[Federal Register Volume 77, Number 189 (Friday, September 28, 2012)]
[Notices]
[Pages 59670-59673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23884]


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DEPARTMENT OF LABOR

Employment and Training Administration


Electronic Filing of H-2A and H-2B Labor Certification 
Applications Through the iCERT Visa Portal System

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration (ETA) is announcing 
the implementation of electronic filing for the submission of 
nonimmigrant temporary labor certification applications under the H-2A 
and H-2B visa programs through the Department of Labor's (Department) 
iCERT Visa Portal System (iCERT System) at http://icert.doleta.gov. 
This new electronic filing capacity will enhance the accessibility and 
quality of labor certification services, reduce the data collection and 
reporting burden on small employers, facilitate more streamlined 
business processes, and establish greater transparency in the 
Department's decisions. Employers or their authorized representatives 
will be able to submit H-2B applications electronically beginning on 
October 15, 2012, and H-2A applications beginning on December 10, 2012. 
In order to make this transition as smooth as possible, the Department 
will hold four webinar training sessions (two for filing in the H-2B 
program and two for filing in the H-2A program) to orient program users 
to electronic filing through the iCERT System. These sessions will be 
announced on the OFLC's Web site (http://www.foreignlaborcert.doleta.gov/ gov/) once dates are finalized. Employers or their authorized 
representatives choosing not to use this new filing option must 
continue to file their H-2A and H-2B applications with the Department 
using the traditional paper-based filing method.

DATES: This Notice is effective September 28, 2012.

FOR FURTHER INFORMATION CONTACT: For further information please contact 
William L. Carlson, Ph.D., Administrator, Office of Foreign Labor 
Certification, Employment and Training Administration, 200 Constitution 
Avenue NW., Room C-4312, Washington, DC 20210; Telephone: (202) 693-
3010 (this is not a toll-free number). Individuals with hearing or 
speech impairments may access the telephone number above via TTY by 
calling the toll-free Federal Information Relay Service at 1-800-877-
8339.

SUPPLEMENTARY INFORMATION:

I. Background

    The Immigration and Nationality Act (INA) and Department of 
Homeland Security U.S. Citizenship and Immigration Services (USCIS) 
regulations assign specific responsibilities to the U.S. Secretary of 
Labor for the administration of certain employment-based immigration 
programs that require a labor certification. 8 U.S.C. 1184(c)(1), 
1188(a)(1); 8 CFR 214.2(h)(5), (6). These responsibilities include 
determining whether there are able, willing, and qualified U.S. workers 
for a position for which certification is requested, and whether there 
would be any adverse impact on similarly employed U.S. workers should a 
labor certification be granted. Accordingly, statutory and regulatory 
provisions require employers seeking a labor certification for either 
permanent or temporary nonimmigrant labor to apply to the Secretary of 
Labor. The Secretary has delegated the responsibilities for the 
administration of these programs to the Employment and Training 
Administration's (ETA) Office of Foreign Labor Certification (OFLC).
    The H-2A and H-2B nonimmigrant worker labor certification programs 
administered by the OFLC enable United States (U.S.) employers to 
employ foreign workers on a temporary basis only where the Secretary of 
Labor has certified that there are not sufficient U.S. workers who are 
able, willing, and qualified to perform the services or labor, and the 
employment of the foreign workers will not adversely affect the wages 
and working conditions of U.S. workers similarly employed. 20 CFR part 
655, Subpart B (H-2A workers); 20 CFR part 655, Subpart A (H-2B 
workers). Under current practice, employers or their authorized 
representatives (attorneys or agents) submit H-2A and H-2B temporary 
labor certification applications (i.e., the ETA Form 9142--Application 
for Temporary Employment Certification, appendices, and supporting 
documentation) in paper form bearing original signatures directly to 
the OFLC Chicago National Processing Center (NPC). The Chicago NPC 
performs a manual review of each application for compliance with the 
criteria for certification; provides written notification to the 
employer, normally through means that assure next-day delivery (e.g., 
U.S. mail or private mail courier and electronic mail when available), 
of any deficiencies or additional information needed; issues a written 
determination either granting or denying the temporary labor 
certification application; and retains a copy of the paper-filed 
application for record retention purposes.
    As a component of the Department's E-Government initiative and in 
accordance with 20 CFR 655.20(b) and 655.130(c), ETA is publishing this 
Notice to inform the public, including the regulated community, of its 
intention to implement electronic filing of temporary labor 
certification applications under the H-2A and H-2B visa programs 
through the iCERT System located at http://icert.doleta.gov. Using this 
system, agricultural associations, employers and/or their authorized 
representatives will be able to establish Web-based accounts; create 
associate user accounts and manage security privileges; file the ETA 
Form 9142 online and upload scanned documentation supporting the 
application; track the status of all applications filed and processed 
by the Chicago NPC; and receive email notifications and other official 
correspondence during key points of the application adjudication 
process. The implementation of this new electronic filing capacity will 
enhance the accessibility and quality of labor certification services, 
reduce the data collection and reporting burden on small employers, 
facilitate more streamlined business processes, and establish a greater 
level of transparency in the Department's decision making.\1\
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    \1\ Sunstein, Cass R. ``Memorandum for the Heads of Executive 
Departments and Agencies: Reducing Reporting and Paperwork 
Burdens.'' Office of Information and Regulatory Affairs (June 22, 
2012).
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iCERT System Availability and Program Components

    The OFLC has experienced an increased demand for its labor 
certification program processing services, especially its electronic 
application filing; case processing and tracking; and document 
management services. On April 15, 2009, the OFLC implemented a one-stop 
Web-based

[[Page 59671]]

platform, called the iCERT System, that was designed to improve access 
to program services and establish a more integrated customer account 
platform for the filing and tracking of applications across the 
employment-based labor certification programs it administers and 
supports Office of Management and Budget's guidance to reduce reporting 
and paperwork burdens on the public.\2\ Currently, the iCERT System 
annually supports the receipt and processing of more than 450,000 
employer-filed H-1B, H-1B1, and E-3 Labor Condition Applications for 
Nonimmigrant Workers (ETA Form 9035E) and Applications for Prevailing 
Wage Determination (ETA Form 9141).
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    \2\ The implementation of the OFLC iCERT System platform is 
consistent with guidance promulgated by the Department's Chief 
Information Officer and E-Government initiative to maximize Federal 
investment in Information Technology (IT) using a multi-year, 
modular approach to IT systems development for the purposes of 
increasing usability and decreasing life cycle costs. See Kundra, 
Vivek, Office of Management and Budget, 25 Point Implementation Plan 
to Reform Federal IT Management (Dec. 9, 2010), available at http://www.cio.gov/documents/25-point-implementation-plan-to-reform-federal%20it.pdf and Office of Management and Budget, Contracting 
Guidance to Support Modular Development (Jun. 14, 2012) available at 
http://www.whitehouse.gov/sites/default/files/omb/procurement/guidance/modular-approaches-for-information-technology.pdf.
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    The H-2A and H-2B electronic filing systems are now fully 
integrated with the iCERT System platform, and will provide employers 
or their authorized representatives with the following major features:
     Customer Account Management. An agricultural association, 
employer, or authorized representative will be able to create an iCERT 
account by providing basic company and point-of-contact information, 
including a valid email address, to serve as a unique username, and a 
password. This information will establish a customer profile that can 
be edited at any time, and will serve as authentication and security 
control for accessing the iCERT account. However, once the iCERT 
account is registered, the Federal Employer Identification Number 
(FEIN) provided during the registration process cannot be modified. 
Associate accounts can also be created by the iCERT account holder 
allowing other authorized staff or representatives to prepare and 
submit applications, or withdraw a pending application before it is 
assigned to a Chicago NPC analyst. Customers with existing iCERT 
accounts, such as those who already use the iCERT System to file H-2B 
prevailing wage requests, will be able to modify their existing account 
profiles to include electronic filing privileges for the H-2A and/or H-
2B programs.
     Application Preparation and Submission. An approved iCERT 
account holder will be able to utilize its profile information to 
quickly pre-populate certain sections of the ETA Form 9142 during 
application preparation to reduce data entry burden. All information 
populated on the ETA Form 9142 will be editable. Agricultural 
associations will have the capability of preparing H-2A applications as 
either sole employers or agents with one of their members, or as joint 
employers (i.e., master application) with one or more of their members. 
The iCERT System also contains a ``reuse'' case function that allows an 
authorized user to copy and reuse one or more sections of a previously 
filed H-2A or H-2B application. Because the vast majority of H-2A and 
H-2B employers have recurring seasonal workforce needs, the reuse case 
function will further reduce administrative time and burden for 
preparing applications.
     Automated Data Quality Checks. The iCERT System will 
strengthen data quality by providing real-time data formatting checks 
and form validations to notify customers that there may be mandatory, 
incorrect, or missing entries on the ETA Form 9142 that, when not 
completed properly, will result in application processing delays. 
Customers will receive immediate notifications during the application 
preparation stage and again, in summary form, at the final pre-
submission stage of application preparation. At any point during the 
application preparation stage, the iCERT account holder will be able to 
preview a copy of the ETA Form 9142 to verify data entries for accuracy 
and completeness prior to submission. This is a practice the OFLC 
strongly encourages, especially with new filing systems.
     Document Management Services. At the end of the 
application preparation stage, the iCERT account holder will be able to 
upload other documentation (e.g., the Agricultural and Food Processing 
Clearance Order, ETA 790, recruitment report, and statement of 
temporary need) supporting the ETA Form 9142, and associate each item 
with a document type for more efficient storage and retrieval by the 
Chicago NPC staff. Once the H-2A or H-2B application is submitted for 
processing, the iCERT account holder will no longer be able to retrieve 
the documents, but will be able to view the list of documents submitted 
with the ETA Form 9142. To maximize electronic security, the iCERT 
System will only accept electronic documents in Microsoft Word, Adobe 
PDF, or text file formats.
     Customer Email Notifications and Correspondence. Once the 
H-2A or H-2B application is submitted for processing, the iCERT System 
will immediately display a confirmation message containing a permanent 
case number, receipt date, and other key information for the iCERT 
account holder to print and retain as evidence that the Department 
received the application for processing. Additionally, the iCERT System 
will send a confirmation message via email to the employer's designated 
point of contact and, if applicable, to the employer's authorized 
representative. Because the Chicago NPC will use email as the primary 
method of communication with customers during the application review 
process, iCERT account holders must ensure that all email addresses 
entered on the ETA Form 9142 are valid and that their Internet service 
providers will not block email messages sent from the Department. Where 
valid email addresses are not provided, the Chicago NPC will 
communicate with the employer and, if applicable, the employer's agent 
or attorney, through mailed correspondence. This manual process may 
impact processing times.
     Case Status Checks. Customers will be able to check the 
status of pending applications, as well as those in which a final 
determination has issued, at any time by accessing their iCERT accounts 
or using the ``iCERT Case Status Check'' function on the public iCERT 
Home Page.
    Beginning on October 15, 2012, employers or their authorized 
representatives who choose to electronically file temporary labor 
certification applications under the H-2B program may do so through the 
iCERT System. Employers or their authorized representatives who choose 
to electronically file temporary labor certification applications under 
the H-2A program may do so through the iCERT System on or after 
December 10, 2012. Employers or their authorized representatives 
electing not to use this new electronic filing capability must file 
their H-2A and H-2B applications with the Department using the 
traditional paper-based filing method. Data from paper applications 
will be entered into the iCERT System's internal case management system 
by the NPC and processed in a similar manner as those filed 
electronically.
    In preparation for the release of these electronic filing systems, 
employers or their authorized representatives who do not currently 
possess an iCERT account are encouraged to visit the system at http://icert.doleta.gov and begin the process of establishing an iCERT

[[Page 59672]]

account with associate or sub-account users, as applicable. Note, 
however, that the new iCERT account for agricultural associations will 
not be available until implementation of the H-2A electronic filing 
system on December 10, 2012.

H-2A and H-2B Process Changes

    There are important process changes concerning the documentation 
that must be submitted with the ETA Form 9142, as well as changes to 
the receipt of official labor certification determinations from the 
Department. The regulatory requirements regarding when to file an H-2A 
or H-2B application (e.g., after pre-filing recruitment steps are 
completed in the H-2B program) remain unchanged and are not affected by 
an employer or its authorized representative's decision to file 
electronically instead of by U.S. mail. In circumstances where 
duplicate applications are filed, such as where one application is 
filed electronically and that same application is filed by U.S. mail, 
the Chicago NPC will accept for processing the first application 
received and return the non-processed second application to the 
employer or the employer's authorized representative.
     Electronic Filing. The H-2A and H-2B regulations require 
that the ETA Form 9142 filed with the Chicago NPC must bear the 
original signature of the employer and the employer's authorized 
attorney or agent, if the employer is represented by an attorney or 
agent. 20 CFR 655.20(b), 655.130(d). Under the H-2A program, an 
association filing a master application as a joint employer may sign on 
behalf of its employer members. When filing an H-2A or H-2B application 
electronically, the iCERT account holder must upload a signed and dated 
copy of either the Appendix A.2 (for the H-2A program) or Appendix B.1 
(for the H-2B program) and retain the original in its file. For job 
contractors filing under the H-2B program as joint employers with their 
employer-clients, a separate attachment containing the employer-
client's business and contact information (i.e., Sections C and D of 
the ETA Form 9142) and a signed and dated Appendix B.1 are still 
required and must be uploaded prior to electronically filing the 
application. An ETA Form 9142, bearing original signatures, will no 
longer be required by the Chicago NPC at the time of filing, as the 
appropriate signed appendix will be uploaded directly into the iCERT 
System. Moreover, where an application is granted temporary labor 
certification, the employer and, if applicable, its attorney or agent, 
will be required to sign and date the appropriate appendix on the ETA 
Form 9142 issued from the Chicago NPC upon receipt. The employer's 
signature and, if applicable, that of its attorney or agent, on the 
Appendix A.2 or B.1, as appropriate, will satisfy the original 
signature requirement.
     Supporting Documentation. In addition to the ETA Form 9142 
and applicable appendix, the H-2A and H-2B regulations require 
employers to submit all required supporting documentation at the time 
of filing. When filing an H-2A or H-2B application electronically, the 
iCERT account holder must, prior to submission of the application, 
upload scanned copies of all required supporting documentation that 
would normally be sent to the Chicago NPC by U.S. mail because the 
system will not permit document upload once the application has been 
submitted. For example, employers filing H-2B applications must also 
upload a copy of the recruitment report signed and dated by the 
employer. In addition, where the occupation is covered by special 
procedures, employers filing electronically must upload other required 
supporting documentation (e.g., FLC Certification of Registration, work 
itineraries). Under the H-2A program, employers must also upload a copy 
of the agricultural job order (ETA Form 790) submitted to the State 
Workforce Agency. If an agricultural employer has an authorized agent, 
the iCERT account holder must upload a copy of the agent agreement or 
other document demonstrating the agent's authority to represent the 
employer in the H-2A process, as required by H-2A regulations at 20 CFR 
655.133. Similarly, agents who are subject to the Migrant and Seasonal 
Agricultural Worker Protection Act must upload copies of their FLC 
Certificate of Registration. Employers continuing to file by U.S. mail 
must also continue to submit all required documentation. To avoid any 
processing delays, the iCERT account holder is strongly encouraged to 
preview and check the ETA Form 9142 and all uploaded documents for 
completeness and accuracy before submitting the application. Any 
documentation required to be submitted after the application's 
submission, such as an H-2A recruitment report documenting positive 
recruitment efforts, must be filed by mail, email or fax, even if the 
application itself was submitted electronically.
     Surety Bonds for H-2A Labor Contractors (H-2ALCs). The H-
2A regulations at 20 CFR 655.132(b)(3) require an H-2ALC to submit with 
its application the original surety bond serving as proof of its 
ability to discharge financial obligations under the H-2A program. 
Although the iCERT account holder may upload a scanned copy of the 
surety bond at the time of filing the H-2A application electronically, 
the Chicago NPC must receive the original surety bond associated with 
the H-2A application before granting certification. The regulatory 
requirement that the H-2ALC submit the original surety bond by U.S. 
mail remains unchanged, and the Chicago NPC will provide written notice 
reminding employers of this regulatory requirement upon acceptance of 
the ETA Form 9142 under 20 CFR 655.143.
     Approved Temporary Labor Certifications--Where the Chicago 
NPC Certifying Officer (CO) makes a determination to grant a temporary 
labor certification, the H-2A and H-2B regulations specify that the CO 
will send the certified ETA Form 9142 and a Final Determination letter 
to the employer or, if appropriate, to the employer's agent or 
attorney. For all H-2B applications filed on or after October 15, 2012, 
and for all H-2A applications filed on or after December 10, 2012, 
where the Chicago NPC CO has made a determination to grant a temporary 
labor certification, the employer will receive an original certified 
ETA Form 9142 and the appropriate Appendix issued on newly designed 
special security paper. A certified ETA Form 9142 is valid when it 
contains a completed Section K bearing the electronic signature of the 
OFLC Administrator, and a completed ``For Department of Labor Use 
Only'' footer on each page identifying the iCERT case number, 
determination status, and the validity period. Upon receipt of the 
original certified ETA Form 9142, the employer and, if applicable, the 
employer's agent or attorney, must promptly sign and date the appendix 
containing the requisite program assurances and obligations. Employers 
must submit original certifications received from the Department 
directly to the USCIS. However, employers whose applications are filed 
prior to the implementation of electronic filing (before October 15, 
2012 for H-2B applications and before December 10, 2012 for H-2A 
applications) and whose applications are granted temporary labor 
certification will receive certifications in the currently established 
manner, even in those cases in which the grant of certification post-
dates the implementation of electronic filing.

Training Webinars for Program Users

    To assist agricultural associations, employers, authorized agents 
or

[[Page 59673]]

attorneys, and the interested public in understanding how to use the 
iCERT System and file H-2A and H-2B applications electronically, the 
Department will hold four webinar training sessions in the coming 
months. In advance of the Department's implementation of the iCERT H-2B 
electronic filing module on October 15, 2012, the first two webinar 
sessions are tentatively scheduled for the week of October 1, 2012 to 
provide a technical demonstration on how to create or modify an iCERT 
account and file H-2B applications electronically. Similarly, in 
advance of the Department's implementation of the iCERT H-2A electronic 
filing module on December 10, 2012, the final two webinar sessions are 
tentatively scheduled for the week of November 26, 2012 to provide a 
technical demonstration on how employers, including agricultural 
associations, can create or modify their accounts and file H-2A 
applications electronically. Once the exact dates and times for the 
webinars are available, the Department will post public announcements, 
including details on how to register for each webinar, on the OFLC Web 
site at http://www.foreignlaborcert.doleta.gov. Additional 
implementation resources (e.g., iCERT user manuals) designed to assist 
customers in establishing or modifying their iCERT accounts and how to 
file H-2A and H-2B applications electronically will be posted in 
advance of the webinars. We encourage the public to frequently check 
the OFLC Web site for updates and to sign up for email updates.

Help Desk Resources

    For technical problems or other issues related to the creation and 
maintenance of iCERT System accounts and electronic filing of H-2A and 
H-2B applications, users should please contact the iCERT System Help 
Desk by sending an email to [email protected]. Additionally, the 
Chicago NPC maintains a dedicated Help Desk Unit to handle program-
related inquiries from employers or their representatives participating 
in the H-2A and/or H-2B programs. To contact the Chicago NPC Help Desk, 
please send an email to [email protected].

    Dated: Signed at Washington, DC, on this 24th day of September, 
2012.
Jane Oates,
Assistant Secretary for Employment and Training.
[FR Doc. 2012-23884 Filed 9-26-12; 11:15 am]
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