Procedures for Temporary Labor Certifications
in the Entertainment Industry
I. Background
The H-2B visa classification applies to foreign workers coming temporarily to the U.S. to perform nonagricultural work of a temporary or seasonal nature. The H-2B visa classification requires a temporary labor certification from the Secretary of Labor advising the Bureau of Citizenship and Immigration Services (BCIS) whether or not U.S. workers capable of performing the temporary services or labor are available and whether or not the foreign workers’ employment will adversely affect the wages and working conditions of similarly employed U.S. workers, or a notice that such certification cannot be made, prior to filing an H-2B visa petition with BCIS.
Due to the unique characteristics of the entertainment industry, the following procedures have been established for processing H-2B applications for that industry. These procedures centralize temporary labor certification authority in the entertainment industry in three regions, clarify processing requirements, and ensure uniformity among the responsible regions.
II. Operating Guidelines
A. Based on factors such as the need to develop expertise, the concentration of activities for requests for foreign workers in entertainment, and the proximity to sources that know about the availability of U.S. performers in various entertainment fields, regional certifying officers in New York City, Dallas, and San Francisco are designated as the appropriate officials for issuing determinations on applications for temporary employment of foreign workers in the entertainment industry.
B. Offices of the SWAs in New York City, Austin, and Sacramento are designated as Offices Specializing in Entertainment (OSEs). These offices shall receive temporary applications in the entertainment industry directly from employers within their jurisdiction for processing. Each SWA and all regional offices, however, process permanent applications in the entertainment industry.
C. Canadian musicians who enter the U.S. to perform within a 50-mile area adjacent to the Canadian border for a period of 30 days or less are pre-certified and not subject to these procedures.
D. Public Law 97-271 limits temporary employment of entertainers in the Virgin Islands to periods not to exceed 45 days. Therefore, the period of labor certification for such applications may not exceed 45 days.
E. Occupations in the entertainment industry shall include performers and all technical and support personnel involved with a performance.
F. When a job offer contains requirements or conditions which preclude effective recruitment of U.S. workers, i.e., there is no employer in the U.S., the OSE shall disregard recruitment procedures below and should immediately send the application to the regional certifying officer for determination.
III. Procedures
A. Temporary labor certification applications for foreign workers in the entertainment industry shall be filed by employers with the OSE serving the area of intended employment (see map of OSE jurisdiction). Note: When the job opportunity requires the work to be performed in more than one OSE jurisdiction, the application should be filed with the OSE having jurisdiction over the area where the employment will begin.
B. To allow for sufficient recruitment of U.S. workers and to give OSE and regional offices enough processing time, employers should be advised to file their applications at least 60 calendar days but no more than 120 days prior to the date labor certification is needed in order to receive a timely determination. The Department of Labor cannot assure a timely determination if the employer files an application for labor certification less than 60 days prior to their date of need. The OSE should return to the employer applications which are filed more than 120 days prior to the date of need.
C. When filed, the temporary application should include:
1. A completed Form ETA-750, Part A, the “Offer of Employment” for Alien Employment Certification form signed by the employer.
2. An itinerary of locations and duration of work in each location when there is more than one worksite.
3. Documentation of the employer’s efforts, if any, to recruit U.S. workers, and the results of that effort.
D. The OSE shall review the application for completeness and determine the prevailing wage, guided by standards in regulations at 20 C.F.R. § 656.40 for each location listed in the itinerary.
E. The employer must specify a wage which meets or exceeds the hourly, daily, or weekly rate and covers each day of the workweek that the foreign worker is in the U.S. for the duration of the employment regardless of hours worked. The employer must be willing to pay the applicable wage for each location listed on the itinerary for work performed in that location.
F. The employer may advertise the job opportunity before or after filing the application in a national publication that is likely to bring responses from U.S. workers. The advertisement shall:
1. Identify the employer’s name, address, and the location of the employment, if other than the employer’s location;
2. Describe the job opportunity in detail;
3. State the rate of pay, which shall not be below the prevailing wage for the occupation;
4. Offer prevailing working conditions;
5. State the employer’s minimum job requirements; and
6. Offer wages, terms, and conditions of employment which are no less favorable than those offered to the foreign worker.
Note: Based on the judgment of the regional certifying officer, employers located in the Virgin Islands will be allowed to conduct local recruitment using local publications on the island rather than conducting recruitment in national publications found in the continental United States that may or may not be available in the Virgin Islands.
G. The employer must provide the OSE a copy of the advertisement showing the name of the publication, the dates published, and written results of all the recruitment, which must:
1. Identify each recruitment source by name;
2. State the name, address, and telephone number of each U.S. worker who applied for the job; and
3. Explain the lawful job-related reason for not hiring each U.S. worker.
H. The OSE shall write to the appropriate national union(s) (listing enclosed) for availability information. The following procedures and conditions shall apply to union contacts:
1. The letter to the union shall not identify the employer, but shall describe the type of establishment, the job duties, location, and dates of employment, hours of work, wages and working conditions.
2. From the date the letter to the union is mailed, five working days should be allowed to receive a written response. If no response is received after five working days, the union should be contacted by telephone to verify if the request was received. If there is availability, five additional workdays should be allowed for a written response before making a determination based on available information in the application file.
3. Acceptable availability information from unions shall include names, addresses, and telephone numbers of U.S. workers who meet the employer’s requirements for the job opportunity.
4. If the union(s) provide names of qualified U.S. workers, the OSE shall refer the list to the employer for direct contact with the applicants.
5. The name of the union, the union representative contacted, and the date of contact must be included on the transmittal form to the regional office for each application.
I. A recruitment or information source which asserts the availability of qualified U.S. workers must provide specific information on the U.S. workers, including their names, addresses, and telephone numbers so that the employer may contact them.
J. When recruitment through all sources is completed, the OSE shall send the application, together with all pertinent information, to the appropriate regional certifying officer in New York City, Dallas, or San Francisco.
K. At the discretion of the regional certifying officer, the employer may be required to recruit through other sources which are appropriate for the occupation and customary in the industry, such as talent agencies, agents, and casting directors.
IV. Determinations
The regional certifying officer shall consider circumstances unique to the entertainment industry in making a final determination.
A. Decisions on applications by employers seeking temporary admission of non-immigrant foreign workers for temporary employment in entertainment occupations require special considerations, such as:
1. An assessment of requirements of the role or the act to be performed;
2. The need to keep the unity of a group or company and support personnel;
3. The role of labor unions in this highly unionized field and their impact on employment opportunities;
4. The willingness of available U.S. workers to fulfill the employer’s prescribed itinerary.
B. The regional certifying officer in determining whether to grant or deny the temporary labor certification will base the decision on whether or not:
1. U.S. workers are available for the temporary employment opportunity:
a. The regional certifying officer, in judging if a U.S. worker is available for the temporary employment opportunity, shall determine from documented results of the employer and the SWA recruitment efforts if there are other appropriate sources of workers, where the employer should have recruited or may recruit U.S. workers. If further recruitment is required, the application should be returned to the OSE with specific instructions for the additional recruitment.
b. To determine if a U.S. worker is available, the regional certifying officer shall consider U.S. workers living or working in the area of intended employment, and may also consider U.S. workers who are willing to move from elsewhere to take the job at their own expense, or at the employer’s expense, if the prevailing practice among employers who employ workers in the occupation is to pay such relocation expenses.
c. The regional certifying officer shall consider a U.S. worker able and qualified for the job opportunity if the worker by education, training, experience, or a combination thereof, can perform the duties involved in the occupation as customarily performed by other U.S. workers similarly employed and is willing to accept the specific job opportunity.
d. To determine if U.S. workers are available for job opportunities that will be performed in more than one location, workers must be available in each location on dates specified by the employer.
2. The job opportunity contains requirements or conditions which preclude consideration of U.S. workers or which otherwise would prevent their effective recruitment, e.g., there is no employer in the U.S. Such applications shall be denied on the basis that U.S. workers are generally available for employment in the entertainment industry and it was not shown that the employer made reasonable efforts to obtain U.S. workers for the job. Under these circumstances, the Department must assume that U.S. workers are available.
C. Dates on the temporary labor certification shall be the beginning and ending dates of the actual employment not to exceed 12 months. The beginning date of certified employment may not be earlier than the date certification was granted.
D. A denial of certification or a notice that certification cannot be made (non-determination) is not reviewed by the Department of Labor, but may be appealed to the BCIS. The petitioner may attach the decision to the nonimmigrant visa petition and present countervailing evidence that qualified persons in the United States are not available and that the employment policies of the Department of Labor were observed. The BCIS will consider all such evidence in adjudicating the petition. The denial of certification letter or the notice that certification cannot be made (non-determination) must set forth the specific reason(s) for denial of the request. The specific reason(s) for denial will enable the BCIS to better understand the basis for the Department of Labor’s denial of the request in the event the denial is appealed.