[Federal Register Volume 85, Number 45 (Friday, March 6, 2020)]
[Pages 13178-13179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04666]



U.S. Citizenship and Immigration Services

[CIS No. 2659-20; DHS Docket No. USCIS-2019-0025]

Notice of DHS's Requirement of the Temporary Labor Certification 
Final Determination Under the H-2B Temporary Worker Program

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Notice.


SUMMARY: The Department of Homeland Security, U.S. Citizenship and 
Immigration Services, is announcing, through this notice, that a 
printed copy of the electronic final determination form granting 
temporary labor certification under the H-2B program through the U.S. 
Department of Labor's new Foreign Labor Application Gateway system must 
be submitted with an H-2B petition as evidence of an original approved 
temporary labor certification.

DATES: This notice is applicable March 6, 2020

FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and 
Foreign Workers Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
20 Massachusetts Ave. NW, Suite 1100, Washington, DC 20529-2120, 
Telephone Number (202)-272-8377 (not a toll-free call). Individuals 
with a hearing or speech impairments may access the telephone numbers 
above via TTY by calling the toll-free Federal Information Relay 
Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The Immigration and Nationality Act (INA), 
as amended, establishes the H-2B nonimmigrant classification for a 
nonagricultural temporary worker ``having a residence in a foreign 
country which he has no intention of abandoning who is coming 
temporarily to the United States to perform . . . temporary [non-
agricultural] service or labor if unemployed persons capable of 
performing such service or labor cannot be found in this country.'' INA 
section 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b). Employers 
must petition the Department of Homeland Security (DHS), United States 
Citizenship and Immigration Services (USCIS), for classification of 
prospective temporary workers as H-2B nonimmigrants. INA section 
214(c)(1), 8 U.S.C. 1184(c)(1). DHS must approve this petition before 
the beneficiary can be considered eligible for an H-2B visa. Id. 
Finally, the INA requires that ``[t]he question of importing any alien 
as [an H-2B] nonimmigrant . . . in any specific case or specific cases 
shall be determined by [DHS],\1\ after consultation with appropriate 
agencies of the Government.'' INA section 214(c)(1), 8 U.S.C. 

    \1\ As of March 1, 2003, in accordance with section 1517 of 
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a 
provision of the Immigration and Nationality Act describing 
functions which were transferred from the Attorney General or other 
Department of Justice official to the Department of Homeland 
Security by the HSA ``shall be deemed to refer to the Secretary'' of 
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV, 
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.

    DHS regulations provide that an H-2B petition for temporary 
employment in the United States other than on Guam must be accompanied 
by an approved temporary labor certification (TLC) from the U.S. 
Department of Labor (DOL) issued pursuant to regulations established at 
20 CFR part 655.\2\ 8 CFR 214.2(h)(6)(iii)(A), (C)-(E), (h)(6)(iv)(A); 
see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6), INA section 
214(c)(1), 8 U.S.C. 1184(c)(1). The TLC serves as DHS's consultation 
with DOL regarding: (i) Whether a qualified U.S. worker is available to 
fill the petitioning H-2B employer's job opportunity, and (ii) whether 
a foreign worker's employment in the job opportunity will adversely 
affect the wages or working conditions of similarly employed U.S. 
workers. See INA section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 

    \2\ In situations involving employment on Guam, the petitioning 
employer shall apply for a temporary labor certification with the 
Governor of Guam. See 8 CFR 214.2(h)(6)(iii).


[[Page 13179]]

    Historically, when a TLC was granted, DOL sent an original approved 
Form ETA-9142B, Application for Temporary Employment Certification, and 
a Final Determination letter to the employer with a copy, if 
applicable, to the employer's authorized attorney or agent. 20 CFR 
655.52. The original paper TLC was sent by means normally ensuring next 
day delivery, and the employer retained a signed copy of the certified 
Form ETA-9142B and the original signed Appendix B, as required by 20 
CFR 655.56(c)(12). The employer or its authorized attorney or agent 
then attached the original paper TLC, along with all other supporting 
documentation and appropriate fees, to the Form I-129, Petition for a 
Nonimmigrant Worker, and filed the Form I-129 with USCIS. On October 
15, 2012, DOL implemented electronic filing in the H-2B labor 
certification program, but continued to issue original certified ETA-
9142 TLCs on paper.\3\

    \3\ Electronic Filing of H-2A and H-2B Labor Certification 
Applications Through the iCERT Visa Portal System, 77 FR 59670, 
69672 (Sept. 28, 2012).

    On May 17, 2019, and in accordance with the Paperwork Reduction Act 
(PRA), the Office of Management and Budget (OMB) approved revisions to 
DOL's H-2B Foreign Labor Certification Program information 
collection.\4\ To promote greater efficiency in issuing TLCs and 
minimize delays associated with employers filing H-2B petitions with 
DHS, DOL received approval to issue electronic TLCs using the new Form 
ETA-9142B, Final Determination: H-2B Temporary Labor Certification 
Approval. On June 6, 2019, DOL then announced on the Office of Foreign 
Labor Certification's (OFLC's) website a transition schedule for 
employers to submit the new H-2B application forms beginning July 3, 
2019, through its new FLAG system.\5\ As of July 3, 2019, employers who 
file the new Form ETA-9142B, including all applicable appendices, 
through the FLAG system and are granted a TLC will receive an ETA-
9142B, Final Determination: H-2B Temporary Labor Certification 
Approval, and Final Determination letter electronically.\6\

    \4\ See OMB's Notice of Action issued on May 17, 2019, on DOL's 
information collection control number 1205-0509 at https://www.reginfo.gov.
    \5\ DOL announced that, beginning July 3, 2019, it will only 
accept H-2B applications submitted using the new Form ETA-9142B 
(i.e., forms containing an expiration date of May 31, 2022). DOL 
continued to accept and process H-2B applications it received 
through the legacy iCERT system until 11:59 p.m. Eastern Time on 
July 2, 2019. See https://www.foreignlaborcert.doleta.gov/.
    \6\ Employers may obtain a copy of the final decisions from the 
Historical table in the My Cases tab of their FLAG account. See 
DOL's Frequently Asked Questions; https://flag.dol.gov/support/FAQ#cases, under the question, ``How can I find a copy of my issued 

    In circumstances where the employer or, if applicable, its 
authorized attorney or agent, is not able to receive the approved TLC 
documents electronically, DOL will send the ETA-9142B and Final 
Determination letter on paper and in a manner that ensures next day 
    DHS regulations refer to an approved TLC by various terms including 
``Department of Labor determination'' at 8 CFR 214.2(h)(2)(i)(E) and 
``labor certification determination'' at 8 CFR 214.2(h)(6)(iii)(E). 
Under the current instructions for Form I-129, H-2B petitioners must 
submit an approved TLC from DOL with the H-2B petition.\7\ Since DOL, 
generally, will now only provide the approved TLC to an employer 
electronically, USCIS announced on its website on July 26, 2019, that 
employers whose application for a TLC was processed in FLAG must 
include a printed copy of the electronic one-page ETA-9142B, Final 
Determination: H-2B Temporary Labor Certification Approval, with their 
Form I-129, and that USCIS will consider this printed copy as an 
original, approved TLC.\8\ USCIS is formally announcing, through this 
notice, that a printed copy of the ETA-9142B final determination, 
completed and electronically signed by DOL, must be submitted with an 
H-2B petition, and that this printed copy of the one-page determination 
satisfies the requirement that petitioners provide evidence of an 
approved TLC. As discussed above, this change in USCIS procedure aligns 
with DOL's change in its procedures, as DOL has transitioned to a new 
electronic filing and application processing environment through which, 
generally, DOL no longer provides the employer and, if applicable, the 
employer's authorized attorney or agent with a paper copy of a 
certified Form ETA-9142B. This change in process is also appropriate 
since in most circumstances, USCIS will no longer need to reference a 
paper copy of a certified Form ETA-9142B (and its appendices) because 
USCIS and DOL have in place an information sharing process that allows 
USCIS to validate substantive elements of the approved TLC based on 
case information supplied by DOL directly to USCIS.\9\

    \7\ See https://www.uscis.gov/i-129.
    \8\ See https://www.uscis.gov/news/alerts/h-2b-petitioners-must-include-temporary-labor-certification-final-determination-form-i-129.
    \9\ See https://www.dhs.gov/publication/dhs-uscis-pia-044-validation-instrument-business-enterprises.

    USCIS notes that there may be limited circumstances when an 
employer (or its authorized agent, if applicable) has a paper-based 
final determination from DOL because, among other reasons, the employer 
is unable to receive the final determination electronically.\10\ In 
these limited circumstances, USCIS may accept and consider the paper-
based certification documents as an original approved TLC. 
Additionally, USCIS notes that the submission of a printed copy of the 
electronic ETA-9142B final determination does not preclude USCIS from 
issuing a request for evidence or a notice of intent to deny in certain 
warranted circumstances, including but not limited to, when the 
electronic systems are unavailable for validation, or the final 
determination document is substantively inconsistent with the 
information provided by DOL regarding that labor certification 
determination. In those instances, USCIS will request that an employer 
(or its authorized agent, if applicable) submit documentation, 
including but not limited to a copy or copies of the complete certified 
Form ETA-9142B and its appendices. DOL has agreed that such evidence 
will be made available to employers (or authorized agents) in certain 
circumstances, for example, in the event of FLAG system outage or 
scheduled maintenance.

    \10\ See 84 FR 798, 799 (Jan. 31, 2019) (``In circumstances 
where the employer or, if applicable, its authorized attorney or 
agent, is not able to receive the temporary labor certification 
documents electronically, ETA will send the certification documents 
printed on standard paper in a manner that ensures overnight 

Joseph Edlow,
Deputy Director for Policy, U.S. Citizenship and Immigration Services.
[FR Doc. 2020-04666 Filed 3-5-20; 8:45 am]