Temporary Labor Certification for Foreign Workers (17.273)
Program
17.273 Temporary Labor Certification for Foreign Workers
Federal Agency
EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
Authorization
Immigration and Nationality Act of 1952, as amended, Sections 101(a)(15)(H), 212(n), 214(c) and 214(i); Public Law 82-414, 66 Stat. 163, 8 U.S.C. 1101 et seq.; Immigration Act of 1990, Public Law 101-649, 104 Stat. 4978, 8 U.S.C. 1182(n) and 1184; Public Law 102-232, 105 Stat. 1733, 8 U.S.C. 1182 note. Public Law 82-414, 66 Stat. 163, 8 U.S.C. 1101, et seq.; Immigration Reform and Control Act of 1986, Public Law 99-603, 100 Stat. 3359, 8 U.S.C. 1186.
Program Number
17.273
Last Known Status
Active
Objectives
To provide greater protection for U.S. and foreign workers without interfering with an employer's right to obtain temporary foreign workers to work in specialty occupations. Also, to enable agricultural employers to obtain temporary foreign workers for temporary or seasonal jobs when domestic workers are not available; to protect domestic workers against unfair competition from foreign workers; and to assure adequate working and living conditions for domestic and foreign workers employed in similar tasks.
Types of Assistance
Provision of Specialized Services; Formula Grants.
Uses and Use Restrictions
The Department of Labor issues labor certifications for temporary employment under several programs: H-1B Specialty (Professional) Worker Program, H-1B1 Specialty Worker Program, E-3 Specialty Worker Program, H-2A Temporary Labor Certification (Seasonal Agricultural), H-2B Temporary Labor Certification (Non- agricultural) , and D-1 Crewmember Program. Under Section 101(a)(15)(H)(i)(b) of the Act, nonimmigrant foreign workers cannot be admitted to work in a specialty occupation or as a fashion model unless the Secretary of Labor determines and certifies to the Secretary of Homeland Security the intending employer filed with and had approved by the Secretary an application under section 212(n)(1). The labor condition application requires the employer to attest to certain elements regarding working conditions and wages of foreign and U.S. workers. Employers who need workers for temporary agricultural jobs may be certified to use foreign workers after the Secretary of Labor has determined that there are not sufficient domestic workers capable of performing the job duties and that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed domestic workers. The Secretary of Labor will render only advisory opinions to the Secretary of Homeland Security on applications for foreign worker employment for temporary nonagricultural work under Section 101(a)(15)(H)(II) of the Act. Certifications will be made only after efforts to recruit domestic workers through the Federal-State employment service system are unsuccessful.Performance of longshore work at U.S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exemptions. The Department of Labor is responsible for administering two of those exemptions. Employers in these ports are required to file an attestation stating that the use of alien crewmembers to perform longshore work 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. 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 U.S. longshore workers, and private dock operators. State Workforce Agencies receive grants to perform the following labor certification activities: provide prevailing wage determinations for all non-agricultural labor certification programs; process H-2B temporary non-agricultural labor certification applications; and receive new applications for H-2A temporary agricultural labor certifications, performing prevailing wage and prevailing practice surveys, ensuring housing inspections are conducted and processing job orders.
Eligibility Requirements
Applicant Eligibility
H-2A Program: An agricultural employer who anticipates a shortage of U.S. workers needed to perform agricultural labor or services of a temporary or seasonal nature. The employer may be an individual proprietorship, a partnership or a corporation. An association of agricultural producers may file as a sole employer, a joint employer with its members, or as an agent of its members. An authorized agent, whether an individual (e.g., and attorney) or an entity (e.g., an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members. H-2B Program: The job and the employer's need must be one time, seasonal, peak load or intermittent; the job must be for less than one year; and there must be no qualified and willing U.S. workers available for the job. Any employer can file a labor condition application with the National Processing Centers of the Employment and Training Administration. For grants related to the H-2A and H-2B programs: State Workforce Agencies.
Beneficiary Eligibility
Employers and foreign workers to be employed in specialty occupations or as fashion models or in temporary agricultural or non-agricultural employment.
Credentials/Documentation
Foreign workers must document to the United States Citizenship and Immigration Services that they possess the qualifications to perform services in a specialty occupation as described and defined in section 214(i) of the Act, or as a fashion model of distinguished merit and ability.
Application and Award Process
Preapplication Coordination
None, this program is excluded from coverage under E.O. 12372.
Application Procedure
Employers contact the appropriate office of the Employment and Training Administration. Also see http://www.doleta.gov/business/gw/guestwkr/ for additional details for specific programs.
Award Procedure
Certifications are sent to the employer in support of the petition to be filed with the U.S. Citizenship and Immigration Services which makes the final decision whether to grant or deny the admission of foreign workers.Certified copies of accepted attestations for the D-1 Crewmember program are returned to the employer and the BCIS is notified of the filing in writing. Grants: State workforce agencies receive funds upon acceptance of their work plans.
Deadlines
None.
Range of Approval/Disapproval Time
Appeals
There is no procedure for appealing Employment and Training Administration determination to accept or reject a Labor Condition Application. Complaints regarding misrepresentation in the attestation or failure of the employer to carry out the terms of the attestation may be filed with the Wage and Hour Division, Employment Standards Administration, Department of Labor.
Renewals
Treated as filing of new labor condition applications.
Assistance Considerations
Formula and Matching Requirements
Grants to State Workforce Agencies are distributed using a formula based on state workloads.
Length and Time Phasing of Assistance
Not applicable.
Post Assistance Requirements
Reports
The Employment and Training Administration compiles and maintains on a current basis for public examination in Washington, DC, a list of the labor condition applications. Such list is by employer, showing the occupational classification(s), wage rate(s), number of foreign workers sought, period(s) of intended employment, and date(s) of need for each employer's application. Grants: Quarterly financial reports are required.
Audits
Employer has to make a filed labor condition application and necessary supporting documentation available for public examination at the employer's principal place of business in the United States, or at the place of employment within one working day after the date on which the labor condition application is filed with the Employment and Training Administration. Complaints concerning misrepresentation in the attestation or failure of the employer to carry out the terms of the attestation may be filed with the Wage and Hour Division, Employment Standards Administration, Department of Labor. The Administrator, Wage and Hour Division, performs the entire Secretary's investigative and enforcement functions under 8 U.S.C. 1182(n) and subparts I and K of 29 C.F.R. Part 504.
Records
Employer shall make the Labor Condition Application (LCA) and necessary supporting documentation available for public examination at the employer's principal place of business in the United States or at the place of employment within one working day after the date on which the LCA is filed with Employment and Training Administration.
Program Accomplishments
In 2005, FLC issued 317,714 LCA determinations. In 2005, OFLC certified 6,598 employers for 48,337 workers.
Financial Information
Account Identification
16-0172-0-1-504; 16-0179-0-1-999.
Obligations
(Federal salaries and expenses) FY 05 $6,000,000; FY 06 est $9,000,000; FY 07 est $9,000,000 (Formula grants) FY 05 $43,000,000; FY 06 est $13,000,000; FY 07 est $13,000,000.
Range and Average of Financial Assistance
Not applicable.
Regulations, Guidelines and Literature
Further information concerning the program may be found at 20 C.F.R. 655.
Related Programs
17.272, Permanent Labor Certification for Foreign Workers.
Information Contacts
Regional or Local Office
Contact the appropriate State Workforce Agency (See Appendix IV) or Employment and Training Administration National Processing Center. The following addresses, phone numbers, and FAX numbers should be used by employers and by State Workforce Agencies for either inquiries or the forwarding of applications materials, as appropriate. Please note, for all application materials, inquiries, and other correspondence sent to either the Atlanta or Chicago National Processing Center, envelopes should be clearly marked according to the appropriate program type, i.e. H-1B, H-1B1, E-3, H-2A, H-2B, or D-1. Atlanta Processing Center Address: U.S. Department of Labor Employment and Training Administration Harris Tower 233 Peachtree Street, Suite 410 Atlanta, GA 30303 Phone: (404) 893-0101 FAX: (404) 893-4642 Chicago Processing Center Address: U.S. Department of Labor Employment and Training Administration 844 North Rush Street, 12th Floor Chicago, IL 60611 Phone: (312) 886-8000 FAX: (312) 886-1688.
Headquarters Office
Administrator, Office of Foreign Labor Certification, Department of Labor, 200 Constitution Avenue, NW, C-4312, Washington, DC 20210. Telephone: (202) 693-3010. Contact: William L. Carlson.
Web Site Address
http://www.foreignlaborcert.doleta.gov/
Examples of Funded Projects
Not applicable.
Criteria for Selecting Proposals
Not applicable.
