New York State Department of Labor Business Services

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The foreign labor certification program permits U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy. These jobs include H-2A (agricultural) and H-2B (non agricultural). Certification may be obtained to bring foreign workers into the U.S. when it can be demonstrated that there are insufficient qualified U.S. workers available and willing to perform the work. Foreign labor certification programs are designed to ensure that the admission of foreign workers into the United States will not adversely affect the job opportunities, wages and working conditions of U.S. Workers.

H-2A

The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations. Employment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.

New York State's Role - The employer must prepare a job offer using ETA Form 790 no more than 75 days and no fewer than 60 days prior to the employer's date of need. The job order should include the NYS Standardized attachments Attachment #1 to ETA790 and Attachment #2 to ETA790 and must be either emailed to ForeignLaborCert@labor.ny.gov or mailed to the following address:

The job order must be identified as one that will be used in connection with a future Application for Temporary Employment Certification (ETA Form 9142). The job offer must meet the terms and conditions of 20 CFR 653.501 and 20 CFR 655.135. After the job order is received, accepted and entered into the job bank by the New York State Department of Labor staff, the employer will receive confirmation.

H-2B

The NYS Department of Labor's role is to assist New York employers by processing job orders for H-2B workers. The H-2B non-immigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peak load or intermittent basis. Prior to filing the job order with the New York State Department of Labor, the employer must obtain a prevailing wage rate by applying directly to the USDOL Prevailing Wage and Helpdesk Center using ETA Form 9141. Instructions for using this form appear on the U.S. Department of Labor web site. Job orders for this program must be identified clearly as an H-2B job order and should be filed no more than 120 days before the employer's date of need. Use the ES515 New York State Job Order Form and either e-mail to ForeignLaborCert@labor.ny.gov or fax to (518) 485-1359. For details on the H-2B program, go to http://www.foreignlaborcert.dol.gov/.

Find details at http://www.foreignlaborcert.doleta.gov/ or contact the USDOL Chicago National Processing Center at (312) 886-8000.

For questions about New York State's role in the Foreign Labor program, call (518) 457-7304.