H-2B Visa Employer Series: Form ETA-9142B (Temporary Labor Certification)
If you have followed the Williams Law Blog, or subscribed and received our free Ebook powered by Frontera Tech, then this Post will seem very familiar. Rather than creating a new post from scratch, we have updated a post from 2021 that remains very accurate and informational.
Form ETA-9142B is a vital step in the H-2B application process, and other than the limited number of visas, proves to be the biggest issue for new Employers, Agents and Attorneys as well as seasoned member of the H-2B Visa community.
Part I. Form ETA-9142B
Similar to the ETA 9141 (PWD), the 9142B is filed on the Foreign Labor Application Gateway (FLAG). The 9142B may be filed as many as 90 days but no less than 75 days prior to the requested date of need. Through FLAG, the Employer (or agent of the Employer) may actually apply the PWD document to the 9142B to make sure that relevant information is transferred. While this does save some time, double check all of the information! While this is still the technical filing timeline, in recent Cycles, the 75-90 day window is inapplicable. Rather, there has been a 72-hour window implemented in which all applications received are considered timely and are placed into a randomized grouping which determines the order in which an application is reviewed/processed rather than the first come first serve method that used to take place and cause nightmares for all of us involved in the application process.
In addition to transferred information (such as Employer Name, Worksite Address, Etc.), the Employer must designate the exact number of Beneficiaries that it desires. Additionally, this is the first time that the Employer designates the exact window of need for these Beneficiaries. And then, the Employer is given a 4000 character text box to provide its Statement of Temporary Need (attachments or a more lengthy Statement may be attached as well). This section is the most important section to the entire H-2B Visa application. And while I will get into common pitfalls later in this Post, it is essential that Employers give Section B of the 9142B the care and attention it warrants.
Following Section B, there are multiple sections that again are auto-filled from information provided in the PWD. However, Section F is the beginning of information not previously provided. The Employer must provide further information about the position. Such as a work schedule, total expected weekly hours, and whether housing will be provided to name a few. And, unfortunately, there is little flexibility when creating a work schedule with varying daily hours. Section F also provides the Employer space to upload a Job Order for the position. This Job Order must comply with the Employer’s State Workforce Agency (SWA) guidelines. One of the first things that an Employer or agent should do is contact their SWA to acquire this document and to acquire the proper e-mail address or method of submission for the Job Order - that’s right, the Job Order must be sent to the SWA as well as submitted via FLAG. And make sure you include ALL the requirements in the Job Description, such as “single workweek” “tools provided at no cost” and “daily subsistence provided” to name a few.
The remainder of the 9142B is fairly straight forward. Employers must provide information about additional worksites, foreign recruiters, and supplemental documentation I’ll address below. As discussed in our previous post, if a worksite has returned a prevailing wage that is too high and you would prefer for H-2B workers to not work in that area, you may exclude it from your 9142B (even if listed on the 9141).
Part II. Supplemental Documents
Employers may attach a Statement of Temporary Need (discussed further below).
Employers may attach documents/evidence that supports a Statement of Temporary Need
Employers must attach a Job Order
Employers must attach Foreign Recruiter Information (if applicable)
Employers must attach a signed and dated Appendix B
Agents may attach a G-28
Part III. Common Pitfalls
Below is a list of common pitfalls/mistakes that Employers, agents, attorneys, etc., make during the filling out and filing of the 9142B. Sometimes these can go unnoticed more often, each of these will trigger a Notice of Deficiency (NOD), that delays Certification or leads to a Denial of an H-2B Visa application. While this is not exhaustive and is general in nature, these are items that every Employer should consider prior to filing the 9142B.
Inconsistent Information: Information must be consistent from section to section and document to document.
For example, if the 9142B states that “Beneficiaries will work M-F” but the Job Order states that “Beneficiaries will work M-F and sometimes Saturday…” then a NOD would likely be issued due to the inconsistency.
Outdated Document: Always pay attention to the version of the document being submitted. The Appendix B must be the proper version. Additionally, an Appendix B must be signed and dated recently, i.e. an Appendix B from a prior year is unacceptable, and a NOD will be issued. And as a reminder, documents linked in this Post MAY BE OUTDATED at your time of reading - double check!
Improper Wage: The Wage on the PWD is not the wage that must be paid if there are multiple worksites with differing PWDs, and a PWD for one of those worksites is higher than the PWD for “Worksite 1”
For example, Worksite 1 is the Employer’s base city, let’s say Nashville, TN. PWD for Nashville is $14.00 per hour. But the Employer also has worksites in Franklin, TN. Franklin may have a different PWD, and that PWD may be $15.00 per hour. Instead of paying different rates depending on the location of the project, the Employer must pay the Beneficiaries $15.00 per hour for all worksites. And, this wage must be designated in the 9142B. But remember, worksites included in the 9141 do not have to be included in the 9142B if you have decided that H-2B workers will not work in a particular area/worksite.
Failure to Provide Sufficient Evidence Part I: Employers must request a specific number of Beneficiaries. Often times, Employers must provide extensive evidence explaining why this is the proper number. Sometimes this means providing contract after contract demonstrating projects scheduled for the dates of need, and sometimes it means providing years of payroll records demonstrating the hours worked by each employee. It can also mean a detailed description of the Employer’s internal operation explaining why a certain number of Beneficiaries is needed.
For example, if the Employer is asking for 10 Beneficiaries, then the Employer might need to prove that during the last two years, its 30 permanent workers all worked overtime hours consistently during the dates of need, and that it allocates 10 workers to each project. Then it might need to show that during the dates of need for the upcoming season, it needs an additional 10 Beneficiaries to zero out the overtime hours, and allow a fourth team of 10 workers to operate, which wouldn’t be possible without 10 Beneficiaries. (Complicated, I know.)
Failure to Provide Sufficient Evidence Part II: Employers must also explain in the Statement of Temporary Need how the temporary need is “Temporary” and which classification is proper; Seasonal, Peak Load, Intermittent, or One-Time. Employers must not only show that workers are working overtime, or that there are additional contracts for the coming season, but the Employer must also show that this is not a permanent shift. Employers must show, through evidence, that October – August are busy and workers are needed, while simultaneously showing that August – September is slower and Beneficiaries are not needed (for example). (Complicated, I know.)
A Labor Shortage is not Enough: Every Employer that considers the H-2B Visa program “can’t find workers”. This is the reality. It is not that Employers pay H-2B Beneficiaries less money or that they just want to hire foreign labor for some other reason. The reality is that Employers in the H-2B program simply cannot find qualified and consistent labor to meet the temporary need. And while every Employer should note this in the Statement of Temporary Need, relying on this labor shortage will result in a NOD. The Employer must first show the need is temporary and then show that it falls into a specific classification. An Employer who relies too heavily on the fact that there “aren’t enough workers,” without providing the evidence mentioned above will almost always receive a NOD.
Part IV. Conclusion
Employers should approach the 9142B with extreme caution. A strong 9142B and Statement of Temporary Need can at times almost guarantee a successful H-2B Visa application, but any of the pitfalls mentioned above can result in a Notice of Deficiency that can delay processing and put Employers a step behind other applicants at a very early stage of the process. While I always prefer to work with clients from start to finish, I do consult with Employers and Attorneys who want to take the lead with their H-2B Visa Application but know they can benefit from professional oversight. If Anything discussed in this Post sounds like what happened to your application in a past Cycle or if you want an evaluation of your 9142B or Statement of Temporary Need, please reach out at info@trentwilliamslaw.com so that we can increase your chances of a successful H-2B Visa Application in 2023.
*Some documents provided via links may be outdated and readers should always check to make sure they they use the current edition.
