DOL OFLC, Round 13: Job Order and Application Filing and Processing: Prevailing Wage Determinations and Emergency Procedures

U.S. Department of Labor Employment and Training Administration OFFICE OF FOREIGN LABOR CERTIFICATION 2015 H-2B Interim Final Rule FAQs Round 13: Job Order and Application Filing and Processing: Prevailing Wage Determinations and Emergency Procedures JOB ORDERS AND APPLICATION FILING AND PROCESSING Prevailing Wage Determination 1. May an employer file an Application for Temporary Employment Certification with the Chicago National Processing Center Certifying Officer (CO) if the ETA Form 9141, Application for Prevailing Wage Determination, is still pending with the National Prevailing Wage Center (NPWC) or has already expired at the time the employer submits its H-2B application? No. Pursuant to the Department’s H-2B regulations at 20 CFR § 655.15, except for employers that qualify for emergency procedures under 20 CFR § 655.17, an employer is not eligible to file an Application for Temporary Employment Certification if it fails to submit a valid Prevailing Wage Determination (PWD) on ETA Form 9141 at the time of filing. If an employer submits an H-2B application without a valid PWD the regulation requires the Certifying Officer to return the application to the employer without review.

See 20 CFR § 655.15. Note: The CO will accept the ETA Form 9141 case number (e.g., P-400-XXXXX- XXXXX) identifying the employer’s valid PWD, entered in Section G.3 of the ETA Form 9142B, Application for Temporary Employment Certification, as evidence of the employer’s valid PWD issued by the NPWC. Emergency Procedures 2. I submitted a request for emergency situations processing without a valid Prevailing Wage Determination (PWD) on ETA Form 9141.

If my emergency request is denied, what will happen to my H-2B application? Where the Certifying Officer (CO) determines a request for processing under the emergency situations provisions at 20 CFR § 655.17 has not been justified and/or there is not sufficient time to make a determination of temporary need or to ensure compliance with the criteria for certification, the CO will deny the emergency waiver request and send a Final Determination letter to the employer. Reminder: Pursuant to the Department’s H-2B regulations at 20 CFR § 655.15, except for employers that qualify for emergency procedures under 20 CFR § 655.17, an employer is not eligible to file an Application for Temporary Employment Certification if it fails to submit a valid PWD on ETA Form 9141 at the time of filing.