| Types of Foreign Labor Certification |
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| Temporary Employment |
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WHAT THE PROGRAM DOES: This program allows employers wishing to employ foreign workers in temporary non-agricultural occupations for a period of less than one year to file a labor certification application directly with Oregon Employment Department.
REGULATIONS: 20 CFR Part 655 Subpart A.
TEMPORARY EMPLOYMENT: An H-2B temporary non-agricultural worker is an foreign worker 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 must be either:
- 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.
- 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.
- Peak load 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.
- 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, the validity period cannot exceed 364 days.
BASIC 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 Foreign Labor Certification (FLC) section of Oregon Employment Department. The form and documentation must be filed in duplicate with original signatures on the 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. FLC staff will issue a priority date and review the application. The employer will be notified of any additions or corrections that have to be made to the application. FLC 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. The employer can reject applicants only for lawful, job-related reasons. The employer must submit documentation of the recruitment results. When the results are received, FLC staff forward the application to the U.S. Department of Labor for processing.
REQUIRED WAGES: The Immigration and Nationality Act (INA) requires that the wages paid to non-immigrants 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 non-immigrants more than the higher of the actual wage or the prevailing wage.
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