DOL OFLC, Chicago National Processing Center H-2 Visa Programs Updates

U.S. DEPARTMENT OF LABOR

Employment & Training Administration H-2 Labor Certification Programs Filing Tips November 2019 Chicago National Processing Center Office of Foreign Labor Certification Employment and Training Administration U.S. Department of Labor 1 Disclaimer This presentation is intended for training use only and does not carry the force of legal opinion. The Department of Labor 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 of Labor programs. You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages.

Therefore, we make no express or implied guarantees. The Federal Register and the Code of Federal Regulations remain the official source for regulatory information published by the Department of Labor. We will make every effort to keep this information current and to correct errors brought to our attention. 2 H-2 Visa Programs I. Workload Trends II.

H-2A Filing Tips III. H-2B Filing Tips IV. H-2A/B Tips for Responding to Audits. 3 H-2 Visa Programs Section I Workload Trends 4 H-2 Visa Programs H-2A Program Workload Trends, FY 2008 – 2019 FY 2019 Workload  12,626 labor certifications  257,667 workers certified  96% certification rate  64% of certifications for individual farms-ranches  41% of workers certified for farm labor contractors Top States of Employment FY 2008 FY 2019 Florida 5,800 33,598 Georgia 6,500 29,480 Washington 2,500 26,226 California 2,900 23,321 North Carolina 9,100 21,605 5 H-2 Visa Programs H-2A Monthly Applications Received, FY 2008 vs. FY 2017 – 2019 6 02505007501,0001,2501,5001,7502,0002,2502,5002,750OCTNOVDECJANFEBMARAPRMAYJUNJULAUGSEPFY 2008FY 2017FY 2018FY 2019 H-2 Visa Programs H-2B Workload Trends, FY 2008 – 2019 FY 2019 Workload  9,236 cases processed  150,465 workers certified  88% certification rate  53% of certifications for seasonal labor needs  20 workers certified (average) per employer application Top States of Employment FY 2008 FY 2019 Texas 35,100 16,106 Florida 22,200 5,768 Colorado 16,400 6,943 Louisiana 13,800 4,924 Pennsylvania 9,600 5,006 7 H-2 Visa Programs Applications Received by Month, H-2A vs. H-2B, FY 2019 8 05001,0001,5002,0002,5003,0003,5004,0004,5005,0005,5006,000OCTNOVDECJANFEBMARAPRMAYJUNJULAUGSEPH-2AH-2B H-2 Visa Programs Section II H-2A Filing Tips 9 H-2 Visa Programs Section II.

H-2A Filing Tips Topics we will cover:  New Forms Location (ETA-790/ETA-790A, ETA-9142A, Appendix A)  ETA-790/ETA-790A Filing Tips  Addendum A  Addendum B  Addendum C 10 H-2 Visa Programs Section II. H-2A Filing Tips – New Form H-2A New Forms Location https://www.foreignlaborcert.doleta.gov/form.cfm 11 H-2 Visa Programs Section II. H-2A Filing Tips – New Form 12 H-2 Visa Programs Section II. H-2A Filing Tips – Appendix A 13 H-2 Visa Programs Section II.

H-2A Filing Tips – Appendix A 14 H-2 Visa Programs Section II. H-2A Filing Tips – ETA-790/ETA-790A ETA-790A  Section B. Minimum Job Qualifications  Section E. Provision of Meals  Section F. Transportation and Daily Subsistence  Conditions of Employment and Assurances  Addendum A  Addendum B  Addendum C 15 H-2 Visa Programs Section II. H-2A Filing Tips – ETA-790A Sec.B. Minimum Job Qualifications 16 H-2 Visa Programs Section II. H-2A Filing Tips – ETA-790A Sec.B. Minimum Job Qualifications 17 H-2 Visa Programs Section II.

H-2A Filing Tips – ETA-790A Section E. Provision of Meals 18 H-2 Visa Programs Section II. H-2A Filing Tips – ETA-790A Section E. Provision of Meals Good example: 19 H-2 Visa Programs H-2A Filing Tips – ETA-790A Section F. Transportation and Daily Subsistence 20 H-2 Visa Programs H-2A Filing Tips – ETA-790A Section F. Transportation and Daily Subsistence Good example: Poor example: 21 H-2 Visa Programs Section II. H-2A Filing Tips – Conditions of Employment and Assurances Page 5 of the Form ETA 790A outlines the Conditions of Employment and Assurances for H-2A Agricultural Clearance Orders 22 H-2 Visa Programs Section II. H-2A Filing Tips – Conditions of Employment and Assurances Conditions of Employment and Assurances can also be found in Section I of Form ETA-790A https://flag.dol.gov 23 H-2 Visa Programs Section II.

H-2A Filing Tips – Conditions of Employment and Assurances Please do not repeat the Conditions of Employment and Assurances in Addendum C 24 H-2 Visa Programs Section II. H-2A Filing Tips – Addendum A 25 H-2 Visa Programs Section II. H-2A Filing Tips – Addendum B 26 H-2 Visa Programs Section II. H-2A Filing Tips – Addendum B 27 H-2 Visa Programs Section II.

H-2A Filing Tips – Addendum B 28 H-2 Visa Programs Section II. H-2A Filing Tips – Addendum B Section C Worksite Information (Page 6 of 13 Form ETA-790A General Instructions) 6. Enter any additional information about the worksite location. Examples may include more specific information about the fields where work will be performed in close proximity to the address location, more specific directions on how workers can reach the worksite and/or Global Positioning System (GPS) coordinates, especially in very rural and isolated geographic areas.

If no additional information concerning the worksite is needed, enter “NONE” in the space provided. 7. In circumstances where work needs to be performed at additional places of employment other than the address listed in items 1 through 5 above, submit a completed Form ETA-790A, Addendum B identifying all additional places of employment and, where required, the agricultural business that will employ workers, or to whom the employer will be providing workers. 29 H-2 Visa Programs Section II.

H-2A Filing Tips – Addendum B Section D Housing Information (Page 7 of 13 of the Form ETA-790A General Instructions) 10. Enter any additional information about the housing. Examples may include more specific directions on how workers can reach the housing and/or GPS coordinates, especially in very rural and isolated geographic areas; availability of family units and/or single rooms; utilities (e.g., gas, electricity, and heat); and/or arrangements for utility hookups. For mobile units, explain where the mobile units will be used (e.g., “mobile unit will travel with the workers to various range locations through Jefferson, Fremont, and Bonneville Counties (Idaho) and Teton and Lincoln Counties (Wyoming)”).

If no additional information concerning the housing is needed, enter “NONE” in the space provided. 11. In circumstances where workers will be provided housing at additional locations and/or additional space is needed to identify all available housing units for workers at the address listed in items 1 through 5 above, mark “YES” and submit a completed Form ETA-790A, Addendum B providing additional information on housing that will be provided to workers. If no additional information concerning the housing is needed, mark “NO.” 30 H-2 Visa Programs Section II.

H-2A Filing Tips – Addendum C 31 H-2 Visa Programs Section III H-2B Filing Tips 32 H-2 Visa Programs Section III. H-2B Filing Tips  Cross check data from ETA-9141 against data in ETA-9142B. • FEIN must be the same or else discuss and document Successor in Interest • Employer name • Location/MSA • Job details • Highest wage when multiple worksites 33 H-2 Visa Programs Section III. H-2B Filing Tips  Cross check data from ETA-9142B against data in Job Order.  Common mismatches:  Wages  Work hours  Housing language  Place in F.b.9a for housing that is provided at no charge (mobile workforces)  Place in F.d.6 for housing that employee must pay for  Special Requirements  Use F.a.11 for statements re; background or drug tests 34 H-2 Visa Programs Section III. H-2B Filing Tips  Must pay equal to or higher than the PWD.  Split shifts or other complex schedules  Complete F.a.5 with one schedule  Add discussion of possible alternatives or add other possible schedules in F.a.4 or F.a.11  Cross check data from ETA-9141 against data in ETA-9142B.  F.3.1, F.e.2, F.e.3 - Enter at least two verifiable methods by which prospective U.S. workers can contact the employer and apply for the job opportunity.  “N/A” may be manually entered for F.e.2 or F.e.3.

35 H-2 Visa Programs Section III. H-2B Filing Tips  In free text fields, such as Job Duties and Statement of Temporary Need, employer must commence entry in form field in the FLAG System.  Do not start with “see attached”.  This will receive a NOD.  Check information in the application against the regulatory requirements, such as for the type of temporary need requested.  Each application is reviewed individually. Prior certifications do not guarantee continued certifications. If basis for temporary need, for example, is not clear or established, a NOD may be issued.

36 H-2 Visa Programs Section III. H-2B Filing Tips – Appendix A  City column must be completed.  If there are multiple cities in one county, then enter “Multiple Cities and Towns”.  County column must be completed.  If there are multiple counties in a single MSA, they should be listed as separate line items or else “multiple counties” can be entered in the Additional Information field instead. (county field itself does not allow for the “multiple county” entry)  Additional Information sections are only as applicable. 37 H-2 Visa Programs Section III.

H-2B Filing Tips – Appendix A  Itineraries for Special Procedures cases must be provided in Appendix A in FLAG.  If employer submits an itinerary as an attachment and it does not match Appendix A in FLAG exactly, employer will receive a NOD.  Only information provided in FLAG is considered part of the official application. 38 H-2 Visa Programs Section III. H-2B Filing Tips – Appendix A  Landscaping Example 39 H-2 Visa Programs Section III. H-2B Filing Tips – Appendix A  Reforestation Example 40 H-2 Visa Programs Section III.

H-2B Filing Tips – Appendix A  Seafood Example 41 H-2 Visa Programs Section III. H-2B Filing Tips – Appendix B  Use current Appendix B  This document must bear original signature(s)  Print  Sign and date  Employer and attorney/agent (if any)  Scan and upload to case in the FLAG System  For job contractors, one for employer and one for employer-client 42 H-2 Visa Programs Section III. H-2B Filing Tips – Appendix B  Current version – 5/31/2022 expiration 43 H-2 Visa Programs Section III. H-2B Filing Tips – Appendix B  Current version – 26 attestations 44 H-2 Visa Programs Section III.

H-2B Filing Tips – Appendix C  Information on Foreign Recruiters must be provided in Appendix C in the FLAG System.  If employer submits recruiter information as an attachment and it does not match Appendix C in FLAG exactly, employer will receive a NOD.  Only information provided in FLAG is considered part of the official application. 45 H-2 Visa Programs Section III. H-2B Filing Tips  Remember: • Signed and dated Form ETA-9142, Appendix B, uploaded to case in the FLAG System • Attorney or Agent Documentation (if applicable) • Foreign Labor Recruiter Agreement(s), or a statement that the employer is not using a Foreign Labor Recruiter (attachment preferred with clear title) • Job Order • Relevant Appendices completed • Finally, please upload NOD responses directly to FLAG • Do not upload and also email to TLC! 46 H-2 Visa Programs Section IV Tips for Responding to Audits 47 H-2 Visa Programs Section IV.

Tips for Responding to Audits  Audits may be conducted on certified H-2A applications and any adjudicated H-2B applications.  Applications are selected within the sole discretion of the Certifying Officer.  Audit begins with issuance of a Notice of Audit Examination (NOAE) Letter:  Requests documentation related to the application.  Due date for response is no more than 30 days from the issue date.  Request for Supplemental Information (RSI) is issued for missing information or questions that arise from the NOAE response.  RSI responses are due 14 days from the date of the RSI. 48 H-2 Visa Programs Section IV. Tips for Responding to Audits Extension Requests  Only one extension (up to 14 days) will be granted per audit examination, not per letter issued during the audit process.  An additional extension may be granted in extenuating circumstances which should be detailed in the extension request.  Absent the explanation, the request will be denied and the response will remain due on the date listed in the letter.  Submit what you have now, let us know what is missing and why, and send the remaining documents on the new due date. 49 H-2 Visa Programs Section IV.

Tips for Responding to Audits Helpful Tips  Read the audit letter carefully and respond to all items requested.  NOAE letters change periodically. Make sure to respond to the instructions in the letter issued to you – not a previous NOAE.  Help us complete your audit by providing as much supporting documentation as you can.  It is better to submit a partial response than no response at all. We will review your partial submission while we wait for your full audit response based on an approved extension request. 50 H-2 Visa Programs Section IV.

Tips for Responding to Audits Helpful Tips Continued  Supporting documentation is sometimes necessary to address a problem we see or a question we have about what was submitted.  Submit legible copies of recruitment documentation with the required information clearly visible.  For H-2A, we are still auditing certifications prior to the new advertising rule which includes documentation in accordance with the recruitment outlined in the 2010 H-2A Final Rule.  See 75 CFR 6884, 6971 (Feb. 12, 2010). 51