Office of Foreign Labor Certification
Statistics from Fiscal Year 2019
DOL Received Applications in 2019
Applications were Certified in 2019
Applications Were Denied in 2019
H-2B Employees Requested
Positions Certified in 2019
Office of Foreign Labor Certification
Statistics from Fiscal Year 2018
DOL Received Applications in 2018
Applications were Certified in 2018
Applications Were Denied in 2018
H-2B Employees Requested
Positions Certified in 2019
The H-2B nonimmigrant program permits employers to hire foreign workers to perform temporary non-agricultural services or labor in the U.S. on a one-time, seasonal, peakload or intermittent basis. The H-2B Visa classification requires the Secretary of Homeland Security to consult with appropriate agencies before admitting H-2B nonimmigrants. Homeland Security regulations require that, except for Guam, the petitioning employer first apply for a temporary labor certification from the Secretary of Labor indicating that: (1) there are not sufficient U.S. workers who are capable of performing the temporary services or labor at the time of filing the petition for H-2B classification and at the place where the foreign worker is to perform the work; and (2) the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The Department of Labor will complete a review of each H-2B application within 7 calendar days of receipt. When filing an application, it is not necessary for the employer to name each temporary foreign worker it wishes to employ. An employer may submit a request for multiple unnamed foreign workers as long as each worker is to perform the same services or labor, on the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment. Certification is issued to the employer, not the worker, and is not transferable from one employer to another.
The applicant must be a U.S. employer with a job opportunity located within the U.S. The job opportunity must also be temporary. A job opportunity is considered 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. It is the nature of the employer’s need, not the nature of the duties that is controlling. Except where the employer’s need is based on a one-time occurrence, the Secretary of Labor will, absent extenuating circumstances, deny an Application for Temporary Employment Certification where the employer has a recurring seasonal or peakload need lasting longer than 10 months.
Part-time employment does not qualify for temporary labor certification under the H-2B program. Only full-time employment can be certified.
The Office of Foreign Labor Certification (OFLC) Administrator has the authority to establish or to devise, continue, revise, or revoke special procedures in the form of variances for the processing of certain H-2B applications when employers can demonstrate, upon written application to the OFLC Administrator, that special procedures are necessary. Special procedures currently exist for temporary labor certification in Tree Planting and Related Reforestation Occupations and the Entertainment Industry. For additional filing instructions for these industries, please review Training and Employment Guidance Letter No. 27-06, Special Guidelines for Processing H-2B Temporary Labor Certification in Tree Planting and Related Reforestation Occupations and Training and Employment Guidance Letter No. 31-05, Procedures for Temporary Labor Certification in the Entertainment Industry Under the H-2B Visa Program.
Process for Filing
Prior to filing an H-2B application, the employer must first:
- Obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC). For requirements on obtaining a prevailing wage determination for the occupation, employers are encouraged to refer to 20 Code of Federal Regulations (CFR) 655.10 and 655.11. Employers may submit a request for a prevailing wage determination electronically via the iCERT Portal System.
- Submit a job order no more than 120 calendar days prior to the employer’s date of need with the State Workforce Agency (SWA) serving the area of intended employment. The job order must be open and available for recruitment purposes for a minimum of 10 calendar days. During the period of time the job order is active, the employer must publish two print advertisements for the position(s), one of which must be on a Sunday. For pre-filing advertising requirements, employers are encouraged to refer to 20 CFR 655.15 and 655.17.
The following is a general outline for filing an H-2B application for temporary labor certification. For additional instructions, please review the regulations at 20 CFR 655, Subpart A, Labor Certification Process and Enforcement of Attestations for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers).
More information can be found on www.foreignlaborcert.doleta.gov/h-2b_detail.cfm.
An employer seeking H-2B temporary labor certification must attest as part of the Application for Temporary Employment Certification that it will abide by the following conditions:
- The employer is offering terms and working conditions normal to U.S. workers similarly employed in the area of intended employment. The terms and conditions must not be unusual for workers performing the same activity in the area of intended employment, are not less favorable than those offered to the H-2B worker(s), and are not less than the minimum terms and conditions required under the H-2B regulation;
- The specific job opportunity for which the employer is requesting H-2B certification is not vacant because the former occupant(s) is on strike or locked out in the course of a labor dispute involving a work stoppage;
- The job opportunity is open to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, handicap, or citizenship, and the employer conducted the required recruitment and has been unsuccessful in locating sufficient numbers of qualified U.S. applicants for the job opportunity for which labor certification is sought. Any U.S. worker applicants were rejected only for lawful, job-related reasons and the employer has retained records of those rejections;
- During the period of employment, the employer will comply with applicable Federal, State and local employment-related laws and regulations, including employment-related health and safety laws;
- The offered wage equals or exceeds the highest of the prevailing wage, the applicable Federal minimum wage, the State minimum wage, and local minimum wage and the employer will pay the offered wage during the entire period of the approved H-2B labor certification;
- Upon separation from employment of H-2B worker(s) employed under the labor certification application, if such separation occurs prior to the end date of the employment specified in the application, the employer will notify the Departments of Labor and Homeland Security in writing of the separation from employment no later than two (2) work days after the separation is discovered by the employer. An abandonment or abscondment is deemed to begin after a worker fails to report for work at the regularly scheduled time for five (5) consecutive working days without the consent of the employer;
- The offered wage is not based on commissions, bonuses, or other incentives unless the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage, or the legal Federal, State, or local minimum wage, whichever is highest. The employer must make all deductions from the worker’s paycheck required by law. The job offer must specify all deductions not required by law that the employer will make from the worker’s paycheck. All deductions must be reasonable;
- The employer has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2B workers to seek or receive payments from prospective employees;
- The job opportunity is a bona fide, full-time temporary position, the qualifications for which are consistent with the normal and accepted qualifications required by non-H-2B employers in the same or comparable occupations;
- The employer has not laid off and will not lay off any similarly employed U.S. worker in the occupation that is subject to the Application for Temporary Employment Certification in the area of intended employment within 120 calendar days before the date of need through 120 calendar days after the date of need, except where the employer also attests that it offered the job opportunity to the laid off worker(s) and the laid off U.S. worker(s) either refused the job opportunity or was rejected for the job opportunity only for lawful, job-related reasons;
- The employer and its attorney or agent have not sought or received payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer’s attorney’s or agent fees, Application for Temporary Employment Certification, or recruitment costs.
- If the employer is a job contractor, it will not place any H-2B workers with any other employer or at another employer’s worksite unless the employer makes a written bona fide inquiry to and receives written confirmation from its client that the employer’s client has not displaced and does not intend to displace any similarly employed U.S. workers in the area of intended employment within 120 days before or after the date of need and all worksites are listed on the certified Application for Temporary Employment Certification;
- The employer will not place any H-2B workers outside of the area of intended employment listed on the Application for Temporary Employment Certification unless the employer has obtained a new temporary labor certification from the Department of Labor;
- Unless the H-2B worker will be sponsored by another subsequent employer, the employer will inform H-2B workers of the requirement that they leave the U.S. at the end of the authorized period of stay or separation from the employer, and that if the worker is dismissed by the employer prior to the ending of the period, the employer is liable for return transportation; and
- The dates of temporary need, reason for temporary need, and number of positions being requested for certification have been truly and accurately stated on the application.
Violations, Penalties, & Sanctions
The Wage and Hour Division (WHD) of the Department of Labor has a primary role in investigating and enforcing the terms and conditions of employment. WHD is responsible for enforcing the contractual obligations employers have toward employees, and may assess civil money penalties and recover unpaid wages. Administrative proceedings and/or injunctive actions through federal courts may be instituted to compel compliance with an employer’s contractual obligations to employees.
If an H-2B worker abandons or absconds from employment prior to the employer’s end date of need, the employer is required to notify the Departments of Labor and Homeland Security of the separation from employment not later than two work days after the separation is discovered by the employer. For additional information regarding this requirement, employers are encouraged to review the regulations at 20 CFR 655.22(f).
Document Retention Requirements
All employers who have received temporary labor certification must retain the following documentation for a period of no less than three years from the date of certification:
- Prevailing wage determination;
- Advertisement and recruitment efforts;
- Documents that the appropriate unions were contacted, if applicable;
- Documentation that laid off workers were notified of the job opportunity, if applicable;
- Recruitment report; and
- Documentation substantiating the employer’s temporary need.
If a temporary labor certification is denied, in whole or in part, the employer may request review of the denial by the Board of Alien Labor Certification Appeals (BALCA) within 10 calendar days of the determination date. For information regarding the H-2B appeal process, employers are encouraged to review the regulations at 20 CFR 655.33.