Pennsylvania Foreign Labor Certification Information
The Bureau of Workforce Partnership & Operations (BWPO) is the State Workforce Agency (SWA) responsible for helping Pennsylvania employers hire foreign workers in accordance with federal regulations. BWPO is in partnership with the PA CareerLink®® network of one-stop service centers. These centers are located throughout the state and help employers recruit qualified U.S. workers through the automated, self-service Job Gateway. The Foreign Labor Certification Unit (FLC), a work unit within BWPO, provides employers with other U.S. Department of Labor (USDOL) mandated foreign labor certification process services, and helps employers complete the SWA related segments of the temporary foreign labor H-2A and H2B.
Prevailing Wage Determination
USDOL regulations require Pennsylvania employers to obtain a Prevailing Wage Determination (PWD) through the USDOL National Prevailing Wage Center (NPWC).
In order to receive the mandatory prevailing wage determination required by Permanent Employment Certification (PERM), and other foreign worker programs, Pennsylvania employers and their attorneys or agents must complete Form ETA 9141 Request for Prevailing Wage. This form is available by accessing the USDOL website at http://www.foreignlaborcert.doleta.gov. Scroll down the left side of the page to Forms and Instructions click on ETA 9141. Effective January 1, 2010, requests for prevailing wage must be submitted to the NPWC by U.S. mail or comparable physical delivery service to the following address:
United States Department of Labor
Employment and Training Administration
National Prevailing Wage Center
Attn: PWD Request
1341 G Street NW, Suite 201
Washington, DC 20005-3105
For electronic filing go to http://icert.doleta.gov/.
For more information concerning prevailing wage requests, go to the Foreign Labor Certification web page at http://www.foreignlaborcert.doleta.gov. Scroll down the left side of the page to FAQs and click on "Prevailing Wage".
NOTE: USDOL suggests that all prevailing wage requests be submitted at least 60 days in advance of the employer's initial recruitment efforts.
Permanent Employment of Foreign Workers
Since 2005, USDOL regulations require all Pennsylvania employers to file applications for PERM, ETA Form 9089 through the Permanent Online System directly to the Atlanta National Processing Center:
Employers can view the complete version of the PERM regulations and a detailed description of how to hire foreign workers at http://www.foreignlaborcert.doleta.gov. This site provides answers to frequently asked questions, related Internet links - an online wage library - and the necessary forms and instructions for submitting an application to the Atlanta National Processing Center (ANPC).
PA CareerLink® administers an Internet based labor exchange called Job Gateway. This self-service, automated system enables employers, attorneys or agents to submit job postings and search for workers, while job seekers search the job postings and submit their resumes or job applications to the employers or their Points of Contact (POC). In addition to enabling employers or their POCs to independently submit and manage job postings, the self-serve system permits employers or their POCs to obtain job posting "My Candidates" lists 24 hours a day, seven days a week at www.jobgateway.pa.gov. PA CareerLink® also offers a variety of other employer services including education and training services to help employers build a quality workforce. Contact your local PA CareerLink® for more information on these services.
PA CareerLink® helps employers fulfill part of the USDOL requirements for FLC by helping them recruit U.S. workers and determine whether or not there are any qualified job applicants available to fill their job postings. The goal, as required, is to find U.S. workers for all positions.
The first step for an employer or POC that wants to submit a job posting is to register their company. Registration is easy. Go to www.JobGateway.pa.gov, click on the Register link in the top right hand corner.
If you encounter difficulties or have questions regarding the PA CareerLink® automated system, contact the closest PA CareerLink® by going to www.jobgateway.pa.gov and selecting the Help button in the top right hand corner, scroll down to PA CareerLink® offices. Type in the employer's zip code and select miles, click the search button. A list of PA CareerLink® offices and contact information will be displayed.
H-2A Certification for Temporary Agricultural Workers
Agricultural Recruitment System
The Agricultural Recruitment System (ARS), through PA CareerLink® , can help employers find temporary agricultural or food processing workers. The automated system links employers who have temporary agricultural and food processing jobs with U.S. workers who need these jobs and are willing, temporarily, to live away from their local areas. Using a network of state employment service agencies, the ARS system is able to help employers locate and recruit interested and qualified workers wherever they may be in the U.S.
The ARS Systems should not be confused with the H-2A Program. The H-2A Program is a separate program that allows agricultural employers to request approval to recruit and hire nonimmigrant foreign workers for temporary agricultural work. The H-2A Program may be accessed only when it is anticipated that there will be a shortage of domestic agricultural workers. The two programs are related, in that, the H02A Program requires that employers requesting H-2A Certification first attempt to recruit U.S. workers through the ARS Program.
H-2A Program Procedures for Temporary or Seasonal Agricultural Workers
Employers can view the complete version of the H-2A regulations and a detailed description of how to hire foreign workers at http://www.foreignlaborcert.doleta.gov. This site provides answers to frequently asked questions (FAQ), related Internet links, (e.g. an online wage library), and the necessary forms and instructions for submitting an application to the CNPC.
The H-2A Program enables agricultural employers to request approval to recruit and hire non-immigrant foreign workers to perform temporary agricultural or food processing work, and should not be confused with the ARS system described above. The H-2A Program may be used only when it is anticipated that there will be a shortage of U.S. agricultural workers at the time the work needs to be performed. The H-2A Program requires employers requesting H-2A certification to first attempt to recruit U.S. workers through the ARS system. Wages and working conditions must comply with applicable federal and state employment laws. There is also a requirement that employers provide workers with free or public housing that meets federal and state standards.
Click on the following link: http://www.foreignlaborcert.doleta.gov, to access the federal H-2A Program regulations and application forms. On the left side of the page, click on H-2A; this will take you to the new H-2A application processing system. At the bottom of the page you will find forms and instructions. Click on the applicable form, complete it online, and then print copies to submit to the SWA the, CNPC, and to keep for your records. Once you have all of the necessary forms completed, you must to forward one complete copy of the ETA 790 and all attachments directly to the SWA. NOTE: As a new requirement, the employer must provide a copy of the work contract or job posting to the worker no later than the first day that work commences. This document must be written in a language the worker understands.
SPECIAL NOTE: All agents involved in the recruitment process must provide proof of a valid Foreign Labor Contractor (FLC) license covering these activities (in accordance with 20 CFR Part 653.501(d)(2)(v) and 20 CFR Part 655.133(b) issued by the USDOL) as well as a Pennsylvania Farm Labor Contractor License and a copy of their agreement/contract with the employer.
The following timetable is recommended by the USDOL:
60 - 75 days from date of need: Employer commences process by submitting ETA 790 and all attachments to SWA for job posting.
60 - 75 days from date of need: SWA writes job posting and conducts housing inspection ( NOTE: If any discrepancies are discovered the employer has seven calendar days to make corrections.
45 - 75 days from date of need: Employer accepts referrals, conducts interviews, and begins to compile recruitment report.
45 days from date of need: Employer files complete application with USDOL.
38 - 44 days from date of need: Employer receives instructions from CO; SWA commences interstate recruitment; employer conducts positive recruitment and continues to compile recruitment report. Employer continues positive recruitment until the H-2A workers leave for the employer's place of business or the first day of need.
30 - 38 days from date of need: CO certifies or denies application. ( NOTE: Housing inspection MUST be completed before application will be certified.
SPECIAL NOTE: SWAs received special instructions from the U.S. DOL concerning the following:
SWAs may not accept for clearance an H-2A job posting that is not in compliance with all applicable regulatory requirements found at 20 CFR parts 653, Subpart F and 20 CFR 655, Subpart B.
If an employer's H-2A job posting fails to comply with one or more applicable regulatory provisions, the SWA must issue a Notice of Deficiency clearly explaining the reasons for not accepting the job posting and list the relevant regulatory provisions with which the job posting has failed to comply.
Inclusion of Grievance and Arbitration Language, Job Qualifications and requirements, and Waiver of Rights prohibited in accordance with 20 CFR 655.122(b), and CFR 29, Part 500, Migrant and Seasonal Agricultural Worker Protection.
Each job requirement in the job posting must be bona fide and consistent with the normal and accepted job requirements used by non H-2A employers in the same or comparable occupations and crops. The SWA must not accept for clearance a job posting which contains grievance and arbitration language which does not meet this statutory/regulatory standard. The SWA must require the employer to remove the grievance and arbitration language from its job posting(s) where such terms are not normal and accepted job requirements used by non H-2A employers in the same or comparable occupations and crops. If the employer fails to remove such language when requested, the SWA must issue a denial letter to the employer.
Job postings will remain open for 50 percent of the contract period (past date of need).
The employer must continue to accept referrals of U.S. worker applicants, and must interview each applicant.
The initial recruitment period is no earlier than 75 calendar days and no later than 60 calendar days prior to the application being submitted to the CNPC. The complete application must be submitted no later than 45 calendar days prior to the start date listed on the ETA 9142. NOTE: Please ensure that the employer's Federal Tax Identification Number is in Block 1 of the ETA 790.
The application consists of:
- Form ETA 9142
- Appendix A-2, (Appendix A-1 is no longer required)
- ETA 790 and all attachments,
- General Attestation of Assurances/Obligations
- Copy of Workers Compensation Insurance cover letter
(NOTE: if represented by an attorney the application must include a G-28 Form. If represented by an agent a copy of the contract must be included).
Once completed, the entire package is submitted to the CNPC (no later than 45 calendar days before the start date). Upon acceptance of the H-2A application, CNPC will provide positive recruitment instructions from the CO to the employer, and instructions to the SWA to enter the job posting into the interstate recruitment system. CNPC will inform the employer or POC when the initial recruitment report must be submitted to the CNPC.
The PA CareerLink® will enter a job posting into JobGateway and attempt to recruit U.S. workers to fill the job opening(s). Employers need to advertise in a general circulation newspaper for two days (one day must be a Sunday). The advertisement will direct applicants to apply at the nearest PA CareerLink®.
Employers are obligated to interview all applicants that are referred by the local PA CareerLink® as well as those referred by SWAs from other states and walk-in "gate" job applicants. The USDOL requires the employer to submit a recruitment report that includes the recruitment source, the name of each job applicant and the interview results. If any job applicants were not hired, the recruitment report should include information detailing the lawful reasons why they not hired.
Important Recommendation: Employers who did not submit an H-2A Program application during the previous year should have the water in the housing unit tested (if on a private well), and they should acquire an occupancy permit long before initiating the application process. State law requires a housing permit be obtained when housing two or more unrelated occupants in the same housing unit. The SWA will arrange a housing inspection once the employer submits an application, but the employer must have the water approved and an occupancy permit in hand before the housing will pass inspection.
H-2B Certification for Temporary Non-Agricultural Workers
On April 29, 2015 the Departments of Labor and Homeland Security jointly published new regulations governing the H-2B Temporary Non-Agricultural Labor Certification Program. The new regulations are effective immediately.
Employers can view the complete version of the USDOL H-2B Program regulations and a detailed description of how to hire foreign workers via the internet at http://www.foreignlaborcert.doleta.gov. The answers to frequently asked questions, related internet links, e.g., online wage library, and the necessary forms and instructions for submitting an application to the Chicago National Processing Center (CNPC). All questions must be referred to USDOL at H-2B.firstname.lastname@example.org.
H-2B Program Procedures for Temporary Non-Agricultural Workers
The first step for an employer or their POC to start listing a job order on the JobGateway automated system is to register their company. Registration is easy. Go to www.JobGateway.pa.gov, click on the Register link in the top right hand corner.
If you encounter difficulties or have questions regarding the PA CareerLink® automated system, contact the closest PA CareerLink® by going to www.JobGateway.pa.gov and selecting the Help button in the top right hand corner, scroll down to PA CareerLink® Offices. Type in the employer’s zip code and select miles, click the search button, A list of PA CareerLink® offices and contact information will be displayed.
After the company is registered, listing a job posting on the automated system is easy. Go to the JobGateway homepage, www.JobGateway.pa.gov, and click on the sign in link at the top right hand corner and enter your Keystone ID and password. Once inside the business folder click on the “My Job Posting” link at the top menu bar and scroll down to “Create Job Posting”. Fill out the necessary information and click “Submit”. The job posting will be posted in the employer’s business folder under “Job Postings”. For all H2B job postings the status will remain new/pending until the Foreign Labor Certification Unit receives a Notice of Acceptance Letter from the Chicago National Processing Center.
Once approval is received form the CNPC employers or their agents can now select the new job order and perform a search for qualified job applicants. The job applicants found in the search, those who refer themselves, and those referred by a PA CareerLink® representative, are listed on My Candidates list. Click on the applicant’s name or identification number and review their online resume to determine whether they qualify for the position, and need to be contacted and interviewed. The job order should remain “open” or left active for the mandatory duration required by the USDOL. A job order will automatically change to “Fully Referred” status if the actual number of referrals on the job order equals the number the employer requested when the employer wrote the job order. If this occurs, “Edit” the job order and increase the number of referrals requested to keep the job order open for the mandatory duration. A job order in fully referred status is not visible to the public.
Before closing the job order, employers or their POC s must view the job order My Candidates list and enter the contact results to indicate whether the job applicants were hired or not. At the conclusion of the recruitment period, simply close the job order. For permanent documentation, after closing the job order, you should click on the job order number to display the job order. Then print a hard copy of the Job Order and My Candidates list as part of the overall recruitment report in order to have a permanent business record for your files. By closing and then redisplaying the job order before printing a copy for your records, the copy will list both the open and closing dates. The two dates provide evidence of the duration that the job order was open.
The emphasis of H-2A and H-2B is to obtain U.S. workers for agricultural and non-agricultural employment. If every attempt fails to find US workers, foreign workers may then be permitted. Any attempt to subvert the process and to avoid hiring US workers may potentially result in debarment (agents and attorneys), discontinuation of services (employers), and possible exposure to outside litigation.
Pennsylvania Foreign Labor Certification Unit
Bureau of Workforce Partnership & Operations
Attn: Foreign Labor Certification Unit
Labor & Industry Building, 12th Floor
651 Boas Street
Harrisburg, PA 17121
Pennsylvania State Monitor Advocate
Labor & Industry Building, Room 1300
651 Boas Street
Harrisburg, PA 17121