USDOL suggests that all prevailing wage requests be submitted at least 60 days in advance of the employer's initial recruitment efforts.
Since 2005, USDOL regulations require all Pennsylvania employers to file applications for PERM, ETA Form 9089 through the Permanent Online System directly to the Atlanta National Processing Center:
PA CareerLink® helps employers fulfill part of the USDOL requirements for FLC by helping them recruit U.S. workers and determine whether or not there are any qualified job applicants available to fill their job postings. The goal, as required, is to find U.S. workers for all positions.
After the company is registered, listing a job posting on the automated system is easy. Go to the PA CareerLink® home page, enter your Keystone ID and password, and then click "Login." Once inside the business folder click on the "Employer" button located at the top of the page and select "Create Job Posting." Fill out the necessary information and click SUBMIT. The job opening will be posted in the employer business folder under "JobPostings." PA CareerLink® staff must approve the job posting before you can perform searches and matches for applicants. The approval process should be completed within one business day, and the posting will then move to "Open" status.
Employers or their POCs can now select the new job posting and perform a search for qualified applicants. The applicants found in the search, those who refer themselves, and those referred by a PA CareerLink® representative, are listed on the My Candidates List. Click on the applicant's name or identification number and review their online resume to determine whether they qualify for the position and need to be contacted and interviewed. The job posting should remain "open" or left active for the mandatory duration required by the USDOL. A job posting will automatically change to "Fully Referred" status if the actual number of referrals equals the number you requested when you wrote the job posting. If this occurs you are required to open the job posting, click Edit and increase the number of referrals requested to keep the job posting open for the mandatory duration. A job posting in fully referred status is not visible to the public.
The Agricultural Recruitment System (ARS), through PA CareerLink®, can help employers find temporary agricultural or food processing workers. The automated system links employers who have temporary agricultural and food processing jobs with U.S. workers who need these jobs and are willing, temporarily, to live away from their local areas. Using a network of state employment service agencies, the ARS system is able to help employers locate and recruit interested and qualified workers wherever they may be in the U.S.
The ARS Systems should not be confused with the H-2A Program. The H-2A Program is a separate program that allows agricultural employers to request approval to recruit and hire nonimmigrant foreign workers for temporary agricultural work. The H-2A Program may be accessed only when it is anticipated that there will be a shortage of domestic agricultural workers. The two programs are related, in that, the H02A Program requires that employers requesting H-2A Certification first attempt to recruit U.S. workers through the ARS Program.
H-2A Program Procedures for Temporary or Seasonal Agricultural Workers
Employers can view the complete version of the H-2A regulations and a detailed description of how to hire foreign workers at http://www.foreignlaborcert.doleta.gov
. This site provides answers to frequently asked questions (FAQ), related Internet links, (e.g. an online wage library), and the necessary forms and instructions for submitting an application to the CNPC.
The H-2A Program enables agricultural employers to request approval to recruit and hire non-immigrant foreign workers to perform temporary agricultural or food processing work, and should not be confused with the ARS system described above. The H-2A Program may be used only when it is anticipated that there will be a shortage of U.S. agricultural workers at the time the work needs to be performed. The H-2A Program requires employers requesting H-2A certification to first attempt to recruit U.S. workers through the ARS system. Wages and working conditions must comply with applicable federal and state employment laws. There is also a requirement that employers provide workers with free or public housing that meets federal and state standards.
Click on the following link: http://www.foreignlaborcert.doleta.gov
, to access the federal H-2A Program regulations and application forms. On the left side of the page, click on H-2A; this will take you to the new H-2A application processing system. At the bottom of the page you will find forms and instructions. Click on the applicable form, complete it online, and then print copies to submit to the SWA the, CNPC, and to keep for your records. Once you have all of the necessary forms completed, you must to forward one complete copy of the ETA 790 and all attachments directly to the SWA. NOTE:
As a new requirement, the employer must provide a copy of the work contract or job posting to the worker no later than the first day that work commences. This document must be written in a language the worker understands.
SPECIAL NOTE: All agents involved in the recruitment process must provide proof of a valid Foreign Labor Contractor (FLC) license covering these activities (in accordance with 20 CFR Part § 653.501(d)(2)(v) and 20 CFR Part § 655.133(b) issued by the USDOL) as well as a Pennsylvania Farm Labor Contractor License and a copy of their agreement/contract with the employer.
The following timetable is recommended by the USDOL:
60 - 75 days from date of need: Employer commences process by submitting ETA 790 and all attachments to SWA for job posting.
60 - 75 days from date of need: SWA writes job posting and conducts housing inspection (NOTE: If any discrepancies are discovered the employer has seven calendar days to make corrections.
45 - 75 days from date of need: Employer accepts referrals, conducts interviews, and begins to compile recruitment report.
45 days from date of need: Employer files complete application with USDOL.
38 - 44 days from date of need: Employer receives instructions from CO; SWA commences interstate recruitment; employer conducts positive recruitment and continues to compile recruitment report. Employer continues positive recruitment until the H-2A workers leave for the employer's place of business or the first day of need.
30 - 38 days from date of need: CO certifies or denies application. (NOTE: Housing inspection MUST be completed before application will be certified.
SPECIAL NOTE: SWAs received special instructions from the U.S. DOL concerning the following:
SWAs may not accept for clearance an H-2A job posting that is not in compliance with all applicable regulatory requirements found at 20 CFR parts § 653, Subpart F and 20 CFR § 655, Subpart B.
If an employer's H-2A job posting fails to comply with one or more applicable regulatory provisions, the SWA must issue a Notice of Deficiency clearly explaining the reasons for not accepting the job posting and list the relevant regulatory provisions with which the job posting has failed to comply.
Inclusion of Grievance and Arbitration Language, Job Qualifications and requirements, and Waiver of Rights prohibited in accordance with 20 CFR § 655.122(b), and CFR 29, Part 500, Migrant and Seasonal Agricultural Worker Protection.
Each job requirement in the job posting must be bona fide and consistent with the normal and accepted job requirements used by non H-2A employers in the same or comparable occupations and crops. The SWA must not accept for clearance a job posting which contains grievance and arbitration language which does not meet this statutory/regulatory standard. The SWA must require the employer to remove the grievance and arbitration language from its job posting(s) where such terms are not normal and accepted job requirements used by non H-2A employers in the same or comparable occupations and crops. If the employer fails to remove such language when requested, the SWA must issue a denial letter to the employer.
Language regarding Disclosure of Work Contract - 20 CFR § 655.122(q)
Each job offer must advise potential applicants that they will be provided with a copy of the work contract. Therefore, we must not accept for clearance any job posting that does not include the following language:
"The employer will provide to an H-2A worker no later than the time at which the worker applies for the visa, or to a worker in corresponding employment no later than on the day work commences, a copy of the work contract between the employer and the workers in a language understood by the worker."
Language regarding In-bound Transportation and Subsistence - 20 CFR § 655.122(h) (1)
Each job offer must properly apprise potential applicants of the transportation and subsistence guarantees when traveling to the place of employment. The regulations clearly provide the standard language for use in employer job offers, which includes the following:
"The employer must pay the worker for reasonable costs incurred by the worker for transportation and daily subsistence from the place from which the worker has come to work for the employer, whether in the U.S. or abroad to the place of employment."
Unduly Restrictive Job Qualifications and Requirements - 20 CFR § 655.122(b)
The Department's regulations prohibit the employer from including in the job offer job qualifications or requirements that would act to inhibit able, willing, qualified and available U.S. workers from applying for the job opportunity for which the employer seeks to hire H-2A workers. Section 20 CFR § 655.122(b) explicitly states the following:
"Each job qualification and requirement listed in the job posting must be bona fide and consistent with the normal and accepted qualifications required by employers that do not use H-2A workers in the same or comparable occupations and crops. Either the CO or SWA may require the employer to submit documentation to substantiate the appropriateness of any job qualification specified in the job posting."
An employer must ensure that the job posting contains information about the job opportunity as required in § 655.121 as well as § 655.122 a thru i concerning the following assurances:
Preferential treatment of aliens prohibited. The employer's job offer must offer to U.S. workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers.
Job qualifications. Each job qualification listed in the job offer must not substantially deviate from the normal and accepted qualifications required by employers that do not use H-2A workers in the same or comparable occupations and crops. The Department is explicit that the CO or the SWA has the discretion to require that the employer submit documentation to justify the qualifications specified in the job posting.
Minimum benefits, wages, and working conditions. Every job offer accompanying an H-2A application must include each of the minimum benefit, wage, and working condition provisions listed in paragraphs (d) through (q) of this section.
Obligation to provide housing. The employer must provide housing at no cost to the worker, except for those U.S. workers who are reasonably able to return to their permanent residence at the end of the workday.
Workers' compensation. The employer must provide workers' compensation insurance coverage in compliance with state law covering injury and disease arising out of and in the course of the worker's employment. If the type of employment for which the certification is sought is not covered by or is exempt from the state's workers' compensation law, the employer must provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment that will provide benefits at least equal to those provided under the state workers' compensation law for other comparable employment.
Employer-provided items. Except as provided in this paragraph, the employer must provide to the worker, without charge or deposit charge, all tools, supplies, and equipment required to perform the duties assigned.
Meals. The employer either must provide each worker with three meals a day or must furnish free and convenient cooking and kitchen facilities to the workers that will enable the workers to prepare their own meals.
Transportation to place of employment. If the employer has not previously advanced such transportation and subsistence costs to the worker or otherwise provided such transportation or subsistence directly to the worker by other means and if the worker completes 50 percent of the work contract period, the employer must pay the worker for reasonable costs incurred by the worker for transportation and daily subsistence from the place from which the worker has departed to the employer's place of employment.
Transportation between living quarters and worksite. The employer must provide transportation between the workers' living quarters and the employer's worksite at no cost to the worker, and such transportation must comply with all applicable federal, state or local laws and regulations.
Three-fourths guarantee. The employer must guarantee to offer the worker employment for a total number of work hours equal to at least three-fourths of the workdays of the total period beginning with the first workday after the arrival of the worker at the place of employment or the advertised contractual first date of need.
Frequency of pay. The employer must state in the job offer the frequency with which the worker will be paid, which must be at least twice monthly or according to the prevailing practice in the area of intended employment, whichever is more frequent. Employers must pay wages when due.
Deductions. The employer must make all deductions from the worker's paycheck required by law. The job offer must specify all deductions not required by law which the employer will make from the worker's paycheck. All deductions must be reasonable. The employer may deduct the cost of the worker's transportation and daily subsistence expenses to the place of employment which were borne directly by the employer. In such circumstances, the job offer must state that the worker will be reimbursed the full amount of such deduction upon the worker's completion of 50 percent of the work contract period. However, an employer subject to the FLSA may not make deductions that would violate the FLSA.
Job postings will remain open for 50 percent of the contract period (past date of need).
The employer must continue to accept referrals of U.S. worker applicants, and must interview each applicant.
The initial recruitment period is no earlier than 75 calendar days and no later than 60 calendar days prior to the application being submitted to the CNPC. The complete application must be submitted no later than 45 calendar days prior to the start date listed on the ETA 9142. NOTE: Please ensure that the employer's Federal Tax Identification Number is in Block 1 of the ETA 790.
The application consists of:
Form ETA 9142
Appendix A-2, (Appendix A-1 is no longer required)
ETA 790 and all attachments,
General Attestation of Assurances/Obligations
Copy of Workers Compensation Insurance cover letter
(NOTE: if represented by an attorney the application must include a G-28 Form. If represented by an agent a copy of the contract must be included).
Once completed, the entire package is submitted to the CNPC (no later than 45 calendar days before the start date). Upon acceptance of the H-2A application, CNPC will provide positive recruitment instructions from the CO to the employer, and instructions to the SWA to enter the job posting into the interstate recruitment system. CNPC will inform the employer or POC when the initial recruitment report must be submitted to the CNPC.
The PA CareerLink® will enter a job posting into the CWDS and attempt to recruit U.S. workers to fill the job opening(s). Employers need to advertise in a general circulation newspaper for two days (one day must be a Sunday). The advertisement will direct applicants to apply at the nearest PA CareerLink®.
Employers are obligated to interview all applicants that are referred by the local PA CareerLink® as well as those referred by SWAs from other states and walk-in "gate" job applicants. The USDOL requires the employer to submit a recruitment report that includes the recruitment source, the name of each job applicant and the interview results. If any job applicants were not hired, the recruitment report should include information detailing the lawful reasons why they not hired.
Important Recommendation: Employers who did not submit an H-2A Program application during the previous year should have the water in the housing unit tested (if on a private well), and they should acquire an occupancy permit long before initiating the application process. State law requires a housing permit be obtained when housing two or more unrelated occupants in the same housing unit. The SWA will arrange a housing inspection once the employer submits an application, but the employer must have the water approved and an occupancy permit in hand before the housing will pass inspection.
Amendments to applications for temporary employment certification:
(a) Increases in number of workers. The Application for Temporary Employment Certification may be amended at any time before the CO's certification determination to increase the number of workers requested in the initial Application for Temporary Employment Certification by not more than 20 percent (50 percent for employers requesting less than 10 workers) without requiring an additional recruitment period for U.S. workers. Requests for increases above the percent prescribed, without additional recruitment, may be approved by the CO only when the employer demonstrates 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. All requests for increasing the number of workers must be made in writing.
(b) Minor changes to the period of employment. The Application for Temporary Employment Certification may be amended to make minor changes in the total period of employment. Changes will not be effective until submitted in writing and approved by the CO. In considering whether to approve the request, the CO will review the reason(s) for the request, determine whether the reason(s) are on the whole justified, and take into account the effect any change(s) would have on the adequacy of the underlying test of the domestic labor market for the job opportunity. An employer must demonstrate that the change to the period of employment could not have been foreseen, and the crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period. If the request is for a delay in the start date and is made after workers have departed for the employer's place of work, the CO may only approve the change if the employer includes with the request a written assurance signed and dated by the employer that all workers who are already traveling to the job site will be provided housing and subsistence, without cost to the workers, until work commences. Upon acceptance of an amendment, the CO will submit to the SWA any necessary modification to the job order.
H-2B Certification for Temporary Non-Agricultural Workers
Effective April 23, 2012 the U.S. Department of Labor (USDOL) regulations require all Pennsylvania employers who wish to file a Temporary Employment Certification, ETA Form 9141 and Appendix B.1 for temporary non-agricultural employment in Pennsylvania directly to:
United States Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
536 South Clark Street
Chicago, IL 60605-1509
Phone: (312) 886-8000
Fax: (312) 353-3352
NOTE: All advertising and recruitment report must be completed prior to filing the application with Chicago NPC and complete copy to the State Workforce Agency simultaneously at:
Pennsylvania Department of Labor and Industry
Bureau of Workforce Development Partnership
Special Programs Services
FLC Unit, 12th Floor West
651 Boas Street
Harrisburg, PA 17121
Employers can view the complete version of the USDOL H-2B Program regulations and a detailed description of how to hire foreign workers via the Internet at http://www.foreignlaborcert.doleta.gov
. The answers to frequently asked questions, related Internet links, e.g., online wage library, and the necessary forms and instructions for submitting an application to the Chicago National Processing Center (CNPC). All questions must be referred to the USDOL at H-2B.Regulation@dol.gov
H-2B Program Procedures for Temporary Non-Agricultural Workers
The first step for an employer or their POC to start listing a job order on the CWDS automated system is to register their company. Registration is easy. Go to www.pacareerlink.state.pa.us
, Internet homepage, click on "New User" and simply fill in the required information and then click the SUBMIT button. You will immediately be given a user name by the system and instructed to create your own password. Write down your user name and password on paper and keep this information in a safe place for your future reference. Within 24 to 72 hours of completing the registration process you will either receive a telephone call or an e-mail message from the PA CareerLink® representative, located near the employer or the place of employment, confirming your approval and registration. If the company you are attempting to register is already registered with PA CareerLink®, please contact the company and ask to be added to their PA CareerLink® Business Folder as another point of contact. This will provide you immediate access to the system and enable you to list job orders. Important Note: Attorneys and agents should list themselves as a contact, especially if the employer is unaware that the company is being registered with the PA CareerLink®.
After the company is registered, listing a job order on the automated system is similar to the procedures for registration. Start by going to the PA CareerLink® internet home page and enter the "Keystone ID" and "Password", then click "Login". Once inside the Business folder click on the "Employer" button located at the top of the page and select "Create Job Order". Fill out the necessary information, and then click SUBMIT, and the job opening will be posted in the employer business folder under "Job Orders". PA CareerLink® staff must approve the job order before you can perform searches and matches for applicants. The approval process should be completed within one business day, and the order will then move to "Open" status.
Important Note: To help insure that the job order remains in "Open" status for the full 10 days required by the USDOL, enter the following statement in the "instructions to PA CareerLink® staff" section. "Do not close this job order; it MUST remain open for a minimum of 11 days."
Employers or their POC’s can now select the new job order and perform a search for qualified job applicants. The job applicants found in the search, those who refer themselves, and those referred by a PA CareerLink® representative, are listed on My Candidates list. Click on the applicant’s name or identification number and review their online resume to determine whether they qualify for the position, and need to be contacted and interviewed. The job order should remain "open" or left active for the mandatory duration required by the USDOL. A job order will automatically change to "Fully Referred" status if the actual number of referrals on the job order equals the number you requested when you wrote the job order. If this occurs, "Edit" the job order and increase the number of referrals requested to keep the job order open for the mandatory duration. A job order in fully referred status is not visible to the public.
Before closing the job order, employers or their POC’s must view the job order My Candidates list and enter the contact results to indicate whether the job applicants were hired or not. At the conclusion of the recruitment period, simply close the job order. For permanent documentation, after closing the job order, you should click on the job order number to display the job order. Then print a hard copy of the Job Order and My Candidates list as part of the overall recruitment report in order to have a permanent business record for your files. By closing and then redisplaying the job order before printing a copy for your records, the copy will list both the open and closing dates. The two dates provide evidence of the duration that the job order was open.
Required Pre-Filing Recruitment Activity:
Employer may not file the ETA Form 9142 until all of the pre-filing recruitment steps have been met, except where a specific exemption applies. Employer must attest on the ETA Form 9142 that it has complied will all necessary steps of the recruitment process, including:
Obtain a prevailing wage determination from the NPWHC
Run two print advertisements in area of intended employment
If the employer is part of a Collective Bargaining Association (CBA), contact the union for referrals of able, willing, qualified and available U.S. workers
All advertising must contain terms/conditions of employment which are no less favorable than those offered to the H-2B workers. The employer must place an active job order no more than 120 calendar days before the date of need for intrastate and interstate clearance. NOTE: If the job order is placed 120 days prior to the date of need the final rule now requires the job order carry a notation identifying it as a job order to be placed in connection with a future application for H-2B workers. The job order must be kept open for at least 10 calendar days. The employer must place an advertisement on 2 separate days, one of which must be a Sunday, in a newspaper of general circulation in the area of intended employment. The advertisements must be published in a newspaper of general circulation serving the area of intended employment that has a reasonable distribution; and is appropriate to the occupation and the workers likely to apply for the position. Advertisements must be published only after the job order is accepted by the USDOL/SWA for intrastate/interstate clearance. Advertisements must satisfy the requirements of 20 CFR 655.17.
If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the employer must advertise in a regularly published daily edition with the widest circulation in the area of intended employment. Employer may use a professional, trade or ethnic publication if such publication is more appropriate to the occupation and workers likely to apply for the job opportunity. The requirement to place a newspaper advertisement on a Sunday cannot be waived under this circumstance.
Employer’s name and appropriate contact information for applicants to send resumes directly to the employer
Geographic area(s) of employment with specificity to apprise US workers of any travel requirements
If transportation to the worksite(s) will be provided, the advertisement must say so
A description of the job opportunity with particularity
Minimum education and experience requirements
Work hours and days, expected start and end dates of employment and whether overtime will be offered
That the positions is temporary and total number of openings
An employer that is part of a CBA must contact the union that is a party to the CBA for referrals of qualified U.S. workers. The contact must be by U.S. mail or other effective means. The employer must maintain dated logs demonstrating:
The union was contacted and notified of the openings;
Whether the union referred qualified workers and the number of workers referred or;
Whether the union was non responsive.
In order to allow sufficient time for the interested workers to respond, the employer must wait to prepare a recruitment report until no fewer than 2 calendar days after the date the job order was posted; and no fewer than 5 calendar days after the date of the last newspaper advertisement.
The written recruitment report must be prepared, signed and dated by the employer. The recruitment report must contain the following information; identification of each recruitment source by name, name/contact information of each U.S. worker who applied for the job and the disposition of each worker, name/contact information of each former U.S. employee contacted and the disposition of each former employee, and an explanation of the lawful job related reason(s) for not hiring each U.S. worker (if applicable).
The employer will submit the following documents to the NPC a completed ETA Form 9142 with Appendix B.1 and an initial recruitment report.
Upon receipt of the application, the NPC shall review the application for obvious inaccuracies or omissions, for compliance with criteria for certification, and if the Chicago NPC determines that the application fails to comply with one or more criteria for certification, the Certifying Officer (CO) will issue a Request for Further Information (RFI) to the employer within 7 calendar days.
Criteria for certification include, but are not limited to, whether the employer has established that the need for nonagricultural services or labor is temporary in nature. Established that the number of positions being requested is justified and represent bona fide job opportunities, made all assurances. Met all obligations required by 20 CFR 655.22, and complied with all requirements of the program.
If you encounter difficulties or have questions regarding the PA CareerLink® automated system, contact the PA CareerLink® nearest to the employer or where the job is located if the employer is located outside of Pennsylvania. To find a local PA CareerLink®, simply go to the CWDS Home Page, click on Search of Service Locations at the bottom of the page, select PA CareerLink® in the Search by Office Type section and then click Search at the bottom of the page. The names and contact information of all local PA CareerLinks® will appear, listed alphabetically by county.
The emphasis of H-2A and H-2B is to obtain U.S. workers for agricultural and non-agricultural employment. If every attempt fails to find US workers, foreign workers may then be permitted. Any attempt to subvert the process and to avoid hiring US workers may potentially result in debarment (agents and attorneys), discontinuation of services (employers), and possible exposure to outside litigation.
Pennsylvania Foreign Labor Unit
Bureau of Workforce Partnership & Operations
Special Programs Unit
12th Floor, Labor & Industry Building
651 Boas Street
Harrisburg, PA 17121
Jon Weirether, State Monitor Advocate
Labor & Industry Building
651 Boas Street
Harrisburg, PA 17121