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Overview
The Foreign Labor Certification program allows an employer who anticipates a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. on a temporary or seasonal basis.
To hire foreign workers, employers must seek labor certification through the U.S. Department of Labor (DOL) and petition the U.S. Citizenship and Immigration Services for a visa. Approval by DOL does not guarantee visa issuance. The U.S. Department of State issues immigrant visa numbers to foreign workers for U.S. entry.
Refer to the Immigration and Nationality Act for additional information.
The Texas Workforce Commission (TWC) assists employers considering foreign labor certification with recruitment to determine whether there are sufficient qualified workers available in the intended employment area, which is required before filing a foreign labor application with DOL.
TWC conducts recruitment for the Foreign Labor Certification process for these temporary visa categories:
For information on other types of foreign labor visas handled by DOL, see the U.S. Department of Labor Foreign Labor Certification website.
News for Employers, Attorneys and Agents
To expedite temporary processing, TWC Foreign Labor Certification has adopted a 5:00 p.m. close of business cutoff for receiving new job orders, correspondence and/or responses to TWC correction deficiencies.
All emails, faxes and United States Postal Service (USPS) mail received after 5:00 p.m. will be marked as received the following TWC business day.
Note: Please provide adjustment time for Saturday, Sunday or legal holidays to meet the DOL regulations for the required temporary labor certification time frames.
Email submission for timely processing is preferred and should be sent to TWC’s foreignlabor@twc.texas.gov email address. Please add three to five days for delivery by USPS.
Qualifying for Foreign Labor Certification
For an employer to receive an H-2A or H-2B temporary labor certification, DOL must determine that:
- There are not enough U.S. workers who are able, willing, qualified and available to do the temporary work.
- The employment of H-2A or H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
DOL provides additional information on qualifying for foreign labor certification:
H-2A Agricultural Processing
The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform agricultural labor or services of a temporary or seasonal nature.
- Employment is seasonal where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for ongoing operations.
- Employment is temporary when the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year.
The TWC Foreign Labor Certification unit is a Texas employer’s first point of contact for worker recruitment for H-2A temporary agricultural job opportunities in Texas. Employers submit the job orders to TWC for recruiting before filing an application with DOL.
Effective October 16, 2019, all pre-filing documentation should be submitted via the Department of Labor FLAG System (https://flag.dol.gov/).
Employers should pre-file on FLAG all job orders to be placed in connection with a future Application for Temporary Employment Certification for H-2A workers. If we accept the job order for recruitment, TWC will recruit qualified U.S. workers during half of the time the job posting is open, or 50 percent of the contract period, as required by federal regulations.
Refer to DOL’s website on H-2A Foreign Labor Certification for current instructions for submitting your H-2A job order to the Department of Labor.
When to Pre-File for H-2A in Texas
TWC can process H-2A agricultural job orders only 60 to75 calendar days prior to the date workers are needed. The 60 to 75 day pre-filing timeframe is calculated from the date we receive your Agricultural and Food Processing Clearance Order to the beginning date of the anticipated period of employment you specify on that form.
If you do not pre-file with Texas 60 to 75 days before workers are needed, you can contact the U.S. Department of Labor to inquire about emergency filings.
How to Pre-File for H-2A in Texas
As of October 16, 2019, all pre-filing documentation must be submitted via the Department of Labor’s FLAG System (https://flag.dol.gov/). Additional supporting documentation can be submitted separately to the TWC FLC unit using the following methods:
- Email (recommended): foreignlabor@twc.texas.gov
- Fax: 512-463-3055
- U.S. Postal Service mail:
Texas Workforce Commission
Foreign Labor Certification Unit
4405 Springdale Rd. Rm 202T
Austin, TX 78723 - Courier delivery:
Texas Workforce Commission
Foreign Labor Certification Unit
4405 Springdale Rd. Rm 202T
Austin, TX 78723
Review of Pre-filed Job Orders
TWC’s Foreign Labor Certification unit reviews the Agricultural and Food Processing Clearance Order ETA Form 790 and other submitted documents and will contact the employer for verification of the housing if required.
Note: Rental or public accommodations do not require a TWC housing inspection.
After review, TWC will notify the employer or employer’s agent of one of the following outcomes:
- Recruitment – TWC accepted the Agricultural and Food Processing Clearance Order for recruitment and entered the job order into TWC’s online job-matching system, WorkInTexas.com, for intrastate recruitment in the area of intended employment. Once the job order is added to WorkInTexas.com, you are required to accept TWC referrals.
- Deficiencies – TWC found deficiencies in the employer’s pre-filing, detailed in a TWC Correction Deficiency Checklist. To continue the pre-filing process, you must submit a response to TWC within five calendar days, complete with amendments or documents for all requests as itemized on the deficiency checklist.
Filing with the U.S. Department of Labor
Once TWC has approved the employer’s job order for recruitment, the FLC unit will change the application’s status on FLAG to show that the job order has been approved and will notify the employer that we have begun recruitment. The employer may then use the DOL FLAG system to complete and submit their 9142 to DOL.
Filing for Occupations Covered by Special Procedures
If you are submitting an H-2A application for occupations covered by special procedures, refer to the appropriate U.S. DOL Training and Guidance Letter (TEGL) for additional information on wages, working conditions and other job requirements.
H-2A Resources
- Employer Guide to Participation in the H-2A Temporary Agricultural Program - U.S. DOL
- Application for Temporary Employment Certification ETA Form 9142A
- H-2A Employer Filing Tips from the U.S. Department of Labor
- Internal Revenue Service withholding tax requirements for H-2A foreign agricultural workers
- FLAG User Guides
- Employee Rights Under the H-2A Program - English Version
- Employee Rights Under the H-2A Program - Spanish Version
- H-2A Worker Rights Card - English Version
- H-2A Worker Rights Card - Spanish Version
- Farm Worker Rights Flyer - English & Spanish Version
Note: Employers are prohibited from shifting costs of any kind for any activity related to obtaining the labor certification, such as “the employer’s attorneys’ fees, application fees, or recruitment costs.”
H-2B Non-Agricultural Processing
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. This interim final rule became effective April 29, 2015. Interested persons are invited to submit written comments on this interim final rule on or before June 29, 2015.
The H-2B temporary non-agricultural program allows U.S. employers who meet specific regulatory requirements to bring foreign nonimmigrant workers to the United States to fill temporary nonagricultural jobs.
The employer's need is considered temporary if it is:
- A one-time occurrence. An employer claiming a one-time occurrence must show that it has either:
- Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future.
- An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
- A seasonal need. An employer claiming a seasonal need must show that the service or labor for which it seeks workers is both:
- Traditionally tied to a season of the year by an event or pattern.
- Of a recurring nature.
Employment is not seasonal if the period during which the service or labor is needed is any of the following:- Unpredictable
- Subject to change
- Considered a vacation period for the employer's permanent employees
The employer also must specify the period(s) of time during each year it does not need the services or labor to be performed.
- A peak load need. An employer claiming a peak load need must show all of the following:
- The employer regularly employs permanent workers to perform the services or labor at the place of employment.
- The employer needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand.
- The temporary additions to staff will not become part of the employer’s regular operation.
- An intermittent need. An employer claiming an intermittent need must show that it both:
- Has not employed permanent or full-time workers to perform the services or labor.
- Occasionally or intermittently needs temporary workers to perform services or labor for short periods.
How to File for H-2B Certification
- Obtain a Prevailing Wage Determination from the National Prevailing Wage Center for the occupation in the area of intended employment by submitting an Application for Prevailing Wage Determination via the Department of Labor’s FLAG system (https://flag.dol.gov/).
Refer to DOL’s website on H-2B Foreign Labor Certification for current instructions for submitting your H-2B job order to the Department of Labor.
Note: Employers are prohibited from shifting costs of any kind for any activity related to obtaining the labor certification, such as “the employer’s attorneys’ fees, application fees, or recruitment costs.”
H-2B Resources
- H-2B program information from U.S. Department of Labor Wage and Hour Division
- H-2B Employer Filing Tips from the U.S. Department of Labor
- Employee Rights Under the H-2B Program Poster - English Version
- Employee Rights Under the H-2B Program Poster - Spanish Version
- H-2B Worker Rights and COVID-19 - English Version
- H-2B Worker Rights and COVID-19 - Spanish Version
Forms
Be sure to use the correct forms when preparing your H-2A or H-2B foreign labor certification application package.
The U.S. Department of Labor publishes current versions of their foreign labor certification forms in fillable format.
Here are links to some of the most frequently used federal and TWC forms:
- Agricultural and Food Processing Clearance Order ETA Form 790
- Application for Prevailing Wage Determination ETA Form 9141
- H-2A Application for Temporary Employment Certification ETA Form 9142A
- H-2B Application for Temporary Employment Certification ETA Form 9142B
- H-2A Assurances Attachment to ETA Form 790 - Texas Example
- TWC H-2B Job Posting Request Form or
- Migrant Housing Inspection Checklist from U.S. DOL
- Housing Regulations from OSHA
Service
TWC Foreign Labor
Certification Unit
- Call: 512-475-2571
- Fax: 512-463-3055
- Email: foreignlabor@twc.texas.gov
- Mailing Address:
Texas Workforce
Commission
FLC Unit
101 E 15th St, Rm 202T
Austin, TX 78778-0001
