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[Federal Register: November 20, 2007 (Volume 72, Number 223)]
[Page 65355-65357]
From the Federal Register Online via GPO Access []



Employment and Training Administration

Clarification of Certain Procedures for Processing H-2A Labor 
Certification Applications

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice.


SUMMARY: The Employment and Training Administration (ETA) is providing 
additional clarification to the procedures by which State Workforce 
Agencies and ETA National Processing Centers (NPC) process employer 
applications for H-2A temporary agricultural labor certification issued 
in the Training and Employment Guidance Letter (TEGL) No. 11-07 on 
November 6, 2007. These additional clarifications have been made under 
TEGL No. 11-07, Change 1, which is published below in order to inform 
the public. The clarifications and requirements stated in the TEGL take 
effect immediately.


[[Page 65356]]

Training and Employment Guidance Letter No. 11-07, Change 1--
Clarification of Certain Procedures for Processing H-2A Labor 
Certification Applications

    1. Purpose. To modify TEGL No. 11-07 to further clarify certain 
procedures for State Workforce Agencies (SWAs) and Employment and 
Training Administration (ETA) National Processing Centers (NPCs) 
involved in the processing of H-2A labor certification applications for 
temporary agricultural employment of foreign workers in the United 
States (U.S.).
    2. References. Immigration and Nationality Act (INA) Section 
101(a)(15)(H)(ii)(a); INA Section 218; 20 Code of Federal Regulations 
(CFR) 651.10; 20 CFR Part 653 Subparts B and F; 20 CFR Part 654, 
Subpart E; 20 CFR Part 655, Subpart B; 20 CFR Part 658, Subpart F; 
Field Memorandum No. 16-00; Training and Employment Guidance Letter No. 
31-01; General Administration Letter No. 1-02; Training and Employment 
Guidance Letter No. 11-07 (November 6, 2007).
    3. Background. The H-2A nonimmigrant visa program permits employers 
to hire foreign workers to perform agricultural labor or services of a 
temporary or seasonal nature. The H-2A visa classification requires the 
intending employer, prior to filing a petition for one or more H-2A 
workers with the Department of Homeland Security's U.S. Citizenship and 
Immigration Services (USCIS), to apply to the Secretary of Labor for a 
certification that: (1) There are not sufficient workers who are able, 
willing, qualified, and available at the time and place where the H-2A 
worker is to perform the work; and (2) employment of the H-2A worker 
will not adversely affect the wages and working conditions of similarly 
employed U.S. workers.
    The NPC having jurisdiction over the state(s) in which the area of 
intended employment is located is responsible for processing a request 
for H-2A labor certification. NPC responsibilities include reviewing 
the application for acceptance, directing the SWA to clear the job 
order through the intrastate and interstate clearance system, ensuring 
the employer meets positive recruitment requirements, and making a 
final determination with respect to granting or denying certification 
for all or some of the job opportunities requested.
    The SWA serving the area of intended employment, with which the 
employer files a concurrent request for H-2A labor certification, is 
responsible for placing a job order, using information submitted by the 
employer on its job offer for intrastate and interstate clearance, and, 
where necessary, performing inspections to ensure that housing meets 
the applicable standards.
    4. Clarification of Procedures for H-2A Applications. This Training 
and Employment Guidance Letter (TEGL) clarifies certain procedures the 
SWAs and NPCs must use in processing temporary labor certification 
applications under the H-2A program. These clarifications replace and 
supersede prior corresponding operating procedures issued for the H-2A 
program, as noted. However, these clarifications do not affect the 
special procedures established by ETA for sheepherders and goatherders, 
for occupations involved in the open range production of livestock, for 
multi-state custom combine owners and operators, and for itinerant 
animal shearing.

A. Filing

    i. SWA Locations. The specific location of each SWA may be obtained 
directly from the Office of Foreign Labor Certification's Web site at Each SWA must 
notify the appropriate NPC of any changes to its location or mailing 
    ii. Worksite(s) Crossing State Jurisdictional Boundaries. In 
circumstances where a fixed-site employer has one or more worksites 
located in the same area of intended employment and that lie in one or 
more state jurisdictions, the employer should file a single H-2A labor 
certification application concurrently with the SWA in the state where 
the work will begin and the NPC that covers this state. This provision 
does not apply to Farm Labor Contractors (FLCs) filing as employers. 
SWAs are reminded that, in circumstances where work will be performed 
in multiple states, unless special procedures apply, the job order for 
recruiting U.S. workers must be transmitted to all other state 
jurisdictions in which any work will take place in order that they post 
the opportunity in their respective job clearance system.
    iii. Timing. The Secretary of Labor is required to make a labor 
certification determination at least 30 calendar days before the 
employer's date of need, unless the initial or modified application was 
not filed timely. INA Section 218(c)(3)(A). As such, the SWA must 
conduct a housing inspection, the employer must provide a recruitment 
report to the NPC, and the employer must provide evidence of workers' 
compensation insurance coverage to the NPC, all before the date that is 
30 calendar days before the date of need.

B. Recruitment

    i. Contact Information. In accordance with the regulatory 
requirements at 20 CFR 655.103(d)(2)(ii), each advertisement the 
employer places in a newspaper of general circulation serving the area 
of intended employment must direct interested applicants to apply or 
send resumes to the nearest office of the SWA for referral to the 
employer's place of work. This regulatory requirement also applies to 
job orders placed by the SWA in intrastate and interstate clearance to 
ensure that all U.S. workers referred through such job orders are 
apprised of the terms and conditions of employment.
    Absent a SWA referral, however, an employer must still respond to 
employment inquiries from individuals who appear at the employer's 
place of business or otherwise contact the employer directly. While the 
employer is not required to be consistently available to answer every 
inquiry placed by an interested individual, the employer should have a 
mechanism in place to take messages (e.g., an answering machine) and 
should respond to such messages within 24 hours. The employer may not 
reject for other than a lawful, job-related reason any U.S. worker's 
    An employer is required to engage in positive recruitment of U.S. 
workers in the area of intended employment until the foreign worker(s) 
have departed for the employer's place of work (20 CFR 655.103(d)). The 
Department may also require employers to recruit in other states of 
``traditional or expected labor supply.'' 20 CFR 655.105(a). The 
imposition of such out-of-state recruiting requirements shall be based 
on current information provided by a state agency or other sources 
``that there are a significant number of able and qualified U.S. 
workers'' in each state designated for recruitment ``who, if recruited, 
would likely be willing to make themselves available for work at the 
time and place needed.'' Id. As required by regulation, the Department 
will not require employers to ``recruit in areas where there are a 
significant number of local employers recruiting for U.S. workers for 
the same types of occupations.'' Id.
    ii. Verification of Employment Eligibility. The Department's 
statutory duties under the H-2A program require it to ascertain the 
employment eligibility of all referred workers. INA Section 
218(c)(3)(A) mandates that the Department issue a labor certification 
``not later than 30 days before the date such labor or services are 
first required to be performed * * * if (1) the

[[Page 65357]]

employer has complied with the criteria for certification (including 
criteria for the recruitment of eligible individuals as prescribed by 
the Secretary), and (2) the employer does not actually have, or has not 
been provided referrals of, qualified eligible individuals who have 
indicated their ability to perform such labor or services. * * *'' The 
Department has fulfilled its statutory mandate by instructing SWAs via 
regulation and through this guidance letter that workers cannot be 
referred to employers unless the SWA has determined that the worker is 
``able, willing, and eligible'' to take the job. 20 CFR 655.106(a). 
Eligibility is clearly defined by statute to mean ``with respect to 
employment, an individual who is not an unauthorized alien * * * with 
respect to that employment.'' INA Section 218(i)(1).
    The Department has also required by regulation that all local SWA 
offices must ``determine whether or not applicants are MSFWs [migrant 
and seasonal farmworkers] as defined at 20 CFR Sec.  651.10 of this 
chapter.'' ``Farmworker'' is defined by 20 CFR Sec.  651.10 as as 
``agricultural worker,'' which is in turn defined as ``a worker, whose 
primary work experience has been in farmwork * * * whether alien or 
citizen, who is legally authorized to work in the United States.''
    Accordingly, SWAs must verify the employment eligibility of any 
worker referred to an employer in response to an H-2A job order. The 
Department strongly recommends that SWAs use the E-Verify Web-based 
system administered by U.S. Citizenship and Immigration Services 
(USCIS). Information on the E-Verify system may be obtained directly 
from USCIS by clicking on the ``E-Verify'' link at http:// The Department is aware that many, and perhaps most, 
SWAs do not currently have reliable employment verification systems in 
place. Therefore, the Department will not enforce the employment 
verification requirements specified in this Training and Employment 
Guidance Letter against the SWAs until December 15, 2007.
    SWAs should be aware that employers can rely on INA Section 
274A(a)(5) only where the documentation complies with all statutory and 
regulatory requirements, including 8 CFR 274a.6. SWAs are strongly 
encouraged to provide this documentation. The Department will offer 
training between now and December 15 to provide SWAs additional 
guidance on how to comply with the applicable requirements.
    iii. SWA Referrals during Contract Period. Once an employer's H-2A 
workers have departed for the employer's place of work, SWAs should, in 
order to minimize disruption during the H-2A contract period, first 
make all reasonable efforts to refer an interested U.S. worker to a 
non-H-2A job order in the area of intended employment or to an unfilled 
H-2A job order in the area of intended employment in which the H-2A 
workers have not yet departed for the place of employment.

C. Housing

    Housing Standards. SWAs are reminded that employers must provide 
housing at no cost to any worker not reasonably able to return to his/
her residence within the same day. Employer-provided housing, depending 
on when it was built, must meet either the USDOL Occupational Safety 
and Health Administration (OSHA) standards set forth under 29 CFR 
1910.142 (standards for temporary labor camps), or the ETA standards at 
20 CFR 654.404-654.417 (standards for H-2A housing), whichever are 
applicable pursuant to the regulations. In circumstances where rental, 
public accommodation, or another substantially similar class of 
habitation is used, the housing must first meet any local standards for 
such housing or, in the absence of applicable local standards, any 
applicable state standards. In the absence of both local and state 
standards, the housing must meet the OSHA standards for temporary labor 
camps. In accordance with the Federal regulations at 20 CFR 
655.102(b)(1)(vi), when it is the prevailing practice in the area of 
intended employment and for the occupation to provide family housing, 
the employer must provide family housing to all workers who request it. 
Open range housing--for sheepherders or others engaged primarily in the 
range production of livestock--must comply with OSHA housing standards 
or, alternatively, DOL guidance. In the absence of OSHA standards, ETA 
has added housing-related guidance to its TEGL 15-06 (February 9, 
2007), which governs the processing of H-2A labor certification 
applications for occupations involved in the open range production of 
    i. Housing Inspections. SWAs are encouraged to perform housing 
inspections in a timely manner so that processing of an employer's 
application is not unduly delayed. SWAs should be prepared to conduct 
housing inspections prior to the date an employer will file an H-2A 
labor certification application, if so requested by the employer.
    ii. Certified Housing that Becomes Unavailable. For situations in 
which housing certified by the SWA later becomes unavailable for 
reasons outside the employer's control, the employer may substitute 
other rental or public accommodation housing that possesses a valid 
certificate of occupancy. The employer must notify the SWA, in writing, 
of the change in accommodations and the reason(s) for such change. The 
SWA may inspect such accommodations, prior to or during occupation, to 
ensure it meets applicable housing standards.
    5. Effective Date. This guidance applies to all H-2A labor 
certification applications pending with or received by the NPC and SWA 
on or after the date this TEGL is issued.
    6. Action Required. NPC Directors and SWA Administrators are 
directed to provide NPC, SWA and other state staff involved in the 
processing of H-2A applications with a copy of these procedures.
    7. Inquiries. Questions from SWA staff should be directed to the 
Office of Foreign Labor Certification at (202) 693-3010.

    Signed in Washington, DC, this 15th day of November, 2007.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.
 [FR Doc. E7-22636 Filed 11-19-07; 8:45 am]