[Federal Register Volume 60, Number 25 (Tuesday, February 7, 1995)]
[Notices]
[Pages 7216-7219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2965]



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DEPARTMENT OF LABOR
[General Administration Letter No. 1-95]


Procedures for H-2B Temporary Labor Certification in 
Nonagricultural Occupations

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration (ETA), Department 
of Labor has issued General Administration Letter (GAL) No. 1-95 that 
transmits to State and Regional Offices revised procedures for 
processing H-2B temporary labor certification applications in 
nonagricultural occupations, including revised standards for 
determining the temporary nature of a job under the
H-2B classification. The revised procedures and standards replace: (1) 
GAL 10-84, Subject: Procedures for Temporary Labor Certifications in 
Nonagricultural Occupations, issued April 23, 1984; (2) GAL 10-84, 
Change 1, Subject: Revised Standards for Determining the Temporary or 
Permanent Nature of a Job Offer Made in Conjunction With an Application 
for Nonagricultural Temporary Labor Certification, issued August 21, 
1989; and (3) General Administrative Letter No. 10-84, Change 2, 
Subject: Handling of Temporary Labor Certification Applications for 
Boilermakers, issued May 9, 1990.
    GAL 1-95 is published below for the information of all interested 
parties.

DATES: GAL 1-95 was issued on November 10, 1994.

FOR FURTHER INFORMATION CONTACT:
Mr. Denis Gruskin, Senior Specialist, Division of Foreign Labor 
Certifications, Employment and Training Administration, Room N-4456, 
200 Constitution Avenue NW., Washington, DC 20210. Telephone (202) 219-
4369 (this is not a toll-free number).

    Signed at Washington, DC, this 7th day of December 1994.
John M. Robinson,
Deputy Assistant Secretary for Employment and Training.

Directive: General Administration Letter No. 1-95
To: All State Employment Security Agencies
From: Barbara Ann Farmer, Administrator for Regional Management
Subject: Procedures for H-2B Temporary Labor Certification in 
Nonagricultural Occupations
Classification: ES/Nonag.
Correspondence symbol: TEES
Date: Nov. 10, 1994

    1. Purpose. To transmit revised procedures for processing H-2B 
temporary labor certification applications in nonagricultural 
occupations, including revised standards for determining the 
temporary nature of a job under the H-2B classification.
    2. References. Title 20 CFR Parts 652 and 655, 8 CFR 214.2(h), 
48 FR 2587, GAL 10-84.
    3. Background. The H-2B visa classification applies to aliens 
coming temporarily to the U.S. to perform nonagricultural work of a 
temporary or seasonal nature, if U.S. workers capable of performing 
such service or labor cannot be found in the United States. The H-2B 
visa classification requires a temporary labor certification from 
the Secretary of Labor advising the Immigration and Naturalization 
Service (INS) whether or not U.S. workers capable of performing the 
temporary services or labor are available and whether or not the 
alien's employment will adversely affect the wages and working 
conditions of similarly employed U.S. workers, or a notice that such 
certification cannot be made, prior to filing an H-2B visa petition 
with INS.
    The attached procedures are intended to clarify and update DOL 
procedures for processing applications for temporary labor 
certification and to incorporate INS standards for determining the 
temporary nature of a job opportunity under the H-2B classification. 
They do not apply to applications filed on behalf of aliens in the 
entertainment industry and in professional team sports. These 
procedures replace:
     General Administration Letter No. 10-84: Procedures for 
Temporary Labor Certifications in Nonagricultural Occupations 
(Issued 4/23/84);
     General Administration Letter No. 10-84, Change 1: 
Revised Standards for Determining the Temporary or Permanent Nature 
of a Job Offer Made in Conjunction With an Application for 
Nonagricultural Temporary Labor Certification (Issued 8/21/89); and
     General Administration Letter No. 10-84, Change 2: 
Handling of Temporary Labor Certification Applications for 
Boilermakers (Issued 5/9/90).
    4. Action Required. SESA Administrators are required to provide 
the attached procedures to appropriate staff, and instruct that they 
be followed in processing H-2B applications.
    5. Inquiries. Inquiries should be directed to the appropriate 
Regional Certifying Officer.
    6. Attachments. Procedures for H-2B Temporary Labor 
Certification in Nonagricultural Occupations.

Rescissions: GAL Nos. 10-84; 10-84, Ch. 1; 10-84, Ch. 2
Expiration Date: December 31, 1995
[[Page 7217]]

Procedures for H-2B Temporary Labor Certification in Nonagricultural 
Occupations

I. General

    A. An H-2B temporary nonagricultural worker is an alien who is 
coming temporarily to the U.S. to perform temporary services or 
labor if qualified U.S. workers capable of performing such services 
or labor are not available, and whose employment will not adversely 
affect the wages and working conditions of similarly employed U.S. 
workers.
    B. Immigration and Naturalization Service (INS) regulations at 8 
CFR 214.2(h)(6) establish requirements for the H-2B visa 
classification. INS regulations require: (1) That the H-2B 
petitioner be a U.S. employer, or the authorized representative of a 
foreign employer having a location in the Untied States; and (2) 
that the employer apply for temporary labor certification with the 
Department of Labor (DOL) prior to filing a petition with INS to 
classify an alien as an H-2B worker in all areas of the United 
States, except the Territory of Guam. In Guam, an employer must 
apply to the Governor of Guam for an H-2B temporary labor 
certification.
    C. A temporary labor certification is advice from the Secretary 
of Labor to INS on whether or not U.S. workers capable of performing 
the temporary services or labor are available and whether or not the 
alien's employment will adversely affect the wages and working 
conditions of similarly employed U.S. workers. The INS is not bound 
by DOL's certification or notice that certification cannot be made.
    D. DOL regulations at 20 CFR 655 Subpart A--Labor Certification 
Process for Temporary Employment in Occupations Other Than 
Agriculture, Logging, or Registered Nursing in the United States (H-
2B Workers) govern the labor certification process for temporary 
employment in the U.S. under the H-2B visa classification. They 
require that DOL, through the appropriate Regional Administrator of 
the Employment and Training Administration, issue a temporary labor 
certification if it finds that qualified persons in the U.S. are not 
available and that the terms of employment will not adversely affect 
the wages and working conditions of similarly employed workers in 
the U.S. In making its findings, DOL considers such matters as the 
employer's attempts to recruit U.S. workers and the appropriateness 
of the wages and working conditions offered, and the policies for 
the U.S. Employment Service set forth at 20 CFR 652 and 20 CFR 655, 
subparts A, B and C.
    E. This document clarifies and updates procedures issued by ETA 
in General Administration Letter (GAL) 10-84 and Changes 1 and 2, to 
carry out responsibilities of making labor certification 
determinations pursuant to regulations at 8 CFR 214.2(h)(6) and 20 
CFR 655, subpart A. It conforms DOL standards for determining the 
temporary nature of a job offer under the H-2B classification with 
those of INS and modifies DOL recruitment requirements to provide 
for a more effective test of the labor market for available U.S. 
workers. These procedures do not apply to applications filed on 
behalf of aliens in the entertainment industry and in professional 
team sports.

II. Standards for Determining the Temporary Nature of a Job Offer Under 
the H-2B Classification

    A. A job opportunity is 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. As a 
general rule, the period of the employer's need must be 1 year or 
less, although there may be extraordinary circumstances where the 
need may be for longer than 1 year. The labor certification 
application may be filed for up to, but not exceeding, 12 months. If 
there are unforeseen circumstances where the employer's need exceeds 
1 year, a new certification is required for each period beyond 1 
year.
    Temporary employment should not be confused with part-time 
employment which does not qualify for temporary (or permanent) labor 
certification.
    B. The employer's need for the services or labor shall be 
either: (1) A one-time occurrence; (2) a seasonal need; (3) a 
peakload need; or (4) an intermittent need.

1. One-time Occurrence

    The employer must establish: (1) that it has not employed 
workers to perform the services or labor in the past; and (2) that 
it will not need workers to perform the services or labor in the 
future, or that it has an employment situation that is otherwise 
permanent, but a temporary event of short duration has created the 
need for a temporary worker.

2. Seasonal Need

    The employer must establish that the service or labor is 
traditionally tied to a season of the year by an event or pattern 
and is of a recurring nature. The employer must specify the 
period(s) of time during each year in which it does not need the 
services or labor. The employment is not seasonal if the period 
during which the services or labor is needed is unpredictable, 
subject to change, or considered a vacation period for the 
employer's permanent employees.

3. Peakload Need

    The employer must establish that it regularly employs permanent 
workers to perform the services or labor at the place of employment 
and its needs to supplement its permanent staff on a temporary basis 
due to a seasonal or short-term demand with temporary employees who 
will not become a part of the regular operation.

4. Intermittent Need

    The employer must establish that it has not employed permanent 
or full-time workers to perform the services or labor, but 
occasionally or intermittently needs temporary workers for short 
periods.

III. Filing Instructions

    A. An employer that wants to use foreign workers for temporary 
employment must file a temporary labor certification application 
with the State Employment Security Agency (SESA) serving the area of 
employment.
    B. Every temporary application shall include:
    1. An original and one copy of Form ETA 750, Part A, the offer 
of employment portion of the Application for Alien Employment 
Certification form signed by the employer. Part B, Statement of 
Qualifications of Alien, is not required.
    2. Documentation of any efforts to recruit U.S. workers the 
employer may have made before filing the application.
    3. A statement explaining why the job opportunity is temporary 
and why the employer's need for the work to be done meets the 
standard of either a one-time occurrence, a seasonal need, a 
peakload need, or an intermittent need.
    C. To allow for enough recruitment of U.S. workers and enough 
processing time by State and Regional Offices, the State Employment 
Security Agency (SESA) shall advise employers to file requests for 
temporary labor certification at least 60 days before the labor 
certification is needed in order to receive a timely determination.
    D. Unless the Certifying Officer specifies otherwise, the SESA 
should return to employers requests for temporary labor 
certification filed more than 120 days before the worker is needed 
and advise them to refile the application no more than 120 days 
before the worker is needed. This is necessary since the 
availability of temporary U.S. workers changes over short periods of 
time and an adequate test of the labor market cannot be made for a 
longer period.
    E. More than one alien may be requested on an application if 
they are to do the same type of work on the same terms and 
conditions, in the same occupation, in the same area(s) of 
employment during the same period. However, the number requested may 
not exceed the actual number of job openings. The number of openings 
the employer intends to fill must also be specified in the 
advertisement and the job order required in section IV of these 
instructions.
    F. If the employer's agent files the application, the employer 
must sign the ``authorization of agent'' statement on the 
Application for Alien Employment Certification which authorizes the 
agent to act on the employer's behalf. The employer is fully 
responsible for the accuracy of all representations made by the 
agent on the employer's behalf. An attorney must file a Notice of 
Appearance (Form G-28) naming the attorney's client(s).
    G. If extraordinary circumstances establish a need that requires 
the services of the alien beneficiary for more than a year, a new 
application must be filed (see section II.A). However, in no 
instance may the time for which a particular job be certified exceed 
3 unbroken years.
    H. When the job opportunity requires the work to be done in more 
than one location, the application must include the itinerary of 
locations and dates of work in each location. Such applications will 
be filled with the SESA having jurisdiction over the area where the 
employment will begin.

IV. State Job Service Processing

    A. Upon receiving a request for temporary labor certification, 
the SESA shall review the [[Page 7218]] job offer for completeness. 
A job offer containing a wage below the prevailing wage for such 
employment in the local area is inappropriate and would adversely 
affect the wages of similarly employed U.S. workers. The SESA shall 
determine the prevailing wage, guided by the regulations at 20 CFR 
656.40.
    B. If the job offer is less than full-time, or contains unduly 
restrictive job requirements, or has terms and conditions of 
employment which otherwise inhibit the effective recruitment and 
consideration of U.S. workers for the job, the SESA shall advise the 
employer to correct the deficiencies before commencing the 
recruitment.
    C. The SESA shall prepare a job order, using the information on 
the application, and place it into the regular ES system for 10 
days. During this period, the SESA should refer qualified applicants 
who walk-in and those in its active files.
    D. The employer shall advertise the job opportunity after filing 
the application, in a newspaper of general circulation for 3 
consecutive days or in a professional, trade or ethnic publication, 
whichever is most appropriate for the occupation and most likely to 
bring responses from U.S. workers. The advertisement shall:
    1. Identify the employer's name and direct applicants to report 
or send resumes to the SESA for referral to the employer;
    2. Include SESA identification number and the complete name and 
address of the SESA.
    3. Describe the job opportunity with particularity, including 
the duration of the employment;
    4. State the rate of pay, which shall not be below prevailing 
wage for the occupation;
    5. Offer prevailing working conditions;
    6. State the employer's minimum job requirements;
    7. Offer wages, terms, and conditions of employment which are 
not less favorable than those offered to the alien and are 
consistent with the nature of the occupation, activity, and 
industry.
    E. The employer shall document that unions and other recruitment 
sources, appropriate for the occupation and customary in the 
industry, were unable to refer qualified U.S. workers.
    F. The employer shall provide the SESA the `'tearsheets'' (for 
each day the advertisement was published) from the publication in 
which the advertisement appeared and written results of all 
recruitment which must:
    1. Identify each recruitment source by name:
    2. State the name, address, and telephone number and provide 
resumes (if submitted to the employer) of each U.S. worker who 
applied for the job; and
    3. Explain the lawful job-related reasons for not hiring each 
U.S. worker.
    G. After the recruitment period, the SESA shall send the 
application, results of recruitment, prevailing wage findings, and 
other appropriate information to the regional certifying officer.

V. Temporary Labor Certification Determinations

    A. The certifying officer shall determine whether to grant the 
temporary labor certification, or to issue a notice that such 
certification cannot be made based on whether or not:
    1. U.S. workers are available for the temporary employment 
opportunity.
    a. The certifying officer, in judging if a U.S. worker is 
available for the temporary employment opportunity, shall determine 
from documented results of the employer's and SESA's recruitment 
efforts, if there are other appropriate sources of workers where the 
employer should have recruited or may recruit U.S. workers. If 
further recruitment is required, the application should be returned 
to the SESA with specific instructions for the additional 
recruitment.
    b. To determine if a U.S. worker is available, the certifying 
officer shall consider U.S. workers living or working in the area of 
intended employment, and may also consider U.S. workers who are 
willing to move from elsewhere to take the job at their own expense, 
or at the employer's expense, if the prevailing practice among 
employers who employ workers in the occupation is to pay such 
relocation expenses.
    c. The certifying officer shall consider a U.S. worker able and 
qualified for the job opportunity if the worker, by education, 
training, experience, or a combination thereof, can perform the 
duties involved in the occupation as customarily performed by other 
U.S. workers similarly employed and is willing to accept the 
specific job opportunity.
    d. To determine if U.S. workers are available for job 
opportunities that will be performed in more than one location, 
workers must be available in each location on dates specified by the 
employer.
    2. The employment of the alien will adversely affect wages and 
working conditions of U.S. workers similarly employed. To determine 
this, the certifying officer shall consider such things as labor 
market information, special circumstances of the industry, 
organization, and/or occupation, the prevailing wage rate for the 
occupation in the area of intended employment, and prevailing 
working conditions, such as hours of work.
    3. The job opportunity contains requirements or conditions which 
preclude consideration of U.S. workers or which otherwise prevent 
their effective recruitment, such as:
    a. The employment opportunity is represented as temporary and 
the Department of Labor believes it can and should be offered to 
U.S. workers on a permanent basis.
    b. A permanent certification was issued to an employer for the 
same job opportunity.
    c. The job opportunity is vacant because the former occupant is 
on strike or locked out in the course of a labor dispute involving a 
work stoppage or the job is at issue in a labor dispute involving a 
work stoppage.
    d. The job opportunity's terms, conditions, and/or occupational 
environment are contrary to Federal, State, or local law.
    e. The employer has no location within the U.S. to which U.S. 
worker can be referred and hired for employment.
    f. The employer will not pay a wage or salary for the job to be 
performed.
    g. The job's requirements are unduly restrictive.
    h. The employer has not recruited U.S. workers according to DOL 
policies and procedures.
    B. If the Certifying Officer issues a notice that a 
certification cannot be made, the notice shall:
    (1) Detail the reasons why certification cannot be made;
    (2) Address the availability of U.S. workers in the occupation, 
and the prevailing wages and working conditions of U.S. workers in 
the occupation; and
    (3) Indicate the specific DOL policies which were to be 
followed.
    C. If the Certifying Officer issues a temporary labor 
certification, it shall be for the duration of the temporary 
employment, opportunity, not to exceed 12 months. If extraordinary 
circumstances establish a need that require the alien beneficiary 
for more than 1 year, a new application must be filed. However, in 
no instance can the time for which a particular job may be certified 
exceed 3 unbroken years.
    D. The date on the temporary labor certification shall be the 
beginning and ending dates of certified employment and the date 
certification was granted. The beginning date of certified 
employment may not be earlier than the date certification was 
granted.

VI. Document Transmittal

    A. After making a temporary labor certification determination, 
the certifying officer shall notify the employer, in writing, of the 
determination.
    B. If the labor certification is granted, the certifying officer 
shall send the certified application containing the official 
temporary labor certification stamp, supporting documents, and 
completed Temporary Determination Form to the employer of, if 
appropriate, the employer's agent or attorney. The Temporary 
Determination Form shall indicate that the employer should submit 
all documents together with the employer's petition to the 
appropriate INS office.
    C. If a notice is issued that certification cannot be made, the 
certifying officer shall return one copy of the Application for 
Alien Employment Certification form, supporting documents, and 
completed Temporary Determination Form to the employer, or, if 
appropriate, to the employer's agent or attorney. The Temporary 
Determination Form shall indicate the bases on which the decision 
was made not to issue a temporary labor certification, and shall 
advise the employer of the right to appeal to the INS.

VII. Appeal of a Notice That a Certification Cannot Be Made

    A. The finding by the certifying officer, that a certification 
cannot be made, is the final decision of the Secretary of Labor. 
There is no provision for reconsideration or appeal of the decision 
within DOL. Administrative appeal of such a finding must be made to 
INS, as set forth below, or the employer may file a new application.
    B. Under the Act and regulations of INS, DOL's role is only 
advisory. The Attorney General has the sole authority for the final 
approval or denial of a petition for temporary alien employment. The 
employer can submit [[Page 7219]] countervailing evidence to INS, 
according to 8 C.F.R. 214.2(h)(6)(IV)(E), that qualified persons in 
the U.S. are not available, that wages and working conditions of 
U.S. workers will not be adversely affected, and the Department of 
Labor's employment policies were observed.

VIII. Validity of Temporary Labor Certifications

    A. A temporary labor certification is valid only for the number 
of aliens, the occupation, the area of employment, the specific 
activity, the period of time, and the employer specified in the 
certification.
    B. A temporary labor certification is limited to one employer's 
specific job opportunity; it may not be transferred from one 
employer to another.

IX. Applications Requiring Special Processing

A. Aerospace Engineers

    If the temporary labor certification application is for an 
aerospace engineer, the SESA shall:
    1. Take a job order on all aerospace engineer certification 
requests.
    2. Require the employer to advertise in a newspaper or 
appropriate engineering publication. Advertisements shall describe 
wages, terms, and conditions of employment, and shall not identify 
the employer, but shall direct applicants to send resumes to the 
local Job Service for referral to the employer. Results of ads must 
be documented. Advertising copy should include the elements 
specified in section IV. D. above, and indicate the same wages, 
education, working conditions, and location of work as that in the 
application for alien employment and on the order taken by the SESA.
    3. Require employers to offer laid-off engineers reemployment 
before applying for labor certification.
    4. Ensure that all applications for alien employment 
certification from contract engineering firms identify the user 
aerospace companies and specify where the aliens will work.
    5. Ensure that a copy of the alien's proposed contract 
accompanies all contract engineering firm certification requests.
    6. Place into interstate clearance all alien certification job 
orders for aerospace engineers and related occupations.
    7. Process the application according to parts II, III, and IV of 
these procedures, as appropriate.

B. Construction Workers

1. General

    Unions representing construction workers in the same or 
substantially equivalent job classification as those for which labor 
certification is requested shall be contacted to determine 
availability of U.S. workers when SESAs receive requests for 10 or 
more workers in the same occupation for the same employer at any one 
time or within a 6-month period.
    The Human Resources Development Institute (HRDI) is the 
employment and training arm of the AFL-CIO; it serves as a 
centralized liaison between the Department of Labor and individual 
unions in providing labor market information in skilled trades in 
order to make an informed labor certification determination.

2. Procedures

    a. The SESA should process the application according to parts 
II, III and IV of these procedures.
    b. The SESA shall advise the employer to obtain, from the union 
local, a letter describing the availability of qualified U.S. 
workers for the position offered to the alien.
    c. Before making a determination, certifying officers should 
contact, by fax or telephone, the Executive Director, Human 
Resources Development, 815-16th Street, NW., Washington, DC 20006, 
and send the following information for each application:
    (1) Name and address of company requesting certification;
    (2) Location of work site;
    (3) Local number and name of the union, if known;
    (4) Dates of any prior certifications requested by company;
    (5) Total number of aliens requested;
    (6) Duration of employment of aliens;
    (7) Job classification, special qualifications and wage offered;
    (8) Assistance offered to aliens (subsistence housing, other); 
and
    (9) Reasons for requesting alien labor.
    d. If HRDI knows of available U.S. workers, they will provide 
this information to the certifying officer, along with the name of 
the appropriate local for the employer to contact. If no response is 
received within 5 days of the request, a determination will be made 
on information in the file.

C. Boilermakers

1. General

    On occasion, boilermakers must be brought into the U.S. on an 
emergency basis. Such emergencies are generally precipitated by 
unscheduled outages in utility, petro-chemical and paper industries. 
Because of special considerations involved with boilermakers when 
there is an emergency situation, it was decided that the most 
efficient and effective way to process applications for boilermakers 
in emergency situations would be to centralize their handling in the 
National Office.

2. Procedures

    a. Labor certifications for boilermakers in emergency situations 
are to be sent directly to National Office for processing. The 
address is: U.S. Department of Labor, Employment and Training 
Administration, Division of Foreign Labor, Certifications, 200 
Constitution Avenue, N.W., Room N-4456, Washington, D.C. 20210.
    b. Labor certification applications for boilermakers during 
nonemergency situations should be processed according to parts II, 
III, and IV of these procedures.

[FR Doc. 95-2965 Filed 2-6-95; 8:45 am]
BILLING CODE 4510-30-M