Employment Service Guide - C-1000: Foreign Labor Certification

C-1001: About Foreign Labor Certification

Boards must be aware of the following.

The Department of Labor’s (DOL) Foreign Labor Certification nonimmigrant visa program permits employers to hire foreign workers to perform temporary labor or services. Prior to filing a petition for the workers with the U.S. Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), employers must file an application with DOL certifying the following:

  • There are not sufficient workers who are able, willing, qualified and available at the time and place where the foreign worker is to perform the work.
  • Employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

TWC’s Foreign Labor Certification (FLC) Unit is responsible for assisting employers that have job opportunities in Texas to file their temporary applications for labor certification. This involves coordinating recruitment efforts and assisting DOL in the gathering of information needed, which forms the basis for the DOL Certifying Officer’s determination to grant or deny labor certifications.

The certification process and recruitment efforts start with job postings in WorkInTexas.com and fall into one of two categories:

  • H-2A jobs, targeting foreign temporary or seasonal agricultural workers
  • H-2B jobs, targeting foreign temporary nonagricultural workers

The FLC Unit processes:

  • H-2A agricultural and H-2B nonagricultural job postings
  • Prevailing wage and prevailing practice surveys

To contact the FLC Unit, call 512-475-2571.

Boards may make arrangements with employers that include Workforce Solutions office staff verifying the employment eligibility of job seekers.

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C-1002: H-2A Job Postings

Boards must be aware that as of March 15, 2010, Workforce Solutions office staff were no longer required to verify the employment eligibility of job seekers referred to H-2A job postings. Boards must ensure the following:

  • No referrals are made for H-2A job postings unless the posting has been accepted by TWC’s FLC Unit for WorkInTexas.com.
  • Workforce Solutions office staff conduct an employer name search in WorkInTexas.com to determine if the employer’s National Electronic Job Registry (Job Registry) posting has been accepted for recruitment in Texas by the FLC Unit.

Note: If the employer is located in Texas, assignment of the WorkInTexas.com posting is based on the employer’s zip code; if the employer is located outside of Texas, the posting is assigned to the WorkInTexas.com Office 9001, Agricultural Services Unit.

If the Job Registry posting has been accepted by the FLC Unit and entered into WorkInTexas.com, Boards must ensure that Workforce Solutions office staff:

  • Verify that the job seeker is qualified and interested in traveling to the job opportunity
  • Verify that the Workforce Solutions office is in receipt of the hard copy of the clearance order (Form ETA-790 and a copy of the employer’s attachment of assurances)
  • Request a hard copy of the clearance order from the FLC Unit—if it has not been received
  • Explain in detail—and in a language readily understood by the job seeker—the terms and conditions of employment
  • Follow all contact instructions issued by the FLC Unit and listed in the WorkInTexas.com posting
  • Provide to each job seeker a copy of TWC Form E-50 (Job Seeker Agricultural Checklist) and Form E-83 (Protection for Farmworkers) for review, both available on the Intranet (the Intranet is not available to the general public)
  • Ensure that the job seeker signs and dates the completed forms upon acceptance of the terms and conditions
  • Call the contact person on the clearance order/WorkInTexas.com posting—with the job seeker present—to coordinate and arrange the interview process
  • Enter the following information—after the job seeker is referred—into WorkInTexas.com Job Posting Notes:

If the H-2A job posting is not in WorkInTexas.com and the employer’s job order has not been cleared by the FLC Unit, Boards must ensure that Workforce Solutions office staff:

  • Notify the FLC Unit at 512-475-2571 or alienlabor@twc.state.tx.us of a job seeker’s interest in referral to the employer, if the job order can be accepted for recruitment
  • Refer the job seeker to other temporary or permanent agricultural job postings in WorkInTexas.com

Boards must ensure that Form E-83 is provided to all job seekers who are farmworkers whether or not the WorkInTexas.com job posting to which the job seeker is referred is an H-2A job posting.

Boards must ensure that Workforce Solutions office staff maintain all forms for the appropriate retention period (current year plus three).

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C-1003: H-2B Job Postings

Identification of H-2B Job Postings in WorkInTexas.com

Boards must ensure that Workforce Solutions Office staff can identify H-2B job postings. In WorkInTexas.com, these job postings are indicated by the following:

  • The FLC Job Type is H-2B
  • An FLC Case No., if the posting was entered by FLC staff
  • A statement in the Job Description indicating that the employment is temporary, including the start and end dates

Verification of Employment Eligibility

Boards must ensure that Workforce Solutions office staff:

  • Verify the job seeker’s employment eligibility for all staff referrals on H-2B job postings
  • Document the job seeker’s employment eligibility using Form I-9
  • Do not use E-Verify—USCIS’s Internet-based employment eligibility verification system—to verify the employment eligibility of job seekers referred by staff to H-2B job postings

Boards must be aware that expired documents are no longer acceptable for verifying employment eligibility.

Completion of Form I-9

Boards must ensure that, when using Form I-9 to document a job seeker’s employment eligibility, Workforce Solutions office staff:

Section 1
The job seeker must complete section 1 of Form I-9 before Workforce Solutions office staff can refer the job seeker to an employer for H-2B job postings.

Preparer or Translator Certification
This section is required only if section 1 is completed by someone other than the job seeker. A preparer/translator can be used only when the job seeker is unable to complete section 1.

Section 2
Boards must ensure that Workforce Solutions office staff:

  • Complete section 2 by examining documents that establish the job seeker’s identity and employment eligibility
  • Sign and date section 2
  • Do not complete the beginning employment date in the certification statement

Boards must ensure that when examining documents that establish a job seeker’s identity and employment eligibility, Workforce Solutions office staff:

  • Accept only original documents that appear genuine
  • Allow job seekers to present any approved documents included on Form I-9 (do not specify which documents from the lists are acceptable)
  • Do not accept laminated Social Security number (SSN) cards marked on the back with the statement “not valid if laminated”
  • Do not accept SSN cards marked with the statement “NOT VALID FOR EMPLOYMENT” (job seekers are not required to provide their SSNs, but can do so voluntarily)
  • Only accept birth certificates authorized by a governmental entity (birth certificates issued by hospitals are not valid)

Form I-9 contains the following lists of documents for use in verifying a job seeker’s identity and employment eligibility:

  • List A: Documents that establish both identity and employment eligibility
  • List B: Documents that establish identity only
  • List C: Documents that establish employment eligibility only

A job seeker can provide one of the following:

  • One document from List A
  • One document each from List B and List C

In section 2, Boards must ensure that Workforce Solutions office staff record the following:

  • Document title
  • Issuing authority
  • Document number
  • Expiration date

Completion of the Employment Eligibility Verification Certificate

Wagner-Peyser funded ES staff are designated as TWC’s officials authorized to sign the Employment Eligibility Verification Certificate (E-106). Boards must ensure that ES staff do the following:

  • Use the information in Form I-9 to complete the Employment Eligibility Verification Certificate, available on the Intranet (the Intranet is not available to the general public).
  • Provide the completed Employment Eligibility Verification Certificate directly to the employer, by mail or in person, no later than 21 business days after date of hire. Because the date of hire will be unknown, Boards must ensure that ES staff provide the Employment Eligibility Verification Certificate to the employer at the time of the staff referral.

Records Retention

Boards must ensure that the original or a copy of Form I-9 and a copy of the Employment Eligibility Verification Certificate are retained for three years from the date that an individual was last referred by the Board.

Additionally, upon request by USCIS or other U.S. government officials, Boards must ensure that these documents are made available within three business days.

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C-1004: Prevailing Wage Surveys

The FLC Unit will conduct prevailing wage surveys only for the H-2A process.

Additional FLC information is available at the following:

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