March 18, 2015. Prohibition of DOL H-2B Processing Temporarily Lifted On March 18, 2015, the federal district court in the Northern District of Florida issued an order effectively permitting DOL to restart its processing of H-2B applications under the 2008 rule immediately and to continue processing applications under that rule through April 15, 2015. Effective immediately, DOL will begin processing H-2B applications under the 2008 rule and will continue to do so through April 15th. Under the terms of the court's March 18th order, any application for certification or prevailing wage determination that has not completed DOL processing by the time the stay ends as of May 15th, 2015 may no longer be processed under the 2008 H-2B rule.
Please be advised that the federal district court in the Northern District of Florida, on March 4, 2015, vacated the Department of Labors (Department) 2008 H-2B program comprehensive regulations on the ground that the Department lacks authority under the Immigration and Nationality Act to issue regulations in the H-2B program. Because of this decision and effective on and after March 5, 2015, the Department can no longer accept or process requests for prevailing wage determinations or applications for temporary labor certification in the H-2B program. The Department has posted a public announcement on the Office of Foreign Labor Certification (OFLC) website at http://www.foreignlaborcert.doleta.gov.
Documents to Submit:
- Three ETA 750A forms with original signature (at least two) of the employer. Employers may request more than one worker on the same application with “unknown” listed in the “Name of Alien” field.
- Employer’s Statement of Need justifying need for temporary workers for a one time/seasonal/peak load need. Outline prior efforts made to recruit US workers for the job.
- The application must also contain supporting evidence or documentation that justifies the temporary need. Examples of acceptable documents for most common standards of seasonal and peakload need include, but are not limited to: Signed work contracts correlating to the period of need on the ETA 750, Part A, Item 18b for the coming season; annualized or multi-year work contracts/agreements supplemented with signed work contracts specifying the actual dates when work will commence and end during each year of service. Monthly invoices summarized monthly payroll reports for a minimum of one previous calendar year that identifies for each occupation and separately for full-time permanent and temporary employment, the following: Total number of workers or staff employed, total hours worked and total earnings received. The payroll summary must be signed by the employer.
- Submit these documents at least 60 days prior, but no more than 120 days prior, to the date of need (see, ETA 750A, Box 18b).
- If the NWD-DOL sends the employer a letter outlining any deficiencies, the employer has only 7 days to send corrections addressing the deficiencies. Failure to meet this deadline will result in the case being closed at the state level. Employers are encouraged to use express overnight mailing to expedite processing.
The NWD-DOL will place and run a job order in its SASi (State) system for ten days. The NWD DOL will provide the employer with the Job Order Number.
Within 10 days of the NWD-DOL providing the employer with the job order number and permission to advertise, the employer must advertise in a local newspaper for three (3) consecutive days (the days do not have to include a Sunday).
NOTE: An in-house posting notice is not required in temporary H2B case processing.
- The employer shall submit a recruitment report within 7 days of the job order expiration date or NWD DOL request. The recruitment report must outline any referrals from the NWD-DOL, must have attached the resumes/applications of US workers referred, and state the reasons for not hiring them.
- The NWD-DOL will send the entire application to the NPC in Chicago, recommending certification. The NPC will notify the employer of their final determination on the case within 15 days. NPC may also send a Request For Information (RFI) if necessary prior to denying a case.
- The NWD-DOL is required to process the application within 30 days at the state level. Failure of the employer to submit recruitment results on time will result in the case being canceled at the state level.
After the employer receives the labor certification from the NPC, the employer should file an I-129 with the Citizenship and Immigration Services (CIS) (formerly the INS). The CIS will issue the visa in approximately 60 days. Employers can request "Premium Processing" from the CIS for an additional fee.