- Permanent (PERM) applications are filed only with the U.S. Department of Labor.
- Temporary H-2A (Agriculture) Seasonal worker applications are filed first with the Oregon Employment Department, and then with the U.S. Department of Labor.
- Employers must file an ETA 790 and Attachments with the State Labor Certification Coordinator in order to initiate the required recruitment of U.S. workers.
- After recruitment is accepted at the state level, the ETA 790 and Attachments, and the ETA 9142 are filed with the U.S. Department of Labor.
- Temporary H-2B (Non-Agriculture) Contact the Oregon Employment Department's Foreign Labor Certification Coordinator to begin seasonal worker applications and place your job listings before you file your H-2B application with the U.S. Department of Labor.
- H-2B recruitments are not self-entered job listings in Oregon.
H-2A Program Overview
In Oregon, employers that use the H-2A program must use the following statement in their H-2A applications: "Housing is provided at no cost to those who live outside the local commuting area. Fair housing law generally applies to farm labor housing."
The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for ongoing operations. Employment is of a temporary nature when the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year.
In order to participate in the H-2A program you must create an account and upload the application materials to the Foreign Labor Application Gateway:
https://flag.dol.gov/
Video tutorials are available on creating a FLAG System account and more.
The Oregon Employment Department Foreign Labor Certification program staff will automatically receive notification of the submitted application via email.
If this is the first time you are seeking certification under the H-2A program, OR-OSHA will need to approve your housing. You can fill out the application and request a consultation free of charge. If you have questions, call OR-OSHA at 1 800-922-2689 or (503) 378-3272.
The Oregon Employment Department can certify your housing if the following is true:
- You have an in-compliance letter from OR-OSHA from the previous year
- You have not made significant changes to the housing since OR-OSHA last approved it
- You are not looking to increase capacity
If you are required to register your housing with OR-OSHA, you will still need to do so even if the Oregon Employment Department certifies your housing. Yearly registration is a separate process you are required to comply with per OR-OSHA rules.
Water Test - Housing operators must have a bacteriological analysis done on the water annually before occupancy and as often as needed to assure a potable water supply, except when the water comes from a community water system. The sample must be analyzed using an ORELAP certified water-testing laboratory and method. The sample needs to test for coliform and E. coli bacteria.
- The Oregon Employment Department does not automatically receive a copy of your in-compliance letter from OR-OSHA or the results of a water test. You will need to provide us with a copy of these documents prior to approval.
H-2B Program Overview
The H-2B temporary non-agricultural program permits employers who meet the program requirements to hire nonimmigrant workers to temporarily come to the U.S. and perform non-agricultural services or labor based on the employer's temporary need. The employer applicant must establish that its need for non-agricultural services or labor is temporary in nature, regardless of whether the underlying job is permanent or temporary.
To participate in the H-2B program, an applicant must:
-
Be an employer with a valid Federal Employer Identification Number (FEIN);
-
Have a place of business (i.e., physical location) in the United States; and
- Have a means by which it can be contacted for employment.
The employer's job opportunity (opportunities) must be:
- Temporary (i.e., nine months or less, except one-time occurrences);
- Full-time (i.e., 35 or more hours per week); and
- Non-agricultural employment within a specified area(s) of intended employment.
Temporary need must be established as one of the following:
- One-time occurrence;
- Seasonal need;
- Peakload need; or
- Intermittent need.
With the exception of a one-time occurrence need which can last up to three years, temporary need
will not be approved for longer than nine months.
- Obtain a Prevailing Wage Determination (PWD) - at least 60 calendar days before it is needed. Obtain a PWD from the National Prevailing Wage Center (NPWC) using the Application for Prevailing Wage Determination (Form ETA-9141). The PWD application is available for electronic filing on the FLAG System and filing by mail.
- File a job order and H-2B application - 90 to 75 days prior to the date of need. File a job order with the State Workforce Agency (SWA) AND submit the H-2B application (Form ETA-9142B and Appendices) with supporting documents and a copy of the job order filed with the SWA to the Chicago National Processing Center (Chicago NPC).
When to submit your application package to the Chicago NPC:
90-75 calendar days before the start date of need, the employer concurrently submits the job order to the SWA and submits the H-2B application package to the Chicago NPC
Prevailing Wage Determinations - Requests can be submitted electronically through the FLAG System. Electronic filing is strongly recommended.
Employers that lack adequate access to electronic filing may file the application by mail. The employer must indicate that it is filing by mail due to a lack of adequate access to electronic filing. The employer may mail the application package to the NPWC at the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
National Prevailing Wage Center
200 Constitution Ave NW
Room N-5311
Washington, DC 20210
Attn: H-2B Prevailing Wage Determinations
Job Order - The job order must be filed with the State Workforce Agency otherwise known as the Oregon Employment Department. You can create an account and self-enter the job order here:
iMatchSkills or email the job order here:
foreign.labor.certification@employ.oregon.gov We will enter the job order into our system and a copy will be e-mailed to you.
H-2B Application Package - The H-2B Application package can be filed electronically through the
FLAG System.
Employers that lack adequate access to electronic filing may file the application by mail. The employer must indicate that it is filing by mail due to a lack of adequate access to electronic filing. The employer may mail the application package to the Chicago NPC at the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
11 W Quincy Ct
Chicago, IL 60604-2105
Attn: H-2B Application
- The SWA reviews the job order for compliance with program requirements as soon as possible but no later than six business days of receipt.
- The Chicago NPC reviews the H-2B application and job order for compliance with program requirements within seven business days of receipt.
- Within seven business days of receipt of the application, the Chicago NPC will notify the employer in writing of the decision to either accept (Notice of Acceptance) or not accept (Notice of Deficiency) the employer's application and/or job order.
- A Notice of Deficiency identifies the deficiencies found by the SWA and Chicago NPC and provides the employer the opportunity to address those deficiencies with the application and/or job order.
- Each notification will also provide the next steps for the employer to take.
- Within 14 days of receipt of a Notice of Acceptance, the employer must follow the instructions provided in the Notice of Acceptance and conduct recruitment, including:
- Placing newspaper advertisements;
- Contacting former U.S. workers;
- Contacting the bargaining representative (if any) or posting notice of the job opportunity to the employer's current employees; and
- Conducting any additional recruitment, if directed by the Certifying Officer.
- The Certifying Officer in the Notice of Acceptance will specify a date for the employer's initial recruitment report.
- After receipt of the initial recruitment report, the Chicago NPC will determine whether to certify or deny the application and issue the final determination.
- The final determination will be sent electronically to the employer and, if applicable, the employer's attorney or agent. The Chicago NPC will no longer issue certifications on blue security paper.
- The employer submits the Form ETA-9142B Final Determination: H-2B Temporary Labor Certification Approval, a copy of Appendix B, and information required by USCIS, with the petition package to the USCIS Service Center. The original Appendix B is retained in the employer's retention file.
- The employer is obligated to continue to update the recruitment report and prepare a final recruitment report.
- The updated report need not be submitted to the Department, but must be retained in the employer's retention file and made available in the event of a post-certification audit or upon request by the Department.
- The employer must also continue to accept referrals of U.S. applicants until 21 days before the date of need.
- Employers can appeal for administrative review of Notices of Deficiency, partial certifications, denial of labor certification, denials of redetermination requests, denials of modified applications or job orders and denials of extension requests.
Permanent Labor (PERM) Program Overview
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
DOL processes Applications for Permanent Employment Certification, ETA Form 9089, with the exception of Schedule A and sheepherder applications filed under 20 CFR § 656.16. The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is certified by DOL, it should be submitted to the appropriate USCIS Service Center with a Form I-140, Immigrant Petition for Alien Worker. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.
Detailed Program Description available
HERE.
- Application. The employer must complete an Application for Permanent Employment Certification, ETA Form 9089. A completed application will describe in detail the job duties, educational requirements, training, experience, and other special skills the employee must possess to perform the work, and outline the foreign worker's qualifications.
- Signature requirement. Applications submitted by mail must contain the original signature of the employer, foreign worker, and preparer, if applicable, when they are received by the NPC. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, foreign worker, and preparer, if applicable, in order to be valid.
- Prevailing wage. Prior to filing ETA Form 9089, the employer must request and obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC). To request a prevailing wage determination for a Nonagricultural Immigration Program (PERM, H-1B, H-1B1, H-2B, and E-3) employers must complete the Form ETA-9141 (Application for Prevailing Wage Determination) and submit it to the National Prevailing Wage Center (NPWC). Electronic filing is strongly recommended. Beginning Monday, June 10, 2019, the NPCW will accept online submissions of Form ETA-9141 in the FLAG System for all visa programs. Video tutorials are available on creating a FLAG System account and more.
For the H-1B, H-1B1, and E-3 programs employers have the option of using one of three wage sources to obtain the prevailing wage:
- Requesting a prevailing wage from the NPWC;
- Using a survey conducted by an independent authoritative source; or
- Using another legitimate source of information.
By obtaining the prevailing wage from the NPWC for the H-1B, H-1B1, and E-3 programs, employers are given "safe-harbor status." This means, if the employer's wage compliance is investigated for any reason, the U.S. Department of Labor's Wage and Hour Division will not challenge the validity of the prevailing wage so long as it was applied properly (i.e., correct geographic area, occupation, and skill level).
- Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving Schedule A occupations and sheepherders filed under 20 CFR §656.16) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
When filing under 20 CFR §656.17, the employer must recruit using the standards for professional occupations set forth in 20 CFR §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. The occupations listed have been deemed to be professional occupations, as they normally require a bachelor's or higher degree. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR §656.17(e)(2). Employers are not prohibited from conducting more recruitment than is required by the regulations.
The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides 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, however, if requested by the Certifying Officer, the employer must submit the resumes.
- Audits/requests for information. Supporting documentation may not be filed with the ETA Form 9089, 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.
- Retention of records. The employer is required to retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the NPWC prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
- Online filing. The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, DOL strongly recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed. Additionally, when completing the ETA Form 9089 online, the preparer is provided prompts to assist in ensuring accurate data entry.
The employer can access a customer-friendly Web site (
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.
Registration. To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System. By completing an Employer Profile, the employer is able to:
- Save time by pre-populating its general information.
- View the status of its labor certification applications online.
- Update its profile information online.
- Track newly submitted labor certification applications.
- E-mail saved labor certification applications to others within the company.
- Add new users to its account.
- Withdraw labor certification applications no longer needed.
Filing by mail. Employers can submit paper applications to the Atlanta NPC. The address and contact information are provided on our Contact Information page.
Approvals. If the Atlanta NPC approves the application, the ETA Form 9089 is signed by the Certifying Officer and returned to the employer/employer representative who submitted the application.
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Atlanta National Processing Center
Harris Tower
233 Peachtree Street, Suite 410
Atlanta, Georgia 30303
Phone: (404) 893-0101
Fax: (404) 893-4642
PLC.Atlanta@dol.gov