H-2B Temporary Non-agricultural Program

H-2B Online Filing via FLAG System

Program Overview

To issue an H-2B certification to an employer, the U.S. Department of Labor (the Department) must determine that:

There are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to hire foreign workers; and that
The employment of H-2B worker(s) will not adversely affect the wages and working conditions of U.S. workers similarly employed.

To participate in the H-2B program, an employer must:

Have a place of business (physical location) in the U.S. and a means by which it may be contacted for employment;
Have an employer relationship (such as the ability to hire, pay, fire, supervise, or otherwise control the work of employees) with respect to an H–2B worker or a worker in corresponding employment; and
Possess, for purposes of filing an Application for Temporary Employment Certification, a valid Federal Employer Identification Number (FEIN).

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. to perform non-agricultural services or labor based on the employer's temporary need. The employer 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.

Temporary need must be established as one of the following:

One-time occurrence;
Seasonal need;
Peakload need; or
Intermittent need.

The Immigration and Nationality Act and regulations issued jointly with the U.S. Department of Homeland Security (DHS) establish employer requirements and worker protections with respect to wages and working conditions. The Department's Wage and Hour Division is responsible for, amongst other, enforcing employment standards, worker protections, prevailing wage requirements of the Davis-Bacon and Related Acts, and other applicable employment laws.

How and When to Apply

Prior to filing a petition for non-immigrant workers with DHS U.S. Citizenship and Immigration Services (USCIS), an employer must obtain an approved temporary labor certification from the Department. The Office of Foreign Labor Certification (OFLC) encourages employers to submit applications and supporting documentation electronically via the Foreign Labor Application Gateway (FLAG System) as that is the most secure, efficient filing method.

Obtain a Prevailing Wage Determination (PWD) - At least 60 calendar days before it is needed, request a PWD from the National Prevailing Wage Center (NPWC) by filing an Application for Prevailing Wage Determination Form ETA-9141 (Application for PWD).
File a job order and H-2B application - Within 75 to 90 days prior to the date of need, file a job order with the State Workforce Agency (SWA) serving the area of intended employment (AIE) AND submit the H-2B Application for Temporary Employment Certification Form ETA-9142B (H-2B Application) and all required Appendices with supporting documents and a copy of the job order filed with the SWA to the OFLC National Processing Center (NPC).

Where to Apply

PWD – The Application for PWD can be submitted electronically through the FLAG System. Please refer to the Application for PWD General Instructions for detailed instructions for how to complete the form.

Employers that lack adequate access to electronic filing may file the Application for PWD by mail. If the employer plans to file non-electronically, all required fields and items containing an asterisk (*) on the Application for PWD must be completed as well as any applicable fields and items where a response is conditioned on the response to another required section/field or item as indicated by the section (§) symbol. Any mandatory field left blank or incomplete will result in the inability to submit the application electronically and the application will be returned to the requestor if mailed. Please mail non-electronic applications to:

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

Job Order - The job order must be filed with the SWA serving the AIE. The OFLC maintains a list of SWA contacts.

H-2B Application - The H-2B Application can be filed electronically through the FLAG System. Please refer to the H-2B Application General Instructions for detailed instructions for how to complete the form. Video tutorials on creating a FLAG System account and more are available.

Please Note: A complete H-2B Application includes the following:

the completed H-2B Application;
all required Appendices;
a valid PWD (a case tracking number issued by the NPWC can be linked to the H-2B Application in the FLAG System);
a copy of the job order filed with the SWA serving the AIE; and
all supporting documentation.

Employers that lack adequate access to electronic filing may file the application by mail. Those items marked with an asterisk (*) are required and must be completed. Items marked with a section symbol (§) are conditional and must be completed if applicable. The employer may mail the application package to the 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

NOTE - Only one H-2B Application may be filed for worksite(s) within one area of intended employment for each job opportunity with an employer for each period of employment. If OFLC identifies multiple applications that appear to have been filed for the same job opportunity, OFLC will issue a Notice of Deficiency (NOD). For example, if multiple filings are submitted during the three-day filing window in January, all applications that are considered to be multiple applications will receive a NOD requesting that the employer demonstrate that the job opportunities are not the same. Employers that fail to establish a bona fide need for each application will receive a non-acceptance denial for each application. The employer’s total H-2B labor request for the job opportunity in the AIE for the period of need must be presented to the Department on a single H-2B application. The employer may list more than one worksite per application, if necessary.

What Happens Next

The SWA reviews the job order and ensure that it complies with criteria set forth in 20 CFR 655.18. If the SWA determines that the job order does not comply with the applicable criteria, the SWA must inform the CO at the NPC of the noted deficiencies within six business days of receipt of the job order.
The NPC reviews the H-2B Application and job order for compliance with program requirements within seven business days of receipt.
If the CO determines the H-2B Application and/or job order is incomplete, contains errors or inaccuracies, or does not meet the requirements set forth in the H-2B regulations, the CO will notify the employer within seven business days from the CO’s receipt of the H-2B Application. If applicable, the NOD will include job order deficiencies identified by the SWA under 20 CFR 655.16. The CO will send a copy of the NOD to the SWA serving the area of intended employment identified by the employer on its job order, and if applicable, to the employer's attorney or agent.
If the CO determines the H-2B Application and job order are complete and meet the requirements of the H-2B regulations, the CO will notify the employer in writing within seven business days from the date the CO received the H-2B Application and job order or modification thereof. A copy of the Notice of Acceptance (NOA) will be sent to the SWA serving the area of intended employment identified by the employer on its job order and, if applicable, to the employer's attorney or agent.
Upon receipt of a NOA, the SWA must promptly place the job order in intrastate clearance, and in interstate clearance by providing a copy of the job order to other states as directed by the CO.
Where the occupation or industry is traditionally or customarily unionized, the NOA directs the SWA to circulate a copy of the job order to the following labor organizations: the central office of the State Federation of Labor in the State(s) in which work will be performed; and the office(s) of local union(s) representing employees in the same or substantially equivalent job classification in the area(s) in which work will be performed. Note: The OFLC maintains a webpage with a list of traditionally or customarily unionized occupations.
Upon receipt of a NOA, the employer must follow the instructions the CO provided in the NOA and conduct recruitment, including;
- Contacting former U.S. workers;
- Contacting the bargaining representative (if any) or if there is no bargaining representative posting a notice of the job opportunity to the employer's current employees in at least to conspicuous locations at the place(s) of employment for 15 consecutive business days; and
- Conducting any additional recruitment, if directed by the Certifying Officer.
The NOA will specify a date for the employer to submit its initial recruitment report to the NPC.
The Department will post an electronic advertisement of the employer’s job opportunity on Seasonaljobs.dol.gov.
After receipt of the initial recruitment report, the 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. Note: If the employer submits an H-2B Application by mail, the employer will receive the final determination by mail.
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 to USCIS. The original Appendix B must be retained in the employer's retention file.
The employer is required to continue to update the recruitment report throughout the recruitment period and must prepare a final recruitment report.
The updated recruitment report need not be submitted to the Department, but it 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.
The CO may conduct audits of adjudicated temporary employment certification applications.
The employer must retain records and documents for three years from the date of certification of the H-2B Application, or from the date of adjudication if the H-2B Application is denied, or three years from the day the Department of Labor receives the letter of withdrawal. All records and documents required to be retained in connection with an H-2B Registration must be retained in connection with all of the H-2B Applications that are supported by it.
Failure to materially comply with the requirements ordered by the CO during audit will result in the denial of the certification and the employer and/or its attorney or agent may be debarred and disqualified from filing any labor certification applications or labor condition applications with the Department for the same period of time set forth in the final debarment decision.

Appeal Rights

Under the 2015 Interim Final Rule, an employer may use the general appeal procedures under 20 CFR 655.61 to appeal an adverse decision made by the CO under the following regulatory provisions: NOD 20 CFR 655.31, Denied certification 20 CFR 655.53, Partial certification 20 CFR 655.54, Request for determination based on nonavailability of U.S. workers 20 CFR 655.57, Extensions 20 CFR 655.60, CO-ordered assisted recruitment 20 CFR 655.71, and Revocation. In addition, the employer may request review of a PWD using the provisions at 20 CFR 655.13 Review of PWDs, and a debarment determination by following the procedures in Debarments 20 CFR 655.73. For additional appeal information, refer to FAQ Round 8 Appeal Procedures.