AWI PROGRAMS

Alien Labor Certification

What is the H-2B Labor Certification Process for Temporary Employment of Aliens in the U.S.?

PROGRAM DESCRIPTION: This program allows employers wishing to employ foreign workers in temporary nonagricultural occupations for a period of less than one year to file a labor certification application directly with the Florida Agency for Workforce Innovation.

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. Please
   (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.  Please provide documented proof:  Payroll records and staffing levels of the designated occupation based on the labor market they serve.
   
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 are of a recurring nature.
   Please provide documented proof:  Signed work contracts, letters form clients and invoices based on the labor market they serve.
   
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 364 days.

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 Section of the Florida Agency for Workforce Innovation. 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. Alien Labor Certification 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. A job order will be placed by the Agency for Workforce Innovation for 10 days. Alien Labor Certification 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. 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, Alien Labor Certification staff will forward the application to the Agency for Workforce Innovation'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
Caldwell Building

MSCG 300

Tallahassee, FL 32399-4140

Telephone Number: (850)921-3299
Fax Number: (850)921-3105