[Federal Register Volume 60, Number 25 (Tuesday, February 7, 1995)]
[Notices]
[Pages 7216-7219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2965]
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DEPARTMENT OF LABOR
[General Administration Letter No. 1-95]
Procedures for H-2B Temporary Labor Certification in
Nonagricultural Occupations
AGENCY: Employment and Training Administration, Labor.
ACTION: Notice.
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SUMMARY: The Employment and Training Administration (ETA), Department
of Labor has issued General Administration Letter (GAL) No. 1-95 that
transmits to State and Regional Offices revised procedures for
processing H-2B temporary labor certification applications in
nonagricultural occupations, including revised standards for
determining the temporary nature of a job under the
H-2B classification. The revised procedures and standards replace: (1)
GAL 10-84, Subject: Procedures for Temporary Labor Certifications in
Nonagricultural Occupations, issued April 23, 1984; (2) GAL 10-84,
Change 1, Subject: Revised Standards for Determining the Temporary or
Permanent Nature of a Job Offer Made in Conjunction With an Application
for Nonagricultural Temporary Labor Certification, issued August 21,
1989; and (3) General Administrative Letter No. 10-84, Change 2,
Subject: Handling of Temporary Labor Certification Applications for
Boilermakers, issued May 9, 1990.
GAL 1-95 is published below for the information of all interested
parties.
DATES: GAL 1-95 was issued on November 10, 1994.
FOR FURTHER INFORMATION CONTACT:
Mr. Denis Gruskin, Senior Specialist, Division of Foreign Labor
Certifications, Employment and Training Administration, Room N-4456,
200 Constitution Avenue NW., Washington, DC 20210. Telephone (202) 219-
4369 (this is not a toll-free number).
Signed at Washington, DC, this 7th day of December 1994.
John M. Robinson,
Deputy Assistant Secretary for Employment and Training.
Directive: General Administration Letter No. 1-95
To: All State Employment Security Agencies
From: Barbara Ann Farmer, Administrator for Regional Management
Subject: Procedures for H-2B Temporary Labor Certification in
Nonagricultural Occupations
Classification: ES/Nonag.
Correspondence symbol: TEES
Date: Nov. 10, 1994
1. Purpose. To transmit revised procedures for processing H-2B
temporary labor certification applications in nonagricultural
occupations, including revised standards for determining the
temporary nature of a job under the H-2B classification.
2. References. Title 20 CFR Parts 652 and 655, 8 CFR 214.2(h),
48 FR 2587, GAL 10-84.
3. Background. The H-2B visa classification applies to aliens
coming temporarily to the U.S. to perform nonagricultural work of a
temporary or seasonal nature, if U.S. workers capable of performing
such service or labor cannot be found in the United States. The H-2B
visa classification requires a temporary labor certification from
the Secretary of Labor advising the Immigration and Naturalization
Service (INS) whether or not U.S. workers capable of performing the
temporary services or labor are available and whether or not the
alien's employment will adversely affect the wages and working
conditions of similarly employed U.S. workers, or a notice that such
certification cannot be made, prior to filing an H-2B visa petition
with INS.
The attached procedures are intended to clarify and update DOL
procedures for processing applications for temporary labor
certification and to incorporate INS standards for determining the
temporary nature of a job opportunity under the H-2B classification.
They do not apply to applications filed on behalf of aliens in the
entertainment industry and in professional team sports. These
procedures replace:
General Administration Letter No. 10-84: Procedures for
Temporary Labor Certifications in Nonagricultural Occupations
(Issued 4/23/84);
General Administration Letter No. 10-84, Change 1:
Revised Standards for Determining the Temporary or Permanent Nature
of a Job Offer Made in Conjunction With an Application for
Nonagricultural Temporary Labor Certification (Issued 8/21/89); and
General Administration Letter No. 10-84, Change 2:
Handling of Temporary Labor Certification Applications for
Boilermakers (Issued 5/9/90).
4. Action Required. SESA Administrators are required to provide
the attached procedures to appropriate staff, and instruct that they
be followed in processing H-2B applications.
5. Inquiries. Inquiries should be directed to the appropriate
Regional Certifying Officer.
6. Attachments. Procedures for H-2B Temporary Labor
Certification in Nonagricultural Occupations.
Rescissions: GAL Nos. 10-84; 10-84, Ch. 1; 10-84, Ch. 2
Expiration Date: December 31, 1995
[[Page 7217]]
Procedures for H-2B Temporary Labor Certification in Nonagricultural
Occupations
I. General
A. An H-2B temporary nonagricultural worker is an alien who is
coming temporarily to the U.S. to perform temporary services or
labor if qualified U.S. workers capable of performing such services
or labor are not available, and whose employment will not adversely
affect the wages and working conditions of similarly employed U.S.
workers.
B. Immigration and Naturalization Service (INS) regulations at 8
CFR 214.2(h)(6) establish requirements for the H-2B visa
classification. INS regulations require: (1) That the H-2B
petitioner be a U.S. employer, or the authorized representative of a
foreign employer having a location in the Untied States; and (2)
that the employer apply for temporary labor certification with the
Department of Labor (DOL) prior to filing a petition with INS to
classify an alien as an H-2B worker in all areas of the United
States, except the Territory of Guam. In Guam, an employer must
apply to the Governor of Guam for an H-2B temporary labor
certification.
C. A temporary labor certification is advice from the Secretary
of Labor to INS on whether or not U.S. workers capable of performing
the temporary services or labor are available and whether or not the
alien's employment will adversely affect the wages and working
conditions of similarly employed U.S. workers. The INS is not bound
by DOL's certification or notice that certification cannot be made.
D. DOL regulations at 20 CFR 655 Subpart A--Labor Certification
Process for Temporary Employment in Occupations Other Than
Agriculture, Logging, or Registered Nursing in the United States (H-
2B Workers) govern the labor certification process for temporary
employment in the U.S. under the H-2B visa classification. They
require that DOL, through the appropriate Regional Administrator of
the Employment and Training Administration, issue a temporary labor
certification if it finds that qualified persons in the U.S. are not
available and that the terms of employment will not adversely affect
the wages and working conditions of similarly employed workers in
the U.S. In making its findings, DOL considers such matters as the
employer's attempts to recruit U.S. workers and the appropriateness
of the wages and working conditions offered, and the policies for
the U.S. Employment Service set forth at 20 CFR 652 and 20 CFR 655,
subparts A, B and C.
E. This document clarifies and updates procedures issued by ETA
in General Administration Letter (GAL) 10-84 and Changes 1 and 2, to
carry out responsibilities of making labor certification
determinations pursuant to regulations at 8 CFR 214.2(h)(6) and 20
CFR 655, subpart A. It conforms DOL standards for determining the
temporary nature of a job offer under the H-2B classification with
those of INS and modifies DOL recruitment requirements to provide
for a more effective test of the labor market for available U.S.
workers. These procedures do not apply to applications filed on
behalf of aliens in the entertainment industry and in professional
team sports.
II. Standards for Determining the Temporary Nature of a Job Offer Under
the H-2B Classification
A. A job opportunity is temporary under the H-2B classification
if the employer's need for the duties to be performed is temporary,
whether or not the underlying job is permanent or temporary. As a
general rule, the period of the employer's need must be 1 year or
less, although there may be extraordinary circumstances where the
need may be for longer than 1 year. The labor certification
application may be filed for up to, but not exceeding, 12 months. If
there are unforeseen circumstances where the employer's need exceeds
1 year, a new certification is required for each period beyond 1
year.
Temporary employment should not be confused with part-time
employment which does not qualify for temporary (or permanent) labor
certification.
B. The employer's need for the services or labor shall be
either: (1) A one-time occurrence; (2) a seasonal need; (3) a
peakload need; or (4) an intermittent need.
1. One-time Occurrence
The employer must establish: (1) that it has not employed
workers to perform the services or labor in the past; and (2) that
it will not need workers to perform the services or labor in the
future, or that it has an employment situation that is otherwise
permanent, but a temporary event of short duration has created the
need for a temporary worker.
2. Seasonal Need
The employer must establish that the service or labor is
traditionally tied to a season of the year by an event or pattern
and is of a recurring nature. The employer must specify the
period(s) of time during each year in which it does not need the
services or labor. The employment is not seasonal if the period
during which the services or labor is needed is unpredictable,
subject to change, or considered a vacation period for the
employer's permanent employees.
3. Peakload Need
The employer must establish that it regularly employs permanent
workers to perform the services or labor at the place of employment
and its needs to supplement its permanent staff on a temporary basis
due to a seasonal or short-term demand with temporary employees who
will not become a part of the regular operation.
4. Intermittent Need
The employer must establish that it has not employed permanent
or full-time workers to perform the services or labor, but
occasionally or intermittently needs temporary workers for short
periods.
III. Filing Instructions
A. An employer that wants to use foreign workers for temporary
employment must file a temporary labor certification application
with the State Employment Security Agency (SESA) serving the area of
employment.
B. Every temporary application shall include:
1. An original and one copy of Form ETA 750, Part A, the offer
of employment portion of the Application for Alien Employment
Certification form signed by the employer. Part B, Statement of
Qualifications of Alien, is not required.
2. Documentation of any efforts to recruit U.S. workers the
employer may have made before filing the application.
3. A statement explaining why the job opportunity is temporary
and why the employer's need for the work to be done meets the
standard of either a one-time occurrence, a seasonal need, a
peakload need, or an intermittent need.
C. To allow for enough recruitment of U.S. workers and enough
processing time by State and Regional Offices, the State Employment
Security Agency (SESA) shall advise employers to file requests for
temporary labor certification at least 60 days before the labor
certification is needed in order to receive a timely determination.
D. Unless the Certifying Officer specifies otherwise, the SESA
should return to employers requests for temporary labor
certification filed more than 120 days before the worker is needed
and advise them to refile the application no more than 120 days
before the worker is needed. This is necessary since the
availability of temporary U.S. workers changes over short periods of
time and an adequate test of the labor market cannot be made for a
longer period.
E. More than one alien may be requested on an application if
they are to do the same type of work on the same terms and
conditions, in the same occupation, in the same area(s) of
employment during the same period. However, the number requested may
not exceed the actual number of job openings. The number of openings
the employer intends to fill must also be specified in the
advertisement and the job order required in section IV of these
instructions.
F. If the employer's agent files the application, the employer
must sign the ``authorization of agent'' statement on the
Application for Alien Employment Certification which authorizes the
agent to act on the employer's behalf. The employer is fully
responsible for the accuracy of all representations made by the
agent on the employer's behalf. An attorney must file a Notice of
Appearance (Form G-28) naming the attorney's client(s).
G. If extraordinary circumstances establish a need that requires
the services of the alien beneficiary for more than a year, a new
application must be filed (see section II.A). However, in no
instance may the time for which a particular job be certified exceed
3 unbroken years.
H. When the job opportunity requires the work to be done in more
than one location, the application must include the itinerary of
locations and dates of work in each location. Such applications will
be filled with the SESA having jurisdiction over the area where the
employment will begin.
IV. State Job Service Processing
A. Upon receiving a request for temporary labor certification,
the SESA shall review the [[Page 7218]] job offer for completeness.
A job offer containing a wage below the prevailing wage for such
employment in the local area is inappropriate and would adversely
affect the wages of similarly employed U.S. workers. The SESA shall
determine the prevailing wage, guided by the regulations at 20 CFR
656.40.
B. If the job offer is less than full-time, or contains unduly
restrictive job requirements, or has terms and conditions of
employment which otherwise inhibit the effective recruitment and
consideration of U.S. workers for the job, the SESA shall advise the
employer to correct the deficiencies before commencing the
recruitment.
C. The SESA shall prepare a job order, using the information on
the application, and place it into the regular ES system for 10
days. During this period, the SESA should refer qualified applicants
who walk-in and those in its active files.
D. The employer shall advertise the job opportunity after filing
the application, in a newspaper of general circulation for 3
consecutive days or in a professional, trade or ethnic publication,
whichever is most appropriate for the occupation and most likely to
bring responses from U.S. workers. The advertisement shall:
1. Identify the employer's name and direct applicants to report
or send resumes to the SESA for referral to the employer;
2. Include SESA identification number and the complete name and
address of the SESA.
3. Describe the job opportunity with particularity, including
the duration of the employment;
4. State the rate of pay, which shall not be below prevailing
wage for the occupation;
5. Offer prevailing working conditions;
6. State the employer's minimum job requirements;
7. Offer wages, terms, and conditions of employment which are
not less favorable than those offered to the alien and are
consistent with the nature of the occupation, activity, and
industry.
E. The employer shall document that unions and other recruitment
sources, appropriate for the occupation and customary in the
industry, were unable to refer qualified U.S. workers.
F. The employer shall provide the SESA the `'tearsheets'' (for
each day the advertisement was published) from the publication in
which the advertisement appeared and written results of all
recruitment which must:
1. Identify each recruitment source by name:
2. State the name, address, and telephone number and provide
resumes (if submitted to the employer) of each U.S. worker who
applied for the job; and
3. Explain the lawful job-related reasons for not hiring each
U.S. worker.
G. After the recruitment period, the SESA shall send the
application, results of recruitment, prevailing wage findings, and
other appropriate information to the regional certifying officer.
V. Temporary Labor Certification Determinations
A. The certifying officer shall determine whether to grant the
temporary labor certification, or to issue a notice that such
certification cannot be made based on whether or not:
1. U.S. workers are available for the temporary employment
opportunity.
a. The certifying officer, in judging if a U.S. worker is
available for the temporary employment opportunity, shall determine
from documented results of the employer's and SESA's recruitment
efforts, if there are other appropriate sources of workers where the
employer should have recruited or may recruit U.S. workers. If
further recruitment is required, the application should be returned
to the SESA with specific instructions for the additional
recruitment.
b. To determine if a U.S. worker is available, the certifying
officer shall consider U.S. workers living or working in the area of
intended employment, and may also consider U.S. workers who are
willing to move from elsewhere to take the job at their own expense,
or at the employer's expense, if the prevailing practice among
employers who employ workers in the occupation is to pay such
relocation expenses.
c. The certifying officer shall consider a U.S. worker able and
qualified for the job opportunity if the worker, by education,
training, experience, or a combination thereof, can perform the
duties involved in the occupation as customarily performed by other
U.S. workers similarly employed and is willing to accept the
specific job opportunity.
d. To determine if U.S. workers are available for job
opportunities that will be performed in more than one location,
workers must be available in each location on dates specified by the
employer.
2. The employment of the alien will adversely affect wages and
working conditions of U.S. workers similarly employed. To determine
this, the certifying officer shall consider such things as labor
market information, special circumstances of the industry,
organization, and/or occupation, the prevailing wage rate for the
occupation in the area of intended employment, and prevailing
working conditions, such as hours of work.
3. The job opportunity contains requirements or conditions which
preclude consideration of U.S. workers or which otherwise prevent
their effective recruitment, such as:
a. The employment opportunity is represented as temporary and
the Department of Labor believes it can and should be offered to
U.S. workers on a permanent basis.
b. A permanent certification was issued to an employer for the
same job opportunity.
c. The job opportunity is vacant because the former occupant is
on strike or locked out in the course of a labor dispute involving a
work stoppage or the job is at issue in a labor dispute involving a
work stoppage.
d. The job opportunity's terms, conditions, and/or occupational
environment are contrary to Federal, State, or local law.
e. The employer has no location within the U.S. to which U.S.
worker can be referred and hired for employment.
f. The employer will not pay a wage or salary for the job to be
performed.
g. The job's requirements are unduly restrictive.
h. The employer has not recruited U.S. workers according to DOL
policies and procedures.
B. If the Certifying Officer issues a notice that a
certification cannot be made, the notice shall:
(1) Detail the reasons why certification cannot be made;
(2) Address the availability of U.S. workers in the occupation,
and the prevailing wages and working conditions of U.S. workers in
the occupation; and
(3) Indicate the specific DOL policies which were to be
followed.
C. If the Certifying Officer issues a temporary labor
certification, it shall be for the duration of the temporary
employment, opportunity, not to exceed 12 months. If extraordinary
circumstances establish a need that require the alien beneficiary
for more than 1 year, a new application must be filed. However, in
no instance can the time for which a particular job may be certified
exceed 3 unbroken years.
D. The date on the temporary labor certification shall be the
beginning and ending dates of certified employment and the date
certification was granted. The beginning date of certified
employment may not be earlier than the date certification was
granted.
VI. Document Transmittal
A. After making a temporary labor certification determination,
the certifying officer shall notify the employer, in writing, of the
determination.
B. If the labor certification is granted, the certifying officer
shall send the certified application containing the official
temporary labor certification stamp, supporting documents, and
completed Temporary Determination Form to the employer of, if
appropriate, the employer's agent or attorney. The Temporary
Determination Form shall indicate that the employer should submit
all documents together with the employer's petition to the
appropriate INS office.
C. If a notice is issued that certification cannot be made, the
certifying officer shall return one copy of the Application for
Alien Employment Certification form, supporting documents, and
completed Temporary Determination Form to the employer, or, if
appropriate, to the employer's agent or attorney. The Temporary
Determination Form shall indicate the bases on which the decision
was made not to issue a temporary labor certification, and shall
advise the employer of the right to appeal to the INS.
VII. Appeal of a Notice That a Certification Cannot Be Made
A. The finding by the certifying officer, that a certification
cannot be made, is the final decision of the Secretary of Labor.
There is no provision for reconsideration or appeal of the decision
within DOL. Administrative appeal of such a finding must be made to
INS, as set forth below, or the employer may file a new application.
B. Under the Act and regulations of INS, DOL's role is only
advisory. The Attorney General has the sole authority for the final
approval or denial of a petition for temporary alien employment. The
employer can submit [[Page 7219]] countervailing evidence to INS,
according to 8 C.F.R. 214.2(h)(6)(IV)(E), that qualified persons in
the U.S. are not available, that wages and working conditions of
U.S. workers will not be adversely affected, and the Department of
Labor's employment policies were observed.
VIII. Validity of Temporary Labor Certifications
A. A temporary labor certification is valid only for the number
of aliens, the occupation, the area of employment, the specific
activity, the period of time, and the employer specified in the
certification.
B. A temporary labor certification is limited to one employer's
specific job opportunity; it may not be transferred from one
employer to another.
IX. Applications Requiring Special Processing
A. Aerospace Engineers
If the temporary labor certification application is for an
aerospace engineer, the SESA shall:
1. Take a job order on all aerospace engineer certification
requests.
2. Require the employer to advertise in a newspaper or
appropriate engineering publication. Advertisements shall describe
wages, terms, and conditions of employment, and shall not identify
the employer, but shall direct applicants to send resumes to the
local Job Service for referral to the employer. Results of ads must
be documented. Advertising copy should include the elements
specified in section IV. D. above, and indicate the same wages,
education, working conditions, and location of work as that in the
application for alien employment and on the order taken by the SESA.
3. Require employers to offer laid-off engineers reemployment
before applying for labor certification.
4. Ensure that all applications for alien employment
certification from contract engineering firms identify the user
aerospace companies and specify where the aliens will work.
5. Ensure that a copy of the alien's proposed contract
accompanies all contract engineering firm certification requests.
6. Place into interstate clearance all alien certification job
orders for aerospace engineers and related occupations.
7. Process the application according to parts II, III, and IV of
these procedures, as appropriate.
B. Construction Workers
1. General
Unions representing construction workers in the same or
substantially equivalent job classification as those for which labor
certification is requested shall be contacted to determine
availability of U.S. workers when SESAs receive requests for 10 or
more workers in the same occupation for the same employer at any one
time or within a 6-month period.
The Human Resources Development Institute (HRDI) is the
employment and training arm of the AFL-CIO; it serves as a
centralized liaison between the Department of Labor and individual
unions in providing labor market information in skilled trades in
order to make an informed labor certification determination.
2. Procedures
a. The SESA should process the application according to parts
II, III and IV of these procedures.
b. The SESA shall advise the employer to obtain, from the union
local, a letter describing the availability of qualified U.S.
workers for the position offered to the alien.
c. Before making a determination, certifying officers should
contact, by fax or telephone, the Executive Director, Human
Resources Development, 815-16th Street, NW., Washington, DC 20006,
and send the following information for each application:
(1) Name and address of company requesting certification;
(2) Location of work site;
(3) Local number and name of the union, if known;
(4) Dates of any prior certifications requested by company;
(5) Total number of aliens requested;
(6) Duration of employment of aliens;
(7) Job classification, special qualifications and wage offered;
(8) Assistance offered to aliens (subsistence housing, other);
and
(9) Reasons for requesting alien labor.
d. If HRDI knows of available U.S. workers, they will provide
this information to the certifying officer, along with the name of
the appropriate local for the employer to contact. If no response is
received within 5 days of the request, a determination will be made
on information in the file.
C. Boilermakers
1. General
On occasion, boilermakers must be brought into the U.S. on an
emergency basis. Such emergencies are generally precipitated by
unscheduled outages in utility, petro-chemical and paper industries.
Because of special considerations involved with boilermakers when
there is an emergency situation, it was decided that the most
efficient and effective way to process applications for boilermakers
in emergency situations would be to centralize their handling in the
National Office.
2. Procedures
a. Labor certifications for boilermakers in emergency situations
are to be sent directly to National Office for processing. The
address is: U.S. Department of Labor, Employment and Training
Administration, Division of Foreign Labor, Certifications, 200
Constitution Avenue, N.W., Room N-4456, Washington, D.C. 20210.
b. Labor certification applications for boilermakers during
nonemergency situations should be processed according to parts II,
III, and IV of these procedures.
[FR Doc. 95-2965 Filed 2-6-95; 8:45 am]
BILLING CODE 4510-30-M
