DOL OFLC, 9142B Stakeholder Briefing

H-2B Application for Temporary Employment Certification Form ETA-9142B and Appendices June 2019 Office of Foreign Labor Certification Employment and Training Administration U.S. Department of Labor 1 For Government Training Use Only This presentation is intended for training use only and does not carry the force of legal opinion The Department of Labor (the Department) is providing this information as a public service. This information and any related materials are presented to give the public access to information on the Department’s programs. While the Department tries to keep the information timely and accurate, there often will be a delay between official publications of the materials and the modification of these pages. Therefore, the Department makes no express or implied guarantees.

The Federal Register and the Code of Federal Regulations (CFR) remain the official source for regulatory information published by the Department. The Department will make every effort to keep this information current and to correct errors brought to our attention. 2 For Government Training Use Only H-2B Application for Temporary Employment Certification (Form ETA-9142B)  OMB approval issued on May 17, 2019  The new H-2B forms:  Align information collection requirements with the Department's 2015 H-2B Interim Final Rule;  Provide greater clarity to employers on existing regulatory requirements;  Standardizes information collection to reduce “paper-based” attachments and employer burden preparing applications; and  Promotes greater efficiency issuing labor certification decisions under the H-2B program. 3 For Government Training Use Only Transition Schedule for Submitting the New H-2B Application Forms  Beginning July 3, 2019  Applications can be submitted electronically using OFLC’s FLAG System at https://flag.dol.gov/.  OFLC will only accept H-2B applications submitted using the new Form ETA-9142B (i.e., containing an expiration date of May, 2022).  All H-2B applications will be assigned for review in accordance with the procedures announced by the Department on February 26, 2019.  OFLC will continue accepting iCERT System submissions of the current H-2B forms until 11:59 p.m. Eastern Time on July 2, 2019.

For Government Training Use Only 4 About This Presentation  The symbol next to a section indicates information must be the same as the information provided on the Form ETA-9141, Application for Prevailing Wage Determination, issued by the Department. 5 For Government Training Use Only Section A: Cap Exemption  Identifies whether any H-2B workers who may be employed will be exempt from the statutory cap. More information on H-2B cap exemptions can be found on USCIS’s web site at www.uscis.gov. 6 For Government Training Use Only Section B: Temporary Need Information  Job Title  Standard Occupational Classification (SOC) Code  SOC Occupational Title  Number of Workers Requested  Period of Employment (Begin Date/ End Date)  Nature of Temporary Need  Statement of Temporary Need 7 For Government Training Use Only Section B (1): Temporary Need Information  B.1 Job Title - Title of the job opportunity to be filled by the worker(s). - Must be the same for all nonimmigrant workers employed under the application. - Employer may file additional applications as needed for different jobs - Must be the same as the job title on the Form ETA-9141.

8 For Government Training Use Only Section B (2-3): Temporary Need Information  B.2 SOC Code - Six or eight-digit code. - Use the code which most clearly describes the work to be performed. - Must be the same as the SOC code on the Form ETA-9141.  B.3 SOC Occupational Title - The occupational title associated with the SOC code. - Must be the same as the SOC title on the Form ETA-9141. More information on SOC codes can be found at http://www.bls.gov/soc/ 9 For Government Training Use Only Section B (4-8): Temporary Need Information  B.4 Worker Positions Needed - Total number of worker positions being requested in Box 4.  B.5/B.6 Period of Employment - Beginning Date and Ending Date of the position.  B.7 Nature of Temporary Need - Select only one standard  B.8: Statement of Temporary Need - Must include at least: (a) nature of business; (b) why the job, number of workers and dates are temporary; (c) how the job qualifies as seasonal, peakload, one-time occurrence, or intermittent (statement must begin in the form space; and only one clearly-marked attachment is permitted for completion). For Government Training Use Only 10 Section B: Temporary Need Information (Example) 11 For Government Training Use Only Section B: Temporary Need Information (Helpful Hints)  Agents/Attorneys filing for multiple employers often mistakenly include temporary need statements that relate to a different case; please ensure that the temporary need statement relates to the application at hand.  Please also double-check your dates of need located in B.5 and B.6 against the dates of need in your temporary need statement to ensure accuracy and consistency. 12 For Government Training Use Only Section C: Employer Information  Legal Business Name  Trade Name/Doing Business As (DBA)  Address, City, State, Postal Code, Country, Province, Telephone Number, Extension  Federal Employer Identification Number (FEIN)  North American Industry Classification System (NAICS) Code 13 For Government Training Use Only Section C (1-11): Employer Information  C.1 Legal Business Name Full legal name of the employer (e.g. business, person, association, firm, corporation, partnership, or organization) filing the application as reported to the Internal Revenue Service (IRS).  C.2 Trade Name Employer’s assumed full trade name or “Doing Business As” (DBA) name, if applicable.  C.3 Address Enter the street address of the employer’s principal place of business.

The place of business must be a physical location and not a Post Office (P.O.) Box.  C.4 – C.11 See example on slide 17 for additional contact information. 14 For Government Training Use Only Section C.12: Employer Information  C.12 Federal Employer Identification Number (FEIN) - Unique 9-digit number in the following format 99-9999999 - Used by employers in connection with business activities - Used to identify the business entity All employers, including private households, MUST obtain an FEIN from the IRS before completing the application Do NOT enter a social security number in lieu of an FEIN The FEIN is obtained through the IRS at www.irs.gov 15 For Government Training Use Only Section C.13: Employer Information  C.13 NAICS code - Standard used by Federal statistical agencies in classifying business establishments to collect, analyze, and publish statistical data related to the U.S. business economy. - A business can be assigned one NAICS code based on its primary business activity. - A listing of NAICS codes can be found at: http://www.census.gov/epcd/www.naics.html (Content taken from the U.S. Census Bureau, http://www.census.gov) 16 For Government Training Use Only Section C: Employer Information (Example) C.1 – C.13 17 For Government Training Use Only Section D: Employer Point of Contact Information  The Point of Contact must be an employee of the employer.  The position of the employee both: – Authorizes the employee to provide information and supporting documentation concerning the application; and – Allows the employee to communicate with the Department on behalf of the employer.  The employer point of contact should be the individual most familiar with the content of the application and circumstances of the temporary employment offered through this application.  Information in this section must be different from the attorney/agent information listed in Section E, unless the attorney is an employee of the employer. 18 For Government Training Use Only Section D (1-14): Employer Point of Contact Information  D.1-13 Employer Contact Information - See example on slide 20 for contact information - Section D.5 must be a physical address, not a Post Office (P.O.) Box.  D.14 Email Address - Email of the employer’s point of contact in the format [email protected] domain. - The email must be the same as the one regularly used by the employer’s point of contact for its business operations and capable of sending and receiving electronic communications from the Department with respect to the processing of this application. For Government Training Use Only 19 Section D: Employer Point of Contact Information (Example) D.1 – D.14 20 For Government Training Use Only Section E: Attorney or Agent Information (if applicable)  Must be different from the employer’s point of contact information in Section D, unless the attorney is an employee of the employer.

21 For Government Training Use Only Section E (1-14): Attorney or Agent Information  E.1 Type of Representation - Identify whether the employer is represented by an attorney or agent in the process of filing this application. Only mark one box. If “Attorney” or “Agent” is selected, complete the remainder of Section E. If not applicable, skip questions 2 to 21 in this section and continue to Section F.  E.2 to E.14 Contact Information - - Standard point of contact information similar to Sections C & D. - The street address in E.5 must be a physical location and not a Post Office (P.O.) Box. 22 For Government Training Use Only Section E (15-16): Attorney or Agent Information  E.15 Law Firm/ Business Name - Attorney/agent’s law firm or business name. - Must be the exact name that is reported to the IRS.  E.16 FEIN - Attorney/agent's law firm or business nine-digit FEIN as assigned by the IRS. - Do not enter a social security number.

23 For Government Training Use Only Section E (17-19): Attorney or Agent Information Note: Questions E.17-19 must be completed if “Attorney” is selected in E.1  E.17 State Bar Number(s) - Attorney’s State Bar number. - If the attorney is licensed in more than one State, enter only one State Bar number.  E.18-19 State and Name of highest court where the attorney is in good standing - The answers should correspond to the same State for which a Bar number was provided in question 17, if any. 24 For Government Training Use Only Section E (20-21): Attorney or Agent Information - Note: Questions E.20 to E.21 must be completed if “Agent” is selected in E.1  E.20 Current agreement or other documentation Indicate whether a copy of the current agreement or other documentation demonstrating the agent’s authority to represent the employer is attached (if agent representation, agreement is required).  E.21 MSPA Registration - - Indicate whether a copy of the current Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Certificate of Registration identifying the farm labor contracting activities the agent is authorized to perform is attached. (MSPA registration required for farm labor contracting activities). “N/A”, if MSPA does not apply.

For Government Training Use Only 25 Section E: Attorney or Agent Information (if applicable) (Example) E.1 – E.14 26 For Government Training Use Only Section F: Employment and Wage Information  Job Duties  Education, Training and Special Requirements  Worksites  Wage Rates  Additional Place(s) of Employment and Wage Information  Other Material Terms and Conditions of the Job Offer  Recruitment Information 27 For Government Training Use Only Section F.a (1-5): Job Opportunity and Minimum Requirements  F.a.1 Copy of the Job Order - Indicate whether a copy of the job order submitted to the SWA is attached.  F.a.2 Name of the State - Name of the State to which the job order was submitted.  F.a.3 Date Job Order Submitted - Date Job Order was submitted to the SWA (mm/dd/yyyy).  F.a.4 Job Duties - Detail job duties to be performed by H-2B workers, including any equipment to be used, any supervisory responsibilities, and other pertinent work tasks. (Must begin completion in form space; one attachment is permitted for completion).  F.a.5a-5h Work Hours - Anticipated days and hours of work per day and per week, in a numerical (99.99) format. Entry in 5a must be at least 35.00 hours per week and cannot be less than the sum of the entries in Items 5b through 5h. For Government Training Use Only 28 Section F.a (6-7): Job Opportunity and Minimum Requirements (cont’d)  F.a.6 Hourly Work Schedule - Normal daily work schedule for the job opportunity using the standard time in the area of intended employment (e.g., 9 a.m. to 5 p.m.).

Helpful Tip: If the job requires multiple shifts, please include those in section F.a.4 in the free text box provided.  F.a.7 Education - Minimum U.S. diploma or degree required: None, High School/GED, Associate’s, Bachelor’s, Master’s, Doctorate (PhD), or Other degree (JD, MD, etc.) - Only make one selection. 29 For Government Training Use Only Section F.a (8-9): Job Opportunity and Minimum Requirements (example)  F.a.8 Training - Minimum number of months of training required, “0” if none. - Include: programs, coursework, or training experience (other than employment). - Do not include on-the-job training required by the employer after the date of hire. - Do not duplicate time requirements that are listed in other fields; the training required should be excluded from fields in Sections F.a.7 and F.a.9.  F.a.9 Work Experience - Minimum number of months of work experience required, “0” if none. 30 For Government Training Use Only Section F.a (10-11): Job Opportunity and Minimum Requirements (cont’d)  F.a.10 Supervision – Identify whether the worker(s) employed under the job opportunity will be required to perform supervision of other employees. – If “Yes” is marked in question 10, enter the total number of employees the job opportunity will supervise in 10a.  F.a.11 Special Requirements – Job-related skills, minimum qualifications, field(s) of training, and other special requirements (can be more than one, N/A/ if none) – Examples: licenses (valid driver’s license); certifications; specific foreign language fluency; proficiency with specific tools, equipment, software, machinery, or methods; travel or relocation requirements; shorthand and typing speeds; ability to pass drug and/or background checks. – If Section F.a.8 includes training, enter here specific field(s) and/or name(s) of the training required. 31 For Government Training Use Only Section F.a: Job Opportunity and Minimum Requirements (Example) F.a.4, Fa.7-.a.11 32 For Government Training Use Only Section F.b: Place of Employment and Wage Information  Area of intended employment must be defined with as much geographic specificity as possible.  Information is used for purposes of reviewing and verifying regulatory compliance with advertising, positive recruitment requirements, and PWDs.

Important: Where multiple worksites are involved, the employer must complete Appendix A by identifying the location(s) where the services or labor is expected to be performed. 33 For Government Training Use Only Section F.b (1-8): Place of Employment and Wage Information  F.b.1-2 Worksite Address - Street address of the worksite location where work will be performed. - Must be a physical location and cannot be a P.O. Box.  F.b.3-7 City, State, Postal Code, County, MSA/OES Area Title  F.b.8 Basic Wage Rate Paid - Rate of pay to be paid to worker(s). If the wage offer is expressed as a range, enter the bottom of the wage range to be paid on the “From:” line and enter the top of the wage range on the “To:” line.  F.b.8.a Overtime Wage Rate Paid - Rate of overtime to be paid to worker(s), if available. 34 For Government Training Use Only Section F.b (9): Place of Employment and Wage Information  F.b.9 Unit of Pay - Indicate whether the rate of pay is per hour, week, bi-weekly, month, year, or based on a piece rate.

(only one selection).  F.b.9a Additional Wage Conditions - Bonuses, fringe benefits, subsidized housing or meals, or any other benefits associated with this job opportunity. If the answer to question 9 is “Piece Rate,” enter the units that govern how the piece rate is paid (e.g., 5/8 bushel, 90 pound bag or box, 10 box bin). - 35 For Government Training Use Only Section F.b (10-11): Place of Employment and Wage Information  F.b.10 First PWD Case Number - Enter the 14-digit PWD number assigned by the National Prevailing Wage Center for the valid PWD used for the job opportunity listed on the application only. Example: P-400-xxxxx-xxxxxx.  F.b.10 a-b Second and Third PWD Case Numbers - Enter any 2nd and 3rd PWD numbers for valid PWDs used for this application, only if applicable, e.g. itinerant work, such as reforestation, entertainers, etc. (do not enter a PWD that was obtained, but not used for the H-2B application filing).  F.b.11 Emergency Situation PWD - If the employer is requesting emergency situation processing for this application and has not yet received a PWD, indicate whether the employer has attached to its Application a completed Form ETA-9141. For Government Training Use Only 36 Section F.b: Place of Employment and Wage Information (Example) (F.b.1 – F.b.7) 37 For Government Training Use Only Section F.c Additional Place of Employment and Wage Information  F.c.1 Indicate whether the employer’s job opportunity will be performed at worksite locations other than the one identified in Section F.b. by marking “Yes” or “No.”  F.c.2 If the answer to question F.c.1 is “Yes,” indicate whether the employer has attached a completed Appendix A. 38 For Government Training Use Only APPENDIX A. Additional Place of Employment and Wage Information  Employers are required to complete Appendix A when supplying information about additional worksites.  Submission of additional worksite information in any other form or format will not be accepted.  Only worksites entered on the Form ETA-9142B and Appendix A will be used in the processing of the employer’s request for temporary labor certification.  If the employer intends for the workers sought to perform labor or services at more than ten (10) worksite locations, the employer must complete as many additional worksite location Appendix A entries as are necessary to list all intended worksite locations for the application.

39 For Government Training Use Only APPENDIX A (1-5): Additional Place of Employment and Wage Information  A.1 City - Enter the city covering the worksite location. - If the work to be performed is located outside a city or in a rural or isolated geographic area, enter the nearest city in the geographic area. If the work to be performed covers multiple cities and towns within the geographic area, enter “Multiple Cities and Towns”. -  A.2-4 State, County and MSA Name/OES Area Title - Enter the two-letter postal abbreviation for the State, the county, and the name of the Metropolitan Statistical Area (MSA) or Occupational Employment Statistics (OES) Area Title or Territory of the worksite location.  A.5 Additional Place of Employment Information - Enter any additional details or information about the place of employment where work will be performed, if applicable. For Government Training Use Only 40 APPENDIX A (6): Additional Place of Employment and Wage Information  A.6 Additional information based on the requirements of the employer’s work itinerary, as applicable: • Crew ID – Single-digit number or letter to identify each crew of workers. • Total Workers – Whether associated with a distinct work crew or not, enter the total number of workers expected to perform work at the worksite location. • Begin Date - Expected start date at this worksite location. • End Date – Enter the expected end date for the period of employment. • Basic Wage Rate - Enter the basic rate of pay to be paid for the period of employment at this worksite location, if applicable and if different from the basic wage rate disclosed on Item F.b.8 of the Form ETA-9142B. If the wage offer is expressed as a range, enter the bottom of the wage range to be paid on the “From:” line and enter the top of the wage range on the “To:” line. • Per – “HR” – hourly; “WK” – weekly; “BW” –biweekly; “MH” – monthly; “YR” year; or “PR” piece rate.

41 For Government Training Use Only APPENDIX A (Landscaping Example) 42 For Government Training Use Only APPENDIX A (Seafood Example) 43 For Government Training Use Only APPENDIX A (Reforestation Example) 44 For Government Training Use Only APPENDIX A (Reforestation Helpful Hint) Reforestation Helpful Hint  When work locations cover different states, the states listed in the itinerary must be contiguous or located within close geographic proximity to one another. 45 For Government Training Use Only Section F.d (1-3): Other Material Terms and Conditions of the Job Offer Note: This form section captures current Job Order disclosure requirements, as applicable. If applicable, detailed explanations for each section must be described in the Job Order.  F.d.1 Daily Transportation Indicate whether workers will be provided with daily transportation to and from the worksite in compliance with all applicable Federal, State, and local laws and regulations.  F.d.2 Overtime Indicate whether overtime hours will be available to the workers.  F.d.3 On-the-Job Training Indicate whether workers will be provided with on-the-job training to perform the duties assigned. For Government Training Use Only 46 Section F.d (4-6): Other Material Terms and Conditions of the Job Offer  F.d.4 Employer-Provided Tools and Equipment Indicate workers will be provided, without charge or deposit charge, all tools, supplies, and equipment required to perform the duties assigned.  F.d.5 Board, Lodging, or Other Facilities Indicate whether workers will be provided with board, lodging, or other facilities and/or the employer will assist workers in securing board, lodging, or other facilities.  F.d.6 Deductions from Pay State all deduction(s) from pay not required by law and, if known, the amount(s).

If no deductions other than those required bylaw will be made from the workers’ pay, enter “None”. For Government Training Use Only 47 Section F.d: Other Material Terms and Conditions of the Job Offer (Example) 48 For Government Training Use Only Section F.e (1-3): Recruitment Information Note: Enter at least two (2) verifiable methods by which prospective U.S. workers can contact the employer and apply for the job opportunity. These three entries ARE REQUIRED for submission of this application. “N/A” may be manually entered for F.e.2 or F.e.3.  F.e.1 Telephone Number to Apply Enter telephone number by which prospective U.S. workers can contact the employer and apply for the job opportunity.  F.e.2 Email Address to Apply Enter the email address by which prospective U.S. workers can contact the employer and apply for the job opportunity.

The format must be [email protected] domain.  F.e.3 Website Address (URL) to Apply Enter the website address by which prospective U.S. workers can contact the employer and apply for the job opportunity. 49 For Government Training Use Only Section F.e: Recruitment Information (Example) 50 For Government Training Use Only Section G(1-4): Other Supporting Documentation  G.1 Enter the type of employer application (choose one)  G.2 Copy of MSPA Registration If an employer is obligated to obtain a Certificate of Registration under MSPA, it must submit a copy of its valid Certificate of Registration. Otherwise, enter “N/A”. Note: Sections G.3 and G.4 are completed by “Job-Contractor – Joint Employer” ONLY.  G.3 Appendix D  G.4 Contract or Agreement 51 For Government Training Use Only APPENDIX D. Job Contractor: Employer-Client Information  Job contractors must file as a joint employer with an employer-client in order to use the H-2B program.  Job contractor employers are required to complete Appendix D to supplying information about the employer-client and its point of contact.  Submission of this information in any other form or format will not be accepted and will result in the application being rejected for processing by the Department.

52 For Government Training Use Only APPENDIX D: Job Contractor: Employer-Client Information (Example) 53 For Government Training Use Only Section G(5-7): Other Supporting Documentation  G.5 Engaging Agents or Recruiters - Indicate whether the employer and its attorney or agent (as applicable) are engaging or plan to engage any agents or recruiters to recruit H-2B workers. - Agent(s) or recruiter(s) may be located in the U.S. or abroad.  G.6 Copy of all Agent/Recruiter Agreements - Submit copies of all agreements with any agent or recruiter identified - in G.5. Include agreements that the employer itself has entered into and agreements the employer’s agent or attorney has entered into with such entities.  G.7 Appendix C - Check the box to indicate whether a completed Appendix C is 54 attached. For Government Training Use Only Section G: Other Supporting Documentation (Example) 55 For Government Training Use Only APPENDIX C: Foreign Labor Recruiter Information  Complete items 1 through 9 with the identity and location of each person/recruiter who the employer has engaged or plans to engage, directly or indirectly, to recruit foreign workers for the job opportunities in this application.  If the employer has more than five (5) persons and entities to identify, the employer must complete as many additional Appendix C forms as are necessary to disclose all persons or entities engaged in foreign worker recruitment for this application. Important Note: Employers are required to complete Appendix C to supply information about foreign labor recruiter(s).

Submission of this information in any other form or format (e.g., a list included in a Foreign Labor Recruitment Agreement) will not be considered as satisfying this disclosure requirement and will result in OFLC issuing a Notice of Deficiency (NOD) that requests a completed Appendix C. 56 For Government Training Use Only APPENDIX C (Example) 57 For Government Training Use Only Section H: Declaration of Employer and Attorney/ Agent  Employer(s) and its attorney or agent (if applicable) must attest to abide by all terms, assurances, and obligations contained in the Appendix B.  Employers must provide a signed and dated copy of Appendix B to OFLC, retaining the original.  Applications that fail to attach Appendix B will not be certified by the Department. 58 For Government Training Use Only APPENDIX B. Employer and Attorney/Agent Declarations  B.A1-6 Attorney or Agent Declaration - Name of the attorney/agent. - Firm or business name as reported to the IRS. - Read and verify all information on the form prior to signing - Sign and date application.  B.B 1-6 Employer Declaration - Name and job title of the person with authority to sign on behalf of the employer. - The person with authority to sign on behalf of the employer must sign the application and provide his or her initials next to each condition of employment. - Read and verify all information on the form prior to signing. - Sign and date application. 59 Note: The employer provides a copy of Appendix B with its application package to OFLC, retaining the original. For Government Training Use Only APPENDIX B. Employer and Attorney/Agent Declarations 60 For Government Training Use Only Section I: Preparer  Complete this section if the preparer of the application is a person other than the one identified in Section D (Employer Point of Contact) or Section E (Attorney/ Agent) of the Form ETA-9142B.  Leave this section blank if the employer or attorney/agent contact (listed in Sections D and E) prepared the application.

An employee of the attorney (e.g., paralegal) would complete this section. 61 For Government Training Use Only FLAG System at https://flag.dol.gov/ 62 For Government Training Use Only Questions? 63 For Government Training Use Only