Temporary Labor Certification for Foreign Workers

To provide greater protection for U.S.

and foreign workers without interfering with an employer's right to obtain temporary foreign workers.

Also, to enable agricultural and other employers to obtain foreign workers for temporary or seasonal jobs when domestic workers are not available;
to protect domestic workers against unfair competition from foreign workers; and to assure adequate working and living conditions for domestic and foreign workers employed in similar tasks.

Agency - Department of Labor

The Department of Labor fosters and promotes the welfare of job seekers, wage earners and retirees by improving their working conditions, advancing their opportunities, protecting their retirement and health benefits and generally protecting worker rights and monitoring national economic measures.

Office - Contact the appropriate State Workforce Agency (See Appendix IV) or Employment and Training Administration National Processing Center.

The following addresses, phone numbers, and FAX numbers should be used by employers and by State Workforce Agencies for either inquiries or the forwarding of applications materials, as appropriate.

Please note, for all application materials, inquiries, and other correspondence sent to either the Atlanta or Chicago National Processing Center, or the ETA National Office, envelopes should be clearly marked according to the appropriate program type, i.e.

H-1B, H-1B1, E-3, H-2A, H-2B, or D-1.

Atlanta Processing Center Address: U. S. Department of Labor, Employment and Training Administration, Harris Tower, 233 Peachtree Street, Suite 410, Atlanta, GA 30303 Phone: (404) 893-0101 FAX: (404) 893-4642.

Chicago Processing Center Address: U. S. Department of Labor, Employment and Training Administration, 844 North Rush Street, 12th Floor, Chicago, IL 60611 Phone: (312) 886-8000 FAX: (312) 886-1688.


Program Accomplishments

In fiscal year 2006, the Office of Foreign Labor Certification issued 385,835 LCA determinations. In the H-2A program, OFLC certified 6,550 employers and 59,112 slots for foreign workers. In the H-2B program, employers requested certification of 247,218 workers (199,734 certified).

Uses and Use Restrictions

The Department of Labor issues labor certifications for temporary employment under several programs: H-1B Specialty (Professional) Worker Program, H-1B1 Specialty Worker Program (professionals from Chile or Singapore working in specialty occupations), E-3 Specialty Worker Program (professionals from Australia working in specialty occupations), H-2A Temporary Labor Certification (Agricultural), H-2B Temporary Labor Certification (Non-Agricultural), and D-1 Crewmember Program.

Under Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, nonimmigrant foreign workers cannot be admitted to work in a specialty occupation or as a fashion model unless the Secretary of Labor determines and certifies to the Secretary of Homeland Security the intending employer filed with and had approved by the Secretary an application under section 212(n)(1).

The labor condition application requires the employer to attest to compliance with program requirements, including certain working conditions and wages for foreign and U. S. workers.

Employers who need workers for temporary agricultural jobs may be certified to use foreign workers after the Secretary of Labor has determined that there are not sufficient domestic workers capable of performing the job duties and that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed domestic workers.

The Secretary of Labor will render only advisory opinions to the Secretary of Homeland Security on applications for foreign worker employment for temporary nonagricultural work under Section 101(a)(15)(H)(ii) of the Act.

Certifications will be made only after efforts to recruit domestic workers through the Federal-State employment service system are unsuccessful.

Performance of longshore work at U. S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exemptions.

The Department of Labor is responsible for administering two of those exemptions.

Employers in these ports are required to file an attestation stating that the use of alien crewmembers to perform longshore work is the prevailing practice for the activity at that port, there is no strike or lockout at the place of employment, and that notice has been given to U. S. workers or their representatives.

Another exception requires that, before using alien crewmen to perform longshore activities in the State of Alaska, the employer will make a bona fide request for and employ U. S. longshore workers who are qualified and available in sufficient numbers from contract stevedoring companies, labor organizations recognized as exclusive bargaining representatives of U. S. longshore workers, and private dock operators.

State Workforce Agencies receive grants to perform the following labor certification activities: provide prevailing wage determinations for all non-agricultural labor certification programs; process H-2B temporary non-agricultural labor certification applications; and receive new applications for H-2A temporary agricultural labor certifications, performing prevailing wage and prevailing practice surveys, ensuring housing inspections are conducted and processing job orders.

Eligibility Requirements

Applicant Eligibility

H-2A Program: An agricultural employer who anticipates a shortage of U.S.

workers needed to perform agricultural labor or services of a temporary or seasonal nature.

The employer may be an individual proprietorship, a partnership or a corporation.

An association of agricultural producers may file as a sole employer, a joint employer with its members, or as an agent of its members.

An authorized agent, whether an individual (e.g., and attorney) or an entity (e.g., an association), may file an application on behalf of an employer.

Associations may file master applications on behalf of their members.

H-2B Program: The job and the employer's need must be one time, seasonal, peak load or intermittent; the job must be for less than one year; and there must be no qualified and willing U.S.

workers available for the job.

An employer can file an application for labor certification with the appropriate National Processing Center of the Employment and Training Administration.

State Workforce Agencies are federally funded to issue prevailing wage determinations for foreign labor certification programs.

Beneficiary Eligibility

Employers and foreign workers to be employed in specialty occupations or as fashion models or in temporary agricultural or non-agricultural employment.

Credentials/Documentation

In most of these programs, employers sponsoring aliens for employment-based permanent residency file the certification from the Department of Labor as documentation in support of their respective I-140 immigrant worker petitions with the Department of Homeland Security, United States Citizenship and Immigration Services (USCIS). In the H-1B1 and E-3 programs, a USCIS petition is not needed for initial visa issuance, and the alien may use proof of certification in support of the visa application.

Aplication and Award Process

Preapplication Coordination

None, this program is excluded from coverage under E.O.

12372.

Application Procedures

Employers contact the appropriate office of the Employment and Training Administration. Also see http://www.doleta.gov/business/gw/guestwkr/ for additional details on specific programs.

Award Procedures

Certifications are sent to the employer in support of the petition to be filed with the U.S. Citizenship and Immigration Services which makes the final decision whether to grant or deny the admission of foreign workers. Certified copies of accepted attestations for the D-1 Crewmember program are returned to the employer and the USCIS is notified of the filing in writing. Grants: State Workforce Agencies receive funds upon acceptance of their work plans.

Deadlines

None.

Authorization

Immigration and Nationality Act of 1952, as amended, Sections 101(a)(15)(H), 212(n), 214(c) and 214(i); Public Law 82-414, 66 Stat. 163, 8 U.S.C. 1101 et seq.; Immigration Act of 1990, Public Law 101-649, 104 Stat. 4978, 8 U.S.C. 1182(n) and 1184; Public Law 102-232, 105 Stat. 1733, 8 U.S.C. 1182 note. Public Law 82-414, 66 Stat. 163, 8 U.S.C. 1101, et seq.; Immigration Reform and Control Act of 1986, Public Law 99-603, 100 Stat. 3359, 8 U.S.C. 1186.

Range of Approval/Disapproval Time

From one to seven days. H-1B: From one to seven days. H-2A: Statute requires an initial acceptance by ETA within seven days of filing, and a final determination 30 days prior to the employer's date of need.

Appeals

There is no procedure for appealing Employment and Training Administration determination to accept or reject a Labor Condition Application. Complaints regarding misrepresentation in the attestation or failure of the employer to carry out the terms of the attestation may be filed with the Wage and Hour Division, Employment Standards Administration, Department of Labor.

Renewals

Treated as filing of new labor condition applications.

Assistance Considerations

Formula and Matching Requirements

Grants to State Workforce Agencies are distributed using a formula based on state workloads.

Length and Time Phasing of Assistance

Not applicable.

Post Assistance Requirements

Reports

The Employment and Training Administration compiles and maintains on a current basis for public examination in Washington, DC, a list of the labor condition applications.

Such list is by employer, showing the occupational classification(s), wage rate(s), number of foreign workers sought, period(s) of intended employment, and date(s) of need for each employer's application.

Grants: Quarterly financial reports are required.

Audits

Employer has to make a filed labor condition application and necessary supporting documentation available for public examination at the employer's principal place of business in the United States, or at the place of employment within one working day after the date on which the labor condition application is filed with the Employment and Training Administration. Complaints concerning misrepresentation in the attestation or failure of the employer to carry out the terms of the attestation may be filed with the Wage and Hour Division, Employment Standards Administration, Department of Labor. The Administrator, Wage and Hour Division, performs the entire Secretary's investigative and enforcement functions under 8 U.S.C. 1182(n) and subparts I and K of 29 C.F.R. Part 504.

Records

Employer shall make the Labor Condition Application (LCA) and necessary supporting documentation available for public examination at the employer's principal place of business in the United States or at the place of employment within one working day after the date on which the LCA is filed with Employment and Training Administration.

Financial Information

Account Identification

16-0172-0-1-504; 16-0179-0-1-999;
16-0180-0-1-504.

Obigations

(Federal salaries and expenses) FY 07 $9,000,000; FY 08 est $11,000,000; and FY 09 est $14,000,000 (Formula grants) FY 07 $13,000,000; FY 08 est $13,000,000; and FY 09 est $18,000,000.

Range and Average of Financial Assistance

Not applicable.

Regulations, Guidelines, and Literature

Further information concerning the program may be found at 20 CFR 655.

Information Contacts

Regional or Local Office

Contact the appropriate State Workforce Agency (See Appendix IV) or Employment and Training Administration National Processing Center. The following addresses, phone numbers, and FAX numbers should be used by employers and by State Workforce Agencies for either inquiries or the forwarding of applications materials, as appropriate. Please note, for all application materials, inquiries, and other correspondence sent to either the Atlanta or Chicago National Processing Center, or the ETA National Office, envelopes should be clearly marked according to the appropriate program type, i.e. H-1B, H-1B1, E-3, H-2A, H-2B, or D-1. Atlanta Processing Center Address: U.S. Department of Labor, Employment and Training Administration, Harris Tower, 233 Peachtree Street, Suite 410, Atlanta, GA 30303 Phone: (404) 893-0101 FAX: (404) 893-4642. Chicago Processing Center Address: U.S. Department of Labor, Employment and Training Administration, 844 North Rush Street, 12th Floor, Chicago, IL 60611 Phone: (312) 886-8000 FAX: (312) 886-1688.

Headquarters Office

Administrator, Office of Foreign Labor Certification, Department of Labor, 200 Constitution Avenue, N.W., C-4312, Washington, DC 20210. Telephone: (202) 693-3010. Contact: William L. Carlson.

Criteria for Selecting Proposals

Not applicable.



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