Supplemental Guidance for Labor
Certification Process for Temporary Employment of Nonimmigrant Workers in the
United States (H-2B Workers); Fiscal Year (FY) 2005
AGENCY: Employment and Training Administration (ETA), Department
of Labor (DOL).
SUMMARY: On March 10, 2004, the United States Citizenship and
Immigration Services (CIS) announced receiving sufficient H-2B petitions to reach
the FY 2004 Congressionally mandated cap of 66,000.
In light of CIS' announcement, ETA published a Federal Register notice on May
13, 2004 to provide guidance to the public regarding ETA's processing of H-2B
applications that will count against the FY 2005 cap. ETA is publishing this notice
to provide additional guidance due to the number of inquiries and questions that
have arisen. This notice is intended to minimize confusion and burden to employers
who use the H-2B program.
DATES: This notice is effective October 1, 2004.
FOR FURTHER INFORMATION CONTACT: William Carlson, Chief, Division
of Foreign Labor Certification, U.S. Department of Labor, Room C-4312, 200 Constitution
Avenue, NW., Washington, DC 20210. Telephone: 202-693-3010 (this is not a toll-free
SUPPLEMENTARY INFORMATION: DOL has continued to process alien
labor certification applications since March 10, 2004, and many employers are
in possession of a valid labor certification that has not been accepted by CIS
for processing. CIS has advised that their practice has been to accept the H-2B
labor certifications with periods of employment that cross fiscal years so long
as some portion of the employment period remains. Employers with a valid H-2B
labor certification with a date of need prior to October 1, 2004, but that includes
periods of planned employment after October 1, 2004, are encouraged to file H-2B
labor certifications with CIS if some portion of the employment period remains.
ETA will continue to process new H-2B applications with dates of need within FY
2005 (that is, starting October 1, 2004 or later). For these new applications,
employers must continue to follow existing filing rules, including regarding the
timing of filing with the State Workforce Agency (SWA). Thus, employers must file
a new H-2B application with the appropriate SWA no earlier than 120 days before
the date of need and at least 60 days before the date of need.
The procedures described in this notice relate only to H-2B applications for nonimmigrant
workers subject to the numerical limitation (cap) for FY 2005 and who will be
engaged in temporary work to commence on or after October 1, 2004.