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DWD > DWD Employer Services > Foreign Labor Certification Foreign Labor Certification

Effective January 18, 2009, the Temporary, Non-Agricultural (H-2B) Foreign Worker Program operated by the U.S. Dept. of Labor will undergo significant regulation and procedural changes.

For more complete and detailed information, please refer to Department of Labor, Employment and Training Administration Federal Register 20 CFR Parts 655 and 656: Labor Certification Process for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes; Final Rule issued 12/19/08.

However, some of the more relevant changes, combined with Dept. of Workforce procedures, are summarized below…

** The Dept. of Workforce Development will no longer accept for processing applications by employers (or their duly authorized representative) for H-2B workers filed on or after 1/18/09! **

Prevailing Wage Information

H-2B Worker

Employers in Indiana wishing to file applications for H-2B workers on or after 1/18/09 where the date of need for the services or labor to be performed is before October 1, 2009 will still be required to obtain a prevailing wage determination from the Dept. of Workforce Development on its current form available at http://www.in.gov/dwd/2353.htm.

Employers in Indiana wishing to file applications for H-2B workers on or after 1/18/09 where the date of need for the services or labor to be performed is on or after October 1, 2009 will be required to obtain a prevailing wage determination from the Chicago National Processing Center (NPC). …Where the date of need is after 10/1/09, employers will use new Form 9141 (to be available through USDOL) to submit a Prevailing Wage request directly to the NPC via eiher of two fax numbers: (312) 353-3352 or (312) 886-1688.

PERM, H-1B and related programs:

The Dept. of Workforce Development will continue to issue Prevailing Wage Determinations for PERM, H-1B and related programs until January 1, 2010 on its current form, available at http://www.in.gov/dwd/2353.htm.

After 1/1/10, the Chicago National Processing Center will provide prevailing wage determinations for these programs. …Employers will use DOL’s new form (Form 9141) to submit a Prevailing Wage request after 1/1/10 for PERM, H-1B and related programs.

Filing of H-2B Application

** The Dept. of Workforce Development will no longer accept for processing applications filed by employers for H-2B workers on or after 1/18/09! **

Step 1: Obtain Prevailing Wage Determination using the date-of-need criteria outlined above for H-2B workers.

Step 2: Conduct Pre-filing Recruitment Activities. Employers may NOT file the ETA Form 9142 (…ETA 750-A will no longer be used after 1/18/09…) until ALL of the pre-filing recruitment actions have been met. These actions include:

  • Submit a job order to the Dept. of Workforce Development. Or, you may place the job order yourself through https://www.indianacareerconnect.com/. 
    There is no fee for indianacareerconnect.com, and you need only set up a User Account.
    ...Place the job order no more than 120 days the start-work date and run it for a period of not less than 10 days.
  • Run two print advertisements in the area of intended employment. There is no need to reference the Dept. of Workforce Development in the newspaper ad, and the job order number does NOT have to appear in the ad. See further below for more newspaper ad requirements.
  • Contact local union where employer is a party to a collective bargaining agreement. See 20 CFR 655.15(g) for additional information on labor organizations.

Job Orders
Minimum job order content requirements:

  • Employer’s Name (Company), Address, and FEIN
  • Contact person of Employer (…not their attorney or agent)
  • Geographic area(s) of employment with specificity to apprise U.S. workers of any travel requirements
  • Description of job opportunity with particularity
  • Expected start and end dates of employment
  • Work hours and days
  • Minimum education and/or experience requirements
  • Wage offer or range of applicable wage offers
  • Indication the job is “temporary” and that "This job order is being placed in connection with a future application for H-2B workers."
  • Total number of job openings
  • A statement that overtime work will be available (if applicable)
  • A statement that on-the-job training will be provided by the employer (if applicable)
  • A statement that transportation will be provided by the employer (if applicable)

See 20 CFR 655.15(e) for additional job order requirements.

After assembling the above information, e-mail or fax it to Tim Lawhorn. tlawhorn@dwd.in.gov …or… 317.234.2932 (fax).Or, enter the job order yourself as described in Step 2 above.

Dept. of Workforce Development responsibilities with respect to job orders, if the job order is to be placed by this Agency…

  • Review job order for obvious errors or omissions and, where necessary, provide written notification to the employer of any deficiencies or corrections.
  • Place job order on active file no more than 120 days before the date of need.
  • Provide employer with proof of posting containing the text of the job order and the start/end dates of posting.
  • Maintain active job order for a period of not less than 10 days.
  • Maintain record of referrals of U.S. workers and any actions subsequently taken (e.g. hired, not hired).
  • Provide notification to Chicago National Processing Center of any “questionable” refusals to hire.

Newspaper Advertising
Please refer to 20 CFR 655.15(f) for a detailed explanation of advertising requirements. Generally speaking, the ad must be published on 2 separate days, one of which must be a Sunday, in a newspaper of general circulation serving the area of intended employment that has a reasonable distribution and is appropriate to both the occupation ad the workers likely to apply for the job opportunity. Both newspaper ads must be published only after the job order is placed for active recruitment

…All advertising must contain terms/conditions of employment which are not less favorable than those that will be offered to the H-2B workers.

Step 3: ETA Form 9142 and Recruitment Report

Employer will prepare, sign, and date recruitment report…

  • No fewer than 2 calendar days after the last date on which the job order was posted; and
  • No fewer than 5 calendar days after the date on which the last newspaper or journal advertisement appeared.

Please see 20 CFR 655.15(j) for additional Recruitment Report requirements.

Employer will then submit the ETA Form 9142 and Recruitment Report to the Chicago National Processing Center:

U.S. Dept. Of Labor
Employment & Training Administration
Division of Foreign Labor Certification
12th Floor
844 N. Rush St.
Chicago, IL 60611

Step 4: National Processing Center processing

Upon receipt of the application, the NPC shall…

  • Review for obvious inaccuracies or omissions
  • Review for compliance with criteria for certification

Chicago NPC is required to issue a Request for Information (RFI), if necessary, within 7 calendar days.

Criteria for certification include, but are not limited to, the following:

  • Nature of the employer’s need for the services or labor to be performed is temporary
  • Number of worker positions being requested is justified and represent bona fide job opportunities
  • All the assurances and obligations required by 20 CFR 655.22 have been made

See 20 CFR Parts 655 and 656 for more detailed information.

E-mail questions regarding the new regulations can be referred to the U.S. Dept. of Labor via H-2B.Regulation@dol.gov

Should you have any other general questions, please contact Tim Lawhorn, Labor Certification Specialist at (317) 233-6681 or fax your inquiry to (317) 234-2932. Email address: tlawhorn@dwd.IN.gov

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