitted using a method other than the designated electronic method(s), unless the employer submits the application in accordance with paragraph (c)(2) or (3) of this section.

(2) Filing by mail. Employers that lack adequate access to electronic filing may file the application by mail. The employer must indicate that it is filing by mail due to lack of adequate access to electronic filing. The OFLC Administrator will identify the address to which such filing must be mailed by public notice(s) and by instructions on DOL's website.

(3) Reasonable accommodation. Employers who are unable or limited in their ability to use and/or access the electronic Application for Temporary Employment Certification, or any other form or documentation required under this subpart, as a result of a disability may request a reasonable accommodation to enable them to participate in the H-2A program. An employer in need of such an accommodation may contact the NPC in writing to the address designated in a notice published in the Federal Register or 202-513-7350 (this is not a toll-free number), or for individuals with hearing or speech impairments, 1-877-889-5627 (this is the TTY toll-free Federal Information Relay Service number) for assistance in using, accessing, or filing any form or documentation required under this subpart, including the Application for Temporary Employment Certification. All requests for an accommodation should include the employer's name, a detailed description of the accommodation needed, and the preferred method of contact. The NPC will respond to the request for a reasonable accommodation within 10 business days of the date of receipt.

(d) Original signature. The Application for Temporary Employment Certification must contain an electronic (scanned) copy of the original signature of the employer (and that of the employer's authorized attorney or agent if the employer is represented by an attorney or agent) or a verifiable electronic signature method, as directed by the OFLC Administrator. If submitted by mail, the Application for Temporary Employment Certification must bear the original signature of the employer and, if applicable, the employer's authorized attorney or agent.

(e) Scope of applications.

(1) Except as otherwise permitted by this subpart, all places of employment on an Application for Temporary Employment Certification must be within a single area of intended employment. Where a job opportunity involves work at multiple places of employment after the workday begins, the Application for Temporary Employment Certification may include places of employment outside of a single area of intended employment only as is necessary to perform the duties specified in the Application for Temporary Employment Certification, and provided that the worker can reasonably return to the worker's residence or the employer-provided housing within the same workday.

(2) An employer may file only one Application for Temporary Employment Certification covering the same area of intended employment, period of employment, and occupation or comparable work to be performed.

(f) Information dissemination. Information received in the course of processing Applications for Temporary Employment Certification or in the course of conducting program integrity measures such as audits may be forwarded from OFLC to WHD or any other Federal agency, as appropriate, for investigative or enforcement purposes.

[87 FR 61791, Oct. 12, 2022, as amended at 89 FR 34062, Apr. 29, 2024]