[Federal Register Volume 83, Number 15 (Tuesday, January 23, 2018)]
[Notices]
[Pages 3189-3190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01166]


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DEPARTMENT OF LABOR

Employment and Training Administration


Labor Certification Process for the Temporary Employment of 
Aliens in Non-Agricultural Employment in the United States

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department) is issuing this notice to announce to 
employers and other interested stakeholders about a process change to 
better assure fairness regarding the issuance of H-2B temporary labor 
certifications due to the unprecedented volume of applications received 
on January 1, 2018.

FOR FURTHER INFORMATION CONTACT: William W. Thompson, II, 
Administrator, Office of Foreign Labor Certification, Box #12-200, 
Employment & Training Administration, U.S. Department of Labor, 200 
Constitution Avenue NW, Washington, DC 20210. Telephone number: 202-
513-7350 (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 1-877-889-5627.

SUPPLEMENTARY INFORMATION: 

H-2B Visas: Statutory Background and OFLC Process

    The Immigration and Nationality Act (INA) sets the annual number of 
aliens who may be issued H-2B visas or otherwise provided H-2B 
nonimmigrant status by the Department of Homeland Security (DHS) to 
perform temporary non-agricultural work at 66,000. Up to 33,000 H-2B 
visas may be issued in the first half of a fiscal year (October 1 to 
March 31), and the remaining semi-annual allocation of 33,000 visas 
will be available for employers seeking to hire H-2B workers during the 
second half of the fiscal year (April 1 to September 30). This 
announcement concerns the processing of the H-2B temporary labor 
certification applications for the April 1-September 30, 2018 period of 
need.
    The Employment and Training Administration's Office of Foreign 
Labor Certification (OFLC) process for obtaining an H-2B certification 
is a two-step process for employers. Employers must first file a 
complete and accurate Application for Temporary Employment 
Certification (ETA Form 9142B). Following review and acceptance from 
OFLC, the employer must then conduct recruitment of U.S. workers and 
file a recruitment report. The Department reviews those reports and 
issues final labor certification decisions to employers who comply with 
all regulatory requirements as they are returned to OFLC by employers. 
Employers granted temporary labor certification are then eligible to 
file a petition with the United States Citizenship and Immigration 
Services (USCIS) at the DHS.

Process Change for Granting Temporary Labor Certification

    Because of the intense competition for H-2B visas in recent years, 
the semi-annual visa allocation, and the regulatory requirement that 
employers apply with OFLC for a temporary labor certification 75 to 90 
days before the start date of work, employers who wish to obtain visas 
for their workers under the semi-annual allotment for periods of need 
beginning from April 1-September 30, 2018, must promptly apply for a 
temporary labor certification and then file a petition with USCIS 
before the cap is reached. As a result, OFLC typically experiences a 
significant ``spike'' in labor certification applications at the 
beginning of January for temporary or seasonal jobs during the U.S.'s 
early spring and summer weather months.
    Thus, on January 1, 2017 (FY 2017), OFLC received 1,538 
applications covering approximately 26,673 worker positions for a work 
start date of April 1, 2017; approximately 80% of the entire semi-
annual visa allocation of 33,000. By contrast, on January 1, 2018, OFLC 
received approximately 4,498 applications covering 81,008 worker 
positions requesting an April 1, 2018, start date of work. This 
unprecedented level of employer requests for H-2B workers on January 1, 
2018 is approximately three times greater than the number of 
applications received on January 1, 2017, and more than two and one-
half times greater than the 33,000 semi-annual visa allotment for FY 
2018 permitted under the INA. In previous years, OFLC processed 
applications as expeditiously as possible in a manner irrespective of 
the time of day the application was filed, only focusing on processing 
applications by the day they were filed. Although OFLC is working as 
expeditiously as possible to issue first actions, review responses to 
Notices of Deficiency, and issue Notices of Acceptance, the 
overwhelming workload this year has strained OFLC's processing system 
and resulted in delays for the majority of all applications filed on 
January 1. OFLC

[[Page 3190]]

expects the first 2,400 applications filed on January 1 (which 
represent approximately 40,000 worker positions) will be processed for 
first actions by next week, with the remainder of all filed 
applications processed for first actions in the weeks that follow.
    Employers receiving Notices of Acceptance can proceed to meet the 
additional regulatory requirements, including recruitment of U.S. 
workers and submission of recruitment reports. Employers receiving 
Notices of Deficiency that are corrected, and who then receive a Notice 
of Acceptance, can also proceed to meet the additional regulatory 
requirements. In order to promote fairness for employers in accessing 
the H-2B program and due to the unprecedented volume of applications on 
January 1, OFLC is making a change to its process regarding the 
issuance of final labor certification decisions. This process change 
will better reflect the sequential order in which employers filed 
applications. Thus, OFLC will not begin releasing certified H-2B 
applications (Form ETA-9142B Application for Temporary Employment 
Certification) until February 20, 2018. On that day, OFLC will release 
certified H-2B applications that have met all regulatory requirements 
as of that day in sequential order based on the original calendar day 
and time the application was filed (i.e., receipt time). Thereafter, 
OFLC will continue to release certified H-2B applications in a 
sequential manner until all applications are released. OFLC will 
continue to issue rejections, withdrawals, and denials of labor 
certification applications in accordance with standard procedures. This 
process change will allow employers who filed promptly on January 1, 
2018, sufficient time to meet regulatory requirements, including the 
recruitment and hiring of qualified and available U.S. workers, thus 
preserving the sequential order of filing that took place on January 1, 
2018, to the extent possible.
    As required, OFLC will grant temporary labor certification only 
after the employer's H-2B application has met all the requirements for 
approving labor certification under 20 CFR 655.50 and the subpart. In 
accordance with regulatory requirements, OFLC will send all certified 
H-2B applications to the employer, or the employer's authorized 
attorney or agent, by means normally assuring next day delivery.

     Signed in Washington, DC, this 18th day of January 2018.
William W. Thompson, II,
Administrator, Office of Foreign Labor Certification.
[FR Doc. 2018-01166 Filed 1-18-18; 4:15 pm]
 BILLING CODE 4510-FP-P