H-2B Online Filing via FLAG System

Program Overview

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

  1. 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
  2. The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

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

  • Be an employer with a valid Federal Employer Identification Number (FEIN);
  • Have a place of business (i.e., physical location) in the United States; and
  • Have a means by which it can be contacted for employment.

The employer's job opportunity (opportunities) must be:

  • Temporary (i.e., nine months or less, except one-time occurrences);
  • Full-time (i.e., 35 or more hours per week); and
  • Non-agricultural employment within a specified area(s) of intended employment.

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

  1. One-time occurrence;
  2. Seasonal need;
  3. Peakload need; or
  4. Intermittent need.

With the exception of a one-time occurrence need which can last up to three years, temporary need will not be approved for longer than nine months.

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 has responsibility for enforcing provisions of worker contracts and applicable employment laws.

How and When to Apply

Prior to filing a petition with DHS' U.S. Citizenship and Immigration Services (USCIS), an employer must obtain an approved temporary labor certification from the Department:

New Applicants

  1. Register - 150-120 calendar days before the date of need will be required. ( The Registration process is currently not operational - no Form ETA-9155 is needed at this time. OFLC will announce in the Federal Register a separate transition period for the registration process, and until that time, will continue to adjudicate temporary need during the processing of applications )
  2. Obtain a Prevailing Wage Determination (PWD) - at least 60 calendar days before it is needed. Obtain a PWD from the National Prevailing Wage Center (NPWC) using the Application for Prevailing Wage Determination (Form ETA-9141). The PWD application is available for electronic filing on the FLAG System and filing by mail.
  3. File a job order and H-2B application - 90 to 75 days prior to the date of need. File a job order with the State Workforce Agency (SWA) AND submit the H-2B application (Form ETA-9142B and Appendices) with supporting documents and a copy of the job order filed with the SWA to the Chicago National Processing Center (Chicago NPC).

When to submit your application package to the Chicago NPC:

90-75 calendar days before the start date of need, the employer concurrently submits the job order to the SWA and submits the H-2B application package to the Chicago NPC

Where to Apply:

Prevailing Wage Determinations - PWD applications can be submitted electronically through the FLAG System . Electronic filing is strongly recommended.

Employers that lack adequate access to electronic filing may file the application by mail. The employer must indicate that it is filing by mail due to a lack of adequate access to electronic filing. The employer may mail the application package to the NPWC at the following address:

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
Attn: H-2B Prevailing Wage Determinations

Job Order - The job order must be filed with the SWA serving the area of intended employment. Find SWA contacts.

H-2B Application Package - The H-2B Application package can be filed electronically through the FLAG System. The H-2B Application package includes the Form ETA-9142B; a copy of relevant appendices; the Prevailing Wage Determination case tracking number issued by the National Prevailing Wage Center, which can be linked to the ETA-9142B application in FLAG ; a copy of the job order; and any applicable supporting documentation. Video tutorials are available on creating a FLAG System account and more.

Employers that lack adequate access to electronic filing may file the application by mail. The employer must indicate that it is filing by mail due to a lack of adequate access to electronic filing. The employer may mail the application package to the Chicago 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

What Happens Next:

  • The SWA reviews the job order for compliance with program requirements as soon as possible but no later than six business days of receipt.
  • The Chicago NPC reviews the H-2B application and job order for compliance with program requirements within seven business days of receipt.
  • Within seven business days of receipt of the application, the Chicago NPC will notify the employer in writing of the decision to either accept (Notice of Acceptance) or not accept (Notice of Deficiency) the employer's application and/or job order.
    • A Notice of Deficiency identifies the deficiencies found by the SWA and Chicago NPC and provides the employer the opportunity to address those deficiencies with the application and/or job order.
    • Each notification will also provide the next steps for the employer to take.
  • Within 14 days of receipt of a Notice of Acceptance, the employer must follow the instructions provided in the Notice of Acceptance and conduct recruitment, including:
    • Placing newspaper advertisements;
    • Contacting former U.S. workers;
    • Contacting the bargaining representative (if any) or posting notice of the job opportunity to the employer's current employees; and
    • Conducting any additional recruitment, if directed by the Certifying Officer.
  • The Certifying Officer in the Notice of Acceptance will specify a date for the employer's initial recruitment report.
  • After receipt of the initial recruitment report, the Chicago 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. The Chicago NPC will no longer issue certifications on blue security paper.
  • 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 package to the USCIS Service Center. The original Appendix B is retained in the employer's retention file.
  • The employer is obligated to continue to update the recruitment report and prepare a final recruitment report.
  • The updated report need not be submitted to the Department, but 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.
  • Employers can appeal for administrative review of Notices of Deficiency, partial certifications, denial of labor certification, denials of redetermination requests, denials of modified applications or job orders and denials of extension requests.

FAQs

Round 1: Implementation, Major Changes (2008 Final Rule v. IFR)

Round 2: Transition Procedures

Round 3: Electronic Filing under the 2015 H-2B Interim Final Rule

Round 4: Job Order and Application Filing and Processing, including Emergency Procedures

Round 5: Job Offers and Employer Obligations

Round 6: Clarification of Handling Special Procedure Occupations under the 2015 H-2B IFR

Round 7: Recruitment Procedures and the Recruitment Report

Round 8: Appeal Procedures

Round 9: Staggered Crossing of H-2B Nonimmigrants Working in the Seafood Industry

Round 10: Integrity Measures

Round 11: Job Order Content, Amendments, and Recruitment

Round 12: Job Order and Application Filing and Processing: Emergency Procedures and Post-Certification Amendments

Round 13: Job Order and Application Filing and Processing: Prevailing Wage Determinations and Emergency Procedures

Round 14: Corresponding Employment Under the 2016 DOL Appropriations Act

Round 15: Obligations and Job Order Content for Employers of a Mobile Workforce

Round 16: Foreign Labor Recruiter List

Round 17: "Worksites" and "Area of Intended Employment" in the H-2B Program