DOL OFLC, presentation

U.S. DEPARTMENT OF LABOR

Employment & Training Administration Filing Tips and Best Practices for H-2B Labor Certification Applications October 25, 2017 U.S Department of Labor For Training Use Only; Not Legally Binding 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. U.S Department of Labor For Training Use Only; Not Legally Binding 2 H-2B Filing Tips and Best Practices Topics Refresher and overview of H-2B filing procedures Filing tips and best practices iCERT updates U.S Department of Labor For Training Use Only; Not Legally Binding 3 Preparing the H-2B Application STEP 1: Obtain Prevailing Wage  Employer obtains prevailing wage from OFLC NPWC (Form ETA – 9141) • Employer begins preparing a job order and the H-2B application package • DO NOT WAIT!

Please file your request for a prevailing wage determination as soon as practically possible  As of July 1, 2017, the validity period for prevailing wage determinations will be issued to June 30, 2018 Recommended Timeframe: Between 150 and 135 days before work start date U.S Department of Labor For Training Use Only; Not Legally Binding 4 Preparing the H-2B Application STEP 2: Submit Job Order to State Workforce Agency  Employer submits job order and informs SWA that a concurrent application for H-2B workers has been filed  If the anticipated worksites are located in more than one state within the area of intended employment, the employer may submit the job order to any one of the SWAs having jurisdiction over the those worksites  The job order must meet the content requirements at 20 CFR 655.18 and any state-specific requirements  The SWA reviews job order and notifies the OFLC Chicago NPC of any deficiencies within 6 business days Regulatory Timeframe: Between 90 and 75 days before work start date U.S Department of Labor For Training Use Only; Not Legally Binding 5 Preparing the H-2B Application  Many SWAs maintain job order systems that permit employers to place job orders using “self-service”, while others require “staff- assistance” and use a standard job order form  Regardless of the method, the employer must apprise the SWA or otherwise provide notification that the job order is being placed in connection with an H-2B application  If the SWA form does not have a dedicated field to indicate “H- 2B”, then provide notification using an “open text field” or when transmitting (e.g., email) the job order Best Practice Tip: Contact the SWA early in the process to understand how to submit a job order and/or obtain a copy of the SWA’s standard job order form. Make sure the SWA has the capability to make modifications on your behalf, in the event certain job order content is not compliant. U.S Department of Labor For Training Use Only; Not Legally Binding 6 Preparing the H-2B Application Tips for Preparing the Job Order  Many SWA job order systems/forms do not have dedicated fields for the required content (e.g., start/end dates of work, can only enter up to 25 openings)  Use a free text field (e.g., job description) or contact the SWA for assistance on how to complete the job order form  Be aware of any character size limitations that may exist in some SWA job order systems/forms, prohibiting inclusion of the necessary assurances  Contact the SWA immediately and inquire as to what minimum language can be entered  Job orders for employers of a mobile workforce (i.e., forestry, carnivals) must include language that optional housing will be offered at no cost to the worker. U.S Department of Labor For Training Use Only; Not Legally Binding 7 Preparing the H-2B Application Tips for Preparing the Job Order  Make sure the job order contains the minimum content requirements under 20 CFR 655.18 Job Order Content Requirements Regulatory Citation State the employer’s name and contact information 655.18 (b)(1) Indicate job is temporary, full-time, and number of openings 655.18 (b)(2) Description of job duties, requirements, and qualifications Geographic area of employment Wage offer or range of applicable wage offers Availability of overtime and wage offer (if applicable) Provision of on-the-job training (if applicable) 655.18 (b)(3) 655.18 (b)(4) 655.18 (b)(5) 655.18 (b)(6) 655.18 (b)(7) State a single workweek will be used in computing wages due 655.18 (b)(8) Specify the frequency of pay 655.18 (b)(9) U.S Department of Labor For Training Use Only; Not Legally Binding 8 Preparing the H-2B Application Tips for Preparing the Job Order Job Order Content Requirements Regulatory Citation Provision of board, lodging, or other facilities (if applicable) 655.18 (b)(10) State all deductions from the worker’s paycheck 655.18 (b)(11) Inbound transportation/daily subsistence (if applicable, lodging) 655.18 (b)(12) Outbound transportation/daily subsistence (if applicable, lodging) 655.18 (b)(13) Provision of daily transportation (if applicable) State reimbursement of visa, border, and related fees 655.18 (b)(14) 655.18 (b)(15) Provision of any tools, supplies, and equipment at no cost 655.18 (b)(16) Three-fourths guarantee (not required due to 2017 Omnibus Act) 655.18 (b)(17) Instruct applicants to contact nearest office of the SWA 655.18 (b)(18) A job order checklist with sample language is available at https://www.foreignlaborcert.doleta.gov/pdf/H-2B_Job_Order_Checklist.pdf U.S Department of Labor For Training Use Only; Not Legally Binding 9 Preparing the H-2B Application Best Practice Example Job Order Employer’s name 655.18 (b)(1) Geographic location of employment 655.18 (b)(4) Indication position is temporary, full-time, number of openings, and expected start and end dates of work 655.18 (b)(2) Detailed job description, duties and requirements 655.18 (b)(3) Wage offers, including overtime, and full-time hours 655.18 (b)(5) and (b)(6) U.S Department of Labor For Training Use Only; Not Legally Binding 10 Preparing the H-2B Application Best Practice Example Job Order Inbound transportation 655.18 (b)(12) Outbound transportation 655.18 (b)(13) Disclosure of daily subsistence amount 655.18 (b)(12) and (b)(13) 3/4th Guarantee (not required due to 2017 Omnibus) 655.18 (b)(17) Provision of tools, equipment, and supplies 655.18 (b)(16) U.S Department of Labor For Training Use Only; Not Legally Binding 11 Preparing the H-2B Application Best Practice Example Job Order Single workweek guarantee and frequency of pay 655.18 (b)(8) and (b)(9) Statement of deductions from worker’s pay 655.18 (b)(11) Reimbursement of border, visa, and related fees 655.18 (b)(15) Provision of board, lodging, or other facilities 655.18 (b)(10) Employer contact information 655.18 (b)(1) Instructions on how to apply 655.18 (b)(18) U.S Department of Labor For Training Use Only; Not Legally Binding 12 Preparing the H-2B Application Note re: Provision of Board/Lodging or Other Facilities – If an 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, this must be listed in the job order, including the associated cost of such provision.

Employers of mobile workforces (i.e., tree planting, carnival workers) must cover the cost of lodging to the extent such costs would reduce pay below the offered wage for the area of intended employment. Examples: If lodging is primarily for the employer’s benefit and convenience (always in the cases of mobile workforces): “The employer will pay the cost of lodging to the extent such costs would reduce pay below the offered wage rate for the area of intended employment.” If lodging is not primarily for the employer’s benefit and convenience: “Dormitory-style shared lodging is available in employer-owned housing at a rate of $25 per person per week.” U.S Department of Labor For Training Use Only; Not Legally Binding 13 Preparing the H-2B Application STEP 3: Submit Application to DOL-OFLC, Chicago National Processing Center • Form ETA-9142B and signed Appendix B • Copy of job order placed with State Agency • Valid PWD, Form ETA-9141 issued by OFLC-NPWC (or PWD case #) • Agreements with agents/foreign recruiters AND lists of names/locations of foreign recruiters. If none, statement so saying. • Additional documentation for job contractors and employers requiring Tip farm labor contractor license (e.g., reforestation employers) • FLC and FLCE certificates must be valid through the entire period of need. Where one will expire before the end date of need, the employer must submit a statement that it will renew the certificate(s) before it/they expire.

Regulatory Timeframe: Between 90 and 75 days before work start date U.S Department of Labor For Training Use Only; Not Legally Binding 14 Preparing the H-2B Application General Filing Tips  Ensure all required fields on Form ETA-9142B are completed prior to submission  Ensure all data is internally consistent – no conflicting statements between fields and documents.  Make sure all applicable data (the dates of need, # of workers requested, worksite locations) match between the job order and Form ETA-9142B  Review your application package carefully and ensure all required documents are included or uploaded electronically  For more efficient processing, upload separate electronic documents for each document type (e.g., job order, agent agreement) rather than one large file U.S Department of Labor For Training Use Only; Not Legally Binding 15 Preparing the H-2B Application General Filing Tips  If using a template to submit applications and the CO issues a Notice of Deficiency (NOD) impacting your template, remember to amend the template to avoid a continuation of the same NOD for each application  Start the Statement of Temporary Need in Section B.9 of the ETA-9142B. Start with an explanation of the temporary need, not company background information. If/when out of room, use “see attached” and complete statement on a separate sheet, properly named and uploaded.  For itinerant occupations (Special Procedures), include exact itinerary locations in Section F.c.7a of ETA-9142B, not merely BLS areas.  Don’t name a specific foreign worker in the Statement of Temporary Need or in the application. You will be asked to remove these in a Notice of Deficiency.  Employer must have a valid prevailing wage determination issued by the NPWC; otherwise application cannot be filed U.S Department of Labor For Training Use Only; Not Legally Binding 16 Preparing the H-2B Application General Filing Tips  Ensure number of workers and period of employment requested represent a bona fide business need  Requesting a start date of based on “expected government delays” is not acceptable  Requesting a start date of need on additional ‘cushion time’ is not acceptable  A start date of need that is influenced by H-2B cap considerations is acceptable so long as there is a bona fide business need for workers and available work to do during the dates requested  Example, start date of need has historically been September 1.

Employer is now seeking a start date of need of October 1 due to the cap. It is fine and should be disclosed in the application.  Changes to the period of employment (start or end dates), especially more than 2 weeks, must be accompanied with an explanation and the CO may request supporting documents U.S Department of Labor For Training Use Only; Not Legally Binding 17 Preparing the H-2B Application  Employer will submit the following documents: ‒ ETA 9142B ‒ Appendix B - signed and dated copy of original (most current form version) ‒ Copy of the job order concurrently submitted to the SWA ‒ Copy of Form ETA-9141 Prevailing Wage Determination or ETA-9141 case number clearly indicated in body of ETA-9142B (NEW: iCERT will prompt the user for this; will be further discussed in this session.) ‒ Agent agreement/documentation demonstrating authority to represent the employer (if applicable) ‒ Copies of all contracts/agreements with any recruiter (or agent) to be engaged in the recruitment of H-2B workers Both ‒ If not using a foreign labor recruiter, employer must still provide a statement indicating that at the time of filing or will receive a NOD. ‒ Contact information of all persons and entities hired by or working for the recruiter or agent, including any “sub” agents or employees of such persons and entities (if applicable) U.S Department of Labor For Training Use Only; Not Legally Binding 18 Preparing the H-2B Application  Required documents (continued) ‒ Occupations involving special procedures must submit other required documents (e.g., itineraries)  Additional documents for job contractors ‒ A completed ETA-9142B Sections C & D identifying the one employer-client associated with the job opportunity ‒ Appendix B - signed and dated copy of original for employer-client ‒ A separate statement of temporary need for the employer-client in the ETA-9142B Section B.9 ‒ Copy of an executed contract between the job contractor and employer-client  Strongly encourage electronic filing of applications Important Reminder: Employers should provide certified translations of any contracts or agreements which are not in English to ensure timely processing U.S Department of Labor For Training Use Only; Not Legally Binding 19 H-2B Program Important Reminders about DOL-OFLC Processing  OFLC uses email to communicate with employers and their representatives. Only certifications are sent by hard copy. • Be sure to check your spam folders and email settings so that you receive the Department’s official communications • Send inquiries to [email protected] – provide case number  Please check the OFLC website for processing times. Status inquiries on applications that are pending normally draw resources away from case processing so please only submit an inquiry if an application is beyond the published processing time.  Employers can electronically upload required documentation at the time of filing, in response to a Notice of Deficiency, or with recruitment results following Notice of Acceptance • Upload documents separately and title them as specifically as possible. • Do NOT submit documents both via email to TLC and by direct upload to the case in iCERT.

This may slow processing. • Take care that you are uploading documents to a pending application and not submitting a new application in error. U.S Department of Labor For Training Use Only; Not Legally Binding 20 H-2B Program iCERT System: Helpful Tips for Using Document Upload Best Practice Tips:  Avoid uploading one large file for multiple documents  If multiple documents are uploaded for a single document type, use a sequence number to order them  Filenames should clearly describes the document and include a case number or employer name and a date in the filename (e.g., EmployerName_RR_09102016.PDF)  DO NOT upload electronic documents and then send a duplicate copy via email, fax, or US mail U.S Department of Labor For Training Use Only; Not Legally Binding 21 H-2B Program STEP 4: DOL-OFLC Processing of Application Employer-Conducted Recruitment – once Notice of Acceptance has been issued:  Place two print advertisements in local area - one on a Sunday  Contact employees from prior year  Contact bargaining representative or post notice of filing for 15 consecutive business days  Additional recruitment can be ordered at the discretion of the Certifying Officer (e.g., unions, CBOs, areas of substantial unemployment)  Recruitment report can be submitted once all advertising steps are completed U.S Department of Labor For Training Use Only; Not Legally Binding 22 H-2B Program Recruitment Tips  Two print advertisements in local area – Print advertisements MUST be placed (and run) within 14 calendar days from the date the Notice of Acceptance was issued  Contact bargaining representative or post availability of the job opportunity for 15 consecutive business days - Make sure the posting contains all the required content – see 20 CFR 655.41.  Additional recruitment can be ordered at the discretion of the Certifying Officer (e.g., unions, CBOs, areas of substantial unemployment) U.S Department of Labor For Training Use Only; Not Legally Binding 23 H-2B Program Recruitment Tips cont’d.  The recruitment report can be submitted once all advertising steps are completed  The employer must prepare the recruitment report ‒ Must not be on attorney/agent letterhead and not signed by attorney/agent  Ensure all required content for recruitment reports are included, particularly the source(s) of recruitment and final disposition of each U.S. worker who applied  If the employer has self-reduced the number of H-2B workers sought due to earlier hiring of returning workers, clearly state so on the Recruitment Report. U.S Department of Labor For Training Use Only; Not Legally Binding 24 H-2B Program General Filing Tips & Issues Clearly identifies each positive recruitment step and the date(s) that each was conducted Provides aggregate summary of recruitment results U.S Department of Labor For Training Use Only; Not Legally Binding 25 H-2B Program General Filing Tips & Issues Supporting details of the recruitment effort clearly shows each U.S. worker who applied and disposition Notice disposition of U.S. applicant still pending, so a partial certification would occur in this instance U.S Department of Labor For Training Use Only; Not Legally Binding 26 H-2B Program STEP 5: Issuance of Final Determination  Grant or deny labor certification after receiving and reviewing the report of employer’s recruitment efforts • Timeframe: None required by statute or regulation • Certified Form ETA-9142B issued on “blue security paper” • Employer submits a signed and dated copy of Appendix B to USCIS  Appendix B will not be part of certification on blue security paper. Employer will complete the footer section itself, mirroring what is on the blue security paper • Employer must continue to consider U.S. worker applicants until 21 days before start date of work U.S Department of Labor For Training Use Only; Not Legally Binding 27 H-2B Program General Filing Tips & Issues  Employer or authorized attorney/agent will receive a certified Form ETA- 9142B printed on “blue security paper”  Please verify that Section K and the “footer” on each page of the Form ETA-9142B is complete and accurate • Notify [email protected] of any errors spotted – mark it Urgent & for CO U.S Department of Labor For Training Use Only; Not Legally Binding 28 H-2B Program Post Certification Issues  H-2B regulations prohibit any amendments post-certification.

Be sure your filing is accurate and does not contain errors before you submit it!  If a change to an application that was requested while the application was pending does not appear on the certification, notify the CNPC immediately, marked urgent and for the attention of the Certifying Officer.  If you need to make a new filing due to an earlier certification being impacted by the H-2B cap, you must return the prior certification to the Chicago NPC or, if submitted to USCIS, then submit proof of filing with USCIS, accompanied by correspondence from USCIS that petition will not be processed. U.S Department of Labor For Training Use Only; Not Legally Binding 29 iCert Enhancement  iCERT VISA PORTAL SYSTEM QUICK START GUIDE FOR H-2B MANDATORY DOCUMENTS UPLOAD can be found on our website at: https://www.foreignlaborcert.doleta.gov/pdf/H- 2B_Quick_Start_Guide.pdf U.S Department of Labor For Training Use Only; Not Legally Binding 30