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H-2B Labor Certification Process
for Temporary Employment of Aliens in the United States

Important changes for the H-2B program per the United States Department of Labor (USDOL) Final Rule dated December 19, 2008. For the latest information, please check the U.S. DOL's Foreign Labor Certification web site.

On December 19, 2008, the Office of the Federal Register published the Department's Final Rule on H-2B Temporary Non-agricultural Employment (PDF). The Final Rule is effective January 18, 2009, although certain aspects of the Rule will be subject to transition provisions. The application form accompanying this rule, ETA Form 9142 (PDF), was published in the Federal Register on December 18, 2008, in conjunction with the Department's H-2A Final Rule (PDF). The Department will shortly post an ETA Form 9142 that is fillable on line. We strongly encourage program users to complete the fillable form. Employers with questions are encouraged to submit those questions to OFLC at H-2B.Regulation@dol.gov. Due to a high volume of calls, we will be unable to respond individually to inquiries.

PROGRAM DESCRIPTION: This program allows employers wishing to employ foreign workers in temporary nonagricultural occupations for a period of less than ten (10) months to file a labor certification application directly with the Texas Workforce Commission.

REGULATIONS: 20 CFR, Part 655, Subpart A

TEMPORARY EMPLOYMENT: An H-2B temporary nonagricultural worker is an alien who is coming to the U.S. to perform temporary services or labor if qualified U.S. workers capable of performing such services or labor are not available. The employer's need for the services or labor shall be either:

1. A one-time occurrence -
   (a) The employer has not employed workers to perform the services or labor in the past, and the employer will not need workers to perform the services or labor in the future.
   (b) The employer has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
2. Seasonal need - The employer must establish that the services or labor are traditionally tied to a season of the year by a temporary event or pattern and is of a recurring nature.
3. Peakload need - The employer must establish that it regularly employs permanent workers to perform the services or labor, and it needs to supplement its permanent staff on a temporary basis due to seasonal or short-term demands with temporary employees who will not become a part of the regular operations.
4. Intermittent need - The employer must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers for short periods.

VALIDITY PERIOD: The H-2B Labor Certification Application shall be valid for the period of employment indicated on the Form ETA 750 Part A; however, in no event shall the validity period exceed ten (10) months.

TEMPORARY PROCESS: The employer files a labor certification application for temporary employment, including ETA Form 750 Part A and documentation to support the employer's temporary need, with the Alien Labor Certification (ALC) Section of the Texas Workforce Commission. The form and documentation must be filed in duplicate with original signatures on each ETA 750 Part A. Temporary labor certification applications should be filed at least 60 days prior to the date of need; however, applications filed more than 120 days prior to the date of need will be returned to the employer. ALC staff issues a priority date and reviews the application. The employer will be notified of any additions or corrections that have to be made to the application. ALC staff then notifies the employer to place a job advertisement in a newspaper of general circulation or to place the job advertisement in a professional or ethnic publication as appropriate for the occupation. The recruitment period is a minimum of ten days or 20 days, depending on the occupation. During this period the employer is required to consider all qualified U.S. applicants and, if one is available, to hire that applicant. The employer can only reject applicants for lawful, job-related reasons. The employer must submit documentation of the recruitment results. When complete results are received, ALC staff will forward the application to the Department of Labor's Regional Office for processing.

REQUIRED WAGES: The Immigration and Nationality Act (INA) requires that the wages paid to nonimmigrants be at least the higher of the actual wage rate paid to all other workers with similar experiences and qualifications for the specific employment in question or the prevailing wage rate for the occupational classification in the area of employment. The amended INA does not preclude the employer from paying nonimmigrants more than the higher of the actual wage or the prevailing wage.

WHERE TO FILE APPLICATION:

Alien Labor Certification, Room 202T
Texas Workforce Commission
101 E. 15th Street
Austin, Texas 78778-0001
Telephone Number: 512-475-2571
Fax Number: 512-463-3055

If a courier service is used, the following physical address should be used:

Alien Labor Certification, Room 202T
Texas Workforce Commission
1117 Trinity Street
Austin, Texas 78701

Please e-mail questions or comments to alienlabor@twc.state.tx.us

Go to Instructions For Completing ETA 750 Part A For Temporary Employment

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