1. As of March 28, 2005, will all previously filed labor certification applications be converted and/or processed under PERM?
2. Are any PERM regulation provisions applicable to applications filed under the regulation in effect prior to March 28, 2005?

1. As of March 28, 2005, will all previously filed labor certification applications be converted and/or processed under PERM?No, labor certification applications filed prior to March 28, 2005, will not be automatically converted and/or processed under PERM. Applications filed under the regulation in effect prior to March 28, 2005, will continue to be processed at the appropriate Backlog Processing Center under the rule in effect at the time of filing. As of March 28, 2005, applications (Form 750) will no longer be accepted under the regulation in effect prior to March 28, 2005, and instead new applications (Form 9089) will need to be filed under PERM at the appropriate National Processing Center. Only if an employer chooses to withdraw an earlier application and refile the application for the identical job opportunity under the refile provisions of PERM will a previously filed application be processed under the PERM regulation.
2. Are any PERM regulation provisions applicable to applications filed under the regulation in effect prior to March 28, 2005?No, while many provisions in the PERM regulation are the same as, or similar to, the provisions found in the regulation in effect prior to March 28, 2005, the PERM regulation can not be applied to applications filed under the former regulation. At this point, all provisions of the PERM regulation are applicable only to applications filed on or after March 28, 2005, under the PERM regulation.

1. What standards will be used in making labor certification determinations under the new, streamlined system?
2. What provisions have changed in the new system?

1. What standards will be used in making labor certification determinations under the new, streamlined system?The standards used in making labor certification determinations under the new system will be substantially the same as those used in arriving at a determination in the former system. The determination will continue to be based on: whether there are not sufficient United States workers who are able, willing, qualified and available; whether the employment of the foriegn worker will have an adverse effect on the wages and working conditions of United States workers similarly employed; and whether the employer has met the procedural requirements of the regulations.
2. What provisions have changed in the new system?This is a brief list of some of the changes; they are covered in greater detail in the particular topic areas below.Filing: Employers have the option of submitting the new form, the Application for Permanent Employment Certification, ETA Form 9089, electronically directly to a National Processing Center.

   Filing: Supporting documentation is not submitted with the application.

   Filing: Employers file applications directly with the U.S. Department of Labor and not with a State Workforce Agency (SWA).

   Refiling: An employer may, at any time, withdraw an application filed under the regulation in effect prior to March 28, 2005, refile under PERM, and maintain the original filing date if the new application complies with the new regulation, the application is identical to the original application, and a job order has not been placed by the SWA for the original application.

   Prevailing Wage: The offered wage must be equal to or greater than the prevailing wage. The wage must be at least 100% of the prevailing wage; the 5% deviation is no longer acceptable.

   Prevailing Wage: Where an acceptable employer-provided survey provides a median and does not provide an arithmetic mean, the median will be used as the prevailing wage.

   Prevailing Wage: The prevailing wage validity period will vary from no less than 90 days to no greater than one year depending on the wage source used.

   Notice of Filing: A notice of filing must be posted in specific locations for ten consecutive business days rather than merely ten days.

   Recruitment: The employer is required to conduct recruitment (more than 30 days and less than 180 days) prior to filing.

   NOTE: While pre-filing recruitment was the basis for reduction-in-recruitment under the regulation in effect prior to March 28, 2005, the recruitment provisions in the new system differ.

   Recruitment: Recruitment provisions are divided into professional and nonprofessional occupations and additional recruitment steps are required for professional occupations.

   Recruitment: Sunday edition newspaper advertisements are required.

   Recruitment: A job order, obtained through the SWA, is required.

   Recruitment: The special handling provision has been removed. Optional recruitment provisions for college and university teachers are in § 656.18. Provisions for college and university teachers of exceptional ability in the science and arts are covered in § 656.5.

   Revocation: Certifying Officers have the authority to revoke approved labor certifications.

   Adjudication:Certifying Officers will either certify or deny applications. The interim step under the previous regulations of issuing a Notice of Finding (NOF) has been eliminated.

   Schedule A, Professional Nurses: A Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate rather than merely passage of the CGFNS examination is required to qualify the foreign worker for Schedule A certification.

   Schedule A, Professional Nurses: Passage of the National Council Licensure Examination for Registered Nurses (NCLEX—RN) examination is a means by which to qualify the foreign worker for Schedule A certification.

   Schedule B: Schedule B has been eliminated.

1. Does the Office of Foreign Labor Certification expedite applications?
2. How can an employer file an Application for Permanent Employment Certification, ETA Form 9089?
3. How does the employer file an application electronically?
4. Is it possible to complete only portions of an application, save it, and retrieve it at a later date without having to submit it?
5. Where does an employer file an application by mail and how can people contact the Atlanta National Processing Center to ask questions about an application?
6. What is the process by which an employer registers and files an application on line?
7. Where the employer has established a sub-account for an attorney or agent, is the attorney or agent permitted to submit applications on-line?
8. How can the employer ensure that no unauthorized use of the employer’s personal identification number (PIN) and/or usernames and passwords exists?
9. If a parent entity wishes to centralize administration/control over PERM filings of its subsidiaries having different FEINs, can the parent company create sub-accounts for each subsidiary and then permit each subsidiary to assume responsibility for its own filings?
10. Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?
11. Where can I email my questions?
12. Under PERM, is it permissible for an employer to have more than one labor certification application actively in process for the same foreign worker for the same job opportunity at any given time? What should an employer do if it has already filed multiple applications for the same foreign worker for the same job opportunity?
13. In view of the past practice of allowing the filing of multiple applications by the same employer for the same foreign worker if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same foreign worker actively in process at any given time?
14. For electronically filed applications, please provide a listing, and explanation, of the status indicators that appear on the website.

Employer Point of Contact Information

15. Who may the employer designate as its point of contact in Section D of ETA Form 9089?
16. Can the employer designate its attorney or agent as its point of contact in Section D of the ETA Form 9089?

1. Does the Office of Foreign Labor Certification expedite applications?The Office of Foreign Labor Certification (OFLC), as a matter of long standing policy, does not expedite the processing of applications due to the particular circumstances of any individual employer, foreign worker, or a family member.

   August 3, 2010

2. How can an employer file an Application for Permanent Employment Certification, ETA Form 9089?The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, filing electronically provides prompts that assist in the completion of the ETA Form 9089.An application for a Schedule A occupation must be filed by mail with the appropriate Department of Homeland Security office and not with a Department of Labor National Processing Center.

   NOTE: Employers will not be permitted to submit applications by facsimile.

3. How does the employer file an application electronically?The employer can access a customer-friendly web site (http://www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.NOTE: The web site also provides an option to permit employers that frequently file permanent applications to set up secure files within the ETA electronic filing system containing information common to any permanent application the employer files. Under this option, each time an employer files an ETA Form 9089, the information common to all of its applications, e.g., employer name, address, etc., will be entered automatically and the employer will only need to enter the data specific to the application at hand.
   
4. Is it possible to complete only portions of an application, save it, and retrieve it at a later date without having to submit it?Yes, the system provides the employer with the choice, upon finishing an online session, of either saving an application as a draft or submitting it to the Atlanta National Processing Center.
5. Where does an employer file an application by mail and how can people contact the Atlanta National Processing Center to ask questions about an application?Applications for Permanent Employment Certification, ETA Form 9089, must be mailed to the following address:United States Department of Labor
   Employment and Training Administration
   Atlanta National Processing Center
   Harris Tower
   233 Peachtree Street, N.E.,
   Suite 410, Atlanta, Georgia 30303

   The employer can contact the
   Atlanta National Processing Center at:
   E-mail: plc.atlanta@dol.gov
   Telephone: (404) 893-0101
   FAX: (404) 893-4642

6. What is the process by which an employer registers and files an application on line?In order to file permanent labor certification applications on-line, the employer must have a Permanent Online System account, username, password, and PIN. The account allows for the preparation and management of applications on-line, the username and password are necessary to access the account, and the PIN is required to submit applications on-line.Permanent Online System account – An account is created after an employer has submitted registration information on-line at www.plc.doleta.gov and the employer information is verified by DOL. Account creation is a means by which to control filing authorization and to provide account holders filing management capabilities. An employer must be registered and be in possession of a PIN in order to file applications on-line. Upon verification of the employer’s information, a password and confirmation of the account holder’s username are sent to the employer in one email and, for security reasons, the PIN in another. It must be noted that upon accessing the account for the first time, the system requires the DOL password be changed to a new password. It is critical that the employer be aware of and know the new password, as only an individual in possession of the account’s valid username and password is able to access the account.

   Sub-account – The holder of a Permanent Online System account is able to create multiple sub-accounts with individual usernames and passwords for persons authorized by the employer to file applications in its name, to include attorneys and agents. It is a means by which to provide the employer the security of ensuring only persons authorized by the employer are filing on the employer’s behalf. In creating a sub-account, the employer is able to designate whether the sub-account holder is the employer’s employee, the employer’s agent or the employer’s lawyer. The employer is also able to designate the level of security access available to the sub-account holder.

   NOTE: While the employer is permitted the opportunity to designate persons to represent the employer in the application filing process, the employer must recognize that ultimate responsibility for the accuracy of all representations made by such designated persons rests with the employer. Therefore, the employer is encouraged to establish measures designed to ensure only legitimate dissemination and use of account information.

   Federal Employer Identification Number (FEIN) – The FEIN is provided to the employer by the IRS. It is a means by which the Department of Labor (DOL) verifies the bona fides of the employer and ensures that only legitimate employers are able to avail themselves of the labor certification process. In order to satisfy the definition of employer for purposes of labor certification, all employers, including employers of household domestic workers, must possess a valid FEIN.

   Username – The username is a log-in name provided by the employer registrant. After registration, upon successful employer verification, confirmation of the username is emailed to the employer by DOL. It is a means by which to identify the account holder and establish access authority. Each username is unique; duplications are not accepted.

   Password – An initial password is provided by the Permanent Online System. After registration, upon successful employer verification, the temporary password is emailed to the employer by DOL. Upon activation of an account after registration, the individual initially accessing the account is required to create a new password. The password is a means by which to identify the account holder and establish access authority. NOTE: An account can only be accessed by the holder of the username and password. Where the password is changed, only an individual with the user name and the new password will be able to access the account.

   Personal Identification Number (PIN) – The PIN is provided to the employer after registration upon successful employer verification by DOL. It is a means by which to safeguard on-line filing. Only an individual in possession of a PIN is able to actually submit a labor certification application on-line. The PIN used in submitting an application must be the PIN of the employer named on the application filing the application.

7. Where the employer has established a sub-account for an attorney or agent, is the attorney or agent permitted to submit applications on-line?Yes, an attorney or agent may submit applications under the following circumstances. An employer must complete the registration process as explained at http://www.plc.doleta.gov, including the initial log-in. During the initial log-in, the employer will change the employer’s temporary password (as assigned by the system during registration) and once logged-in, the employer can establish a sub-account for an attorney or agent. The employer will select a username for the attorney or agent, and the system will assign a temporary password. The attorney or agent will receive an e-mail with the username, temporary password, and the employer’s PIN. When the attorney or agent logs in and changes the attorney’s or agent’s password, the attorney or agent is then permitted to complete and submit applications on-line on behalf of the employer using the PIN of the employer in whose name the application is being filed.
   
8. How can the employer ensure that no unauthorized use of the employer’s personal identification number (PIN) and/or usernames and passwords exists?The employer is able to view all applications filed under the employer’s account, to include all applications filed under the employer’s sub-accounts, and we recommend employers implement a mechanism by which to identify any unauthorized use of the employer’s PIN and/or usernames and passwords. We also recommend employers require those persons to whom sub-accounts have been assigned to carefully monitor the accounts for unauthorized activity. If the employer uncovers unauthorized use of the PIN and/or usernames and passwords, the employer must immediately contact the Department of Labor at PLC.HELP@DOL.gov.NOTE:The employer is advised to set up a sub-account for the attorney or agent. Thereafter, the attorney or agent, using the sub-account’s username and password, will be able to access the sub-account and be able to do what is required and/or needed to file labor certification applications on behalf of the employer, depending on the level of access granted by the employer. In filing applications for an employer, the attorney or agent must use the employer’s PIN, which is provided to the attorney or agent upon creation of the sub-account along with the sub-account’s own username and password. The employer is cautioned that ultimate responsibility for the representations of its attorney and/or agent rests with the employer.
   
9. If a parent entity wishes to centralize administration/control over PERM filings of its subsidiaries having different FEINs, can the parent company create sub-accounts for each subsidiary and then permit each subsidiary to assume responsibility for its own filings? No, a parent company can not create sub-accounts for subsidiaries having FEINs different from that of the parent company in order to centralize administration and control. When an application is being completed using a sub-account, employer information from the main account, including FEIN and address, is automatically populated into the application and that information can not physically be changed or altered.
10. Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?No, mailing in an application will not prove more successful, as the mailed-in application, upon receipt at the National Processing Center, is initially merely date stamped. Until the application is data entered into the electronic system by a data entry person (using the exact information shown on the ETA Form 9089), processing will not begin on the application. Once entered into the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. If there are two identical applications, one submitted electronically and one mailed-in, there will be no difference in how they are processed. The only difference may be in processing time; a mailed-in application will take longer, as not only mailing but also the data entry time will be involved. Remember: the on-line system will identify mistakes (e.g. entering four digits for a zip code instead of five digits) before allowing the application to be submitted, but the data entry person must enter the information exactly as shown on the application; a mistake on the form may trigger an audit or denial.
    
11. Where can I email my questions?There are two locations where you may send your questions, depending upon the type of question asked.If you have a technical question (for example, if you forgot your password), then please email those questions to plc.help@dol.gov.

    If you have a program specific question (for example, if you have a question concerning the content of an advertisement) or a policy question, then please email your questions to PLC.Atlanta@dol.gov (the Atlanta National Processing Center)

    Please note: Questions should no longer be
    e-mailed to perm.dflc@dol.gov.

12. Under PERM, is it permissible for an employer to have more than one labor certification application actively in process for the same foreign worker for the same job opportunity at any given time? What should an employer do if it has already filed multiple applications for the same foreign worker for the same job opportunity?Under the old and new permanent labor certification regulations, DOL certifies that there are not available U.S. workers for a particular “job opportunity.” See, e.g., 20 CFR 656.10(c) (new PERM regulation) and 656.20(c) (prior regulation). DOL’s longstanding policy has been that an employer is not prohibited from filing applications for the same foreign worker involving different, legitimate job openings to which U.S. workers may be referred. See, e.g., Field Memorandum 48-94 (May 16, 1994) (Policy Guidance on Alien Labor Certification Issues at § 6). However, DOL has not processed or certified multiple labor certifications for the same foreign worker and same job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.In the months since the PERM regulation’s streamlined procedures for filing and processing of permanent labor certification applications took effect on March 28, 2005, some employers have filed multiple electronic applications for the same foreign worker and same job opportunity. In some cases, the multiple applications are identical in all respects and may have been the result of inadvertently repeating the “submit” function. In other cases, the applications differ in minor respects, such as answering questions regarding job requirements differently or varying in descriptions of skill requirements. In some cases, these minor differences may have been intended to prematurely respond to electronic denials (that is, in advance of receiving the written denial letter) or to test the system’s responsiveness and auditing criteria.

    DOL intends to apply its longstanding policy regarding multiple applications to multiple applications filed under the new PERM regulation. Therefore, an employer may not have more than one Form 9089, Application for Permanent Employment Certification, in process under the PERM regulation for the same foreign worker for the same job opportunity at any given time.

    Recognizing that multiple filings are already in the PERM queue for the same employer, foreign worker and job opportunity, we have developed the following procedures to transition in implementation of this policy to PERM:

    1. If an employer currently has multiple applications in process under PERM for the same foreign worker and job opportunity, the employer must withdraw, by January 19, 2006, all applications other than the one it wants processed. (For withdrawal information, see the separate FAQ on procedures for withdrawing an application.)
    2. As of January 19, 2006, if multiple applications from an employer for the same foreign worker and same job opportunity are still pending under PERM, we will assume that the employer wishes the last-filed application to be processed (since this presumably includes any corrections or clarifications from earlier filings) and the other pending PERM applications for the same foreign worker and the same job opportunity will be denied.
    3. After January 19, 2006, if an application for a particular employer/foreign worker/job opportunity is pending under PERM and a second application is filed under PERM for the same employer/foreign worker/job opportunity, we will continue to process the first-filed PERM application and deny subsequent PERM filings except where the employer follows the procedures outlined here. If the employer wishes to file a new or changed application under PERM for that same foreign worker and job opportunity, the employer should not file the new PERM application until the employer formally withdraws the PERM application currently in process or the employer has received the Final Determination form notifying the employer that the previous application is denied. NOTE: An employer may not file a new application for a foreign worker while a request for review is pending with the Board of foreign worker Labor Certification Appeals (BALCA) for that same alien, employer, and job opportunity. See 20 CFR 656.24(e)(6).

    DOL will continue to apply its longstanding policy regarding multiple applications under Field Memorandum 48-94 where multiple cases have been filed and are being processed under the old regulation at Backlog Elimination Centers. DOL will continue to process and certify multiple permanent labor certification applications filed under the prior regulation for the same foreign worker if the employer is proposing to employ the foreign worker in multiple different bona fide job openings to which U.S. workers can be referred. DOL will not process or certify multiple labor certifications filed under the prior regulation for the same foreign worker, employer, and job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

    If a BEC identifies multiple pending applications for the same employer, job opportunity, and foreign worker, the BEC will issue a Notice of Findings for all related applications, and provide the employer the opportunity to identify which application contains the bona fide job opportunity. Should an employer currently have multiple applications pending at a BEC for the same employer, job opportunity, and foreign worker, the employer may take the initiative and notify the BEC as to which application it wishes to have processed and withdraw all other applications.

    This FAQ does not address the situation in which an application for the same employer, foreign worker and job opportunity is pending under both the prior and new PERM regulation. DOL is considering stakeholder input on this situation, which in some cases may have implications for priority dates.

13. In view of the past practice of allowing the filing of multiple applications by the same employer for the same foreign worker if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same foreign worker actively in process at any given time?
    We have removed the response to this question posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future.
14. For electronically filed applications, please provide a listing, and explanation, of the status indicators that appear on the website.The status indicators for an application filed on-line are as follows:Incomplete: A case number preceded by a “T” indicates that the application has not been formally “filed” by the employer or its agent, i.e., electronically submitted, and is still a temporary draft. When an application is electronically submitted to a National Processing Center, the “T” changes to an “A.”

    In process: An “in process” status indicates the application is in the process of moving through the DOL’s certification process. If the application is in a stage of review requiring further information/documentation from the employer, the employer will be notified.

    Withdrawn: A “withdrawn” status indicates the employer has withdrawn the application.

    Denied: A “denied” status indicates the application is denied. A Final Determination form, stating the reasons for the determination and advising the employer of how to request review, should the employer choose to do so, will be sent to the employer. The Final Determination must be included in any request for review, therefore, the employer must wait to receive the form before making such a request. The employer is also advised to wait for the Final Determination before filing a new application for the same foreign worker to avoid repeating errors made in the original application.

    Appeal: An “appeal” status indicates the application is under reconsideration and/or review and is considered “in process.” No new application for the same foreign worker can be filed while an application is in a reconsideration and/or review queue.

    Certified: A “certified” status indicates the labor certification is granted. The certified application and a complete Final Determination form will be sent to the employer, or, if appropriate, to the employer’s agent or attorney, indicating the employer may file all the documents with the appropriate office in the Department of Homeland Security (DHS).

    Employer Point of Contact Information

15. Who may the employer designate as its point of contact in Section D of ETA Form 9089?The employer must designate as its point of contact an employee of the employer who is authorized to act on its behalf in labor certification matters pertaining to the specific job opportunity for which certification is sought. The designated employee may not be the sponsored foreign worker. The employer point of contact will be contacted by the National Processing Center to verify whether the employer is authorizing the filing of the application and sponsoring the foreign worker named therein. Therefore, an authorized employee’s name and contact information must be listed in Section D of the employer’s submitted ETA Form 9089. It is not acceptable, for example, to reenter the employer’s name listed in Section C of the ETA Form 9089 or provide a generic title such as “HR Manager.” Moreover, as indicated on the ETA Form 9089 and accompanying instructions, such a person’s name and/or contact information, e.g., the phone number and email address, must be different from the attorney or agent name and/or contact information listed in Section E of the ETA Form 9089, unless the attorney or agent is an employee of the employer.October 12, 2010
16. Can the employer designate its attorney or agent as its point of contact in Section D of the ETA Form 9089?The employer can designate its attorney or agent as its point of contact in Section D in addition to Section E, Attorney or Agent Information, only when the attorney or agent is an employee of the employer. Otherwise, the point of contact must be an employee who is authorized to act on the employer’s behalf in labor certification matters and, as indicated on the ETA Form 9089 and accompanying instructions, the point of contact name and contact information, e.g., the phone number and email address, must be different from the attorney or agent name and contact information listed in Section E. The designated employee may not be the sponsored foreign worker.October 12, 2010

1. May an employer submit unsolicited documentation to the National Processing Center?
2. What forms or documents must the employer include in an application?
3. How long must supporting documents be retained?
4. When must applications be signed?

1. May an employer submit unsolicited documentation to the National Processing Center?Where an employer or its representative submits unsolicited documentation in conjunction with, or after filing an ETA Form 9089, the application will be automatically selected for audit except in the case of a request for reconsideration filed after an application is denied. Where an employer or its representative submits unsolicited documentation prior to filing an ETA Form 9089, i.e., where there is no record at the National Processing Center of an application having been submitted by the employer, the documentation will be returned to the sender.Please note that where an employer or its representative does receive a request for information or documentation from the National Processing Center, e.g. a request regarding confirmation of the bona fide existence of the business or sponsorship verification, such a request does not necessarily signify the application has been placed into the audit queue. However, failure to respond to the request for information or documentation may result in the application being placed in the audit queue or denied.
   August 3, 2010
2. What forms or documents must the employer include in an application?The employer must file a completed Application for Permanent Employment Certification, ETA Form 9089.Except as required for applications filed under § 656.5, Schedule A, supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer’s application is selected for audit or if the Certifying Officer otherwise requests it.
3. How long must supporting documents be retained?The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification, ETA Form 9089.
4. When must applications be signed?Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.NOTE: Where the employer provides a copy of an application to a Certifying Officer pursuant to an audit or otherwise, the copy must be signed.

1. When is PERM effective and must the employer wait until the effective date to begin recruitment?

1. When is PERM effective and must the employer wait until the effective date to begin recruitment?PERM is effective March 28, 2005, and will apply to all applications filed on or after the effective date.If all applicable provisions including timeframes of the regulation have been satisfied, an application may be filed under the PERM regulation on or after the effective date. Required timeframe provisions include, among others: that recruitment be conducted at least 30 days, but no more than 180 days, prior to filing under § 656.17; that filing must be within 18 months after selection under § 656.18; and that notice of filing be provided between 30 and 180 days prior to filing under § 656.10.

1. Can an attorney, agent or law firm register to use the Permanent On-line System?

1. Can an attorney, agent or law firm register to use the Permanent On-line System?No, only an employee or owner of the employer entity may register to use the Permanent On-line System because employers must make the attestations required for the permanent application process and a PIN will only be assigned to an employer. The registration must be submitted by an individual with actual hiring authority for the employer. The individual listed under the “Employer Contact Information” section of the registration page must be the individual with actual hiring authority for the employer and cannot be the attorney or agent. During the registration process, the employer may create sub-accounts for attorneys or agents. We will cancel or deny registrations submitted by non-employers. Submission of a permanent labor certification application using a PIN assigned to a non-employer will be grounds for denial or revocation of a permanent labor certification.NOTE: To withdraw or delete a registration account (as in a situation where the original registration was set up showing an attorney or representative as the “user” and/or where the contact person for the employer is not a person with actual hiring authority), please e-mail PLC.HELP@dol.gov, provide the user name and password, and request the account be deleted. At that point, the person with actual hiring authority can re-register with the correct information.

1. Can the employer refile a labor certification application filed under the previous permanent labor certification regulations under the new streamlined system and retain the filing date of the original application?
2. Will the job opportunity on the original and refiled application not be considered identical if, for instance, the prevailing wage has changed?
3. Should an employer withdraw an earlier application and refile under PERM?
4. How must the employer save and/or store the documentation necessary to support a labor certification application?
5. In the event an employer wanted to refile a reduction-in-recruitment (RIR) conversion application, what date would be considered the original filing date (priority date), i.e., is the filing date of the original application the date the traditional recruitment application was filed with the State Workforce Agency (SWA) or the date the application was accepted as a RIR conversion application?
6. Is it possible to refile an application under the PERM optional special recruiting provision for college and university teachers if eighteen months or more have passed since the selection of the foreign worker was made pursuant to a competitive recruitment and selection process?

1. Can the employer refile a labor certification application filed under the previous permanent labor certification regulations under the new streamlined system and retain the filing date of the original application?Yes, if a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all of the filing and recruiting requirements of the new PERM regulation.NOTE: Indicating on the Application for Permanent Employment Certification, ETA Form 9089, the desire to use the filing date from a previously submitted application, i.e., marking “yes” to question A-1, is deemed to be a withdrawal of the original application.

   NOTE: If a job order for an application has been placed by the State Workforce Agency (SWA) as part of the traditional recruitment process under the regulations in effect prior to March 28, 2005, the employer is prohibited from refiling the application and retaining the original filing date. However, if an employer placed a job order as a recruitment step in a reduction-in-recruitment application, the job order is not considered a job order placed by the SWA as part of the traditional recruitment process and the employer is permitted to withdraw and refile.

2. Will the job opportunity on the original and refiled application not be considered identical if, for instance, the prevailing wage has changed?No, having a different prevailing wage on the refiled application from that on the original will not impact whether or not the job opportunity is identical. For a job opportunity to be identical, the regulation requires that the employer (including address), alien, job title, job location, job requirements, and job description be identical in both the original and refiled applications. It is quite possible that the prevailing wage in the new application, which must be filed in accordance with the PERM regulations and which must evidence a current prevailing wage, will not be the same as the prevailing wage in the original application.
3. Should an employer withdraw an earlier application and refile under PERM?

The Department of Labor does not provide counsel as to questions of this nature. However, employers are reminded refiled labor certification applications must conform to the provisions of the PERM regulation.

4. How must the employer save and/or store the documentation necessary to support a labor certification application?

No one method for saving and/or storing necessary documents is prescribed, nor is any particular method proscribed. The burden of establishing the validity of any documentation provided in support of a labor certification application rests with the employer. In establishing a method by which to save/store supporting documentation, the employer must remember that the responsibility for producing valid and defensible documentation in the event it is requested by a Certifying Officer rests solely with the employer. Such documentation must be retained by the employer for five years from the date of filing.

5. In the event an employer wanted to refile a reduction-in-recruitment (RIR) conversion application, what date would be considered the original filing date (priority date), i.e., is the filing date of the original application the date the traditional recruitment application was filed with the State Workforce Agency (SWA) or the date the application was accepted as a RIR conversion application?

The original filing date (priority date) is the date the original application was initially accepted for processing by the SWA under the basic labor certification process; it is not the date the application was accepted as a RIR conversion application.

6. Is it possible to refile an application under the PERM optional special recruiting provision for college and university teachers if eighteen months or more have passed since the selection of the foreign worker was made pursuant to a competitive recruitment and selection process?No, an application can not be refiled under the PERM optional special recruiting provision on behalf of an foreign worker selected pursuant to a competitive recruitment and selection process if eighteen months have passed since the selection of the foreign worker.

1. What is meant by the “employer’s being able to place the alien on the payroll” under 656.10(c)(4)? How does it differ from having funds available to pay the foreign worker’s wage or salary in 656.10(c)(3)?
2. What role does an attorney or agent play?

1. What is meant by the “employer’s being able to place the alien on the payroll” under § 656.10(c)(4)? How does it differ from having funds available to pay the foreign worker’s wage or salary in § 656.10(c)(3)?The employer may be required, depending on the circumstances, to establish that the position offered is actually available at the time of the foreign worker’s proposed entrance into the United States. For example, the employer may be asked to provide evidence that a plant or restaurant, which is in the planning stage or under construction at the time the application is filed, will be completed at the time of the foreign worker’s proposed entrance into the United States. While the employer may be fiscally able to pay the foreign worker, other circumstances, such as non-viability of the business itself, may preclude the employer from placing the foreign worker on the payroll.
2. What role does an attorney or agent play?Employers may have agents and/or attorneys represent them, however, the employer is required to sign in Section N of the Application for Permanent Employment Certification, ETA Form 9089, that the employer has designated the agent or attorney identified in Section E to represent it, and by virtue of its signature, is taking full responsibility for the accuracy of any representations made by the attorney or agent. In signing, the employer acknowledges that to knowingly furnish false information in the preparation of the application form and any supplement thereto or to aid, abet, or counsel another to do so is a federal offense punishable by a fine or imprisonment up to five years or both under 18 U.S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621.NOTE: An attorney or agent is not permitted to register to use the Permanent On-line System for the employer. Only an employee or owner of the employer entity may register. Nor is an attorney or agent of either the foreign worker or the employer permitted to participate in interviewing or considering U.S. workers for the job offered the foreign worker. The agent or attorney may only participate if the agent or attorney is the employer’s representative, i.e., the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the foreign worker, but which do not involve labor certifications.

1. How can a pending application filed under PERM be withdrawn?
2. Must the employer wait to receive confirmation of withdrawal from a Backlog Elimination Center (BEC) prior to refiling an application?
3. How can an employer withdraw a PERM application if the employer has difficulty withdrawing electronically or the application was originally filed by mail?
4. How can an employer withdraw a PERM application if it has already been certified?
5. Once an employer requests its application be withdrawn, how soon can the employer file a new application for the same foreign worker?

1. How can a pending application filed under PERM be withdrawn?If the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing, must be sent to the National Processing Center.
2. Must the employer wait to receive confirmation of withdrawal from a Backlog Elimination Center (BEC) prior to refiling an application?
   

No, the employer does not need to wait to receive confirmation of withdrawal prior to refiling an application.

3. How can an employer withdraw a PERM application if the employer has difficulty withdrawing electronically or the application was originally filed by mail?In the event an employer is unable to withdraw electronically, the employer should send a withdrawal request by e-mail to the Atlanta National Processing Center at: PLC.Atlanta@dol.gov. To ensure the request is processed expeditiously, please include the following information in the e-mail request:Show the words “Withdrawal Request” and the employer’s name in the subject line of the e-mail.

   In the body of the e-mail, include the following information:

   1. Application Number
   2. Employer’s Name
   3. Employer’s EIN
   4. Foreign worker’s Name
   5. Name and title of individual requesting withdrawal

   If the application was filed by mail or if the employer does not have access to e-mail, a letter must be mailed to the National Processing Center using the format as outlined above.

4. How can an employer withdraw a PERM application if it has already been certified?An employer may withdraw a certified PERM application at any time. A certified PERM application may not be withdrawn electronically; therefore, the employer should send a withdrawal request by U.S. Mail to the Atlanta Processing Center:
   

   Atlanta National Processing Center
   ATTN: Certification Withdrawal
   Harris Tower
   233 Peachtree Street, Suite 410
   Atlanta, Georgia 30303

   The employer must enclose all pages of the original certified ETA Form 9089 issued by the National Processing Center and include the following information in the written withdrawal request:

   Show the words “Withdrawal Request – Certified PERM Application” and the employer’s name in the subject line of the letter.

   In the body of the letter, include the following information:

   1. Application Number
   2. Employer’s Name
   3. Employer’s EIN
   4. Foreign worker’s Name
   5. Name and title of individual requesting withdrawal

   NOTE: While an application may be withdrawn at any time, if the employer has received an audit letter, it is still required to comply with the audit procedure provisions of 20 CFR § 656.20. The employer must submit the documentation required by the Certifying Officer within 30 days from the date of the audit letter.

5. Once an employer requests its application be withdrawn, how soon can the employer file a new application for the same foreign worker?After requesting a withdrawal, an employer may not file a new ETA Form 9089 for the same foreign worker until one of the following occurs:(A) Employer sees, using the online PERM system, that the status of the original case changes from “In Process” to “Withdrawn,” or

   (B) Employer receives confirmation (via standard U.S. Mail or e-mail) from the NPC that the ETA Form 9089 currently in process has been withdrawn.

   The employer is reminded that an employer may not file a new application merely because the online status changed to “Denied.” The employer must wait until it receives the Final Determination Form from the National Processing Center stating the reasons for the denial. This ensures the employer is apprised of all the application’s deficiencies.

1. For purposes of posting the Notice of Filing for a permanent labor application, what does the Office of Foreign Labor Certification count as a “business day”?
2. How does an employer demonstrate that it is open for business?
3. What should I do if my permanent labor application was denied because I included a Saturday, Sunday, and/or holiday to complete the Notice of Filing 10 consecutive business day posting requirement?
4. Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process hag timeframe end at least 30 days prior to filing?
5. Must the ten consecutive business days posting of the notice of filing timeframe end at least 30 days prior to filing?
6. What address must the employer provide on the posted notice of filing?
7. For how long must the employer publish a notice of filing in the employer’s in-house media?
8. Could the publishing of the notice of filing in the employer’s in-house media be counted as one of the additional steps required in the recruitment for professional occupations provision?
9. Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?
10. May I post a Notice of Filing for a permanent labor certification indefinitely?
11. I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?
12. Where must I post a Notice of Filing for a permanent labor certification for roving employees?
13. Does the language on the electronic in-house media Notice of Filing need to be exactly the same as the language on the physical in-house Notice of Filing?

1. For purposes of posting the Notice of Filing for a permanent labor application, what does the Office of Foreign Labor Certification count as a “business day”?OFLC has consistently interpreted “business day” to mean Monday through Friday, except for Federal holidays. However, where an employer is open for business on a Saturday, Sunday, and/or holiday, the employer may include the Saturday, Sunday and/or holiday in its count of the 10 consecutive business day period required for the posting of the Notice of Filing so long as the employer demonstrates that it was open for business on those days. Similarly, where an employer is not open for business any day, Monday through Friday, the employer should not include any such days in its count of the 10 consecutive business day period required for the posting of the Notice of Filing.
   December 21, 2010
2. How does an employer demonstrate that it is open for business?If an employer is requested on audit or otherwise to demonstrate that it was open for business on a Saturday, Sunday, and/or holiday at the time of posting, the employer must provide documentation which establishes that on those days: 1) its employees were working on the premises and engaged in normal business activity; 2) the worksite was open and available to its clients and/or customers, if applicable, as well as to its employees; and 3) its employees had access to the area where the Notice of Filing was posted
   December 21, 2010
3. What should I do if my permanent labor application was denied because I included a Saturday, Sunday, and/or holiday to complete the Notice of Filing 10 consecutive business day posting requirement?Within 30 days of the date of the determination, the employer may file a request for reconsideration with the Certifying Officer and provide documentation demonstrating that at the time of posting the Notice of Filing, the employer was open for business. If the application is already on appeal before the Board of Alien Labor Certification Appeals, then the employer may file a request to remand for further processing.
   December 21, 2010
4. Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?Yes, for college and university teachers, notices of filing may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment.
5. Must the ten consecutive business days posting of the notice of filing timeframe end at least 30 days prior to filing?Yes, the last day of the posting must fall at least 30 days prior to filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application.
   
6. What address must the employer provide on the posted notice of filing?The employer must provide the address of the appropriate Certifying Officer for the area of intended employment. Addresses for the National Processing Centers and Certifying Officers, including a chart of the states and territories within their jurisdiction, can be found under the section, How to File, above.
7. For how long must the employer publish a notice of filing in the employer’s in-house media?If the employer normally recruits for similar positions in the employer’s organization through in-house media, then the employer must publish the notice of filing in its in-house media in accordance with the employer’s normal procedures for recruitment of similar positions or for 10 consecutive business days, whichever is of longer duration.
   
8. Could the publishing of the notice of filing in the employer’s in-house media be counted as one of the additional steps required in the recruitment for professional occupations provision?No, posting of the notice of filing on in-house media, including an “Intranet,” can not be counted as an additional recruitment step, as it is believed that potential job applicants would only view the notice as a legal or information notice, not as an advertisement for a job opportunity, and would not apply.
9. Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process. However, the notice of filing must include the required advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).
   
10. May I post a Notice of Filing for a permanent labor certification indefinitely?Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor’s regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).NOTE: At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.
11. I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor’s regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).NOTE: At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.
    
12. Where must I post a Notice of Filing for a permanent labor certification for roving employees?If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media–whether electronic or print–in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies’ headquarters.

    If the work-site(s) is unknown and the staffing agency has no clients, the application would be denied based on the fact that this circumstance indicates no bona-fide job opportunity exists. The employer cannot establish an actual job opportunity under this circumstance. A denial is consistent with established policy in other foreign labor certification programs where certification is not granted for jobs that do not exist at the time of application.

13. Does the language on the electronic in-house media Notice of Filing need to be exactly the same as the language on the physical in-house Notice of Filing?The regulations require that the employer publish the notice internally using in-house media–whether electronic or print–in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The language should give sufficient notice to interested persons of the employer’s having filed an application for permanent employment labor certification for the relevant job opportunity. It is not required to mirror, word for word, the physical posting. In most cases, the physical posting language will be the most efficient way to electronically post the Notice of Filing; in others, the software program used to create the electronic in-house posting may be unable to accept all of the language used in the physical Notice of Filing. In every case, the Notice of Filing that is posted to the employer’s in-house media must state the rate of pay and apprise the reader that any person may provide documentary evidence bearing on the application to the Certifying Officer. If there is insufficient space to include the Certifying Officer’s address, then information as to where the address can be found must be provided.

1. How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?
2. When advertising for a professional occupation, must the required steps, i.e., the job order, the two print advertisements, and the three additional recruitment steps be different?
3. Will placing an advertisement on America’s Job Bank (AJB) satisfy the “web site other than the employer’s” additional step requirement for professional occupations?
4. Is it permissible to use forms of media other than the alternative steps listed in the professional occupations recruitment provision, i.e., is it permissible to count advertisements on movie theater screens, on screens in airports, on sides of buses, billboards, etc., as additional steps?
5. What documentation can an employer provide to evidence its use of an employee referral program with incentives as one of the mandatory three additional recruitment steps for a professional occupation?

1. How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations? The employer must recruit under the standards for professional occupations set forth in § 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor’s or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor’s or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at § 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.
2. When advertising for a professional occupation, must the required steps, i.e., the job order, the two print advertisements, and the three additional recruitment steps be different?Generally, all the required steps must be different. Steps can not be duplicated nor can one step be used to satisfy two requirements, except in the case of copies of web pages generated in conjunction with the newspaper advertisements which can serve as documentation of the use of a web site other than the employers. For example, the employer can not count two advertisements in a local and/or ethnic newspaper, or two postings on a web site, as two steps. Similarly, the employer can not use a professional journal in lieu of a second Sunday newspaper advertisement and then count it again as an additional “trade or professional organizations” recruitment step, or count the job order again as an additional “web site other than the employer’s” step.
3. Will placing an advertisement on America’s Job Bank (AJB) satisfy the “web site other than the employer’s” additional step requirement for professional occupations?Yes, but only if the placement is not being used to satisfy the job order requirement. Where the State Workforce Agency job order placement procedure consists of placement of the job order on AJB, then that job order placement can not be counted as one of the additional recruiting steps.
4. Is it permissible to use forms of media other than the alternative steps listed in the professional occupations recruitment provision, i.e., is it permissible to count advertisements on movie theater screens, on screens in airports, on sides of buses, billboards, etc., as additional steps?No, it is not permissible to use other forms of media other than the alternative steps listed in the professional occupations provision as additional steps. The restriction on acceptable forms of media is governed, in part, by questions of verifiability. Employers, however, are not precluded from using these means as above and beyond the regulation requirements.
5. What documentation can an employer provide to evidence its use of an employee referral program with incentives as one of the mandatory three additional recruitment steps for a professional occupation?Pursuant to 20 CFR 656.17(e)(4)(ii)(G), an employer can document its use of an employee referral program with incentives by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered as well as other appropriate documentation.  In addition to establishing the existence of a referral program, employers must document that its employees were aware of the vacancy for which certification is being sought through means such as a posting on the employer’s internal web site.  The Notice of Filing provided to satisfy § 656.10(d) shall not be sufficient for this purpose.
   August 3, 2010

1. What is considered an acceptable newspaper and/or acceptable journal and is there a published list?
2. Is the employer permitted to use an electronic national professional or trade journal?

1. What is considered an acceptable newspaper and/or acceptable journal and is there a published list?There is no published list of acceptable publications.Most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers (or journals for certain professional positions) that are most likely to bring responses from able, willing, qualified, and available U.S. workers. The employer must be able to document that the newspaper and/or journal chosen is the most appropriate to the occupation and the workers likely to apply for the job opportunity.

   NOTE: In the case of a rural area where there is no newspaper with a Sunday edition and the employer chooses to use the edition having the widest circulation, the employer must be able to document the edition chosen does, in fact, have the widest circulation.

2. Is the employer permitted to use an electronic national professional or trade journal?The employer may not use an electronic national professional journal to satisfy the provision found at 20 CFR 656.17(e)(1)(i)(B)(4) permitting the use of a journal as an alternative to one of the mandatory Sunday advertisements for professional positions. The employer may not use an electronic national professional journal to satisfy the provision found at § 656.18(b)(3) requiring an advertisement in a journal under optional special recruitment procedures for college and university teachers. The employer must use a print journal to satisfy these two requirements. However, if the employer wishes to use a professional or trade organization as a recruitment source to satisfy the additional recruitment required for professionals found at § 656.17(e)(1)(ii)(E), the employer may use that organization’s electronic journal to place an advertisement. Dated copies of pages from the electronic journal showing the advertisement can serve to satisfy the documentation requirement.

1. When must the advertisements in the newspaper or professional journals be placed?
2. Must all recruitment take place at least 30 days, but no more than 180 days prior to filing?
3. What are the sequencing or timeframe requirements for the various additional recruitment steps?
4. When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?
5. How do I count days to establish recruitment timelines and time periods as outlined by the regulation?

1. When must the advertisements in the newspaper or professional journals be placed?Generally, the newspaper advertisements must be placed on two different Sundays at least 30 days, but no more than 180 days, prior to filing the application. The Sundays may be consecutive.However, if the job opportunity is located in a rural area that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation.

   This exception applies to rural newspapers only. If a suburban newspaper has no Sunday edition, the employer must publish the Sunday advertisement in the most appropriate city newspaper that serves the suburban area.

   For journals, there is no specific edition requirement, however, the advertisement must be placed at least 30 days, but no more than 180 days, prior to filing the application.

2. Must all recruitment take place at least 30 days, but no more than 180 days prior to filing?No, while the majority of the recruitment must take place within the 30 – 180 day timeframe, one of the three additional steps required for professional occupations may consist solely of activity which takes place within 30 days of filing. However, none of the steps may take place more than 180 days prior to filing the application.
3. What are the sequencing or timeframe requirements for the various additional recruitment steps?Beyond the standard “no greater than 180 days and no less than 30 days prior to filing” there are no further timeframe requirements. The only sequencing requirement is that the two Sunday advertisements must be placed on two different Sundays which may be consecutive.NOTE: There is one exception to the standard 30 – 180 days prior to filing timeframe: One of the additional steps required for recruitment for professional occupations may be conducted within 30 days prior to filing. However, no steps may have taken place more than 180 days prior to filing.
4. When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of the foreign worker.
5. How do I count days to establish recruitment timelines and time periods as outlined by the regulation?Timelines are the number of days prior to or after a required event. When counting a timeline, the day of the event is not counted, the next day is counted as one, and the last day is included in the count. Thus, when determining the required 30 day timeline prior to filing an application for a newspaper advertisement placed on Thursday, February 1, 2007, the Thursday is not counted because it is the day of the event. Friday, February 2nd, is counted as day 1 of the timeline; Saturday, February 3rd, day 2; etc., up until Saturday, March 3rd, which is day number 30. The application can be filed on the 30th day after the event, Saturday, March 3rd, but not before. The same result is achieved if counting back from the day of the filing. If the application is filed on Saturday, March 3rd, the 3rd, is not counted because it is the day of the event. Friday, the 2nd, becomes day 1, Thursday, the 1st, is day 2, back to February 1st, the 30th day. Under the limitation precluding filing in the 30 days prior to the date of filing, if an application was filed on March 3, 2007, a newspaper or national journal advertisement could have been placed as late as February 1st, but no later.Time Periods are the number of days during which an activity must take place. Examples of time periods are the requirement a job order must be placed for 30 days and the requirement that a Notice of Filing must be posted for ten consecutive business days. When counting a time period, both the start date and end date are included in the count. Thus, if a job order is on the State Workforce Agency web site from February 1, 2007, through March 8, 2007, February 1st, is day 1, February 2nd, is day 2, March 2nd, is day number 30, March 8th, is day number 36.

   To determine the first date on which the application can be filed after posting a job order, the 30 day time period for the job posting and the 30 day prior to filing timeline must both be calculated. In the example we are using, March 2nd, [not March 8th] is the last day of the 30 day time period for the job order placement and is considered the event day so it is not counted in the timeline. Rather, the counting of the filing timeline starts on March 3rd, which is counted as day 1, March 4th, is day 2; etc., up until April 1st, which is day 30, the earliest possible filing date for an application. In counting backward from April 1st to February 1st, the first is only day 59, not day 60 as would be the outcome if the 30 day time period required for the job order plus the 30 day timeline restriction prior to filing were added. This is because two counting paradigms are being combined—one where the event (or start date) is counted, the other where it is not. Counting forward 60 days from the start of the 30 day job order time period does provide the correct calculation if the first day of the event is counted, as required, when counting days in a time period. To avoid mistakes, it is recommended that the time period and the timeline be counted separately.

   As another example, the regulation requires a Notice of Filing posting for a time period of ten consecutive business days. If the order is posted on Monday, April 30, 2007, Monday is day 1, Friday, May 4th, is day 5; the following Monday, May 7th, is day 6; and Friday, May 11th, is day 10. May 11th, is the last day of this time period and is therefore defined as the event and is not counted when calculating the 30 day restriction prior to filing timeline. To calculate the 30 day timeline, May 12th, is day 1, May 13th, day 2, May 23rd, day 12; May 31st, day 20; and June 10th, is day 30. The application can be filed on June 10, 2007.

   Examples of the earliest filing date permissible for a particular Notice of Filing posting or job order placement date are as follows:

   If the Notice of Filing is posted on Thursday, June 28, 2007, the posting dates must be June 28 – July 12, and the earliest filing date permissible is Saturday, August 11, 2007, (the notice of filing must be posted for “ten consecutive business days and, therefore, neither weekends nor the Fourth of July are counted).

   If the Notice of Filing is posted on Monday, August 20, 2007, the posting dates must be August 20 – August 31, 2007, and the earliest filing date permissible is Sunday, September 30, 2007 (the 30 day prior to filing limitation has no business day restriction and, therefore, weekends and holidays are included in the count).

   If the job order start date is Monday, November 13, 2006, the end date must be Tuesday, December 12, 2006, and the earliest filing date permissible is Thursday, January 11, 2007 (neither the 30 day job order placement requirement nor the 30 day prior to filing limitation have a business day restriction and, therefore, weekends and holidays are included in the counts).

   In Summary: There are two “types” of time calculations used by the Permanent Online System: timeline calculations and time period calculations.

   1. Timeline calculations are those calculations verifying the number of days prior to or after an event. For example, verifying that advertisements did not run less than 30 days but no more then 180 days from the date of filing.
      1. When calculating timelines, the day the event occurred is not counted. The next day is counted as day one and the last day of the event is included in the count.
   2. Time period calculations are those calculations verifying the number of days an activity took place. For example, verifying a job order ran for 30 days.
      1. When calculating time periods, the day the event occurred is counted as day one and the last day of the event is included in the count.

1. What level of detail regarding the job offer must be included in the advertisement?
2. If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?
3. Does the job location address need to be included in the advertisement?
4. Does the employer’s address need to be included in the advertisement?
5. Does the offered wage need to be included in the advertisements?
6. Why must the advertisement medium be different in order for advertisements to be counted as additional steps? For instance why is it not permissible to count advertisements on two separate web sites as two steps or to place a third advertisement in the same newspaper of general circulation rather than using a local or ethnic publication and have it count as an additional step?
7. Does the advertisement have to contain the so-called “Kellogg” language where the application requires it to be used on the application?
8. Can jobs requiring experience be advertised through an on-campus placement office?
9. Is the employer required to include the statement, “any suitable combination of experience of education, training, or experience is acceptable” on the application when the employer requires experience in an alternate occupation and not in the job offered?
10. After completing our recruitment, but before filing the ETA Form 9089, our company’s name was changed after it was wholly acquired by another company. Does the company name used in the advertisements used for recruitment have to match the company name used on the ETA Form 9089?

1. What level of detail regarding the job offer must be included in the advertisement?Employers need to apprise applicants of the job opportunity. The regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer’s application, the employer will meet the requirement of apprising applicants of the job opportunity. An advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity.NOTE: While employers will have the option to place broadly written advertisements with few details regarding job duties and requirements, they must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.
2. If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.
3. Does the job location address need to be included in the advertisement?No, the address does not need to be included. However, advertisements must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. Employers are not required to specify the job site, unless the job site is unclear; for example, if applicants must respond to a location other than the job site (e.g., company headquarters in another state) or if the employer has multiple job sites.
4. Does the employer’s address need to be included in the advertisement?No, the employer’s physical address does not need to be included in the advertisement. Employers may designate a central office or post office box to receive resumes from applicants, provided the advertisement makes clear where the work will be performed.
5. Does the offered wage need to be included in the advertisements?No, the offered wage does not need to be included in the advertisement, but if a wage rate is included, it can not be lower than the prevailing wage rate.
6. Why must the advertisement medium be different in order for advertisements to be counted as additional steps? For instance why is it not permissible to count advertisements on two separate web sites as two steps or to place a third advertisement in the same newspaper of general circulation rather than using a local or ethnic publication and have it count as an additional step?As with all the recruitment requirements, the purpose of requiring the employer to use three additional recruitment steps is to ensure that the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity. It should be noted that each of the steps may target slightly different applicant populations. Using at least three of the additional steps normally used by businesses to recruit workers is a means of apprising a greater number of U.S. applicants of the job opportunity and more adequately substantiates an employer’s claim there are no available U.S. workers for the job offer.
7. Does the advertisement have to contain the so-called “Kellogg” language where the application requires it to be used on the application? Where the “Kellogg” language is required by regulation to appear on the application, it is not required to appear in the advertisements used to notify potential applications of the employment opportunity. However, the placement of the language on the application is simply a mechanism to reflect compliance with a substantive, underlying requirement of the program. Therefore, if during an audit or at another point in the review of the application it becomes apparent that one or more U.S. workers with a suitable combination of education, training or experience were rejected, the application will be denied, whether or not the Kellogg language appears in the application.
8. Can jobs requiring experience be advertised through an on-campus placement office?For professional positions, the regulations at 20 CFR 656.17(e)(1)(ii)(D) permit, as an additional recruitment step, optional pre-filing recruitment at or through a college or university placement office. The preamble to the regulation (69 Fed. Reg. 77325, 77345 (Dec. 27, 2004)) assumed that this option would be used only if the employment opportunity requires a degree but no experience. The Department has examined this policy in light of the fact that many college and university placement offices maintain job listings that are used by alumni with experience as well as recent college or university graduates. Consequently, the job opportunities requiring experience are included in the listings making campus placement offices a viable recruitment source for professional job requiring experience as well as not requiring experience. As a result, the Department is clarifying its position and permitting this option to be used for employment opportunities even if the job requires experience in addition to the degree.
9. Is the employer required to include the statement, “any suitable combination of experience of education, training, or experience is acceptable” on the application when the employer requires experience in an alternate occupation and not in the job offered?No, the employer is not required to include the statement on the application if the employer has indicated it requires experience in an alternate occupation and not in the job offered. The “any suitable combination of experience of education, training, or experience is acceptable” statement is only required where there are primary as well as alternative requirements and then only if the foreign worker is already employed by the employer and the foreign worker does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s “alternative” as opposed to its “primary” requirements.
10. After completing our recruitment, but before filing the ETA Form 9089, our company’s name was changed after it was wholly acquired by another company. Does the company name used in the advertisements used for recruitment have to match the company name used on the ETA Form 9089?The employer must conduct recruitment using its legal name at the time of the recruitment. However, an Application for Permanent Employment Certification (ETA Form 9089) must be filed in the name of the employer’s legal name at the time of submission. If a merger, acquisition, or any other corporate change in ownership occurs between the time of recruitment and the time of submission, resulting in a disparity between the employer’s name shown on the advertising used to recruit for a job opportunity and the employer’s name on the submitted ETA Form 9089, the employer must be prepared to provide documentation — in the event of an audit — proving that it is the successor in interest, a determination made based on the totality of the circumstances, including whether the current employer has assumed the assets and liabilities of the former entity with respect to the job opportunity.

1. Can one advertisement be used for multiple positions?
2. Is it possible to provide more specific guidelines for drafting PERM advertisements? For example, where there are multiple openings for the job offered which of the following, if not all, would be acceptable: “5 Attorneys,” “Attorneys” or “Attorneys, multiple openings”?

1. Can one advertisement be used for multiple positions?Yes, an advertisement for multiple positions may be used as long as all provisions in § 656.17(f), advertising requirements, have been met.NOTE: While employers have the option to place broadly written advertisements with few details regarding job duties and requirements, employers must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.
2. Is it possible to provide more specific guidelines for drafting PERM advertisements? For example, where there are multiple openings for the job offered which of the following, if not all, would be acceptable: “5 Attorneys,” “Attorneys” or “Attorneys, multiple openings”?As stated in the advertising requirements provision, the advertisement must provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity for which certification is sought. At issue in evaluating whether the advertisement meets this criterion is whether the advertisement is written to attract the interest of the greatest number of qualified U.S. workers and encourage them to apply, not whether specific words or phases have, or have not, been used. The advertisement will be reviewed to ensure that it reasonably describes the vacancy and reflects the job opportunity as described on the ETA Form 9089. With respect to the examples, any one of the three can be used as long as it is specific enough, under the circumstances, to apprise U.S. workers of the job opportunity. In any event, if employers feel it necessary, employers may always include more detail.

1. Must the employer place a job order with the State Workforce Agency (SWA) or will a job order placed on America’s Job Bank (AJB) be sufficient?
2. Must the required 30 day job order timeframe end at least 30 days prior to filing?
3. Should the employer seek the information required regarding the placement of job orders from the State Workforce Agency (SWA) in the area of intended employment?
4. Must the employer contact all individuals identified as a “match” by a computerized state employment system or must the employer only contact those applicants who have submitted a resume and/or response as specified by the employer in the job order?

1. Must the employer place a job order with the State Workforce Agency (SWA) or will a job order placed on America’s Job Bank (AJB) be sufficient?The employer is required to place a job order with the SWA serving the area of intended employment. It is recognized that states vary in their job order placement procedures and that some may, in fact, place job orders on AJB, in which case, as long as the employer is working through the SWA, a job order placed on AJB would be sufficient.NOTE: The employer is free to choose AJB as a means of satisfying one of the three additional steps required under professional occupations recruitment if the posting on AJB is not being used to satisfy the job order requirement.
2. Must the required 30 day job order timeframe end at least 30 days prior to filing? Yes, the 30 day job order timeframe must end at least 30 days prior to filing. While the employer is not limited to the 30 day timeframe and may choose to post the job order for a longer period, 30 days of the posting must take place at least 30 days prior to filing.
   
3. Should the employer seek the information required regarding the placement of job orders from the State Workforce Agency (SWA) in the area of intended employment?Yes, the employer should seek any information required regarding job orders from the SWA. If an employer is not clear on how to place a job order, the employer should check with the SWA responsible for the area of intended employment. Placement of job orders with a SWA must be in accordance with each SWA’s rules and regulations. In other words, SWAs place labor certification job orders the same way they place any other job order.
4. Must the employer contact all individuals identified as a “match” by a computerized state employment system or must the employer only contact those applicants who have submitted a resume and/or response as specified by the employer in the job order? The employer is responsible for considering/contacting those applicants who have affirmatively provided a response as specified by the employer in the job order.

1. Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?
2. If the employer’s job opportunity is for an occupation which is subject to a wage determination under the Davis-Bacon Act (DBA) or the McNamara-O’Hara Service Contract Act (SCA), must the employer use the DBA or SCA?
3. Must the employer obtain a prevailing wage determination before the employer begins recruitment?
4. Why did the prevailing wage two tier skill level structure change to four levels?
5. When does the four wage level provision go into effect?
6. Is the employer permitted to use a valid prevailing wage determination issued prior to March 8, 2005?
7. Is it permissible to use the same prevailing wage determination for more than one application?
8. When is it permissible to use the median in lieu of the arithmetic mean to establish the prevailing wage?
9. What is meant by “domestic worker applicants” in the provision on actual minimum requirements?
10. What is meant by “contract employee” under the employer’s actual minimum requirements provision?

1. Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?No, the wage offered must equal or exceed the prevailing wage. The wage must be at least 100% of the prevailing wage. The 5% deviation, permitted under the former regulation, is no longer acceptable.
2. If the employer’s job opportunity is for an occupation which is subject to a wage determination under the Davis-Bacon Act (DBA) or the McNamara-O’Hara Service Contract Act (SCA), must the employer use the DBA or SCA?No, the employer is not required to use a wage determination under the DBA or the SCA but may choose to do so.
3. Must the employer obtain a prevailing wage determination before the employer begins recruitment?No, the employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.
   
4. Why did the prevailing wage two tier skill level structure change to four levels?Congress enacted the Consolidated Appropriations Act of 2005 amending the Immigration and Naturalization Act (Section 212(p), 8 U.S.C. 1182(p)) to provide:
   “Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the two levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level.”
5. When does the four wage level provision go into effect?The four wage level provision goes into effect on March 8, 2005, as does the requirement to pay 100% of the prevailing wage.
   
6. Is the employer permitted to use a valid prevailing wage determination issued prior to March 8, 2005?Yes, but only if the wage source used to make the determination was one other than the wage component of the Occupational Employment Statistics (OES), i.e., an employer-provided survey, a McNamara-O’Hara Service Contract Act or Davis-Bacon Act wage, or a Collective Bargaining Agreement wage. To apply under PERM, those employers using the OES must obtain a prevailing wage determination after March 8, 2005.NOTE: In all labor certification applications filed (postmarked or electronically dated) on or after March 8, 2005, the wage offer must be 100% of the prevailing wage determination and, if the OES is used to make the prevailing wage determination, the determination must be based on the four wage level provision.
7. Is it permissible to use the same prevailing wage determination for more than one application?Yes, as long as provisions regarding the validity period are followed, the employer is permitted to use the same prevailing wage determination if the prevailing wage is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved.
   
8. When is it permissible to use the median in lieu of the arithmetic mean to establish the prevailing wage?If an employer provided survey acceptable under § 656.40(g) provides only a median and not an arithmetic mean, use of the median is permitted.
   
9. What is meant by “domestic worker applicants” in the provision on actual minimum requirements?For purposes of § 656.17(i)(3), the provision on actual minimum requirements, the term “domestic” is being used as an alternative for “United States.”
10. What is meant by “contract employee” under the employer’s actual minimum requirements provision?For purposes of the actual minimum requirements provision, the term “contract employee” is intended to include all persons contracted to work for the employer. The broad use of the term under the actual minimum requirements provision is intended to ensure the provision applies to experience gained working for the employer by the foreign worker, whatever the foreign worker’s employment status.

1. How detailed does the recruitment report have to be with respect to the lawful, job-related reasons U.S. workers were rejected?

1. How detailed does the recruitment report have to be with respect to the lawful, job-related reasons U.S. workers were rejected?The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity. NOTE: The Certifying Officer, after reviewing the employer´s recruitment report, may request the U.S. workers’ resumes or applications, sorted by the lawful job related reasons the workers were rejected.NOTE: The Certifying Officer, after reviewing the employer’s recruitment report, may request the U.S. workers’ resumes or applications, sorted by the lawful job related reasons the workers were rejected.

1. Can business necessity be used to justify requirements which exceed the occupation’s Specific Vocational Preparation (SVP) and/or are not normal to the occupation involved in the employer’s application?
2. Can the employer include a requirement for a foreign language?
3. How do you know if the job description contains requirements beyond those considered normal for the occupation? Does informing the State Workforce Agency (SWA) on a prevailing wage determination request that the job contains requirements not normal to the occupation meet an employer’s obligation to inform the Department of Labor of these requirements?

1. Can business necessity be used to justify requirements which exceed the occupation’s Specific Vocational Preparation (SVP) and/or are not normal to the occupation involved in the employer’s application?Yes, business necessity is a means to justify requirements which are not normal to the occupation and/or exceed the SVP. While the job opportunity’s requirements, as a rule, must be those normally required for the occupation and must not exceed the SVP level assigned to the occupation as shown in the O*Net Job Zones, business necessity may be used to justify requirements not normal to the occupation and/or which exceed the SVP. NOTE: Business necessity can be established by the employer demonstrating that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.
2. Can the employer include a requirement for a foreign language?Yes, the employer can include a foreign language requirement if it is justified by business necessity. The regulation requires that a foreign language requirement be justified by business necessity based on the nature of the occupation, e.g., translator, or the need to communicate with a large majority of the employer’s customers, contractors, or employees who can not communicate effectively in English. Documentation necessary to establish such a business necessity is noted in § 656.17(h)(2).NOTE: Needing to communicate with co-workers or subordinates who can not effectively communicate in English and/or having a working environment where safety considerations would support a foreign language requirement have been added to the ways to justify business necessity for a foreign language requirement.

3. How do you know if the job description contains requirements beyond those considered normal for the occupation? Does informing the State Workforce Agency (SWA) on a prevailing wage determination request that the job contains requirements not normal to the occupation meet an employer’s obligation to inform the Department of Labor of these requirements?The job summary specific to the SOC/O*NET code and Occupation Title provided by the SWA on the prevailing wage determination is considered to identify the requirements normal to that occupation. Any requirements in addition to those listed in the summary will be considered not normal for the occupation and the employer should be prepared to provide proof of business necessity if requested by the Certifying Officer. These summary reports can be accessed at http://online.onetcenter.org. Even if the employer has informed the SWA of these requirements in a prevailing wage determination request, the employer must still inform the Department of Labor by correctly attesting on the Application for Permanent Employment Certification, ETA Form 9089/Questions H-12 or H-13. Additionally, if the employer has not accurately attested on ETA Form 9089 that there are requirements not normal to the occupation, the application will be denied whether proof of business necessity is available or not.

1. Under what circumstances may the foreign worker use experience gained with the employer as qualifying experience?
2. For purposes of determining whether the foreign worker gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?
3. Does the foreign worker need to have a bachelor’s or higher degree to qualify for a professional occupation?
4. Is the employer permitted to accept an equivalent foreign degree?
5. Is the employer permitted to accept alternative job experience/qualifications?
6. I need to enter the years of experience, education, or training on my ETA Form 9089. How do I do this? What if it’s a range?
7. If the employer’s minimum requirements include some period of training, must the foreign worker’s training be listed on the Application for Permanent Employment Certification, ETA Form 9089, Section K, as well as attested to in Section J?

1. Under what circumstances may the foreign worker use experience gained with the employer as qualifying experience?If the foreign worker already is employed by the employer, the employer can not require U.S. applicants to possess training and/or experience beyond what the foreign worker possessed at the time of initial hire by the employer, including as a contract employee: (1) unless the foreign worker gained the experience while working for the employer in a position not substantially comparable to the position for which certification is sought; or (2) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.NOTE: A substantially comparable job or position means a job or position requiring performance of the same duties more than 50 percent of the time.
2. For purposes of determining whether the foreign worker gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?For purposes of determining whether the foreign worker gained experience with the employer, an employer is “an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at § 656.3.”
3. Does the foreign worker need to have a bachelor’s or higher degree to qualify for a professional occupation?No, the foreign worker does not need to have a bachelor’s or higher degree to qualify. However, if the employer is willing to accept work experience in lieu of a baccalaureate degree, such work experience must be attainable in the U.S. labor market and the employer’s willingness to accept work experience in lieu of a degree must apply equally to U.S. applicants and must be stated on the application form.
   
4. Is the employer permitted to accept an equivalent foreign degree?Yes, the employer may accept an equivalent foreign degree. However, the employer’s willingness to do so must be clearly stated on the Application for Permanent Employment Certification, ETA Form 9089.
5. Is the employer permitted to accept alternative job experience/qualifications?Yes, an employer may specify alternative experience or qualification requirements, provided the alternative requirements and primary requirements are substantially equivalent to each other with respect to whether the applicant can perform the proposed job duties in a reasonable manner. As discussed in the preamble to the final regulation, this is the standard developed by the Board of Alien Labor Certification Appeals in Matter of Francis Kellogg.NOTE: Even when the employer’s alternative requirements are substantially equivalent, but the foreign worker does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s alternative requirements, the alternative requirements will be considered unlawfully tailored to the foreign worker’s qualifications unless the employer has indicated on the application that applicants with any suitable combination of education, training or experience are acceptable.
   
6. I need to enter the years of experience, education, or training on my ETA Form 9089. How do I do this? What if it’s a range?When entering the years of experience, education, or training on ETA Form 9089, the questions asking for this type of information specify the answer be provided in the number of months necessary. Therefore, if the employer requires 1 year experience in the job offered in ETA Form 9089, the number 12 (for 12 months) would be entered for the answer to Question H-6A.However, if the employer would accept a range of experience in the job offered (such as 1 to 3 years), the employer must identify the actual minimum years/months of experience required to perform the job (please see 656.17(i) for additional information on Actual Minimum Requirements). The number that represents the Actual Minimum Requirement for the number of years/months experience would be the number entered in Question H-6A. If a range is indeed the Actual Minimum Requirement, the employer should use the low end of the range as the answer, since that represents the minimum level of requirement.
   
7. If the employer’s minimum requirements include some period of training, must the foreign worker’s training be listed on the Application for Permanent Employment Certification, ETA Form 9089, Section K, as well as attested to in Section J?An employer must list the actual minimum requirements for the job opportunity sought to be filled through the filing of the labor certification application. If training is required, the employer must list the training required for the position in Section H.5, noting the number of months of training required in H.5.A, and the field of training in H.5.B. The employer and foreign worker must also attest that the foreign worker meets the training requirement in section J.17.The employer is also required to list in Section K, as noted on the Form ETA 9089, “any other experience that qualifies the foreign worker for the job opportunity for which the employer is seeking certification.” Accordingly, an employer seeking certification should list in Section K any training experience possessed by the foreign worker that qualifies the foreign worker for the job opportunity, regardless of how the training was secured. The source of the training should also be identified. For example, an application for the job opportunity of physician filed on behalf of a foreign worker that requires 36 months of medical residency training in H.5 should not only mark section J.17 as “yes” but also list in Section K all training experience by which the foreign worker meets that training requirement, as well as any other experience requirement. An employer filing an application for a job opportunity that requires 12 months of training in section H.5 should also list the training received by the foreign worker in section K, regardless of whether it was a paid training opportunity, and also list the source of the training.

   When completing section K, enter the training provider in the employer information section, to include the address. For the type of business, enter ‘training provider’ unless the training is of a work study type such as an apprenticeship or medical residency. The job title should be ‘Training’ unless there is an actual job title, in which case it should begin with ‘Training –’ followed by the title, such as ‘Training – Apprentice Carpenter’. The employer should enter the beginning and end dates of the training. When there is an actual number of hours of training, the employer should enter those actual hours, otherwise the employer should enter the average number of hours per week spent in training. In the “Job Details” the employer should list the topics covered by the training, any certification of completion issued and, when applicable, the organization issuing the certificate, if different from the training provider, and the final test completion or certification date.

   For example:
   Employer A completes Section K as follows:
   1. Large Teaching Hospital
   2. 111 Main Street
   3. Anytown, DC 99999 USA
   4. Hospital
   5. Training-First Year Resident
   6. 01/01/2000
   7. 12/31/2000
   8. 60
   9. Basic hospital procedures. Patient care techniques. Staff duties and responsibilities.
   10. First Year Residency Certificate, 12/31/2000

   Employer B completes Section K as follows:
   1. Independent Project Management School
   2. 111 Main Street
   3. Anothertown, DC 99999 USA
   4. Training Provider
   5. Training
   6. 01/01/2000
   7. 12/31/2000
   8. 20
   9. Basic project management concepts. Use of graphics tools. Resource allocation.
   10. Professional Project Manager Certificate, Project Management Institute, 01/12/2001

1. Are college and university teacher occupations included in Schedule A?
2. If an application is for a college or university teacher who does not qualify as a college or university teacher of exceptional ability what provisions apply?
3. If an application for a Schedule A college or university teacher is denied, is the employer permitted to file for a labor certification under § 656.17?
4. Are the recruitment provisions different for college and university teachers?
5. Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?
6. Does the use of an electronic national professional journal satisfy the advertisement requirement under the college and university teachers’ special recruitment and documentation provision?
7. Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?
8. Must a prevailing wage determination be obtained from the State Workforce Agency (SWA) if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision?
9. When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

1. Are college and university teacher occupations included in Schedule A?No, only college and university teachers of exceptional ability in the sciences or arts who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States fall under Schedule A, Group II, Sciences or Arts.
2. If an application is for a college or university teacher who does not qualify as a college or university teacher of exceptional ability what provisions apply?Applications for college and university teachers who do not qualify under the Schedule A, Group II, Sciences or Arts provision may be filed either under the provision for optional special recruitment and documentation procedures for college and university teachers, § 656.18, or under the provision for the basic process, § 656.17.
   
3. If an application for a Schedule A college or university teacher is denied, is the employer permitted to file for a labor certification under § 656.17?Yes, the employer may file an application previously denied under Schedule A for a college or university teacher either under the provision for optional special recruitment and documentation procedures for college and university teachers, § 656.18, or under the provision for the basic process, § 656.17.
4. Are the recruitment provisions different for college and university teachers?Yes, while the employer may choose to recruit for college and university teachers under the basic process, the employer may choose to recruit under § 656.18, optional special recruitment and documentation procedures for college and university teachers.NOTE: The employer must support hiring of the foreign worker by documenting that the foreign worker was found to be more qualified than each U.S. worker who applied for the job opportunity.
   
5. Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?Yes, the employer must provide a notice of filing which must include the advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).
6. Does the use of an electronic national professional journal satisfy the advertisement requirement under the college and university teachers’ special recruitment and documentation provision?No, use of an electronic national professional journal does not satisfy the optional special recruitment provision’s advertising requirement. The employer must use a print publication.
7. Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process.
   
8. Must a prevailing wage determination be obtained from the State Workforce Agency (SWA) if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision?Yes, a prevailing wage determination must be obtained from the SWA even if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision. The attestation provision of the PERM regulation requires the employer certify that the offered wage equals or exceeds the prevailing wage determined pursuant to the prevailing wage provision which, in turn, requires the employer to obtain a prevailing determination from the SWA having jurisdiction over the proposed area of intended employment.
9. When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of foreign worker.

1. What is Schedule A and who qualifies?
2. Is an application for a labor certification for Schedule A occupations filed with a Department of Labor National Processing Center?
3. What form is used to file an application for a labor certification for Schedule A occupations?
4. Must the employer request a prevailing wage determination from the State Workforce Agency (SWA) if filing under Schedule A?
5. If filing an application under Schedule A, must an employer provide notice of filing?
6. If an application for a Schedule A occupation is denied is the employer permitted to file for a labor certification for a physical therapist or professional nurse under the basic process, § 656.17?
7. Is it true that the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination is not acceptable as a means of obtaining a labor certification for professional nurses under Schedule A?
8. What documentation must the employer file when seeking a Schedule A labor certification for a professional nurse?

1. What is Schedule A and who qualifies?Schedule A lists those occupations for which a determination by the Department of Labor has been made that there are not sufficient United States workers who are able, willing, qualified, and available and the wages and working conditions of United States workers similarly employed will not be adversely affected by employment of foreign workers in those occupations. An employer seeking a labor certification for a physical therapist, a professional nurse, or an alien of exceptional ability in the performing arts, sciences or arts, to include college and university teachers, should review § 656.5, Schedule A, to determine whether the foreign worker’s qualifications meet the provision’s requirements.
2. Is an application for a labor certification for Schedule A occupations filed with a Department of Labor National Processing Center?No, an application for a labor certification for Schedule A occupations is filed, in duplicate, with the appropriate Department of Homeland Security (DHS) office.
3. What form is used to file an application for a labor certification for Schedule A occupations?The employer must use an Application for Permanent Employment Certification, ETA Form 9089, which includes a prevailing wage determination.
4. Must the employer request a prevailing wage determination from the State Workforce Agency (SWA) if filing under Schedule A?Yes, a prevailing wage determination must be requested from the SWA having jurisdiction over the proposed area of intended employment.
   
5. If filing an application under Schedule A, must an employer provide notice of filing?Yes, an employer must comply with the posting requirement in § 656.10(d) to file applications under Schedule A with the appropriate Department of Homeland Security office.
6. If an application for a Schedule A occupation is denied is the employer permitted to file for a labor certification for a physical therapist or professional nurse under the basic process, § 656.17?No, labor certifications for professional nurses and for physical therapists will not be considered under § 656.17.
7. Is it true that the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination is not acceptable as a means of obtaining a labor certification for professional nurses under Schedule A?Yes, the passage of the examination alone is not acceptable; the foreign worker is required to have a CGFNS Certificate. A CGFNS Certificate documents that, in addition to having passed the nursing skills examination, the foreign worker has demonstrated English language proficiency and CGFNS has made a favorable evaluation of the individual’s nursing credentials.
   
8. What documentation must the employer file when seeking a Schedule A labor certification for a professional nurse? The employer must file, as part of its labor certification application, documentation the foreign worker meets one of three requirements: the foreign worker has a Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate, the foreign worker has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or the foreign worker holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.NOTE: Unlike the filing requirements under other PERM provisions, for Schedule A occupations, the employer is required to submit the applicable documentation when the employer files the application with the appropriate Department of Homeland Security office.

1. Does PERM have a provision similar to, or the same as, the Schedule B provision in the regulation in effect prior to March 28, 2005?
2. If Schedule B under the regulation in effect prior to March 28, 2005, has been eliminated and there is no longer a waiver provision for those occupations listed in Schedule B such as household domestic service workers, bookkeepers, laborers, etc., does that mean employers are not permitted to obtain a labor certification for those occupations?

1. Does PERM have a provision similar to, or the same as, the Schedule B provision in the regulation in effect prior to March 28, 2005?No, the former regulation’s Schedule B provision has been eliminated; there is no similar provision in PERM.
2. If Schedule B under the regulation in effect prior to March 28, 2005, has been eliminated and there is no longer a waiver provision for those occupations listed in Schedule B such as household domestic service workers, bookkeepers, laborers, etc., does that mean employers are not permitted to obtain a labor certification for those occupations?
   
   No, the elimination of the former regulation’s Schedule B and its waiver provision does not prevent employers from seeking labor certifications for the occupations listed in Schedule B. To the contrary, employers are free to file applications under the provisions of PERM, as appropriate, for occupations found in the former regulation’s Schedule B and are not required to obtain a waiver in order to do so.

1. What are the procedures to be followed in filing applications on behalf of aliens of exceptional ability in the performing arts formerly processed under the special handling procedures in the former regulations?

1. What are the procedures to be followed in filing applications on behalf of aliens of exceptional ability in the performing arts formerly processed under the special handling procedures in the former regulations?Aliens of exceptional ability in the performing arts are now included in § 656.5, Schedule A, under Group II. Accordingly, such applications must be filed in duplicate with the appropriate office of the Department of Homeland Security. The documentation that must be filed in support of such applications is listed in § 656.15, Applications for labor certification for Schedule A occupations.

1. Will there be certain responses to questions on the Application for Permanent Employment Certification, ETA Form 9089, that will automatically trigger an audit?
2. When, during an audit, is there a 90 day suspension of the audit?
3. In the event of an audit, can an application be withdrawn?
4. Can the employer submit alternative evidence in the absence of primary evidence in response to an audit request?
5. The United States Citizenship and Immigration Services (USCIS) has posted a sample of a Notice of Filing for a Schedule A permanent labor certification on their website. Will the Department of Labor accept/honor such a posting as sufficient proof of the Notice of Filing for a non-Schedule A permanent labor certification?

1. Will there be certain responses to questions on the Application for Permanent Employment Certification, ETA Form 9089, that will automatically trigger an audit?Questions regarding audit criteria will not be addressed. The criteria was purposely not included in the regulation in order to retain the flexibility to change audit criteria, as needed, for example, to focus on certain occupations or industries when information indicates program abuse may be occurring. The regulation grants authority to increase the number of random audits or change the criteria for targeted audits. Making the audit process predictable would defeat the purpose of the audits and undermine the program’s integrity.
2. When, during an audit, is there a 90 day suspension of the audit?Under § 656.31(a), Department of Labor processing of an application, including audit procedures, may be suspended in certain circumstances. Specifically; “If possible fraud or willful misrepresentation involving a labor certification is discovered before a final labor certification determination; the Certifying Officer will refer the matter to the Department of Homeland Security (DHS) for investigation, and must send a copy of the referral to the Department of Labor’s Office of Inspector General (DOL OIG). If 90 days pass without the filing of a criminal indictment or information, or receipt of a notification from DHS, DOL OIG, or other appropriate authority that an investigation is being conducted, the Certifying Officer may continue to process the application.”
3. In the event of an audit, can an application be withdrawn?An application can not be withdrawn once it has been selected for audit. If circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. If an application is selected for audit, the employer can not forego the audit by claiming the application is no longer valid or applicable. The employer will be held to the audit provision standards and possible resulting consequences.
   
4. Can the employer submit alternative evidence in the absence of primary evidence in response to an audit request?Under the procedures outlined in 20 CFR 656.20, in response to an audit, employers must present the required documentation. The documentary evidence the regulations require the employer to maintain in its compliance file is what is sought in an audit request. For example, the use of an employer’s web site is to be documented by dated copies of pages from that site advertising the occupation involved in the application. However, if the employer does not have the primary evidence suggested by the regulation, it may attempt to satisfy the request through the use of alternative evidence not specifically listed in 656.17. In the case of the employer’s web site, in the absence of a copy of the posting, the employer may provide an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job. Whether such evidence will be accepted depends upon the nature of the submission and the presence of other primary documentation. The more primary evidence is not provided, the more likely the audit response will be found to be non-responsive.
   
5. The United States Citizenship and Immigration Services (USCIS) has posted a sample of a Notice of Filing for a Schedule A permanent labor certification on their website. Will the Department of Labor accept/honor such a posting as sufficient proof of the Notice of Filing for a non-Schedule A permanent labor certification? An employer may use the posting sample of a Notice of Filing issued by the USCIS and such a posting will be honored by the Department of Labor (DOL) provided that the Notice of Filing includes the employer’s name when filing under the basic labor certification process. DOL will honor the use of the sample form, but is not endorsing or requiring its use. Employers may use other forms, as long as they comply with the PERM regulation. Please note that, while the USCIS sample does not include an employer name field, the Notice must contain the name of the employer if the application is filed under 20 CFR 656.17.

1. Procedure for requesting a Duplicate Labor Certificate. ETA-9089.

1. Procedure for requesting a Duplicate Labor Certificate. ETA-9089.Requests for a duplicate ETA-9089 can be made by contacting the Department of Labor or by requesting that USCIS assist with obtaining a duplicate labor certificate ETA-9089 from DOL. The following steps are suggested when requesting a duplicate ETA-9089 through USCIS. Please include on the top of the I-140, Petition for Alien Immigrant Worker, a cover sheet (preferably highlighted with colored paper) stating the following:LOST OR MISPLACED LABOR CERTIFICATION, REQUEST FOR DUPLICATE, DO NOT REJECT

   On the same sheet, the following information should also be included:

   1. Attorney name;
   2. Petitioner’s name;
   3. Beneficiary’s name;
   4. ETA case number;
   5. Priority Date;
   6. Specify whether you want USCIS to initiate the request for duplicate certificate ETA-9089 or you have contacted DOL to initiate the request for duplicate;
   7. Proper fee, signature and all required supporting documents;
   8. A print screen showing that the case has been certified.
   9. Provide the reason(s) for requesting that the Service Center secure a duplicate, approved labor certificate from DOL, e.g. “Case was certified, original approved labor certificate was never received in the mail.”

   Once the duplicate certificate ETA-9089 is received by USCIS, the petitioner and/or his representative will be contacted via a Request For Evidence (RFE) notice in order to secure the petitioner’s signature on the duplicate certificate. The certificate must be signed by the petitioner before USCIS can accept it for filing purposes.

   1. Petitioners must send the signed duplicate ETA-9089, along with a copy of the RFE notice requesting the signature. Failure to do so may result in significant delays in processing or denial.
   2. Petitioners are reminded not to submit concurrent I-140 and I-485, Application for Permanent Residence, when submitting petitions without the labor certificate, and with a request that USCIS secures a duplicate ETA-9089 from DOL or evidence of having requested the duplicate from DOL.
   3. If Forms I-140 and I-485 are concurrently filed without the ETA-9089, but with a request for duplicate labor certificate, the I-140 may be accepted and the I-485 rejected. However, if the fees for both forms are remitted with a single check, both forms will be rejected.
   4. Applicants who have submitted a Form I-140 with a request for duplicate labor certificate ETA-9089 are encouraged to wait until approval of the Form I-140 before submitting Form I-485. When submitting the Form I-485 subsequent to approval of the Form I-140, the approval notice of the Form I-140 must be submitted as well, along with appropriate fees and supporting documents.

1. When does an approved labor certification expire?

1. When does an approved labor certification expire?The expiration date of an approved labor certification depends on when it was approved. For labor certifications approved prior to July 16, 2007, the labor certification expires 180 days after July 16, 2007 – that is, January 12, 2008 – unless filed prior to its expiration with the Department of Homeland Security in support of a Form I-140 Immigrant Petition for Alien Worker. Labor certifications approved on or after July 16, 2007, will expire 180 days from their date of issue, unless filed prior to expiration with the Department of Homeland Security in support of a Form I-140 Immigrant Petition for Alien Worker.

1. What is invalidation?

1. What is invalidation?The Department of Homeland Security and a Consul of the Department of State have the authority to invalidate an issued labor certification if a determination is made, either in accordance with the agencies’ procedures or by a court, that fraud or willful misrepresentation of a material fact involving the labor certification application exists.

1. Is the employer permitted to request a review by the Certifying Officer of a State Workforce Agency (SWA) prevailing wage determination?
2. Is the employer permitted to request a review of the Certifying Officer’s prevailing wage determination?
3. What recourse does the employer have in the event a labor certification is denied or revoked?
4. For prevailing wage appeals, when does the 30 day clock start running to file an appeal of the State Workforce Agency (SWA) determination?
5. If my application for certification is denied, how long do I have to wait before I can re-apply?
6. When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?

1. Is the employer permitted to request a review by the Certifying Officer of a State Workforce Agency (SWA) prevailing wage determination?Yes, the employer may request a review by the Certifying Officer of a SWA prevailing wage determination by sending a request for review to the SWA that issued the prevailing wage determination within 30 days of the date of the determination.
2. Is the employer permitted to request a review of the Certifying Officer’s prevailing wage determination?Yes, the employer is permitted to request a review by the Board of Alien Labor Certification of the Certifying Officer’s prevailing wage determination by submitting, in writing and within 30 days of the date of the decision of the Certifying Officer, a request to the Certifying Officer who made the determination.
   
3. What recourse does the employer have in the event a labor certification is denied or revoked?If a labor certification is denied or revoked, the employer may make a request for review to the Board of Alien Labor Certification Appeals (BALCA) by submitting, in writing and within 30 days of the date of the determination, a request to the Certifying Officer who denied or revoked the application.
4. For prevailing wage appeals, when does the 30 day clock start running to file an appeal of the State Workforce Agency (SWA) determination?The 30 days to file an appeal to the Certifying Officer begins on the date that the SWA makes a final decision on the case. If the employer submits supplemental information (as permitted one time), the 30 days begins after the SWA considers and makes a decision on the supplemental information.
   
5. If my application for certification is denied, how long do I have to wait before I can re-apply?Upon receipt of the denial notification via U.S. mail, a new application may be filed at any time unless a request for review by the Board of Alien Labor Certification Appeals (BALCA) has been submitted. While a request for BALCA review is pending, a new application for the same occupation and the same foreign worker cannot be filed. See 20 CFR 656.24(e)(6). (For more information, please see the FAQ “When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?”)
6. When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?The Department of Labor considers a request for review to be pending with BALCA under 20 CFR 656.24(e)(6) at the time either a request for BALCA review or a request for reconsideration is submitted to the Certifying Officer.

1. What is the effective date for the prohibition on substitution?
2. What is the scope of validity of a permanent labor certification for which a substitution request has been made?

1. What is the effective date for the prohibition on substitution?Section 656.11(a) of 20 CFR part 656 prohibits any request to change the identity of an foreign worker beneficiary on any application for permanent labor certification that is submitted after July 16, 2007.
2. What is the scope of validity of a permanent labor certification for which a substitution request has been made?As revised, §656.30(c)(2) states that a permanent labor certification is valid only for the particular job opportunity, the foreign worker named on the original application (unless a substitution was approved prior to July 16, 2007), and the area of intended employment stated on the application (either Form ETA 750 or Form ETA 9089). As the Department made clear in the Supplementary Information that accompanied the Final Rule, ‘approved’ for purposes of the substitution request means approved by DOL at the DOL stage in processing such a request. Pursuant to §656.11(a), the Department will consider a request for substitution made prior to July 16, 2007, even if it does not make a determination or complete action on that request until after the Final Rule’s effective date.

1. How does the Department define “sale, barter, or purchase” of a labor certification?
2. How does the Department define prohibited payments for “activity related to obtaining permanent labor certification?”
3. What are activities relating to obtaining permanent labor certification?
4. Does the rule prohibit reimbursement agreements?
5. What should employers do who have entered into contracts where payments from foreign workers are either owed after July 16, or owed prior to July 16 but not paid until after July 16?
6. What should attorneys do who have entered into contracts where payments from foreign workers for labor certification preparation and filing are either owed after July 16, or owed prior to July 16 but not paid until after July 16?
7. Do the regulations require attorneys to modify contracts for dual representation entered into before July 16, 2007?
8. Do the regulations permit counsel for the foreign worker to voluntarily represent the employers on a pro bono basis?

1. How does the Department define “sale, barter, or purchase” of a labor certification?No application for labor certification or approved labor certification may be sold, bartered, or purchased as of July 16, 2007. A “sale” means an agreement between a seller and a buyer to transfer ownership of a labor certification in consideration of monetary payment or promise of monetary payment. “Barter” means the transfer of ownership of a labor certification from one person to another by voluntary act or agreement in exchange for a commodity, service, property, or other valuable consideration. “Purchase” means the voluntary agreement to transfer ownership of a labor certification from one person to another based on valuable consideration. The Final Rule adds these definitions to §656.3.
2. How does the Department define prohibited payments for “activity related to obtaining permanent labor certification?”Pursuant to §656.12(b), an employer may not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the foreign worker will benefit that party. “Payment” includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other “in kind” payments; and free labor. This includes the prohibition against the foreign worker paying the employer’s attorneys’ fees in connection with the labor certification application.
   
3. What are activities relating to obtaining permanent labor certification?“Activity related to obtaining permanent labor certification,” for purposes of §656.12(b), includes, but is not limited to, recruitment activity, the use of legal services, and any other action associated with the preparation, filing, or pursuit of an application. This section prohibits any such payment. A foreign worker may pay his/her own costs, including attorneys’ fees for representation of the foreign worker, except that when the same attorney represents both the foreign worker and the employer, all costs related to preparing, filing, and obtaining the permanent labor certification must be borne by the employer.
4. Does the rule prohibit reimbursement agreements?The regulation prohibits payment by the foreign worker or others of employer-incurred costs related to labor certification, including attorneys’ fees. If, for example, a reimbursement agreement would require the employee to reimburse the employer for some or all of the attorneys’ fees it incurred associated with preparing, filing and obtaining the labor certification, such reimbursement agreement would violate the Final Rule.
   
5. What should employers do who have entered into contracts where payments from foreign workers are either owed after July 16, or owed prior to July 16 but not paid until after July 16?Section 656.12(b) prohibits an employer from seeking or receiving payment of any kind for activity related to obtaining permanent labor certification, including the employer’s attorneys’ fees. If the payment obligation, however, accrued prior to July 16, the employer has the right to seek the payment after the effective date.For applications filed on or after July 16, 2007, an employer who has sought this type of payment from the foreign worker beneficiary of the application must answer “yes” to Question I-23 on ETA Form 9089 (“Has the employer received payment of any kind for the submission of this application?”), even if the employer has not yet received payment from the foreign worker. Employers should describe the payment and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (ie, July 16, 2007). Employers answering “yes” to Question I-23 must be prepared, if requested by the Certifying Officer, to explain and support the details of such payment.
   
6. What should attorneys do who have entered into contracts where payments from foreign workers for labor certification preparation and filing are either owed after July 16, or owed prior to July 16 but not paid until after July 16?Both because the Final Rule governs the payment or reimbursement of an employer’s attorneys’ fees, and because an attorney is the employer’s legal representative (and so stands in the place of the employer), the rule prohibits payments to an attorney for the employer’s legal fees when such payments would not be permissible directly to the employer. If the payment obligation accrued, however, prior to July 16, the attorney has the right to seek the payment after the effective date and should note on the application, for the record, when the obligation accrued.For applications filed on or after July 16, 2007, if an attorney or firm completing the application represents the employer, or the employer and foreign worker jointly, and has either sought or received a payment from the foreign worker that is directly related to the employer’s labor certification costs as outlined in the regulation, the attorney must answer “yes” to Question I-23.

   Attorneys answering “yes” to Question I-23 must be prepared to explain and support the details of such payments. The attorney should describe the payment, explain that the payment was to the attorney and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (ie, July 16, 2007).

7. Do the regulations require attorneys to modify contracts for dual representation entered into before July 16, 2007?The regulations state that an employer may not seek or receive payment from the employee (or a third party except in specific circumstances) after July 16 2007. Attorneys may represent employers in the preparation, filing and obtaining of a labor certification and may be paid for that activity by the employer. Attorneys may represent foreign workers in their own interests in the review of a labor certification (but not in the preparation, filing and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the foreign worker for that activity. To the extent, however, that a contract exists between the attorney and the employee, which calls for the receipt on or after July 16 of payment for services rendered on or after July 16 in connection with the preparation, filing or obtaining of a labor certification, such services are to be paid for, under the regulation, by the employer.
8. Do the regulations permit counsel for the foreign worker to voluntarily represent the employers on a pro bono basis?No. But for the attorney’s representation of the foreign worker, the attorney would not be furnishing such services to the employer. This is prohibited by the regulations.

1. When may the Department debar an employer, attorney, or agent?

1. When may the Department debar an employer, attorney, or agent?Pursuant to §656.31(f), the Department may debar an employer, attorney, and/or agent from the permanent labor certification program for up to three years, when it determines such employer, attorney, and/or agent has facilitated or participated in one or more of the following actions, if such action was prohibited at the time it occurred:
   1. Sale, barter, or purchase of an application for labor certification or approved labor certification;
   2. Prohibited payment for an activity related to obtaining permanent labor certification;
   3. Willful provision or assistance in the provision of false or inaccurate information for an application for labor certification;
   4. Pattern or practice of failure to comply with the terms of Form ETA 9089, Application for Permanent Employment Certification, or Form ETA 750, Application for Alien Employment Certification;
   5. Pattern or practice of failure to comply with the Permanent Labor Certification audit process;
   6. Pattern or practice of failure to comply with the Permanent Labor Certification supervised recruitment process; or
   7. Fraud or willful misrepresentation involving a Permanent Labor Certification, as determined by a court, the Department of Homeland Security, or the Department of State.

1. What is the H-1C visa program?
2. What criteria must a hospital meet to employ temporary foreign RNs under the H-1C program?
3. Where can I find a list of Health Professional Shortage Areas as of 1997?
4. What qualifications must a foreign individual have to qualify as a “registered nurse” under this program?
5. How does a qualified hospital obtain authority to employ H-1C nurses?
6. What special obligations must a hospital employing foreign RNs meet under the H-1C program?
7. Can I hire a nurse under a different program?

1. What is the H-1C visa program?The Nursing Relief for Disadvantaged Areas Act of 1999 created a new nonimmigrant category for registered nurses (RNs) who will work in areas designated as “Health Professional Shortage Areas” by the U.S. Department of Health and Human Services.
2. What criteria must a hospital meet to employ temporary foreign RNs under the H-1C program?
   1. The sponsoring hospital/employer must:
      1. be a “Subpart D” hospital under the Social Security Act;
      2. be located in a health professional shortage area as of March 31, 1997;
      3. have at least 190 acute care beds according to the 1994 Cost Report;
      4. be reimbursed by medicare for at least 35% of acute care inpatient days (according to the 1994 Cost Report);
      5. be reimbursed by medicaid for at least 28% of acute care inpatient days (according to the 1994 Cost Report); and
      6. be located in a health professional shortage region or area.
3. Where can I find a list of Health Professional Shortage Areas as of 1997?
   1. You can find the lists of designated Health Professional Shortage Areas as designated by the Secretary of Health and Human Services (HHS) in the Federal Register, Vol. 62, No. 104, dated Friday, May 30, 1997.
4. What qualifications must a foreign individual have to qualify as a “registered nurse” under this program?
   1. The criteria a foreign worker must meet to qualify as a “registered nurse” under the H-1C program is as follows:
      1. Have obtained a full and unrestricted license to practice nursing in the country where the nurse obtained a nursing education, or have received a nursing education in the U.S. For example:
         (a) Have passed the examination given by the Commission on Graduates for Foreign Nursing Schools (CGFNS);
         (b) Have a full and unrestricted license to practice as a RN in the state of employment or;
         (c) Have a full and unrestricted RN’s license in any state and received temporary authorization to practice as a RN in the state of employment; and
      2. Be fully qualified and eligible, under the state laws governing the place of employment, to practice as an RN immediately upon admission to the U.S., and be authorized under such laws to be employed by the hospital.
5. How does a qualified hospital obtain authority to employ H-1C nurses?
   1. The sponsoring hospital must file an application (Form ETA 9081) with the Department of Labor’s Employment and Training Administration and, after the application has been accepted by the Department, file a Petition for Nonimmigrant Worker (Form I-129) with the USCIS.
6. What special obligations must a hospital employing foreign RNs meet under the H-1C program?
   1. Provide every RN who works at the hospital with a copy of its application (Form ETA 9081) which specifies certain terms and conditions of employment;
   2. Notify U.S. workers of the intent to petition for H-1C RNs;
   3. Pay at least the prevailing wage for the local area in which all RNs are employed by the hospital (including U.S. RNs);
   4. Pay at least the same wage paid to similarly employed U.S. RNs;
   5. Take timely and significant steps to recruit and retain U.S. RNs to reduce its dependence on temporary foreign nurses;
   6. Not hire H-1C RNs during a strike/lockout involving RNs at the hospital;
   7. Not lay off any U.S. RNs during the period from 90 days before until 90 days after filing any H-1C petition with the USCIS;
   8. Limit the total number of H-1C RNs employed to no more than one-third of the total number of RNs employed at the facility;
   9. Not allow any H-1C RN to perform nursing services at any location (worksite) other than a worksite controlled by the facility;
   10. Not transfer the H-1C RNs from one work place to another.
   11. Keep certain documents available for public viewing, including the application, prevailing wage determination, and petitions.
7. Can I hire a nurse under a different program?Yes. Employers that do not qualify for the H-1C program may hire nurses using the Permanent program or the H-1B program. Since a professional nurse is a Schedule A occupation, employers may file a Form ETA 750 directly with the USCIS. Employers may also hire a nurse as an H-1B. However, the H-1B program requires that a nurse on an H-1B have a bachelor’s degree and the job that the nurse is hired to perform requires a bachelor’s degree. USCIS ultimately makes the decision as to whether or not a job qualifies for an H-1B visa.

1. What is a D-1 crewmember certification?
2. Are there other exceptions?

1. What is a D-1 crewmember certification? 

   Performance of longshore work at U.S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exceptions. One such exception requires an employer to file an attestation stating that it is the prevailing practice for the activity at that port, there is no strike or lockout at the place of employment, and that notice has been given to U.S. workers or their representatives.

2. Are there other exceptions?Another exception requires that, before using alien crewmen to perform longshore activities in the State of Alaska, the employer will make a bona fide request for and employ U.S. longshore workers who are qualified and available in sufficient numbers from contract stevedoring companies, labor organizations recognized as exclusive bargaining representatives of United States longshore workers, and private dock operators.

1. Which visa classifications require the filing of a Labor Condition Application (LCA)?
2. What is the definition of a “specialty occupation”?
3. Can I file the LCA by fax?
4. How do I obtain H-1B Disclosure Information?
5. How do I file an H-1B complaint?

1. Which visa classifications require the filing of a Labor Condition Application (LCA)?
   An employer seeking to file an H-1B, H-1B1, or E-3 visa application must first file an LCA with the Department. The H-1B visa classification includes workers in specialty occupations and fashion models of distinguished merit and ability. The H-1B1 visa classification includes workers in specialty occupations and is limited to nationals of Singapore and Chile. The E-3 visa classification includes workers in specialty occupations and is limited to nationals of Australia. 

   Posted February 17, 2011

2. What is the definition of a “specialty occupation”?
   For purposes of the H-1B, H-1B1 and E-3 programs, the Department’s regulations define a specialty occupation as an occupation that requires theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor’s degree or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. 

   Posted February 17, 2011

3. Can I file the LCA by fax?
   No. The Department does not accept LCAs filed by fax. 

   Posted February 17, 2011

4. How do I obtain H-1B Disclosure Information?
   You can access H-1B disclosure information from our website at http://www.flcdatacenter.com. 

   Posted February 17, 2011
   

5. How do I file an H-1B complaint?
   Complaints should be filed with the Wage and Hour Division local office which has jurisdiction over the physical location of the employer. Check the ‘blue pages’ in the local telephone book or http://www.dol.gov/whd/america2.htm#Map. 

   The form to file a complaint (Form WH-4) can be downloaded at http://www.dol.gov/whd/forms/fts_wh4.htm

   Complaints on not fulfilling the attestations and pay go to the Wage and Hour Division, while complaints of fraudulent or misrepresented applications (e.g. the company does not exist or never employs the individuals, or someone who is not a representative of the employer signs the application) go to the Office of Inspector General (OIG) which then generally works with the Department of Justice (DOJ) to investigate. The Wage and Hour Division will forward fraud cases appropriately.

   Posted February 17, 2011

1. How does an employer initiate the process to hire an H-1B, H-1B1 or E-3 worker?
2. How does an employer petition to file an LCA by mail?
3. May I use the same LCA to request multiple positions?
4. May one LCA list multiple places of employment?
5. How does an employer in the Commonwealth of Northern Mariana Islands (CNMI) initiate the process to hire an H-1B, H-1B1 or E-3 nonimmigrant worker?

1. How does an employer initiate the process to hire an H-1B, H-1B1 or E-3 worker?
   In order to employ a nonimmigrant worker in H-1B, H-1B1 or E-3 status, an employer must complete and file electronically the Labor Condition Application (LCA), through the iCERT Portal System no more than 6 months before the initial date of intended employment. Employers with physical disabilities or those who lack Internet access may file by mail but must first receive permission from the Office of Foreign Labor Certification (OFLC) to do so. 

   Posted February 17, 2011

2. How does an employer petition to file an LCA by mail?
   Employers with physical disabilities or those who lack Internet access and cannot electronically file the ETA Form 9035E through the iCERT Portal System must petition the Administrator of OFLC for approval to file an LCA on the ETA Form 9035 in paper format by mail. The employer must send the written request to: 

   Administrator, Office of Foreign Labor Certification
   Employment & Training Administration
   U.S. Department of Labor
   Room C-4312
   200 Constitution Avenue, NW
   Washington, DC 20210

   The employer’s written request must establish the need to file by mail, and include an explanation of physical disability or lack of Internet access. The employer should be prepared to submit supporting documentation if requested by the OFLC.  The OFLC Administrator must approve the request before the employer may file by mail.

   Posted February 17, 2011

3. May I use the same LCA to request multiple positions?
   Yes. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification, and are either all part-time or all full-time positions. However, an employer must file separate LCAs for: 
   1. Workers in different visa categories, e.g. an H-1B position and an E-3 position may not be requested on the same ETA Form 9035/9035E;
   2. Nonimmigrant workers in different job classifications, e.g. a computer systems analyst (Standard Occupational Code [SOC] 15-0051.00) and a software engineer (SOC 15-0032.00) must be listed on separate applications;
   3. Full-time or part-time positions; and/or
   4. Exempt and non-exempt nonimmigrant workers for H-1B dependent employers and/or willful violators as indicated in Item I of the LCA.

   Posted February 17, 2011

4. May one LCA list multiple places of employment?
   Yes. An employer’s ETA Form 9035/9035E must list all of the places of intended employment that are identified at the time of filing.  The ETA Form 9035E (electronic format) can accommodate up to three places of intended employment.  For employers who have received pre-approval to submit an LCA by mail, since the ETA Form 9035 (paper format) can only accommodate one place of intended employment, the employer may submit an attachment identifying up to two additional worksites. An employer may file additional LCAs to identify additional places of employment beyond the three places listed on the original application. 

   Employers should note that the LCA must reflect an appropriate prevailing wage that corresponds to each place of intended employment; i.e. it must be the prevailing wage for the area of intended employment as defined by the Department’s regulations.

   Posted February 17, 2011

5. How does an employer in the Commonwealth of Northern Mariana Islands (CNMI) initiate the process to hire an H-1B, H-1B1 or E-3 nonimmigrant worker?
   The LCA filing process for an employer in the CNMI is the same as the LCA process outlined above. 

   Posted February 17, 2011

1. When I submit an LCA through the iCERT Portal System, will I receive notification of the status of my application?
2. I just received a denial of an LCA giving the reason of an invalid Federal Employer Identification Number (FEIN) as assigned by the Internal Revenue Service (IRS). How do I correct this?
3. I am filing on behalf of a new company, created through a recent merger. How do I get the information to DOL to avoid a denial?
4. What contact information should I enter in Section D (Employer Point of Contact Information) of the LCA Form ETA 9035 & 9035E?

1. When I submit an LCA through the iCERT Portal System, will I receive notification of the status of my application?Yes. When you submit an LCA through the iCERT Portal System at http://icert.doleta.gov, you will receive a courtesy email confirming that your application has been submitted. You will also receive an email when your application has been processed, providing you with the final determination on your application. If you do not receive email notification of the final determination after seven (7) working days, you may check the status of your LCA by logging onto the iCERT Portal System. If you cannot obtain status of your LCA from the iCERT Portal System, please contact the LCA Help Desk at LCA.Chicago@dol.gov. For technical or system problems concerning the iCERT Portal System or submission of your LCA, please contact the iCERT Portal System Help Desk at OFLC.Portal@dol.gov.Please note: You may check the status of your LCA at any time after submission by logging onto the iCERT Portal System.

   Posted February 17, 2011

2. I just received a denial of an LCA giving the reason of an invalid Federal Employer Identification Number (FEIN) as assigned by the Internal Revenue Service (IRS). How do I correct this?Denial for the FEIN value means that the FEIN entered in Section C.12 of the ETA
   Form 9035E by the employer could not be currently verified by the OFLC as a valid nine digit FEIN assigned by the IRS. When the employer receives a denial of an LCA on this ground, it also receives additional instructions from Chicago National Processing Center (CNPC) on how to resubmit an LCA. In order for the employer to overcome the issue identified on the denial determination for any future LCAs submitted using the denied FEIN, the employer will first need to submit at least one document that clearly displays the FEIN and the name of the employer associated with the unique identification number. Such documents may include: 
   • Documentation from IRS noting assignment of FEIN
   • Federal or State tax return (only acceptable with a preprinted label) or a preprinted tax coupon
   • Documentation from employer’s financial institution showing employer’s FEIN
   • Articles of incorporation, business license, or other certifications of business existence
   • Secretary of State or Corporation Commission registration documents
   • Official and/or government documents
   • Other documentation showing the FEIN and name of the employer

   In order to expedite the process, you may either fax, email as a PDF attachment, or mail the requested information to the following:

   FAX: (312) 353-6757. On the cover page of the fax, please write “LCA Business
   Verification Team Proof of Valid FEIN”, or

   EMAIL: LCA.Chicago@dol.gov. In the Subject Line, please write “LCA Business Verification Team Proof of Valid FEIN”, or

   MAIL: Attn: LCA Business Verification Team Proof of Valid FEIN
   U.S. Department of Labor ETA
   Chicago National Processing Center
   536 South Clark Street – 9th Floor
   Chicago, IL 60605

   The employer will be notified via email after the requested information has been reviewed. Only then should the employer submit a new LCA.

   Posted June 17, 2010

3. I am filing on behalf of a new company, created through a recent merger. How do I get the information to DOL to avoid a denial?
   The employer who is a “new” company (created through a merger, acquisition, sale, etc.) may submit the documentation described above to establish its new FEIN. It may then file an LCA. 

   Posted June 17, 2010

4. What contact information should I enter in Section D (Employer Point of Contact Information) of the LCA Form ETA 9035 & 9035E?
   The employer must enter the contact information of the employee who is authorized to act on behalf of the employer. This cannot be an agent or attorney, unless the agent or attorney is a direct employee of the employer. 

   Posted June 17, 2010

1. What are the LCA requirements?
2. Under the Department’s regulations, what are the employer’s obligations with respect to hiring a national of Chile or Singapore?
3. Under the Department’s regulations, what are the employer’s obligations with respect to hiring an Australian national?
   

1. What are the LCA requirements?
   In order to prevent an adverse effect on the U.S. workforce, an employer applying to temporarily hire a nonimmigrant worker in H-1B, H-1B1 or E-3 status must attest that it has met or will meet the following requirements: 
   • Wages: Pay the required wage to the workers for whom it will file a petition supported by the LCA for the duration of the authorized period of employment;
   • Working Conditions: Provide the nonimmigrant workers working conditions that will not adversely affect the working conditions of U.S. workers similarly employed, such as hours, shifts, vacation periods, and benefits based on the same criteria as those the employer offers to its U.S. workers;
   • No Strike/Lockout: Ensure that there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment at the time of filing the ETA Form 9035/9035E; and
   • Notice: Notify its U.S. workers that it intends to hire an H-1B, H-1B1 or E-3 nonimmigrant worker by either providing notice of the LCA to the bargaining representative (representing the workers of the employer in the same job classification and area of intended employment as the nonimmigrant worker), or where there is no bargaining representative, providing electronic notice of the filing of the LCA or by posting notice of the LCA in at least two conspicuous locations in the employer’s place(s) of business in the area of intended employment. The notice must contain specific information about the nonimmigrant workers sought and the process for submitting allegations of misrepresentation or non-compliance related to the LCA. Since the ETA Form 9035/9035E contains this information, employers may choose to comply with the notice requirement by providing or posting a copy of the ETA Form 9035/9035E.

   In addition, the employer must provide the nonimmigrant worker(s) with a copy of the certified ETA Form 9035/9035E no later than the first day on which the foreign worker begins to work for the employer.

   An employer who is H-1B dependent or a willful violator must also attest that it has met or will meet the following requirements:

   • Displacement: Non-displacement of the U.S. workers in the employer’s workforce;
   • Secondary Displacement: Non-displacement of the U.S. workers in another employer’s workforce; and
   • Recruitment and Hiring: Recruitment of U.S. workers and hiring of U.S. workers applicant(s) who are equally or better qualified than the H-1B non-immigrant(s).

   Posted February 17, 2011

2. H-1B1Under the Department’s regulations, what are the employer’s obligations with respect to hiring a national of Chile or Singapore?
   For the most part, the obligations of an employer filing an LCA with the Department where the beneficiary is either a national of Chile or a national of Singapore in the H-1B1 visa category are virtually the same as those applicable to employers hiring H-1B workers. 

   However, there are some differences in the H-1B1 visa category. The employer filing an LCA to hire a national of Chile or Singapore in the H-1B1 visa category must make one of the following appropriate notations on its ETA 9035: “H-1B1-Chile” or “H-1B1-Singapore”.

   In addition, Section 20 CFR 655.700(d) of the Department’s regulations provides a list of regulatory provisions that do not apply to the H-1B1 visa category, including: numerical visa cap provisions (note: the H-1B1 visa category is subject to a separate cap of 6,800 (1,400 for Chile and 5,400 for Singapore) initial visas annually); the provisions regarding the North American Free Trade Agreement; certain provisions for filing complaints; certain provisions regarding the H-1B dependent employers or willful violators; provisions regarding changes in the employer’s corporate structure or identity; provisions regarding short-term placement of H-1B foreign workers outside the area of intended employment; the provision defining H-1B dependent employers and willful violators; provisions regarding exempt H-1B workers; certain non-displacement provisions applicable to H-1B dependent employers and willful violators; provisions regarding recruitment of U.S. workers applicable to H-1B dependent employers and willful violators; and certain public examination of records requirements. This section also includes specific filing procedures for employers applying to hire foreign workers in the H-1B1 visa category with paragraphs (5) and (6) of the section applying to Chile and Singapore, respectively.

   Posted February 17, 2011

3. E-3 Under the Department’s regulations, what are the employer’s obligations with respect to hiring an Australian national?
   For the most part, the obligations of an employer filing an LCA with the Department where the beneficiary is an Australian national in the E-3 visa category are virtually the same as those applicable to employers hiring H-1B foreign workers. 

   However, there are some differences for the E-3 visa category. The employer filing an LCA to hire an Australian national in the E-3 visa category must make the following notation on its ETA Form 9035/9035E – “E-3 Australia”.

   In addition, Section 20 CFR 655.700(d) of the Department’s regulations provides a list of regulatory provisions that do not apply to the E-3 visa category including: numerical visa cap provisions (note: the E-3 visa category is subject to a separate cap of 10,500 initial visas annually); the provisions regarding the North American Free Trade Agreement; certain provisions for filing complaints; certain provisions regarding the H-1B dependent employers or willful violators; provisions regarding changes in the employer’s corporate structure or identity provisions regarding short-term placement of H-1B foreign workers outside the area of intended employment; the provision defining H-1B dependent employers and willful violators; provisions regarding exempt H-1B workers; certain non-displacement provisions applicable to H-1B dependent employers and willful violators; provisions regarding recruitment of U.S. workers applicable to H-1B dependent employers and willful violators; and certain public examination of records requirements. This section also includes specific filing procedures for employers applying to hire foreign workers in the E-3 visa category.

   Posted February 17, 2011

1. What is the required wage for purposes of the LCA program?
2. How does an employer determine the prevailing wage for purposes of the LCA program?
3. Why might an employer want to obtain a PWD from the National Prevailing Wage Center (NPWC)?
4. If an employer requests a PWD from the National Prevailing Wage Center (NPWC), does it have to obtain a determination from the NPWC before filing the LCA?
5. If an employer has received a prevailing wage determination from the NPWC how should the employer enter the PWD on the LCA?
6. When should an employer mark the box for “Other” in Item G.11 (prevailing wage source) of the ETA Form 9035/9035E?
7. What wage sources qualify as “independent authoritative sources” for purposes of determining the prevailing wage in the LCA program?
8. How should an employer identify a prevailing wage survey on the LCA?
9. What should the employer list as the prevailing wage if its elected wage source provides a wage that is lower than the applicable Federal, State or local minimum wage?
10. May an employer list the prevailing wage on the LCA in the form of an annual salary?
11. How should the employer list wage rates on the ETA 9035/9035E if the nonimmigrant is employed in a part-time capacity?
12. What are an H-1B employer’s pay obligations with respect to a nonimmigrant worker in nonproductive status?

1. What is the required wage for purposes of the LCA program?
   The required wage is the wage the employer must pay to its foreign workers in the H-1B, H-1B1 and E-3 visa categories for the entire period of authorized employment, as approved by the Department. The required wage rate must be the higher of the actual wage rate (the rate the employer pays to all other individuals with similar experience and qualifications who are performing the same job), or the prevailing wage (a wage that is predominantly paid to workers in the same occupational classification in the area of intended employment at the time the application is filed). In addition, an employer is not permitted to pay a wage that is lower than a wage required under any other applicable Federal, State or local law. 

   Posted February 17, 2011

2. How does an employer determine the prevailing wage for purposes of the LCA program?
   Although the Department’s regulations governing the LCA process do not require an employer to use any specific wage methodology to determine the prevailing wage, they do require that the prevailing wage be based on the best information available at the time the employer files an application. An employer filing an LCA may, but is not required to, request a prevailing wage determination (PWD) from the OFLC’s National Prevailing Wage Center (NPWC) by U.S. mail or through the iCERT Portal System. In the absence of a PWD issued by the NPWC, the employer may consider the following wage sources in determining the prevailing wage: 
   1. 1. A wage rate set forth in a collective bargaining agreement (CBA), or
      2. If the job opportunity is in an occupation which is not covered by a CBA:
   • • • A wage rate for the occupation and area of intended employment under the Davis-Bacon Act (DBA);
       • A wage rate for the occupation and area of intended employment issued under the McNamara-O’Hara Service Contract Act (SCA);
       • A wage rate produced by a survey conducted by an independent authoritative source that meets the requirements set forth in 20 CFR 655.731; or
       • A wage rate produced by another legitimate source of information, including the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) data available through the iCERT Portal System and the FLC Data Center.

   Under the American Competitiveness and Workforce Improvement Act (ACWIA), as implemented by the Department’s regulations, the prevailing wage for employees of an institution of higher education, an affiliated or related nonprofit entity, a nonprofit research organization, or a governmental research organization must be based only on the wages of similarly employed employees of such institutions in the area of intended employment. The ACWIA wages may be accessed through the iCERT Portal System and the FLC Data Center.

   For more information on the process of obtaining a PWD from the NPWC, please consult the Prevailing Wage Determination Policy Guidance and the Prevailing Wage FAQs on the OFLC web site.

   Posted February 17, 2011

3. Why might an employer want to obtain a PWD from the National Prevailing Wage Center (NPWC)?
   Under the Department’s regulations, the Department will deem the PWD from the NPWC as correct as to the amount of the wage in the event of an investigation by the Wage and Hour Division. However, this “safe harbor” does not protect an employer who has failed to pay the higher of the actual wage or the prevailing wage, and/or who has paid a wage that is lower than a wage required under any other applicable Federal, State or local law. 

   Posted February 17, 2011

4. If an employer requests a PWD from the National Prevailing Wage Center (NPWC), does it have to obtain a determination from the NPWC before filing the LCA?
   No. The employer does not need to obtain the PWD from the NPWC prior to filing the LCA. However, if the employer requests a PWD, but does not wait to obtain the PWD before submitting the LCA, the employer must consider the following: 
   • The employer may list the PWD from the NPWC as its prevailing wage source in Section G of the ETA Form 9035/9035E only if it has a PWD issued and valid on the day it submits the LCA. If the employer intends to file an LCA listing the NPWC-issued PWD as the source of the prevailing wage, it must wait until the NPWC actually issues the final PWD before submitting the LCA. The employer may not use iCERT tracking numbers and wage rates requested on the ETA 9141, in lieu of an actual final NPWC prevailing wage determination. Listing an NPWC-issued prevailing wage on an LCA operates as an endorsement of that wage and forecloses the employer’s ability to appeal the PWD after filing the LCA.
   • If the employer wishes to qualify for the “safe harbor” discussed in the previous FAQ, the employer must request a PWD from the NPWC and file an LCA during the prevailing wage validity period specified on the ETA Form 9141. If the employer cannot wait for the NPWC to issue the PWD before filing its LCA, the employer may instead rely on another legitimate source of available wages so long as the employer retroactively compensates the H-1B, H-1B1 or E-3 nonimmigrant for the difference between the wage the employer paid in reliance on the other legitimate wage source and the prevailing wage, if higher. Please see 20 CFR 655.731(a)(2)(ii)(A)(2).

   Posted February 17, 2011

5. If an employer has received a prevailing wage determination from the NPWC how should the employer enter the prevailing wage determination on the LCA?
   ETA Form 9035/9035E instructions for Item G.7 require the employer to identify either the State, district or territory where the prevailing wage was issued or the agency which issued the prevailing wage. However, as of January 1, 2010, prevailing wage determinations are only provided by the NPWC. Accordingly, an employer who has received a prevailing wage determination from the NPWC by mail or through the iCERT Portal System must enter under item G.7 either “District of Columbia” (for the State/district/territory) or “NPWC” (for the National Prevailing Wage Center) or both. An employer who has received a PWD from the NPWC must also enter the prevailing wage tracking number under Item G.7a. 

   Posted February 17, 2011

6. When should an employer mark the box for “Other” in Item G.11 (prevailing wage source) of the ETA Form 9035/9035E? Item G.11 of the ETA Form 9035/9035E specifically lists four prevailing wage sources: Occupational Employment Statistics (OES), Collective Bargaining Agreement (CBA), Davis-Bacon Act (DBA), and McNamara-O’Hara Service Contract Act (SCA). When an employer uses one of these sources, it must mark the box next to the prevailing wage source it used. When the employer uses a prevailing wage source not specifically listed in Item G.11, it must mark the box for “Other,” and list the specific prevailing wage source used in item G.11b.Important note: Pursuant to the instructions accompanying the ETA Form 9035/9035E, if an employer obtained a prevailing wage using OES data from the Foreign Labor Certification Data Center Online Wage Library at http://www.flcdatacenter.com (not the National Prevailing Wage Center), then the employer must specify “OFLC Online Data Center” in item G.11b of the ETA Form 9035/9035E. Additionally, if the employer obtained a prevailing wage using the same OES data available from the iCERT Portal System, the employer should likewise specify “OFLC Online Data Center” in item G.11b of the ETA Form 9035/9035E.

   Posted February 17, 2011

7. What wage sources qualify as “independent authoritative sources” for purposes of determining the prevailing wage in the LCA program?
   The term “independent authoritative source” (defined in 20 CFR 655.715) refers to any professional, business, trade, educational or governmental association, organization, or other similar entity, which is not owned or controlled by the employer and which has recognized expertise in a particular occupational field. As explained above, for purposes of prevailing wage determinations, an employer may use or request the consideration (by the NPWC) of a published survey of wages produced by an independent authoritative source. The independent authoritative source survey must meet three main requirements: 
   1. It must reflect the average wage (i.e. the weighted average or, if the survey provides a median rather than a weighted average, the median) paid to U.S. workers who are similarly employed in the area of intended employment;
   2. It must be based on recently collected data, e.g. data that was collected during the 24-month period before the date on which the survey was published; and
   3. The survey must be the most recent survey published by that independent authoritative source for the occupation in the area of intended employment.

   Please see 20 CFR 655.715. The Department published a non-comprehensive sample list of generally acceptable wage surveys applicable to LCA program on its Web site in the form of the ETA Form 9035CP – General Instructions for 9035 & 9035E; Appendix II: Sample of Acceptable Wage Survey Sources. Employers should note that the acceptability of a particular wage source is a determination that is made on a case-by-case basis.

   Posted February 17, 2011

8. How should an employer identify a prevailing wage survey on the LCA?
   An employer using an independent authoritative source survey or another legitimate source of wages (a prevailing wage survey) must mark “Other” in Item G.11 and specifically identify the prevailing wage source in Item G.11b of the ETA Form 9035/9035E. Where the employer is relying on a private survey as the source of the prevailing wage, the employer must enter both the company name and the survey title in Item G.11b. If the complete survey company name and the complete survey title do not fit into the available space in Item G.11b, the employer should enter as much information as possible to clearly identify the survey company name and the survey title. 

   While an employer may abbreviate words contained in the survey company name and title where necessary to fit into the space provided in item G.11b, the information provided by the employer must be sufficient to ensure that both the survey company name and the survey title are obviously identifiable. If the title of a survey includes the year the survey was conducted, the employer should not include the year in the survey title entry in Item G.11.b but should only enter the year in Item G.11.a.

   Example: In 2009, Watson Wyatt published a survey entitled Survey Report on Top Management Compensation, May 29, 2009. The survey should have appeared in Section G under Items 11, 11.a and 11.b as follows:

   *Item 11. Prevailing wage source (Choose only one): Other
   *Item 11a. Year source published: 2009
   §Item 11b. If “OES” and SWA did not issue prevailing wage OR “Other” in question
   11, specify source: Watson Wyatt: Survey Report on Top Management
   Compensation

   (*)indicates the field response is required

   (§)indicates the field response is conditionally based on a response provided in a required field

   For additional information about prevailing wage survey entries, please refer to the ETA Form 9035CP – General Instructions for 9035 & 9035E; Appendix II: Sample of Acceptable Wage Survey Sources.

   Posted February 17, 2011

9. What should the employer list as the prevailing wage if its elected wage source provides a wage that is lower than the applicable Federal, State or local minimum wage?
   The Department’s regulations require that the employer pay the H-1B nonimmigrant the greater of the actual wage (rate of pay) or the prevailing wage and prohibit an employer from paying less than a wage required by any applicable Federal, State or local law. Where the employer’s elected wage source provides a wage that is lower than the applicable Federal, State or local minimum wage, the employer must list the highest applicable minimum wage in Section G of the ETA Form 9035/9035E as the prevailing wage. Please refer to the example below (based on the current Federal minimum wage):Example: 

   *Item 9. Prevailing wage: $7.25
   *Item 11. Prevailing wage source (Choose only one): Other
   *Item 11.a Year source published: 2009
   §Item 11b. If “OES”, and SWA/NPC did not issue prevailing wage OR “Other” in
   question 11, specify source: Federal Minimum Wage

   Important note: Employers may only list the most recent source of minimum wage information. In addition, an employer must retain documentation of the applicable minimum wage source consistent with the Department’s regulations.
   (*)indicates the field response is required

   (§)indicates the field response is conditionally based on a response provided in a required field

   Posted February 17, 2011

10. May an employer list the prevailing wage on the LCA in the form of an annual salary?
    Yes. An employer may list the prevailing wage on the LCA in the form in which the employer intends to pay the wage, except where the job opportunity is for part-time employment, in which case the employer must list the prevailing wage as an hourly rate. 

    Posted February 17, 2011

11. How should the employer list wage rates on the ETA 9035/9035E if the nonimmigrant is employed in a part-time capacity?
    Since the number of work hours for part-time employment may vary, the employer should enter the wage rates in both Item F.1 (Rate of Pay) and Item G.9 (Prevailing Wage) on the ETA 9035/9035E in the form of an hourly wage. The employer may use the example below as a model for converting annual wage rates into hourly wage rates. Employers may also use prevailing wage sources which provide hourly prevailing wage rates.Example: If the Rate of Pay minimum wage rate for a worker to be paid is $50,000 annually at 40 hours per week, the calculation is as follows: 

    52 weeks x 40 hours per week= 2080 hours per year
    $50,000 per year/ 2080 hours per year= $24.04 per hour

    If the Rate of Pay minimum wage rate for a worker to be paid is $50,000 annually at 30 hours per week, the calculation is as follows:

    52 weeks x 30 hours per week= 1560 hours per year
    $50,000 per year/ 1560 hours per year = $32.05 per hour

    Posted February 17, 2011

12. What are an H-1B employer’s pay obligations with respect to a nonimmigrant worker in nonproductive status?
    An H-1B employer is required to pay a nonimmigrant H-1B worker who is not working and is in nonproductive (not producing income for the employer) status as follows: 
    • As to full-time salaried nonimmigrant workers, the employer must pay that worker the full pro-rata amount due.
    • As to full-time hourly wage nonimmigrant workers, the employer must pay that worker for a full-time workweek (40 hours, unless the employer can demonstrate that a different number of hours constitutes full-time employment).
    • Part-time nonimmigrant workers must be paid for at least the number of hours indicated on the USCIS petition, and where that number is represented by a range, the employer is required to pay for at least the average number of hours within the range normally worked by the nonimmigrant worker. The employer may not pay the nonimmigrant worker less than the amount corresponding to the minimum number of hours in the range.
    • An employer is not required to pay a nonimmigrant work for nonproductive status if it is based on a decision by the nonimmigrant worker to make him/herself unavailable to work (provided the worker’s unavailability is due to conditions unrelated to employment which take the worker away from his/her duties at that worker’s voluntary request or convenience or render the nonimmigrant unable to work in accordance with 20 CFR 655.731(c)(7)(ii), and the time is not subject to payment under the employer’s benefit plan or other statutes).

    Posted February 17, 2011

1. What must an employer do to comply with the notice requirement when there is no bargaining representative?

1. What must an employer do to comply with the notice requirement when there is no bargaining representative?
   Where there is no bargaining representative, the employer must post a notice meeting the requirements of 20 CFR 655.734. A copy of the completed ETA Form 9035 /9035E can serve as the notice, but is not required to be posted as long as all of the required information set forth at 20 CFR 655.734(a)(1)(ii) is in fact posted The notice must be posted on or within 30 days before the filing date. Each notice must remain posted for a total of 10 days. 

   Posting may occur through one of two methods: hard copy notice or electronic notice. The hard copy notice must be posted in at least two conspicuous locations in each employment location where an H-1B, H-1B1, or E-3 nonimmigrant worker will be employed. Appropriate locations for posting notice include, but are not limited to, near Wage and Hour Division notices or Occupational Safety and Health Administration notices. If the employer is providing electronic notice, it must notify employees in the occupational classification for which the H-1B nonimmigrant is sought (including both the direct employees of the H-1B employer and employees of a secondary/downstream employer where the H-1B worker will actually be placed). Electronic notification may be provided by whatever means the H-1B employer and/or secondary employer normally uses to communicate with its workers including electronic postings (e.g., e-mail, bulletin board, and home web page). The same time frames that apply to electronic notice apply to hard copy notice.

   Posted February 17, 2011

1. Is an employer required to offer a certain minimum number of hours to an H-1B, H-1B1 or E-3 nonimmigrant worker?
   

1. Is an employer required to offer a certain minimum number of hours to an H-1B, H-1B1 or E-3 nonimmigrant worker?
   The employer must offer the nonimmigrant worker the number of hours specified in the USCIS petition (incorporating the LCA) and which constitute either full-time or part-time employment. 

   Posted February 17, 2011

1. Is an employer who has already filed an LCA required to submit a new LCA if it changes its permanent business location, but remains within the same Metropolitan Statistical Area (MSA), i.e. within the same area of intended employment?
2. What are the employer’s obligations when the employer transfers and/or assigns a nonimmigrant worker to a worksite listed on an approved LCA within the area of intended employment?
3. May an employer who previously filed an LCA file a subsequent LCA for the same beneficiary(ies) if the new LCA reflects a different period of employment than that listed on the initial application
4. What are the employer’s obligations with respect to its nonimmigrant workers when there is a change in the employer’s corporate structure or identity?
5. What is required with respect to a sworn statement when there is a change in an employer’s corporate structure or identity?
6. How do I withdraw a certified LCA (ETA 9035/9035E) after receiving certification from the Department of Labor through the iCERT Portal System?
   

1. Is an employer who has already filed an LCA required to submit a new LCA if it changes its permanent business location, but remains within the same Metropolitan Statistical Area (MSA), i.e. within the same area of intended employment?
   If the new permanent business location is a place of employment within the meaning of 20 CFR 655.715 that was not contemplated at the time of filing, and the employer permanently relocates its nonimmigrant worker(s) to the new business location, the employer must post electronic or hard-copy notice(s) at those worksites on or before the date the H-1B nonimmigrant begins work. In addition, the employer may file a new LCA to reflect the new place of employment.
   Posted February 17, 2011
2. What are the employer’s obligations when the employer transfers and/or assigns a nonimmigrant worker to a worksite listed on an approved LCA within the area of intended employment?
   The employer must ensure that there is no strike or lockout in the course of a labor dispute in the new place of employment in the same job classification before transferring the nonimmigrant worker to the new worksite that was previously identified on the approved LCA.
   Important note: H-1B-dependent employers and willful violators placing a non-exempt H-1B nonimmigrant worker(s) at a new place of employment also have an obligation to ensure that they are not displacing any U.S. worker(s) directly (in their own workforce) or secondarily (in the workforce of another employer at the place of employment). H-1B dependent employers and willful violators are defined in 20 CFR 655.736. Exempt H-1B nonimmigrants are defined in 20 CFR 655.737. Non-displacement obligations are described in 20 CFR 655.738.
   Posted February 17, 2011
3. May an employer who previously filed an LCA file a subsequent LCA for the same beneficiary(ies) if the new LCA reflects a different period of employment than that listed on the initial application?
   Yes. In addition, under the Department’s regulations, employers who do not wish to be bound by the terms and conditions of an obsolete LCA may withdraw that LCA at any time before the expiration of its validity so long as the nonimmigrants covered by that LCA are not employed at the place of employment pursuant to that LCA, and the Department’s Wage and Hour Division has not commenced an investigation of that particular LCA.Posted February 17, 2011
4. What are the employer’s obligations with respect to its nonimmigrant workers when there is a change in the employer’s corporate structure or identity?
   If an employing entity receives nonimmigrant workers under a valid and certified LCA from a previous employer as a result of a change in corporate structure or identity, the new employing entity is not required to file a new LCA (in order to continue to employ the nonimmigrant worker(s)), regardless of whether the new entity has the same Federal Employer Identification Number (FEIN), so long as the new employing entity: 
   • Maintains a list of transferred nonimmigrant workers in its public access file(s); and
   • Maintains in a public access file a document containing all of the following:
   • • The number of each affected LCA and date of certification;
     • A description of the new employing entity’s actual wage system applicable to the transferred nonimmigrant workers;
     • The FEIN of the new employing entity (even if it is the same as the previous employer’s);
     • A sworn Statement by the new employer or its authorized representative in which the new employing entity explicitly accepts all obligations and responsibilities inherent in the attestations of all affected (and valid) LCAs with respect to the transferred nonimmigrant workers. This statement must also include the new employing entity’s acknowledgement of assuming all obligations, liabilities, and undertakings arising from or under attestations made in each certified and still effective LCA filed by the predecessor entity.

   No employing entity may use a transferred LCA to either hire new nonimmigrant workers or extend the status of any nonimmigrant worker. Instead, the new employing entity must initiate a new LCA process.

   Posted February 17, 2011

5. What is required with respect to a sworn statement when there is a change in an employer’s corporate structure or identity?
   Any sworn statement made to the Department in connection with an approved LCA must be signed by the employer and, as listed on the LCA instructions (ETA Form 9035CP), should indicate that the employer is making such statement under penalty of perjury and understands that knowingly and willingly furnishing any false information, or aiding, abetting, or counseling another to do so is committing a federal offense, punishable by fine or imprisonment up to five years or both. The employer must maintain the sworn statement in its public access file.
   Posted February 17, 2011
6. How do I withdraw a certified LCA (ETA 9035/9035E) after receiving certification from the Department of Labor through the iCERT Portal System?An employer who received a certified LCA filed through the iCERT Portal System may withdraw a certified labor condition application (LCA) electronically through the iCERT Portal System, via email or written notice.A certified labor condition application (LCA) may be withdrawn at any time, provided the employee benefiting from the LCA is not currently working for the employer and the Administrator has not commenced an investigation. If an investigation has commenced, the LCA will remain pending until the investigation is complete.

   To withdraw a certified LCA using the iCERT Portal System, a Master account holder (Attorney/Employer) or Associate account holder (a subaccount user granted permission by the Master account holder) must login to the iCERT Portal System, select the certified LCA he or she wishes to withdraw and click the withdraw button. The user is required to select a withdrawal reason from a dropdown list and enter a case note explaining the reason for withdrawal. The system will ask the user to verify the request to withdraw the selected certified LCA. The user must click the verification button. Once the verification is made, the employer contact and the attorney contact, as listed on the LCA, will receive an email indicating the withdrawal was successful. If the user does not have the authority to withdraw the certified LCA, either because of LCA status or account status, the iCERT Portal System will not allow completion of the withdrawal. Withdrawing an LCA through the iCERT Portal System is the only option that guarantees confirmation once the withdrawal is complete.

   To withdraw a certified LCA via email, the employer must send the request to the LCA Help Center at: LCA.Chicago@dol.gov. The email subject line must include: Certified LCA Withdrawal Request. Please scan the certified LCA and attach it to the body of the email.

   In the body of the email, please provide: the employer’s name and Federal Employer Identification Number (FEIN) if available, the LCA number, an explanation for why you are withdrawing the certified LCA, and provide a statement that no employee is working on the LCA pursuant to it being withdrawn. The user must access the iCERT Portal System to verify if the certified LCA was successfully withdrawn.

   To withdraw a certified LCA through written notice, the employer must send the written request to:
   Attn: LCA Withdrawal
   U.S. Department of Labor ETA
   Chicago National Processing Center
   536 South Clark Street – 9th Floor
   Chicago, IL 60605

   Written notice must include: the employer’s name and FEIN if available, the LCA case number, an explanation for why you are withdrawing the LCA, and verification that no employee is working on the LCA pursuant to it being withdrawn. The user must access the iCERT Portal System to verify if the certified LCA was successfully withdrawn.

   Please reference 20 Code of Federal Regulations 655.750(b) for further explanation of the requirements for withdrawing a certified LCA with the Department of Labor ETA.

   Posted June 17, 2010

1. Is an employer who has already filed an LCA required to submit a new LCA if it changes its permanent business location, but remains within the same Metropolitan Statistical Area (MSA), i.e. within the same area of intended employment?
   

1. What are an H-1B employer’s obligations with respect to a nonimmigrant worker whose employment ends (e.g. termination, resignation, or move to another employer) prior to the end of the LCA validity period?
   Under the Department’s regulations, the employer is prohibited from charging a nonimmigrant worker a penalty fee outright or in the form of a deduction for ceasing employment early. However, in some circumstances, the employer may contract with the worker to receive liquidated damages in the event of a premature termination on the part of the worker. Employers should refer to DHS regulations for additional obligations.
   Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant’s cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation. 

   Posted February 17, 2011

1. I filed an application for temporary labor certification before the 2010 Final Rule was effective. What rule will apply?
   1. Employers who filed with DOL before March 15, 2010, and have a start date of need before June 1, 2010, will be processed in accordance with the 2008 Final Rule’s
      transition procedures.
   2. Employers who filed with DOL on or after March 15, 2010, and have a start date of need before June 1, 2010, will be processed in accordance with the 2010 Final Rule’s emergency procedures.
   3. Employers with a start date of need on or after June 1, 2010, will be processed in accordance with the 2010 Final Rule’s normal procedures.

   March 29, 2010

1. Will the current special procedures for sheepherders, custom harvesters, and other unique agricultural occupations continue under this Final Rule?Yes. The regulation explicitly states that such special procedures will continue.
   March 29, 2010

Wage Determinations 
1. Will we be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?

Pre-Filing Recruitment

2. Does the 2010 Final Rule require employers to begin recruiting U.S. workers before filing their applications with the Department?

ETA Form 790

3. What form should I use to submit my job order to the SWA?
4. Can we put “n/a” on the ETA Form 790 if something doesn’t apply?
5. Under the 2010 Final Rule I will be submitting my job order to the SWA for intrastate clearance. What documentation should I include with the Agricultural and Food Processing Clearance Order, the ETA Form 790?

Wage Disclosure

6. What wage rate should I list on my job order?
7. What wage should I list on my work contracts?

SWA Acceptance of Job Order

8. What do I do if the SWA doesn’t accept my job order in time or I cannot reach an agreement with the SWA on the necessary changes to the job order?
9. If there are no deficiencies on the ETA Form 790, when will the SWA notify the employer?

Wage Determinations 
1. Will we be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?No. The 2010 Final Rule does not require employers participating in the H-2A program to obtain a wage rate separate from completing and submitting a job order to the SWA.March 29, 2010Pre-Filing Recruitment
2. Does the 2010 Final Rule require employers to begin recruiting U.S. workers before filing their applications with the Department?Yes. An employer participating in the H-2A program will be required to initiate pre-filing recruitment 75 to 60 days before the employer’s first date of need by 2 submitting its job order to a SWA serving the area of intended employment as required under 20 CFR 655.121.
   March 29, 2010 

   ETA Form 790

3. What form should I use to submit my job order to the SWA?The employer should use the Agricultural and Food Processing Clearance Order, ETA Form 790 (the job order). Employers may download a PDF copy of the form from the Office of Foreign Labor Certification (OFLC) web site:
   http://www.foreignlaborcert.doleta.gov/form.cfmMarch 29, 2010
4. Can we put “n/a” on the ETA Form 790 if something doesn’t apply?Yes. Employers are encouraged to submit a complete application containing as much detail as possible, including entering “n/a” where appropriate, so as to facilitate the adjudication of the application and minimize the chances of the application package being returned due to incomplete information.
   September 15, 2010
5. Under the 2010 Final Rule I will be submitting my job order to the SWA for intrastate clearance. What documentation should I include with the Agricultural and Food Processing Clearance Order, the ETA Form 790?An employer filing on its own behalf will only need to submit the ETA Form 790 and the attachments required by the form, as explained in the instructions. Thereafter, the SWA and/or the Certifying Officer may require the employer to submit documentation substantiating the appropriateness of any qualification(s) contained in the ETA Form 790. For example, if the employer is a Farm Labor Contractor, it must be prepared to submit a copy of a valid FLC Certificate of Registration, if requested.September 15, 2010Wage Disclosure
6. What wage rate should I list on my job order?Under the 2010 Final Rule, an employer in the H-2A program is required to offer, advertise, recruit at and pay the highest of the AEWR, the prevailing hourly wage rate, the prevailing piece rate, the agreed-upon collective bargaining rate (if an employer is subject to a collective bargaining agreement (CBA)), or the Federal or State minimum wage rate, in effect at the time work is performed, for every hour or portion of an hour worked during a pay period, except where a special procedure is approved for an occupation or specific class of agricultural employment. Therefore, the employer must list the highest of these applicable rates. If an employer lists the AEWR and the SWA, before accepting the job order for intrastate clearance, determines that another applicable wage rate is higher, the SWA will issue to the employer a Notice of Deficiency directing the employer to modify its job order to reflect the higher applicable wage rate. Each employer who is subject to a CBA must attach a copy of the CBA to its job order. Employers should note that if they pay workers on a piece rate basis and at the end of the pay period the worker’s earnings for that pay period, if re-calculated on an hourly basis, would result in an hourly wage that is below the required hourly wage, the employer must guarantee to pay the worker an additional amount bringing the worker’s wages for that pay period up to the amount the worker would have been paid at the required hourly wage rate.
   March 29, 2010
7. What wage should I list on my work contracts?The wage rate listed on the work contract must be the same wage rate as the rate listed on the job order and approved by the SWA. If the employer intends to sign work contracts before the SWA accepts the job order for intrastate clearance and the SWA subsequently directs the employer to modify the wage rate listed on the job order, the employer will be required to also modify its work contracts to reflect the approved wage rate. The employer may contact its local SWA to inquire whether a wage rate higher than the AEWR is applicable to its job order.March 29, 2010
   

   SWA Acceptance of Job Order

8. What do I do if the SWA doesn’t accept my job order in time or I cannot reach an agreement with the SWA on the necessary changes to the job order?Under the 2010 Final Rule, the SWA has 7 calendar days after receiving an employer’s job order to accept the job order for intrastate clearance or to notify the employer that the job order is deficient. If, after receiving a timely-filed job order, the SWA determines that the job order does not meet all of the regulatory and program requirements, the SWA must issue a Notice of Deficiency listing the job order deficiencies that must be corrected before the job order can be accepted. The employer will have 5 calendar days to respond to the SWA and correct the noted deficiencies. If the employer timely corrects the deficiencies, the SWA will send the employer a Notice of Acceptance within 3 calendar days after receiving the employer’s response, and promptly place the job order in intrastate clearance. If the employer does not adequately correct the deficiencies, or fails to submit a timely response to the SWA, the SWA will issue a Notice of Denial.Where the employer has not been able to resolve the deficiencies regarding the job order with the SWA, the employer will be able to use the emergency filing procedures under 20 CFR 655.134 to submit its application and job order directly to the Chicago NPC so long as:
   1. The employer timely submitted the job order and after documented efforts to solicit a response from the SWA received no response by the 46th day before the employer’s first date of need; or
   2. The employer timely submitted the job order and after receiving a Notice of Deficiency timely and in good faith submitted information aimed to correct the noted deficiencies, but the SWA did not respond to the employer’s submission within 3 days of the receipt of the employer’s submission, or by the 46th day before the employer’s first date of need, whichever is later; or
   3. The employer timely submitted the job order and after receiving a Notice of Deficiency timely and in good faith submitted information aimed to correct the noted deficiencies, but the SWA did not consider the employer’s timely submission sufficient to accept the job order and issued a Notice of Denial within 3 days after receipt of the employer’s submission or by the 46th day before the employer’s first date of need, whichever is later.

   March 29, 2010

9. If there are no deficiencies on the ETA Form 790, when will the SWA notify the employer?Under the regulations, the SWA is only required to send the employer a Notice of Deficiency, if applicable, within seven days of the date of submission. However, as a courtesy, the SWA will send the employer a Notice of Acceptance verifying placement of the job order and providing a copy of the approved job order. If seven days have passed and the employer has not received a Notice of Deficiency or Notice of Acceptance from the SWA, the employer may contact the SWA to inquire into the status of its submitted ETA Form 790.September 15, 2010

1. What is the required time frame for filing an H-2A temporary labor certification application?
2. For purposes of the H-2A program, is the employer bound by the date on which the job order and/or application was postmarked, or the date on which it was received by the Department?
3. Under the H-2A program, how does the National Processing Center determine whether an application has been filed 45 days prior to the employer’s date of need?

1. What is the required time frame for filing an H-2A temporary labor certification application?An employer must submit an application no later than 45 days before the employer’s first date of need.March 29, 2010
2. For purposes of the H-2A program, is the employer bound by the date on which the job order and/or application was postmarked, or the date on which it was received by the Department?The relevant date for purposes of any time calculation or submission in connection with the filing of an Application for Temporary Employment Certification, including the application and the job order, is the date on which the Department receives the submission.September 15, 2010
3. Under the H-2A program, how does the National Processing Center determine whether an application has been filed 45 days prior to the employer’s date of need?When determining whether an application has been filed “no less than 45 calendar before employer’s date of need,” as required by 20 CFR 655.130(b), the National Processing Center does not include the day the application was received in its calculation. Instead, the next day is counted as day one. For example, if an application is received at the National Processing Center on Tuesday, June 1, 2010, that date is not counted. Instead, Wednesday, June 2nd, is counted as day 1 of the timeframe and Thursday, June 3rd, as day 2; etc., up until Friday, July 16th, which is day 45. In this instance, provided the employer lists its date of need on its submitted application as July 16, 2010, or after, the employer has complied with 20 CFR 655.130(b).September 15, 2010

1. How do I file an application for a temporary labor certification in the H-2A program?
2. What form should I use to file my application?

ETA Form 9142

3. Where do I find the NAICS Code requested in Section C, question 13 of the ETA Form 9142, and what is it?
4. You added several new questions to the ETA Form 9142, including the year the company started, its gross annual revenue, and the number of non-family full-time equivalent (FTE) employees. Will applications be rejected if this information is not included? Should temporary/seasonal employees be included in the non-family FTE count?
5. What supporting documentation do I have to submit with my Application?
6. Can I file one H-2A application for work that will take place in multiple work locations?
7. Must an employer list the location of the worksite if it is already listed in the ETA Form 790?
8. I represent an association whose members are applying for H-2A workers. One member has the same start date of need as all other members, but has a different end date for the work contract. Can that member be included on the master application or must it file an individual application?
9. Can I file one H-2A application which involves an itinerary?

1. How do I file an application for a temporary labor certification in the H-2A program?
   Under the 2010 Final Rule, as under the 2008 rule, the Department requires employers participating in the H-2A program to file hard copy applications. The employer should send the completed and signed Application, the SWA-approved job order and required supporting documentation (as discussed in more detail below) by U.S. mail or courier directly to the Chicago NPC at the following address: 

   U.S. Department of Labor
   Employment and Training Administration
   Chicago National Processing Center
   536 South Clark Street, 9th Floor,
   Chicago, IL 60605 – 1509

   In the future, the Department may develop an electronic filing system for the H-2A program in which case it will notify the interested public through a notice in the Federal Register.
   March 29, 2010

2. What form should I use to file my application?
   An employer must use the Application for Temporary Employment Certification ETA Form 9142 and Appendix A.2. Employers may download the required forms in PDF format from the OFLC web site: http://www.foreignlaborcert.doleta.gov/form.cfm.
   March 29, 2010

ETA Form 9142

3. Where do I find the NAICS Code requested in Section C, question 13 of the ETA Form 9142, and what is it?The North American Industry Classification System (NAICS) is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy. The NAICS coding system is maintained by the U.S. Census Bureau. A listing of NAICS codes can be found at http://www.census.gov/epcd/www/naics.html. The code selected by the employer should reflect the nature of the employer’s business, not the job for which certification is sought.
   September 15, 2010
4. You added several new questions to the ETA Form 9142, including the year the company started, its gross annual revenue, and the number of non-family full-time equivalent (FTE) employees. Will applications be rejected if this information is not included? Should temporary/seasonal employees be included in the non-family FTE count?Applications will not be rejected if questions, such as those listed above, are not answered as long as they are not required fields/items containing an asterisk(*). Additionally, temporary and/or seasonal workers should not be included in the non-family FTE count.
   September 15, 2010 

5. What supporting documentation do I have to submit with my Application?As a general matter, the employer must submit along with its Application the SWA-approved job order (ETA Form 790), unless a specific exception applies.
   In addition, the employer is required to submit several documents prior to certification these documents may be submitted at the time the application is filed. If the employer does not have the documentation ready at the time it submits the application, the employer will be directed by the Notice of Acceptance to submit each of these documents before certification may be granted. 
   1. Proof that the employer’s housing is in compliance with applicable program requirements. See 20 CFR 655.122(d);
   2. Proof of workers’ compensation insurance coverage as required under new section 20 CFR 655.122(e);
   3. A written and signed recruitment report on the date specified by the CO in the Notice of Acceptance.

   In addition, employers should note that if an employer is listing specific job qualifications on its job order and/or application, the CO has the authority, through a Notice of Deficiency, to request that the employer provide documentation evidencing the appropriateness of these job qualifications. See 20 CFR 655.122(b). However, an employer may choose to submit the justification for any qualifications required for the position at the time it files the application.
   Additional requirements apply to associations, H-2ALCs and agents, as explained below:

   Associations.If filing a master application, associations must list on the Application (or attachment to the Application) the names, addresses, total number of workers needed, crops and agricultural work performed for each employer who will employ H-2A workers under the master application. See 20 CFR 655.131 (b). If the association is filing as an agent (instead of as a joint employer), the association must obtain and submit each member’s signature for the particular Application.

   H-2A Labor Contractors. Labor contractors seeking to file H-2A applications (H2ALCs)
   must submit the name and location of each fixed-site agricultural business to which the H-2ALC will provide H-2A workers, the expected beginning and ending dates of employment on each fixed site and a description of the crops and activities the workers will be performing on each site. The H-2ALC must submit copies of signed contracts with each fixed-site agricultural business to which it is providing H-2A workers and If those fixed-site businesses are providing housing and transportation to the workers, proof that the housing and transportation are in compliance with program
   regulations. See 20 CFR 655.132.

   The H-2ALCs must also provide a copy of a valid Farm Labor Contractor (FLC) Certificate of Registration, If the H-2ALC is considered an FLC within the meaning of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). In addition, an H2ALC must provide proof that it is able to meet its financial obligations under the H-2A program by submitting an original surety bond as required by 29 CFR 501.9.

   Agents. In addition, an agent must provide a copy of the agent agreement or other document demonstrating the agent’s authority to represent the employer. This required document must be submitted with the application and is in addition to Sections E and I on ETA Form 9142 and Appendix A.2. Finally, an agent must submit a copy of a valid FLC Certificate of Registration, if required under MSPA. See 20 CFR 655.133.March 29, 2010

6. Can I file one H-2A application for work that will take place in multiple work locations?Yes. An employer’s application may cover multiple work locations within an area of intended employment so long as they are within reasonable commuting distance from a place of the job opportunity for which the employer is seeking certification. If an employer belongs to an association, under the 2010 Final Rule the association may file a master application on behalf of the employer and its other members. A master application may cover multiple areas of intended employment and multiple work locations so long as: all workers covered by the application belong to the same occupation or will perform comparable work for the employer-members; the application reflects a single date of need for all workers; and all employer-members covered by the application are located in at most two contiguous states. Master Applications can only be filed by Associations acting as joint employers with their members. Finally, if the employer is an H-2A Labor Contractor (H-2ALC), the employer may file a single application covering multiple work locations within one area of intended employment.March 29, 2010
7. Must an employer list the location of the worksite if it is already listed in the ETA Form 790?Yes. Both the job order and the ETA Form 9142 must list each worksite where the workers will be working so that they may be apprised of the locations prior to applying for the job opportunity.September 15, 2010
   
8. I represent an association whose members are applying for H-2A workers. One member has the same start date of need as all other members, but has a different end date for the work contract. Can that member be included on the master application or must it file an individual application?Only associations filing as joint employers with their employer-members may file master applications. An employer who receives workers through a master application filed by an association must have the same initial date of need, i.e. the same start date, as all other employers listed in the master application. However, the employers’ end dates may contain slight variances depending on their need for workers. Regardless of whether the employers covered by a master application have the same or different end dates of need, an association filing a master application must specify each employer’s period of need on: the job order, i.e. the Agricultural and Food Processing Clearance Order ETA Form 790; the Application for Temporary Employment Certification, ETA Form 9142, and/or any attachments thereto; and the newspaper advertisements.March 29, 2010
9. Can I file one H-2A application which involves an itinerary?Unless an employer belongs to a group or occupation to which special procedures apply, itineraries involving work in more than one area of intended employment are not permitted.March 29, 2010

Housing 
1. Is the H-2A employer required to provide housing to U.S. workers who live within normal commuting distance from the worksite, but live in a homeless shelter or no longer want to pay rent?
2. What if the SWA refuses to do housing inspections?

Workers’ Compensation

3. When do I need to submit proof of workers’ compensation insurance coverage?
4. What documentation should I submit as evidence of workers’ compensation insurance coverage?
5. My workers’ compensation insurance coverage expires prior to my end date of need. What documentation should I submit as proof of coverage for the entire period of need requested on the application?

Meals

6. Under the 2010 Final Rule the employer is required to provide to its workers either three meals a day or free and convenient cooking and kitchen facilities. What constitutes a meal for purposes of the 2010 Final Rule?

Transportation and Daily Subsistence

7. What is the definition of daily subsistence for purposes of travel payments/reimbursement?

Rates of Pay

8. Will the employer be required to pay the AEWR?
9. May an employer require productivity standards if the work is paid on a piece-rate basis?
10. Will employers subject to the 2010 Final Rule be obligated to adjust the approved wage rate if the wage rates increase during the contract period?
11. If the offered wage on my certification is the AEWR, and the AEWR goes down during the period of the work contract can I pay the lower AEWR in effect at the time the work is performed?

No Strike or Lockout

12. Under the 2010 Final Rule I am not allowed to import H-2A workers if my domestic workers are on strike or if they are being locked out. Is there a threshold number of workers that must be on strike for this prohibition to apply?
13. What if my domestic workers go on strike after I’ve already applied to bring in the foreign workers?
14. What happens if my domestic workers go on strike or are being locked out after I have received a labor certification and my H-2A workers are on their way to the worksite or are already working on the farm?

Fifty Percent Rule

15. I am applying for a temporary employment certification to import H-2A workers to work on my farm and I understand that under the 2010 Final Rule, there is a different requirement regarding the duration of the period during which I have to receive referrals of U.S. workers. How does the new requirement work?
16. Am I required to hire every U.S. worker who applies, or is referred to me by the SWA, during the first 50 percent of the contract period?
17. What are my options if the newly hired U.S. workers under the 50 percent rule become unavailable after I have displaced some or all of my H-2A workers?
18. What is meant by an employer not being “otherwise associated with” other employers applying to import H-2A workers?
19. Should an employer who wishes to claim the small business exemption submit documentation substantiating eligibility with its application and/or job order?

Housing 
1. Is the H-2A employer required to provide housing to U.S. workers who live within normal commuting distance from the worksite, but live in a homeless shelter or no longer want to pay rent?The regulations require the employer to provide housing only for those workers who are not reasonably able to return to their residence the same day. A homeless shelter does not qualify as a person’s “residence” because a shelter, by its very nature, is temporary. Therefore, in an instance where a worker is living in a homeless shelter, the employer must offer such worker housing. However, the employer is not required under the regulations to provide housing to a worker who is able to return to his or her residence within the same day but who no longer wants to incur the price of rent.
   September 15, 2010 

2. What if the SWA refuses to do housing inspections?SWAs receive grants from the Employment and Training Administration to perform all of the duties necessary under the Office of Foreign Labor Certification’s (OFLC) programs, including conducting housing inspections in a timely manner. The regulations now permit employers to request the housing inspections well in advance of the date of need. If a SWA refuses to conduct the housing inspection, employers should contact the Chicago National Processing Center.
   September 15, 2010 

   Workers’ Compensation

3. When do I need to submit proof of workers’ compensation insurance coverage?Pursuant to 20 CFR 655.122(e)(2), the employer is required to submit proof of workers’ compensation insurance coverage before certification. The employer is encouraged to include the documentation when submitting its application. If the employer does not have the documentation ready at the time it submits the application, the employer will be directed by a Notice of Acceptance to submit the documentation by a specific date before certification may be granted.
   September 15, 2010 

4. What documentation should I submit as evidence of workers’ compensation insurance coverage?The employer must submit documentation that adequately demonstrates that it has the required workers’ compensation insurance coverage for the entire period of need requested on the application. (See 20 CFR 655.122(e))The documentation submitted must demonstrate that the employer’s workers’ compensation insurance coverage is in compliance with State law and covers injury and disease arising out of and in the course of the worker’s employment. In addition, the documentation submitted must contain the name of the insurance carrier, the insurance policy number, and proof of insurance for the period of need stated on the application, or, if appropriate, proof of State law coverage.

   Examples of acceptable documentation of workers’ compensation insurance coverage include, but are not limited to, the following:

   • Association for Cooperative Operations Research and Development (ACORD) Certificate of Insurance
   • State Workers’ Compensation Fund Certificate or equivalent
   • Certificate of Insurance indicating worker’s compensation coverage (copy of policy)

   September 15, 2010

5. My workers’ compensation insurance coverage expires prior to my end date of need. What documentation should I submit as proof of coverage for the entire period of need requested on the application?If the employer’s current workers’ compensation insurance coverage will expire before the end date of need requested on the application, the employer must submit a signed and dated written statement showing its intent to renew and maintain coverage for entire period of need requested on the application. The written statement must be submitted in addition to the documentation of the employer’s current coverage described above. Also, the employer must retain the proof of renewed coverage in its file and be prepared to submit such documentation if requested.September 15, 2010
   

   Meals

6. Under the 2010 Final Rule the employer is required to provide to its workers either three meals a day or free and convenient cooking and kitchen facilities. What constitutes a meal for purposes of the 2010 Final Rule?An employer providing three meals a day to its workers must provide a reasonable balance of food groups and nutrients intended to supply sufficient nutrition to the workers three times a day. The Department advises employers to consult the United States Department of Agriculture’s Dietary Guidelines for Americans 2005 report (in effect until the publication of the new report in 2010) that may be accessed or downloaded through the following web site: http://www.cnpp.usda.gov/Publications/DietaryGuidelines/2005/2005DGPolicyDocument.pdf
   In addition, the employer may only charge the workers for the actual cost of the meals and may not profit from the provision of food. This amount may not exceed the amount specified in 20 CFR 655.173, currently set at $10.64 for three meals a day, absent a successful petition for a higher meal charge.September 15, 2010 

   Transportation and Daily Subsistence

7. What is the definition of daily subsistence for purposes of travel payments/reimbursement?Daily subsistence includes, but is not limited to, the reasonable cost of food and lodging incurred during the worker’s inbound trip from the point of recruitment to the employer’s worksite, notwithstanding any unauthorized detours, and during the worker’s outbound trip from the employer’s worksite to the worker’s home or subsequent employment, notwithstanding any unauthorized detours, whichever is applicable.September 15, 2010
   

   Rates of Pay

8. Will the employer be required to pay the AEWR?Yes, if the AEWR is the highest applicable wage rate. In most cases the published AEWR will be the correct baseline wage. However, sometimes the prevailing wage for the crop and location or the CBA wage rate or the Federal or State minimum wage rates will be higher than the AEWR, in which case the employer must pay the higher rate. If an employer wishes to pay a piece-rate, it must nevertheless guarantee that workers will be paid a minimum equal to the appropriate hourly wage.March 29, 2010
   
9. May an employer require productivity standards if the work is paid on a piece-rate basis?Yes. If the employer pays by the piece rate and specifies the productivity standard in the job offer. Any productivity standard required by an employer may be no more than those required by the employer in 1977, unless the OFLC Administrator approves a higher minimum, or, if the employer first applied for an H-2 temporary labor certification after 1977, such standards must be no more than those normally required by other employers for the activity in the area of intended employment at the time the employer filed its first application.March 29, 2010
   
10. Will employers subject to the 2010 Final Rule be obligated to adjust the approved wage rate if the wage rates increase during the contract period?Yes. All employers in the H-2A program are required to offer, recruit at and pay the highest applicable wage rate. An H-2A employer who has filed an application under the 2010 Final Rule will be required to adjust to a higher wage at any time between the date on which it submits its job order to the SWA and/or signs a work contract (whichever is earlier) until the end of the contract period. This applies only to applications filed under the 2010 Final Rule. Employers who filed applications under the 2008 Final Rule will continue to apply that rule’s wage rates and principles (i.e. must pay the wage rate at the time of recruitment). If the Department publishes a new AEWR and the new AEWR is higher than the approved wage rate listed on the employer’s job order and/or work contract, the employer will be required to adjust the offered wage to the higher AEWR. Similarly, if an applicable prevailing wage is increased during the contract period and the Department notifies employers of the increase, all employers whose approved wage rate (listed on the job order and/or work contract) is lower than the new prevailing wage will be required to adjust to the higher prevailing wage rate. The Department’s notification will state the effective date of the wage increase upon which all affected employers will be required to adjust to the higher wage.March 29, 2010
    
11. If the offered wage on my certification is the AEWR, and the AEWR goes down during the period of the work contract can I pay the lower AEWR in effect at the time the work is performed?The employer is required under the regulations to offer, advertise, and pay a wage that is the highest of the AEWR, the prevailing hourly wage or piece rate, the agreed upon collective bargaining wage, or the Federal or state minimum wage in effect at the time the work is performed. An employer may pay a lower AEWR (assuming the AEWR decreases and that it is still the highest rate) only if the employer clearly discloses in the job order that if the AEWR decreases, the employer will pay to the highest of the rates in effect at the time the work is performed.March 29, 2010
    

    No Strike or Lockout

12. Under the 2010 Final Rule I am not allowed to import H-2A workers if my domestic workers are on strike or if they are being locked out. Is there a threshold number of workers that must be on strike for this prohibition to apply?Yes. The prohibition against importing foreign workers when the employer’s domestic workers are on strike or are being locked out applies to any labor dispute involving two or more domestic workers. Any employer engaged in such a dispute at the time the employer seeks to apply for the labor certification may not apply to import H-2A foreign workers.
    September 15, 2010 

13. What if my domestic workers go on strike after I’ve already applied to bring in the foreign workers?Section 218(b) of the Immigration and Nationality Act (INA) requires the Secretary to deny a labor certification if there is a strike or lockout in the course of a labor dispute. An employer seeking to employ H-2A workers must agree that it will abide by the requirements and assurances outlined in 20 CFR 655.135, including that the worksite does not have workers on strike or being locked out in the course of a labor dispute. Therefore, if the employer’s workers go on strike after the employer filed its application but before the labor certification is granted, the employer must notify the Department of the strike or lockout and/or withdraw its application until such a time as the labor dispute is resolved.September 15, 2010
    
14. What happens if my domestic workers go on strike or are being locked out after I have received a labor certification and my H-2A workers are on their way to the worksite or are already working on the farm?Absent material misrepresentation or fraud in connection with the application within the meaning of the 2010 Final Rule, the employer may continue to employ H-2A workers notwithstanding a strike by its non-H-2A workers. Lock-outs resulting from a labor dispute will be analyzed on a case by case basis to determine whether they warrant debarment under 20 CFR 655.182(d). Also, if a lock-out meets the definition of a layoff and if it occurs within 60 days of the first date of need, section 20 CFR 655.135(g) requires that the U.S. workers be offered the job opportunity listed in the Application for Temporary Employment Certification before the H-2A workers. Therefore, unless the employer has sufficient work to be performed by all the laid-off U.S. workers and the H-2A workers, the employer will need to dismiss the H-2A workers.September 15, 2010
    

    Fifty Percent Rule

15. I am applying for a temporary employment certification to import H-2A workers to work on my farm and I understand that under the 2010 Final Rule, there is a different requirement regarding the duration of the period during which I have to receive referrals of U.S. workers. How does the new requirement work?Under the 2010 Final Rule, the Department reinstated a long-standing H-2A program component from the 1987 Final Rule that requires employers to continue to consider for employment and hire any qualified and eligible U.S. worker who applies for the position up until the end of the first half of the contract period, as identified on the Agricultural and Food Processing Clearance Order, ETA Form 790, as well as on the Application for Temporary Employment Certification, ETA Form 9142. This program component is referred to as the 50 percent rule. Previously, under the 2008 Final Rule, employers were only required to accept U.S. applicants for the first 30 days of the contract period.September 15, 2010
    
16. Am I required to hire every U.S. worker who applies, or is referred to me by the SWA, during the first 50 percent of the contract period?For as long as an H-2A worker is employed in a certified position during the first 50 percent of the contract period, the employer must provide employment to any able, willing, qualified and available U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed, regardless of the number of H-2A workers covered by the employer’s certification. The start of the work contract timeline is calculated from the first date of need stated on the Application for Temporary Employment Certification under which the foreign worker who is in the job was hired.An employer may continue to employ its H-2A workers under the work contract so long as it complies with all requirements of the H-2A program with respect to the H-2A workers and workers in corresponding employment. The employer may also choose to displace its H-2A workers with the newly hired U.S. workers so long as it pays for the H-2A workers’ return transportation and subsistence in accordance with 20 CFR 655.122(h)(2). In the event the employer decides to displace its H-2A employees as a result of hiring U.S. workers, the employer is not liable for the payment of the three-fourths guarantee to the displaced H-2A workers.October 1, 2010
17. What are my options if the newly hired U.S. workers under the 50 percent rule become unavailable after I have displaced some or all of my H-2A workers?If all of the H-2A workers have been displaced, and some or all of the U.S. workers hired as a result of the 50 percent rule become unavailable, i.e., abandon the position or are terminated for cause, during the first 50 percent of the work contract period, the employer is under no obligation, but may continue, to hire any able, willing, qualified and available U.S. workers. However, so long as the employer continues to employ at least one H-2A worker in a certified position during the first 50 percent of the contract period, the employer must continue to hire any able, willing, qualified and available U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed, regardless of the number of U.S. workers hired under the 50 percent rule who become unavailable.If some or all of the newly hired U.S. workers become unavailable after the first 50 percent of the work contract period, the employer may, but is not obligated to, hire additional able, willing, qualified and available U.S. workers and/or engage in additional recruitment of U.S. workers.

    Note: An employer whose Application for Temporary Employment Certification is approved for the full number of workers requested may not apply to the National Processing Center for a redetermination of its need based on the unavailability of U.S. workers. Pursuant to the Department’s regulations at 20 CFR 655.166, this option is only available to employers whose certifications were initially denied or whose applications were partially certified.October 1, 2010

18. What is meant by an employer not being “otherwise associated with” other employers applying to import H-2A workers?As discussed above, an employer who is a member of an association which has applied for a labor certification on behalf of its members is not exempt from the 50 percent rule. Similarly, an employer who technically is not a member of an association but otherwise maintains a relationship with other employers who are either members of an association that has applied for a labor certification and/or who have individually applied for a labor certification, such that this employer together with the other employers forms an informal group that effectively operates as an association – i.e., shares employees – would be considered to have “otherwise associated with other employers” and thus would not be exempt from the 50 percent rule.September 15, 2010
19. Should an employer who wishes to claim the small business exemption submit documentation substantiating eligibility with its application and/or job order?The Department is not requiring that an employer submit supporting documentation with its application at the time of filing, but the employer must in the application certify to the Certifying Officer that the small business exemption applies and be prepared to provide documentation in support of such a claim if requested through an audit or investigation. However, the employer should notify the SWA if it wishes to claim the exemption at the time it submits the job order for intrastate clearance and include such documentation as the SWA requires. This will ensure that the SWA will not refer applicants to that employer for the duration of the 50 percent of the contract period.September 15, 2010

1. What is the difference between an H-2A Labor Contractor and a Farm Labor Contractor?An H-2A Labor Contractor (H-2ALC) is any person who meets the definition of employer under 20 CFR 655.103(b) and is not a fixed-site employer, an agricultural association, or an employee of a fixed-site employer or agricultural association, who recruits, solicits, hires, employs, furnishes, houses, or transports any worker(s) subject to section 218 of the Immigration and Nationality Act.A Farm Labor Contractor (FLC), as defined under the Migrant and Seasonal Worker Protection Act (MSPA), is any person, other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association, who, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity.

   MSPA applies separately from the Department’s H-2A regulations at 20 CFR part 655, Subpart B.Under the requirements of MSPA, FLCs (and any employee who performs farm labor contracting functions) must register with the Department before recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.Agricultural employers and associations (and their employees) need not register as FLCs.September 15, 2010

Interviews 
1. I have received referrals from the SWAs who know very little about the job opportunity. Under the Department’s regulations, may I reject those workers for not being fully apprised of the job opportunity?

Employment Verification

2. May I continue to rely on the SWA to verify the employment eligibility of the applicants it refers to my job opportunity?

Interviews 
1. I have received referrals from the SWAs who know very little about the job opportunity. Under the Department’s regulations, may I reject those workers for not being fully apprised of the job opportunity?No. Under the 2010 Final Rule and historically in the H-2A program, the employer has an affirmative obligation to apprise all workers, including H-2A workers and workers in corresponding employment of all material terms and conditions of employment. The Department’s regulations, at 20 CFR 655.122(q), additionally require each employer to provide its H-2A workers and workers in corresponding employment with a copy of the work contract (or in the absence of a separate work contract, with a copy of the application and job order) in a language understood by the worker. Finally, rejections of U.S. workers who apply for the job must be only for lawful, job-related reasons – not being aware of all the terms and conditions of employment is not a lawful, job-related reason to not hire an otherwise qualified and eligible U.S. worker.September 15, 2010Employment Verification
2. May I continue to rely on the SWA to verify the employment eligibility of the applicants it refers to my job opportunity?Under the Immigration and Nationality Act (INA), the employer is responsible for verifying the employment eligibility of all of its hires. Department of Homeland Security (DHS) regulations do not require State agencies to verify the employment eligibility of job applicants they refer to employers but do permit employers to rely on employment verification voluntarily performed by a State employment agency under certain limited circumstances. Under the 2008 Final Rule the Department required the SWAs to perform I-9 verification on all applicants being referred to job openings for which H-2A workers were sought. Under the 2010 Final Rule, the SWAs will no longer be required to conduct I-9 employment eligibility verification of job applicants referred to job opportunities for which H-2A workers are sought. Employers should carefully examine the requirements under the INA and the DHS regulations to ascertain their obligations and ensure compliance with respect to employment eligibility verification.March 29, 2010

Amendments 
1. If an employer or association of employers realizes that it needs either more or fewer H-2A workers than stated on the ETA Form 9142, how late in the process can it request a change?If an employer or association of employers realizes that it needs either more or fewer H-2A workers than stated on the ETA Form 9142, how late in the process can it request a change?

Withdrawals

2. May I withdraw a job order I submitted to the SWA once it has been accepted into intrastate clearance?
3. May I withdraw my Application for Temporary Employment Certification and job order after filing an Application for Temporary Employment Certification with the Chicago NPC?
4. May I withdraw my Application for Temporary Employment Certification and job order after I receive a Notice of Acceptance from the Chicago NPC?

Amendments 
1. If an employer or association of employers realizes that it needs either more or fewer H-2A workers than stated on the ETA Form 9142, how late in the process can it request a change?Employers may request to amend, i.e., to either increase or decrease, the number of workers requested in their initial application at any time before final determination. Employers may request an increase in the number of workers without additional recruitment as long as the increase is no more than 20 percent of the original number requested or 50 percent in the case of an employer requesting less than 10 workers. For requests for increases above the percentages prescribed, without additional recruitment, the employer must demonstrate that the need for additional workers could not have been foreseen, and the crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period.September 15, 2010
   

   Withdrawals

2. May I withdraw a job order I submitted to the SWA once it has been accepted into intrastate clearance?Yes. An employer who submitted a job order in connection with a future H-2A application may withdraw it once it has been accepted for intrastate clearance but before the employer files an Application for Temporary Employment Certification, ETA Form 9142 with the Chicago National Processing Center, but the employer’s withdrawal of the job order does will not nullify existing obligations to workers who were recruited in connection with that job order. If the employer received SWA referrals pursuant to the withdrawn job order and successfully recruited U.S. workers, the employer will be bound by the terms and conditions of employment reflected in the job order with respect to those workers, including but not limited to wages, housing, and transportation.
   September 15, 2010 

3. May I withdraw my Application for Temporary Employment Certification and job order after filing an Application for Temporary Employment Certification with the Chicago NPC?Yes. An employer may withdraw its Application for Temporary Employment Certification and job order submitted in connection with the application, after the job order is accepted by the SWA and placed intrastate clearance, but before the Certifying Officer issues a Notice of Acceptance. However, the employer will be required to comply with the terms and conditions of employment contained in the job order with respect to workers recruited in connection with that application and job order.September 15, 2010
4. May I withdraw my Application for Temporary Employment Certification and job order after I receive a Notice of Acceptance from the Chicago NPC?Yes. An employer may withdraw its Application for Temporary Employment Certification and job order submitted in connection with the application after the Certifying Officer issues a Notice of Acceptance. The employer will be required to comply with the terms and conditions of employment contained in the application and job order with respect to workers recruited in connection with that application and/or job order.September 15, 2010

1. Since I will be submitting supporting documentation before certification, will I still need to keep certain documents after I receive a labor certification?Yes. In addition to providing supporting documentation before certification, each employer participating in the H-2A program is required to retain certain documentation for a period of 3 years from the date of certification. The document retention requirements may be found under the new section 20 CFR 655.167.March 29, 2010

1. How can I appeal a refusal to accept my application or a denial of my application?
2. May an employer appeal a wage determination in the H-2A program?

1. How can I appeal a refusal to accept my application or a denial of my application?If an employer wishes to appeal the CO’s issuance of a Notice of Deficiency before certification, the employer must within 5 days of the receipt of the Notice of Deficiency file by facsimile or other means normally assuring next day delivery a written request for an expedited administrative review or a de novo administrative hearing to the Chief Administrative Law Judge of the Department of Labor and simultaneously 9 serve the CO. If an employer wishes to appeal the CO’s issuance of a Final Determination letter denying the temporary labor certification, the employer must within 7 calendar days of the receipt of the Final Determination letter file a written request by facsimile or other means normally assuring next day delivery with the Chief Administrative Law Judge of the Department of Labor and simultaneously serve the CO. See sections 20 CFR 655.141 and 655.164.March 29, 2010
2. May an employer appeal a wage determination in the H-2A program?Not directly. The H-2A regulations do not contain a provision for appealing wage determinations. However, if the SWA and the employer do not agree on the correct wage that must be offered, and the employer complies with all requirements of the 2010 Final Rule (described more fully below) the Certifying Officer (CO) at the Chicago NPC ultimately may make the determination on the wage that must be offered. If the matter is not resolved with the CO, the employer may follow the appeal procedures in the 2010 Final Rule and request an appeal from either a Notice of Deficiency or a Final Determination denying the employer’s application.March 29, 2010

1. Can the H-2A labor certification be valid for more than one year under the new rule?Each H-2A labor certification is valid for the period of employment provided on the application. In order to qualify for a temporary labor certification, the employer’s period of need, including any subsequently granted extensions, may not exceed one year except in extraordinary circumstances.March 29, 2010

1. I am an employer in the entertainment industry.  In filing my Application for Temporary Employment Certification, should I follow the special procedures contained in the Training and Employment Guidance Letter 31-05 for entertainers, or should I follow the 2008 H-2B regulations?
2. What defines a Metropolitan Statistical Area (MSA)?

1. I am an employer in the entertainment industry.  In filing my Application for Temporary Employment Certification, should I follow the special procedures contained in the Training and Employment Guidance Letter 31-05 for entertainers, or should I follow the 2008 H-2B regulations?The 2008 H-2B regulations contain a provision that permits the continuation of special procedures that were in place prior to the regulations’ effective date of January 18, 2009. The Department continues to honor special procedures contained in Training and Employment Guidance Letter (TEGL) 31-05 to the extent they are consistent with the 2008 H-2B regulations.  The Department is not, however, able to honor the special procedures in areas in which they are in direct contravention of the 2008 H-2B regulations, as outlined in these FAQs.

   September 16, 2010

2. What defines a Metropolitan Statistical Area (MSA)?MSAs are geographic entities defined by the U.S. Office of Management and Budget for use by Federal statistical agencies in collecting, tabulating, and publishing Federal statistics. A metro area contains a core urban area of 50,000 or more population, and a micro area contains an urban core of at least 10,000 (but less than 50,000) population. Each metro or micro area consists of one or more counties and includes the counties containing the core urban area, as well as any adjacent counties that have a high degree of social and economic integration (as measures by commuting to work) with the urban core. For more information on MSAs, please visit the U.S. Census Bureau at http://www.census.gov/population/www/estimates/metroarea.html

1. Where do I find the NAICS Code that the ETA 9142 asks for on page 2, Section C, Item 13 and what is it?
2. Where do I find the SOC (ONET/OES) Code and SOC (ONET/OES) Occupation Title requested on page 1, Section B questions 2 and 3 of the new ETA Form 9142?
3. The employer completes a narrative statement regarding item 9 of ETA Form 9142, but must retain the supporting documents. Can these 3 documents be submitted with the application instead of in response to the National Processing Center (NPC)’s Request for Information (RFI)?
4. Where do we send the completed Application for Temporary Employment Certification?

1. Where do I find the NAICS Code that the ETA 9142 asks for on page 2, Section C, Item 13 and what is it?“NAICS” stands for the North American Industry Classification System, which is a coding system that classifies all businesses into specific categories enabling statisticians and others in the government and in the private sector to identify trends and keep track of information based on industries. The accompanying instructions to the Form ETA9142 provide the web address for the Census Bureau, which maintains the NAICS coding system. The code selected by the employer should reflect the nature of the employer’s business, not the job for which certification is sought. A listing of NAICS codes can be found at http://www.census.gov/epcd/www/naics.html

   April 2009

2. Where do I find the SOC (ONET/OES) Code and SOC (ONET/OES) Occupation Title requested on page 1, Section B questions 2 and 3 of the new ETA Form 9142?Link to http://www.flcdatacenter.com/OesQuick.aspx and click on the drop down box under “OR Select an occupation from the list:” The number on the left is the SOC code and the title to the right is the Occupation Title.

   April 2009

3. The employer completes a narrative statement regarding item 9 of ETA Form 9142, but must retain the supporting documents.  Can these 3 documents be submitted with the application instead of in response to the National Processing Center (NPC)’s Request for Information (RFI)?No. These documents will be requested under the RFI process outlined in 20 CFR 655.23(c) if the employer has made all necessary attestations and assurances but failed to comply with one or more of the certification criteria set forth in 20 CFR 655.23(b). If the regulatory requirements for certification are met, the petition will be certified and the employer should keep any supporting documents demonstrating temporary need for three years from the date of certification in case of a post certification audit. Supporting evidence is not defined by the regulations, but the Department has historically considered charts of permanent and temporary employees, payroll records, and signed contracts setting forth the dates of employment to demonstrate temporary need.

   April 2009

4. Where do we send the completed Application for Temporary Employment Certification?The completed application must be sent directly to the Chicago National Processing Center. The address is: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 536 South Clark Street, 9th floor, Chicago, Illinois 60605-1509.

   April 2009

Recruitment Obligations
1. What is my prefiling recruitment obligation and when must I place the first ad?
2. When can I begin my recruitment activities?
3. Can I combine several H-2B job opportunities into one advertisement?
4. How long must my recruitment run?
5. When is the deadline for submitting the Recruitment Report and the Application for Temporary Employment Certification (ETA 9142) along with Appendix B.1?
6. The SWA says they will not place my job order but that I must place it myself, is that right?
7. The SWA states that I must keep my job order active for 30 days, must I?
8. What should the Recruitment Report contain?
9. Do I submit newspaper ad tear sheets with the Recruitment Report which is now filed directly with your office?
10. Do I need to submit copies of resumes or applications with my Application for Temporary Employment Certification?
11. Do I need to submit copies of resumes or applications with my Application for Temporary Employment Certification?
12. What are the SWA obligations with respect to contacting labor unions?
13. Pursuant to the Final Rule, employers and their attorneys or agents are prohibited form seeking or receiving “payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer’s attorneys’ or agent fees,… or recruitment costs.”  This includes any monetary payments, wage concessions, kickbacks, bribes, tributes, in kind payments, and free labor. Does this prohibition apply to petitions that were filed prior to January 18, 2009 and does it apply only to workers abroad or in country as well?

1. What is my prefiling recruitment obligation and when must I place the first ad?An employer may not place a newspaper advertisement until it has received a prevailing wage (from the State Workforce Agency (SWA) during the transition period or from the Chicago NPC after the transition period). Once an employer has received a prevailing wage it can submit a job order to the SWA serving the area of intended employment and then publish two print advertisements, one of which should be on a Sunday unless no Sunday edition exists (see 20 CFR 655.15(f) for exceptions) during the time the job order is posted with the SWA. The job order cannot be placed more than 120 days prior to the date of need. In addition, if the employer is a party to a collective bargaining agreement governing the job classification that is subject of the H2B application, then the employer must formally contact the local union and maintain copies of 4 correspondence and/or dated logs demonstrating contact with the union, result of such contact, and the number of qualified referrals received from the union. Likewise, if the employer laid off any employees in the same job occupation within 120 days of the first date of need, the employer must document that it has notified or will notify each laid off worker of the job opportunity and has considered or will consider each laid off worker who has expressed interest in the opportunity, and the result of the notification and consideration. Finally, the employer must prepare a Recruitment Report and submit it with the Application for Temporary Employment Certification. The Recruitment Report cannot be prepared any earlier than 2 calendar days after the last date on which the job order was posted and no earlier than 5 calendar days after the last newspaper advertisement was published.

   April 2009

2. When can I begin my recruitment activities?No earlier than 120 days prior to the first date of need.

   April 2009

3. Can I combine several H-2B job opportunities into one advertisement?No. Each job opportunity must have its own advertisement in order to sufficiently apprise potential workers of the job duties.

   April 2009

4. How long must my recruitment run?The job order must be posted with the State Workforce Agency in the area of intended employment for no less than 10 full days. The newspaper advertisements must be published while the job order is posted.

   April 2009

5. When is the deadline for submitting the Recruitment Report and the Application for Temporary Employmen Certification (ETA 9142) along with Appendix B.1?The regulations do not specify the last date an employer can submit an application. The regulations do, however, specify the earliest an employer can begin recruitment (120 days prior to first date of need) and the earliest that a Recruitment Report can be created (2 calendar days after the last date on which the job order was posted and 5 calendar days after the last newspaper advertisement was published). The Recruitment Report is necessary to filing a completed Application for Temporary Employment Certification; therefore, an application may not be filed until at least that time that a recruitment report can 5 be completed. The Recruitment Report and Application for Temporary Employment Certification should not be submitted to the Chicago National Processing Center until all qualified U.S. worker applicants have been considered.

   April 2009

6. The SWA says they will not place my job order but that I must place it myself, is that right?Many SWAs now have automated self service systems. In those instances, you will be required to place the order yourself, however, you must contact the SWA immediately upon placing the job order and let them know that you have placed an H2B job order. Your job order must state that it is being filed in support of a future H2B application.

   April 2009

7. The SWA states that I must keep my job order active for 30 days, must I?The Department of Labor requires that employers post their job orders and keep them active for at least 10 days. If a SWA requires a longer period, then the employer must comply with this requirement and continue to accept referrals. In such an instance, the employer cannot submit its application to the Department until the earliest that a Recruitment Report can be created, i.e. 2 calendar days after the last date on which the job order was posted and 5 calendar days after the last newspaper advertisement is published. The Recruitment Report is necessary to filing a completed Application for Temporary Employment Certification; therefore, an application may not be filed until at least 2 days after the end of the required posting period. Employers seeking to file applications for temporary labor certification for H2B workers should therefore determine the requirements for posting in the applicable SWA well in advance of the intended employment to ensure compliance. Employers are also reminded that they must keep the job order active until all print advertisements have been published.

   April 2009

8. What should the Recruitment Report contain?The Recruitment Report must identify each recruitment source by name; list the name and contact information for each U.S. worker who applied or was referred, and the disposition of each worker, including any applicable laid off workers; indicate whether the worker was hired or not and if the worker was not hired, list the lawful job related reasons for not hiring the worker. There is no required format or form for a recruitment report other than it contain these elements.

   April 2009

9. Do I submit newspaper ad tear sheets with the Recruitment Report which is now filed directly with your office?An employer is not required to submit evidence of the placement of such advertisements, such as newspaper tear sheets, with the Application for Temporary Employment Certification. The employer must attest to the dates on which the advertisements were placed, and must maintain copies of the newspaper pages, tear sheets, or other proof of publication containing the text of the advertisement and dates of publication for 3 years from the date of certification, to be presented to the Department in the event of a request for additional information prior to adjudication, an audit or other investigation.

   April 2009

10. Do I need to submit copies of resumes or applications with my Application for Temporary Employment Certification?No. An employer is not required to submit copies of resumes or job application forms completed by job applicants with its Application for Temporary Employment Certification. However, the employer must maintain for 3 years resumes and evidence of contact with each U.S. worker who applied or was referred to the job opportunity, to be provided to the Department in response to an RFI, audit, or other investigation.

    April 2009

11. What are the employer’s obligations with respect to contacting labor unions?The H2B regulations at 20 CFR 655.15(g) require an employer that is a party to a collective bargaining agreement (CBA) covering the job classification that is the subject of the H2B labor certification application to formally contact the local union that is a party to the CBA. Such contact may be by U.S. mail or other effective means during the same period of time that the SWA is circulating a copy of the employer’s job offer within the state. After contact, the employer must maintain dated logs demonstrating: (1) that the union was contacted and notified timely of the position openings; (2) whether the union referred qualified U.S. worker(s); (3) the number of U.S. workers that were referred, if applicable; and (4) whether or not the union was responsive to the employer’s request.

    April 2009

12. What are the SWA obligations with respect to contacting labor unions?The Department strongly recommends that a SWA, which has knowledge that the employer’s job opportunity is in an occupation that is traditionally unionized, circulate a copy of the intrastate job order to all applicable 7 unions and other sources of recruitment and apprise these sources of the available position(s) within the area of intended employment. To ensure that the labor unions and other sources of recruitment will have a sufficient amount of time to apprise their members to apply for the available position(s), we strongly recommend that the SWA contact the union on the first day that it places the intrastate job order on its active file for recruitment and request that referrals of applicants be made to the SWA within the active recruitment period. Last, the SWA should allow a reasonable period of time, e.g., 3 calendar days after the close of the job order, for referrals sent the day the order closed to be received and considered by the SWA. In accordance with 20 CFR 655.15(e)(1), the SWA must place the job order no more than 120 calendar days before the employer’s date of need for H2B workers for a period of not less than 10 calendar days.

    April 2009

Recruitment Fees
13. Pursuant to the Final Rule, employers and their attorneys or agents are prohibited form seeking or receiving “payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer’s attorneys’ or agent fees, or recruitment costs.” This includes any monetary payments, wage concessions, kickbacks, bribes, tributes, in kind payments, and free labor. Does this prohibition apply to petitions that were filed prior to January 18, 2009 and does it apply only to workers abroad or in country as well?Applications that were filed before January 18, 2009 are being adjudicated under the regulations in effect at the time of filing. The prohibition on seeking or receiving payment from the employee for any activity relating to the obtaining of the labor certification therefore does not apply to them. For those applications filed on or after January 18, 2009, the prohibition applies to recruiter and other fees charged to any foreign workers, whether in the U.S. or abroad, relating to the obtaining of the labor certification.

    April 2009

1. Who qualifies as an entertainer for H-2B status?
2. As an employer of entertainers who enter the US in H-2B status, where do I file?
3. I hire musicians from Canada. Has how their recruitment changed?
4. I hire workers in the Virgin Islands. There used to be special procedures for them. Are they still in place?
5. My workers appear in several places. I used to be able to file one application and submit an itinerary. Can I still do that?
6. Has when I may file an H-2B application changed?
7. How do I begin the filing process?
8. How do I get a prevailing wage if I have multiple worksites?
9. I have just received my prevailing wage from the NPC. Can I offer that salary only to my H-2B workers?
10. Do I follow the regulations and recruit before I file the application?
11. When do I recruit?
12. How do I recruit?
13. How long will the SWA job order be open?
14. Can I reject workers who are not willing to join the itinerary? For example, I have worksites in 6 states. If a worker sees the recruitment in the third state, can he join for just that state?
15. Where do I file my application?
16. How do I include my itinerary with the application?
17. Once the CNPC has my application, what can I expect?

1. Who qualifies as an entertainer for H-2B status? Occupations in the entertainment industry, for purposes of applying for a labor certification for H-2B workers, shall include performers and all technical and support personnel involved with a performance, including carnival workers.

   June 2009

2. As an employer of entertainers who enter the US in H-2B status, where do I file? All H-2B applications are filed with the Certifying Officer at the Chicago National Processing Center (CNPC). Employers are no longer required to submit applications for H-2B temporary employment of foreign workers to one of the Offices Specializing in Entertainment (OSEs) in New York, New York; Austin, Texas; or Sacramento, California.

   June 2009

3. I hire musicians from Canada. Has how their recruitment changed?It has not changed.  As discussed in TEGL 31-05, where you recruit depends on where the musicians appear. Canadian musicians who enter the US to perform within a 50-mile area adjacent to the Canadian border for a period of 30 days or less are pre-certified and are not subject to these procedures. In such cases, employers may file petitions to employ nonimmigrant workers (I-129) directly with USCIS in accordance with that agency’s guidelines; no pre-recruitment is necessary. If the entertainers you seek to bring to the US in H-2B status are not able to fall within this limited exemption, you must follow the procedures outlined in the H-2B regulations, subject only to special procedures outlined in TEGL 31-05 (such as an itinerary).

   June 2009

4. I hire workers in the Virgin Islands. There used to be special procedures for them. Are they still in place? Yes. There continue to be in place the special procedures with respect to the amount of time that an H-2B worker in the entertainment industry may enter the U.S. Virgin Islands. The Virgin Islands Nonimmigrant Alien Adjustment Act of 1981, Pub. L. 97-271, limits temporary employment of entertainers in the U.S. Virgin Islands to periods not to exceed 45 days. Therefore, the period of labor certification for such applications may not exceed 45 days.

   June 2009

5. My workers appear in several places.  I used to be able to file one application and submit an itinerary.  Can I still do that? An employer seeking H-2B workers in the entertainment industry may still utilize an itinerary when filing an application.  The application must include an itinerary of locations and duration of work in each location.

   June 2009

6. Has when I may file an H-2B application changed? Yes. The final regulation requires employers, including those seeking H-2B workers in the entertainment industry, to file their H-2B application after completion of the recruitment report detailing their efforts and the outcome of U.S. worker applicants. The creation of the required recruitment report cannot occur, pursuant to 20 CFR 655.15(j)(1), until after the completion of the US worker recruitment, specifically no earlier than 2 days after the last date on which the job order was posted and at least 5 days after the last date on which the newspaper or journal ad was placed. Recruitment may not start until 120 days prior to the employer’s date of need.

   June 2009

7. How do I begin the filing process?Before recruiting US workers, the employer must request and obtain a prevailing wage determination from the CNPC, in accordance with the procedures specified at 20 CFR 655.10. The rate must be valid either on the date recruitment begins or on the date of filing a complete ETA Form 9142. The employer will request a prevailing wage determination by completing the ETA Form 9141, Application for Prevailing Wage Determination, and including a listing of all worksites covered by the job opportunity. The CNPC will enter its wage determination on the ETA Form 9141, indicate the sources, and return the form with its endorsement to the employer within 30 days of receipt of the request. The validity period of the wage determination may be for no more than 1 year or less than 3 months from the wage determination date.

   June 2009

8. How do I get a prevailing wage if I have multiple worksites? The employer must list all worksites within an area of intended employment on its ETA Form 9141 when requesting a prevailing wage. If the job opportunity involves multiple worksites within an area of intended employment and different prevailing wage rates exist for the same opportunity within the area of intended employment, the prevailing wage shall be the highest wage among all relevant worksites. Employers submitting a prevailing wage determination covering itinerary locations will receive a wage determination for each location listed on the itinerary for work to be performed in that location.

   June 2009

9. I have just received my prevailing wage from the NPC. Can I offer that salary only to my H-2B workers? Pursuant to statute and regulation, the employer must offer the wage determination from the NPC (or higher) to both its H-2B workers and any similarly employed U.S. worker hired in response to the recruitment required by the regulations and these special handling procedures.

   June 2009

10. Do I follow the regulations and recruit before I file the application? All H-2B recruitment is undertaken prior to submission of the application. Employers file with the CNPC only after completing the recruitment report detailing their efforts and the outcome of U.S. workers who applied, or on whose behalf an application was made, for the job opportunity.

    June 2009

11. When do I recruit? Recruitment of US workers may not commence more than 120 days before the employer’s start date of need for the H-2B workers. An employer seeking H-2B workers may file with the CNPC only after completing the recruitment report as noted above. The creation of a recruitment report cannot occur, pursuant to 20 CFR 655.15(j)(1), until after the completion of the recruitment period, specifically no earlier than 2 days after the last date on which the state job order was posted and at least 5 days after the last date on which the newspaper or journal ad was placed.

    June 2009

12. How do I recruit? An employer seeking certification for H-2B job opportunities, including opportunities in the entertainment industry, must undertake the following recruitment steps:
    1. Submit a job order to the SWA serving the area of intended employment as specified in 20 CFR 655.15(e). Where the job opportunity requires the work to be performed in more than one state based on an itinerary, the job order should be submitted to the SWA having jurisdiction over the area where the employment will begin. The SWA receiving the job order shall promptly transmit, on behalf of the employer, a copy of the active job order to all states listed as anticipated worksites. When submitting the job order to the SWA, the employer must clearly identify it as a job order to be placed in connection with a future application for H-2B workers.
    2. Publish advertisements on 2 separate days, which may be consecutive, one of which must be a Sunday advertisement, in a newspaper of general circulation serving the area of intended employment as specified in 20 CFR 655.15(f). The employer may satisfy this requirement by advertising the job opportunity in a national publication that is likely to bring responses from U.S. workers.
    3. Where the employer is a party to a collective bargaining agreement governing the job classification that is subject of the H-2B labor certification, the employer must contact the local union that is party to the agreement as specified in 20 CFR 655.15(g)At the conclusion of the recruitment period, the employer shall prepare a written recruitment report as specified in 20 CFR 655.15(j), to be submitted with the application.

       June 2009

13. How long will the SWA job order be open? The SWA must keep the job order open for a period of not less than 10 calendar days. If the SWA requires a longer period in order to adequately recruit US workers for the job opportunity (e.g., 30 calendar days), the employer must comply with the requirement and continue to accept referrals of US workers until the end of the recruitment period.

    June 2009

14. Can I reject workers who are not willing to join the itinerary? For example, I have worksites in 6 states. If a worker sees the recruitment in the third state, can he join for just that state? He can if you are willing to have him join in only that state, and the certification will be reduced accordingly for the entire itinerary. If you prefer, you may reject that worker, unless he is in fact willing to work for the rest of the itinerary.

    June 2009

15. Where do I file my application?Temporary labor certification applications for foreign workers in the entertainment industry shall be filed by employer with the CNPC at the following address:
    Employment and Training Administration
    Office of Foreign Labor Certification,
    Chicago National Processing Center
    536 South Clark Street, 9th floor
    Chicago, Illinois 60605-1509
    Attn: CNPC Certifying Officer, H-2B Application for Entertainers 

    June 2009

16. How do I include my itinerary with the application?When filed, the application must include: A completed ETA Form 9142, Application for Temporary Employment Certification signed by the employer; an itinerary of locations and duration of work in each location, where there is more than one worksite, and a wage offer for each location listed on the itinerary for work performed in that location which can submitted as an attachment to the ETA Form 9142. The completed application must also include a copy of the recruitment report completed in accordance with 20 CFR 655.15(j).

    June 2009

17. Once the CNPC has my application, what can I expect? The CNPC will make a determination to either grant or deny the Application for Temporary Employment Certification. The CNPC will notify the employer in writing (either electronically or by US Mail) of the labor certification determination. The CNPC will review complete applications for an absence of errors that would prevent certification and for compliance with the criteria for certification. Criteria for certification include whether the employer has established the need for the nonagricultural services or labor to be performed is temporary in nature; established that the number of worker positions being requested is justified and represent bona fide job opportunities; made all the assurances and met all the obligations required by § 655.22; and complied with all requirements of the program. If the CNPC determines that the employer has made all necessary attestations and assurances, but the application fails to comply with one or more of the criteria for certification, the CNPC will issue a Request for Information (RFI) to the employer. The CNPC will issue the written (RFI) within 7 calendar days of the receipt of the application, and send it by means normally assuring next-day delivery.

    June 2009

1. What labor certification programs are affected by the new prevailing wage process administered by the NPWHC?

1. What labor certification programs are affected by the new prevailing wage process administered by the NPWHC?As described in the Department’s December 4, 2009, Federal Register Notice (74 FR 63796), the National Prevailing Wage and Helpdesk Center (NPWHC) will process Prevailing Wage Determination (PWD) requests for H-1B, H-1B1 (Chile/Singapore), H-1C (if reauthorized by Congress), H-2B, E-3 (Australia) programs, and the permanent labor certification program (PERM).

March 24, 2010

1. Will the NPWHC accept PWD requests via electronic means?
2. I want to mail in a request for a PWD, where do I send it? What is the correct address and zip code?
3. My office is located in Washington, DC. Can I bring my PWD request to the NPWHC?

1. Will the NPWHC accept PWD requests via electronic means?
   Electronic filing is strongly recommended.  The Department’s iCert Portal has been updated to allow users to electronically submit ETA Form 9141, requests for PWDs, to the NPWHC.  To access the iCert Portal go to: http://icert.doleta.gov/.

March 24, 2010

2. I want to mail in a request for a PWD, where do I send it? What is the correct address and zip code?To mail a request for a PWD, an employer must send a completed ETA Form 9141 to the NPWHC. The complete address and zip code for the NPWHC is:U.S. Department of Labor
   Employment and Training Administration
   Office of Foreign Labor Certification
   National Prevailing Wage and Helpdesk Center
   Attn: PWD Request
   1341 G Street, NW
   Suite 201
   Washington, DC 20005-3105

March 24, 2010

1. My office is located in Washington, DC. Can I bring my PWD request to the NPWHC?No The NPWHC is not set up to receive walk-in applications from the public. Requests for PWDs should be filed either electronically using the iCERT system or mailed to the NPWHC.

March 24, 2010

1. What form should I use to request a Prevailing Wage Determination?
2. I want to include alternative job requirements on the ETA Form 9141. Is there a section on the 9141 where I can list alternative job requirements?
3. Will suggestions for changes to the ETA Form 9141 be considered?

1. What form should I use to request a Prevailing Wage Determination?
   An employer must use ETA Form 9141 to request a PWD from the NPWHC. This form is available in the Forms and Instructions section of the OFLC website: http://www.foreignlaborcert.doleta.gov/form.cfm
   March 24, 2010
2. I want to include alternative job requirements on the ETA Form 9141.  Is there a section on the 9141 where I can list alternative job requirements?No. Prevailing Wage Determinations will be made based on the initial requirements submitted on the 9141.  Alternative requirements will not be considered for prevailing wage purposes.March 24, 2010
3. Will suggestions for changes to the ETA Form 9141 be considered?The current ETA Form 9141 was approved by OMB through November 30, 2011. Any modifications to the form would be subject to the procedures mandated by the Paperwork Reduction Act (PRA), which provides for notice and comment on such modifications.  Any changes to the form would not go into effect until after the PRA process was complete.

March 24, 2010

1. Will employers seeking H-2A labor certifications be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?
2. How do I indicate on ETA Form 9141 that I want to use any applicable H-2B special procedures for itineraries?
3. What information should I include to get PWDs for the various locations under the H-2B special procedures for itineraries?

1. Will employers seeking H-2A labor certifications be sending our wage requests to your new National Prevailing Wage and Helpdesk Center (NPWHC)?No. The 2010 Final Rule does not require that employers participating in the H-2A program obtain a wage rate from the NPWHC, but rather that employers obtain their wage rates by completing and submitting a job order to the SWA.March 24, 2010
2. How do I indicate on ETA Form 9141 that I want to use any applicable H-2B special procedures for itineraries?On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties include the following statement surrounded by asterisks: “***This position is for H-2B temporary employment in the <particular H-2B special procedure industry. An itinerary is attached. ***”March 24, 2010
   
3. What information should I include to get PWDs for the various locations under the H-2B special procedures for itineraries?The itinerary must include the following:
   1. The place of employment with full address if available; use the name of the area covered if there is no street address such as George Washington National Forest;
   2. The county or equivalent for that address;
   3. Any additional work sites in that area;
   4. The begin and end dates for each work site; and 5
   5. Each page must include, as entered on the ETA Form 9141 on page one:
      1. the Employer’s Name
      2. the Trade (DBA) Name
      3. the Employer’s Job Title
      4. the date of the request

March 24, 2010

1. How do I request a PWD based upon a source other than OES?
2. What supporting documentation should I submit with my ETA Form 9141 to request the use of a McNamara-O’Hara Service Contract Act (SCA) or Davis Bacon Act (DBA) wage?
3. What documentation should I submit in addition to ETA Form 9141 when the job opportunity is covered by a collective bargaining agreement (CBA)?
4. What documents do I need to send with a request to use an employer provided/published or employer conducted/commissioned survey?
5. How do I request that a Higher Education American Competitiveness and Workforce Improvement Act (ACWIA) wage be used?

1. How do I request a PWD based upon a source other than OES?
   On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties, the employer should include a sentence surrounded by asterisks (***) requesting the use of a specific source, with the name, edition, revision and publication date as appropriate.  Additionally, the employer may also need to provide supporting documentation, as explained in the questions and answers immediately following. 

   In addition, after entering the employers’ job title in item D.a.1, enter the title or occupation name and code, as appropriate in square brackets.

   Example
   D.a.6: *** Request SCA WD 950221 (Rev.23)
   Emergency Incident/Fire Safety Services ***
   D.a.1: Site Sample Technician [30210 Laboratory Technician]

   March 24, 2010

2. What supporting documentation should I submit with my ETA Form 9141 to request the use of a McNamara-O’Hara Service Contract Act (SCA) or Davis Bacon Act (DBA) wage?No supporting documentation is required to request the use of a SCA or DBA wage. If we need additional information to make a PWD, we will send a letter to the requestor asking for specific information.March 24, 2010
3. What documentation should I submit in addition to ETA Form 9141 when the job opportunity is covered by a collective bargaining agreement (CBA)?When a job opportunity is covered by a collective bargaining agreement, the employer must submit the following at the time it submits the ETA Form 9141:
   1. A copy of the relevant portion of the CBA;
   2. A letter, on letterhead, from the employer, stating the relevant section of the CBA, the CBA job title, and the appropriate wage; and
   3. A letter, on letterhead, from the collective bargaining unit’s (union) authorized representative, stating the relevant section of the CBA, the CBA job title, and the appropriate wage.

March 24, 2010

4. What documents do I need to send with a request to use an employer provided/published or employer conducted/commissioned survey?The NPWHC will consider wage information provided by the employer in making a PWD.  An employer must provide the following information pertaining to the survey:
   1. The full name of the published survey (acronyms are not acceptable);
   2. The publication schedule for the survey. This should include the publication date of the requested survey, the date of the previous version of the survey and the date of the next anticipated release of the survey;
   3. When the data was collected;
   4. A description of the job duties or activities used in the survey; and
   5. The methodology used in the survey:
      1. How the universe was defined;
      2. How the sample size was determined;
      3. How the participants were selected; and
         1. The number of employers surveyed for the occupation in the area;
         2. The number of wage value responses (employees) for the occupation in the area;
      4. A list of employer participants or explanation of how the cross industry nature of the survey was maintained;
         1. How the presented wage was determined and if it is the “mean” or “median”;
         2. Any other appropriate information on the survey’s methodology;
         3. The area covered by the survey or relevant portion thereof and an explanation of any expansion of the area beyond normal commuting distance, when applicable.

   March 24, 2010

5. How do I request that a Higher Education American Competitiveness and Workforce Improvement Act (ACWIA) wage be used?ACWIA wages which provide a prevailing wage based on a sample of similar institutions apply to occupations in institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research agencies. On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties, include the following statement surrounded by asterisks: “***This employer is an institution of higher education or a research entity under 20 CFR 656.40(e).***” If this statement is not included on the ETA 9141, a non ACWIA wage will be used to determine the wage.

   March 24, 2010

1. Does the NPWHC provide Prevailing Wage Determinations for high paying professional occupations, e.g. physicians?

1. Does the NPWHC provide Prevailing Wage Determinations for high paying professional occupations, e.g. physicians? Yes. However, some prevailing wages are higher than what the Occupational Employment Statistics (OES) accommodates because of its methods of data analysis.  In some occupations and areas, OES provides a footnote that “This wage is equal to or greater than $70.00 per hour or $145,600 per year.  In other situations, the OES footnote states “this wage is equal to or greater than $80.00 per hour or $166,400 per year. This means the actual wage for the occupation is an amount equal to or above the stated hourly wage. Thus, some locations and occupations do not have specific wages listed in the Online Wage Library (OWL) that the NPWHC uses to determine prevailing wages.  This includes some physicians, dentists, and Chief Executives. Where the NPWHC does not have the information from OES to determine the actual prevailing wage for certain high paying occupations in the area of employment, the NPWHC will issue the prevailing wage as either $70.00 or $80.00 per hour as indicated in the OES data and will include the OES note in the Additional Notes on Prevailing Wage.

March 24, 2010

1. I submitted an ETA Form 9141 to the NPWHC, but it was returned with a letter stating that the form was incomplete. Should I submit a new ETA Form 9141?
2. I submitted an ETA Form 9141 to the NPWHC, but it was returned with a letter stating that the job duties on the 9141 (item D.a.6) were not specific enough to assign an occupation and wage. When I submit a new 9141 can I use the same wording from a job description I found on O*Net for the job duties on the 9141?
3. I submitted a request for a PWD via the iCERT portal, but I received a response that my request was voided due to missing information. What can I do to correct my request?

1. I submitted an ETA Form 9141 to the NPWHC, but it was returned with a letter stating that the form was incomplete. Should I submit a new ETA Form 9141?Yes. The employer should complete a new ETA Form 9141 with all of the fields filled in completely and submit it to the NPWHC. It is recommended that the employer submit the request via the iCERT Portal: http://icert.doleta.gov/.March 24, 2010
2. I submitted an ETA Form 9141 to the NPWHC, but it was returned with a letter stating that the job duties on the 9141 (item D.a.6) were not specific enough to assign an occupation and wage. When I submit a new 9141 can I use the same wording from a job description I found on O*Net for the job duties on the 9141?Yes, assuming that the O*Net job description accurately reflects the offered job. Employers may use the O*NET (Occupational Information Network) system when preparing the job duties on the ETA Form 9141 (item D.a.6).  Since the NPWHC uses the O*NET description that corresponds to the employer’s offered job to identify the appropriate SOC (Standard Occupational Classification), it is acceptable for the employer to use the O*NET language for the job duties (ETA Form 9141, item D.a.6).  The O*NET system can be found at: http://online.onetcenter.org/.  For more information on the determination process, please refer to the Prevailing Wage Determination Policy Guidance:
   http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. 

   March 24, 2010

3. I submitted a request for a PWD via the iCERT portal, but I received a response that my request was voided due to missing information. What can I do to correct my request?All fields on the ETA Form 9141 must be completed prior to submitting a request for a PWD via iCERT.  When a request is processed, if any fields are missing the request is returned to the requestor and is voided in iCERT.  The requestor should complete a new ETA Form 9141 and submit it via iCERT.In addition, PWD requests submitted via mail to the NPWHC will be returned to the requestor as unprocessed if there is missing information on the ETA Form 9141.

March 24, 2010

1. How can I obtain assistance in preparing a PWD request?
2. What do I do if I have a problem or issue with a PWD request I submitted to the NPWHC prior to receiving a determination?

1. How can I obtain assistance in preparing a PWD request?
   Persons with questions regarding the preparation of PWD should consult the OFLC website: www.foreignlaborcert.doleta.gov. Information is located in the Prevailing Wage section of the FAQs and the iCERT Portal System.

March 24, 2010

2. What do I do if I have a problem or issue with a PWD request I submitted to the NPWHC prior to receiving a determination?For issues with PWD requests prior to determinations being issued, please email the NPWHC at FLC.PWD@dol.gov.

March 24, 2010