Office of Inspector General—Office of Audit 

EMPLOYMENT AND TRAINING 

ADMINISTRATION 

PROGRAM DESIGN ISSUES HAMPERED ETA'S 

ABILITY TO ENSURE THE H-2B VISA PROGRAM 

PROVIDED ADEQUATE PROTECTIONS FOR U.S. 

FORESTRY WORKERS IN OREGON 

Date Issued: October 17, 2011 

Report Number: 17-12-001-03-321 
 

 

 

 

 

 

U.S. Department of Labor 

Office of Inspector General 

Office of Audit 

BRIEFLY... 

Highlights of Report Number 17-12-001-03-321, issued 

to the Assistant Secretary for Employment and Training. 

WHY READ THE REPORT 

The Office of Inspector General (OIG) audited the 

Employment and Training Administration’s (ETA) role in 

the H-2B visa program. Oregon Congressman Peter 

DeFazio asked the OIG in a letter dated September 3, 

2010, to review the H-2B application process for four 

Oregon-based employers listed in an article in the 

Oregon Bend Bulletin News on August 9, 2010. The 

Congressman was concerned about possible H-2B visa 

irregularities related to Forest Service contracts in 

central Oregon funded by the American Recovery and 

Reinvestment Act (Recovery Act). According to U.S. 

Forest Service officials, the four employers reviewed 

were awarded 14 fiscal year (FY) 2010 Recovery Act 

contracts totaling $7,140,782 for forestry work in 

Oregon. 

Employers submit H-2B applications to the Department 

of Labor’s (DOL) Office of Foreign Labor Certification 

(OFLC) within ETA. To obtain an H-2B certification and 

comply with employment protections, employers selfattest that U.S workers capable of performing the job 

are not available and that the employment of foreign 

workers will not adversely affect the wages and working 

conditions of similarly employed U.S. workers. ETA is 

responsible for an initial review of the H-2B application 

and recruitment report. In addition, since a regulation 

change in January 2009, ETA can conduct 

post-adjudication reviews to validate employer 

self-attestations. 

WHY OIG CONDUCTED THE AUDIT 

The audit objective was to answer the following 

question: 

Was ETA able to ensure that the H-2B visa program 

provided adequate protections for U.S. workers in the 

applications filed by the four Oregon forestry 

employers? 

READ THE FULL REPORT 

To view the report, including the scope, methodology, 

and full agency response, go to: 

http://www.oig.dol.gov/public/reports/oa/2012/17-12-

001-03-321.pdf 

October 2011 

PROGRAM DESIGN ISSUES HAMPERED ETA'S 

ABILITY TO ENSURE THE H-2B VISA PROGRAM 

PROVIDED ADEQUATE PROTECTIONS FOR U.S. 

FORESTRY WORKERS IN OREGON 

WHAT OIG FOUND 

The OIG found program design issues hampered ETA’s 

ability to provide adequate protections for U.S. workers 

in the H-2B applications filed by the four Oregon 

forestry employers. On March 18, 2011, ETA issued 

proposed regulations to address these issues. We also 

found that certain State Workforce Agencies (SWA) did 

not fulfill their responsibilities, and ETA could improve 

its oversight and monitoring to better protect the 

interests of U.S. workers under the regulations. 

Our audit identified that the H-2B application process 

did not allow for meaningful validation before 

applications were approved. We found two of the four 

employers reviewed reported to ETA they had made job 

offers to 29 U.S. workers; however, none of these 

workers began employment. Regulations required 

employers to post a job order and newspaper 

advertisement in the state of initial employment only, 

regardless of where subsequent work would be 

performed. Six of nine H-2B applications we reviewed 

included work in Oregon, but the work began in other 

states. Employers were not required to recruit U.S. 

workers in Oregon, and we were provided no evidence 

that they did. We also found that the five SWAs 

reviewed did not transmit posted job orders to Oregon 

or other states where work was occurring, and three 

SWAs were not making job referrals to employers — 

both H-2B requirements. 

In addition, we identified that during the initial H-2B 

application review, ETA did not validate that the 

petitioning employer was a bonafide business or 

validate the employer-submitted prevailing wage. Also, 

during its post-adjudication process ETA did not verify 

the names listed on the employers’ recruitment reports 

to determine if these individuals actually applied for 

employment. 

WHAT OIG RECOMMENDED 

The OIG recommended that the ETA Assistant 

Secretary reassess the requirement for employers to 

only recruit U.S. workers in the state of initial 

employment, develop and implement procedures to 

strengthen the application review and post–adjudication 

processes, and develop and implement controls to 

better monitor SWAs’ compliance with program 

requirements. 

The Assistant Secretary generally agreed with our 

recommendations and has planned to take actions to 

address them. 
 

U.S. Department of Labor – Office of Inspector General 

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H-2B Certification for Temporary Non-Agricultural Work 

Report No. 17-12-001-03-321 
 

U.S. Department of Labor – Office of Inspector General 

Table of Contents 

Assistant Inspector General’s Report ......................................................................... 1
 

Results In Brief.............................................................................................................. 2
 

Objective — Was ETA able to ensure that the H-2B visa program provided 

adequate protections for U.S. workers in the applications filed by the 

four Oregon forestry employers?........................................................... 5
 

ETA could not demonstrate whether or not U.S. workers were protected 

by the H-2B visa program..................................................................................... 5
 

Recommendations ...................................................................................................... 12
 

Exhibits 

Exhibit 1 Reasons U.S. Workers Were Not Hired............................................... 15
 

Exhibit 2 Prevailing Wages Paid to Foreign Workers ......................................... 17
 

Appendices 

Appendix A Background ..................................................................................... 21
 

Appendix B Objective, Scope, Methodology, and Criteria .................................. 23
 

Appendix C Acronyms and Abbreviations .......................................................... 27
 

Appendix D ETA Response to Draft Report ....................................................... 29
 

Appendix E Acknowledgements ......................................................................... 33
 

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U.S. Department of Labor – Office of Inspector General 

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H-2B Certification for Temporary Non-Agricultural Work 

Report No. 17-12-001-03-321 
 

 

U.S. Department of Labor – Office of Inspector General 

U.S. Department of Labor Office of Inspector General 

Washington, D.C. 20210 

October 17, 2011 

Assistant Inspector General’s Report 

Jane Oates 

Assistant Secretary for Employment and Training 

Employment and Training Administration 

US Department of Labor 

200 Constitution Avenue, N.W. 

Washington, D.C. 20210 

Oregon Congressman Peter DeFazio asked the Office of Inspector General (OIG) in a 

letter dated September 3, 2010, to review the H-2B application process for four 

Oregon-based employers listed in an article in the Oregon Bend Bulletin News on 

August 9, 2010. The Congressman was concerned about possible H-2B visa 

irregularities related to Forest Service contracts in central Oregon funded by the 

American Recovery and Reinvestment Act (Recovery Act). According to U.S. Forest 

Service officials, the four employers reviewed were awarded 14 fiscal year (FY) 2010 

Recovery Act contracts totaling $7,140,782 for forestry work in Oregon. 

Employers submit H-2B applications to the Department of Labor’s (DOL) Office 

of Foreign Labor Certification (OFLC) within the Employment and Training 

Administration (ETA). To obtain H-2B certification and comply with employment 

protections, employers self-attest that U.S workers capable of performing the job 

are not available and that the employment of foreign workers will not adversely 

affect the wages and working conditions of similarly employed U.S. workers. The 

State Workforce Agency (SWA) is responsible for accepting and placing job 

orders into their data system and sharing it with other relevant states; reviewing 

and providing referrals to employers; and verifying employment eligibility of the 

applicants who apply to the SWA to be referred for the job opportunity. ETA is 

responsible for an initial review of the H-2B application and recruitment report. In 

addition, since a regulation change in January 2009, ETA can conduct 

post-adjudication reviews to validate employer self-attestations. 

To address the Congressman’s complaint regarding employment protections for U.S. 

workers in the H-2B visa program, the audit objective was to answer the following 

question: 

Was ETA able to ensure that the H-2B visa program provided adequate protections 

for U.S. workers in the applications filed by the four Oregon forestry employers? 

H-2B Certification for Temporary Non-Agricultural Work 

1 Report No. 17-12-001-03-321 
 

 

U.S. Department of Labor – Office of Inspector General 

In order to test ETA’s oversight of the four Oregon-based employers, we reviewed nine 

H-2B applications submitted by the four employers between October 1, 2009, and 

January 31, 2011. We interviewed ETA personnel and reviewed H-2B application and 

post-adjudication review procedures conducted by ETA’s National Processing Center 

(NPC). We reviewed the nine H-2B applications to determine if ETA adhered to current 

program regulations and if the applications contained any improprieties. In addition, we 

interviewed SWA program officials where the four Oregon-based employers filed 

forestry job orders, analyzed SWA documentation for the nine job orders submitted, 

analyzed the corresponding recruitment reports and employer payroll records, and 

interviewed six U.S. workers whom these employers had reported as having hired. We 

also interviewed representatives from the U.S. Forest Service concerning Recovery Act 

forestry contracts awarded to Oregon employers. U.S. Forest Service officials informed 

us that the Forest Service awarded 14 fiscal year (FY) 2010 Recovery Act contracts to 

the four employers totaling $7,140,782 for forestry work in Oregon. However, the H-2B 

applications do not identify a funding source; therefore, we could not determine how 

much in Recovery Act funds were actually used to pay foreign workers. 

We conducted this performance audit in accordance with generally accepted 

government auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on the audit objective. We believe that the evidence 

obtained provides a reasonable basis for our findings and conclusions based on the 

audit objective. Our objective, scope, methodology, and criteria are detailed in 

Appendix B. 

Results In Brief 

Program design issues hampered ETA’s ability to provide adequate protections for U.S. 

workers in the H-2B applications filed by the four Oregon forestry employers. On 

March 18, 2011, ETA proposed new regulations designed to address these issues. We 

also found that certain SWAs did not fulfill their responsibilities for the H-2B applications 

we reviewed. Furthermore, we found that ETA could improve its initial application 

reviews, post-adjudication processes, and monitoring activities to better protect the 

interests of U.S. workers under the regulations by which the program currently operates. 

Program Design Issues 

The current H-2B application process is an employer attestation-based model that does 

not permit meaningful validation before the application is approved. In proposing to 

revise the regulations governing the program, ETA stated that deferring many 

determinations of program compliance until after an application has been adjudicated 

does not provide an adequate level of protection for U.S. workers. As an example, our 

audit found that two of the four Oregon-based employers reported to ETA that they had 

made job offers to 29 U.S. workers at the time of their H-2B application submission.1

 We 

verified with the employers that none of these workers began employment. We spoke 

1

 As a result, ETA reduced the employers’ foreign labor certification approvals by 29 H-2B workers. 

H-2B Certification for Temporary Non-Agricultural Work 

2 Report No. 17-12-001-03-321 
 

U.S. Department of Labor – Office of Inspector General 

with two workers who reported that the employer used discouraging language, such as 

references to age and the ability to speak another language, which are not valid 

conditions of employment. 

Under current regulations, the H-2B recruitment report that accompanies the H-2B 

application documents the employer’s efforts to recruit U.S. workers and must be 

submitted to ETA no more than 4 months prior to the job start date. Allowing such a 

lengthy period of time between the recruitment effort and the date the employer actually 

needs the workers makes the recruitment less likely to result in the hiring of U.S. 

workers. ETA is proposing to change this rule to require the employer to file the H-2B 

application no more than 90 calendar days and no fewer than 75 calendar days before 

the employer’s date of need. The proposed regulations also require the SWA to keep 

job orders on its active file and continue to refer U.S. workers who apply for the job 

opportunity until 3 days before the date of need, when it is assumed that the last H-2B 

worker has departed for the place of employment. 

The current H-2B regulations require employers to post a job order and newspaper 

advertisements in the state of initial employment only, regardless of whether 

subsequent work will be performed in other states. Our audit found that three of the four 

employers we reviewed listed work sites in Oregon, but the work began in other states. 

These employers only posted job orders with those State Workforce Agencies (SWAs) 

where the work began. The three employers were not required to recruit U.S. workers in 

Oregon, and we were provided no evidence that they did. The fourth employer did not 

list Oregon as a worksite on its H-2B applications. 

Only two Oregonians were listed on the employer recruitment reports, indicating that 

workers in Oregon were likely unaware these job opportunities were available. In fact, 

although 146 U.S. workers were contacted by the three employers regarding possible 

employment, none were hired. Instead, 254 foreign workers were brought into the 

country for these jobs. The reasons most often cited by employers for not hiring these 

U.S. workers were that the employer attempted to contact applicant but received no 

response; the applicant was no longer interested in employment; or the applicant was 

looking for local work (see Exhibit 1). 

Once finalized and implemented, ETA’s proposed regulations will change the design 

and operation of the H-2B application process from a self-attestation model to a 

program that emphasizes the review of compliance through documentation provided to 

ETA in advance of the certification determination. However, until the new proposed 

regulations are finalized, the H-2B program continues to operate under the 

self-attestation model and ETA needs to address the recommendations identified in our 

report. 

Responsibilities of SWAs 

The regulations require SWAs to share job orders with states where subsequent work 

will be performed, thus allowing U.S. workers in those states to have an opportunity to 

H-2B Certification for Temporary Non-Agricultural Work 

3 Report No. 17-12-001-03-321 
 

 

 

U.S. Department of Labor – Office of Inspector General 

apply. However, the five SWAs we reviewed did not transmit posted job orders to 

Oregon or other states as required. We also found that three SWAs were not making 

job referrals to employers. This failure by the SWAs to carry out their H-2B program 

responsibilities further contributed to the difficulties that U.S. workers in Oregon and 

other states faced in becoming aware of, and applying for, jobs with these four 

employers. 

SWAs will have increased responsibilities and involvement under the proposed new 

regulations, including a collaborative recruitment effort with ETA. Given the problems 

with SWAs’ performance identified during our audit, ETA will need to more closely 

monitor SWA activities and results. 

ETA’s Application Review, Post-Adjudication Process and Monitoring Activities 

• Initial Application Review 

During the initial H-2B application review, ETA did not validate that the petitioning 

employer was a bonafide business. Also, ETA did not independently validate that the 

employer-submitted prevailing wage represented the specific wage for the job 

classification named in the submitted H-2B application for the specific geographical 

location(s).2

 While these verifications are not required by current regulations, we do not 

believe that ETA is precluded from verifying the information. We also identified two 

employer recruitment reports that did not contain all the required U.S. worker contact 

information, such as an applicant’s first and last name, address and phone number. 

Without complete contact information, ETA cannot ensure the credibility of the employer 

assertions in the application. 

• Post-Adjudication Process 

Under current H-2B regulations, the primary way ETA monitors the validity of employer 

self-attestations is through its post-adjudication process. However, ETA’s current 

post-adjudication process could be improved. Based on Congressman DeFazio’s 

complaint, ETA performed post-adjudication reviews of 11 Oregon-based forestry 

employer applications, including four of the nine applications that we reviewed. During 

our analysis of these four applications, we compared employers’ payroll records to the 

filed recruitment reports and identified 17 U.S. workers who were reported as being 

hired, but none actually began employment.3

 Furthermore, ETA did not independently 

verify the names listed on the employers’ recruitment reports to determine if these 

individuals actually applied for employment. 

2

 Since our audit fieldwork, ETA officials stated the NPC now has access to the iCert system to independently 

validate the prevailing wage.

3

The 17 U.S. workers reported as being hired were part of the 29 U.S. workers that we identified from the same two 

employers. We reviewed five additional applications that ETA did not review from the four employers listed in 

Congressmen DeFazio’s complaint and identified an additional 12 U.S. workers reported as being hired, but did not 

go to work for the employers. 

. 

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U.S. Department of Labor – Office of Inspector General 

• Monitoring Activities 

In FY 2010, ETA provided $15 million to SWAs to manage the foreign labor programs. 

However, ETA provided little to no guidance to the SWAs we reviewed to ensure their 

compliance with regulations. ETA was not aware that the five SWAs reviewed had not 

transmitted job orders related to the H-2B applications we reviewed to other states. ETA 

was also unaware that some states had not made job referrals to employers, or states 

that made referrals had not ensured that the individuals referred were legally able to 

work in the U.S. as required. ETA’s ability to protect the interests of U.S. workers is 

dependent upon the SWAs performing their regulatory roles. Furthermore, ETA was 

unable to provide a breakdown of how each SWA allocated foreign labor program funds 

between the H-2A and H-2B programs as required. ETA informed us they did not begin 

reviewing the SWAs’ quarterly financial reports until March 2011. As a result, ETA had 

no assurance that SWAs were allocating and using foreign labor program funds as 

intended. 

We recommend the Assistant Secretary for ETA reassess the requirement for 

employers to only recruit U.S. workers in the state of initial employment, develop and 

implement procedures to strengthen the application review and post-adjudication 

processes, and develop and implement controls to better monitor SWAs’ compliance 

with program requirements. 

In responding to our draft report, the Assistant Secretary for Employment and Training 

generally agreed to our recommendations and has planned to take actions to address 

them. The Assistant Secretary’s entire response is contained in Appendix D. 

RESULTS AND FINDINGS 

Objective — Was ETA able to ensure that the H-2B visa program provided 

adequate protections for U.S. workers in the applications filed by the 

four Oregon forestry employers? 

 ETA could not demonstrate whether or not U.S. workers were protected by the 

H-2B visa program. 

Program design issues hampered ETA’s ability to provide adequate protections for U.S. 

workers in the H-2B applications filed by the four Oregon forestry employers. On 

March 18, 2011, ETA issued proposed new regulations designed to address these 

issues. We also found that certain SWAs did not fulfill their responsibilities for the H-2B 

applications we reviewed. Furthermore, we found that ETA could improve its initial 

application reviews, post-adjudication processes, and monitoring activities to better 

protect the interests of U.S. workers under the regulations by which the program 

currently operates. 

H-2B Certification for Temporary Non-Agricultural Work 

5 Report No. 17-12-001-03-321 
 

 

 

 

U.S. Department of Labor – Office of Inspector General 

Current H-2B Regulations Do Not Provide U.S. Workers Adequate Protections. 

The H-2B program operates under Title 20, Code of Federal Regulations (20 CFR), Part 

655, and relies on employers to self attest regarding their efforts to recruit U.S. workers. 

Employers seeking to employ temporary H-2B workers must file an H-2B application 

and a corresponding recruitment report with ETA. Accompanying the application are the 

employer’s attestations that (1) there are not sufficient U.S. workers capable of 

performing the temporary services or labor at the time of and at the place where the 

work will be performed, and (2) employment of foreign workers will not adversely affect 

the wages and working conditions of similarly employed U.S. workers. ETA’s NPC has 

7 calendar days to review and issue a decision on the H-2B application and attestations. 

Currently, 20 CFR, Part 655.15 (d), (e), and (f) only require employers to post a job 

order and newspaper advertisements in the state of initial employment regardless of 

whether subsequent work will be performed in additional states. Our audit found that 

three of the four employers we reviewed listed work sites in Oregon, but the work began 

in other states. These employers listed California, Washington, and Wyoming as the 

states of initial employment; and accordingly, posted the job orders with those State 

Workforce Agencies (SWAs). Per the regulations, employers were required to recruit 

U.S. workers in those states only. The three employers were not required to recruit U.S. 

workers in Oregon, and we were provided no evidence that they did. The fourth 

employer did not list Oregon as a worksite on its H-2B applications. 

Only two Oregonians were listed on the employer recruitment reports, indicating that 

workers in Oregon were likely unaware that these job opportunities were available. In 

fact, although 146 U.S. workers were contacted by the three employers regarding 

possible employment, none were hired. Instead, 254 foreign workers4

 were brought into 

the country for these jobs (see Table 1). The legal reasons employers reported that U.S. 

workers were not hired included the following: 1) Employer attempted to contact 

applicant, but received no response; 2) Applicant no longer interested; and 3) Applicant 

looking for local work (see Exhibit 1 for reasons U.S. workers were not hired). 

Table 1: Oregon Applicants Listed on Employer Recruitment Reports 

Number of 

Number of U.S. Number of 

U.S. Applicants Oregon 

Number Applicants Listed on Applicants Number of 

of Listed on Employer Listed on Oregon 

Number Number of Foreign Employer Recruitment Employer Applicants 

of Job Workers Workers Recruitment Report Not Recruitment Hired from 

Employer Name Orders Requested Hired Report Hired Report Recruitment 

Medford Cutting Edge Forestry 3 184 106 112 92 2 0 

Summitt Forestry, Inc. 2 166 120 25 16 0 0 

Ponderosa Reforestations, Inc. 1 50 28 9 9 0 0 

TOTALS: 6 400 254 146 117 2 0 

4

 The 254 foreign workers were hired under the six job orders which listed worksites in Oregon (an employer must 

submit a job order to the State Workforce Agency for each H-2B application). A total of 323 foreign workers were 

hired under the nine job orders we reviewed in total. 

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U.S. Department of Labor – Office of Inspector General 

Current regulations do not require employers to actively recruit U.S. workers beyond 4 

months of the date of need or outside the state where the work begins. As such, 

interviewed unemployed U.S. workers who required immediate employment expressed 

reluctance to apply and accept temporary employment, which was scheduled to begin 

at a much later date. 

ETA has proposed revisions to the H-2B regulations to strengthen employer recruiting 

requirements, acknowledging that the current regulations do not provide an adequate 

level of protection for U.S. workers. ETA is proposing to require the employer to file the 

H-2B application no more than 90 calendar days and no fewer than 75 calendar days 

before the employer’s date of need. The proposed regulations also require the SWA to 

keep job orders on its active file and continue to refer U.S. workers who apply for the job 

opportunity until 3 days before the date of need, when it is assumed that the last H-2B 

worker has departed for the place of employment. 

The Department stated that deferring many determinations of program compliance until 

after an application has been adjudicated does not provide an adequate level of 

protection for U.S. workers. As an example, our audit found that two of the four 

Oregon-based employers reported to ETA that they had offered jobs to 29 U.S. workers 

at the time of their H-2B application submission.5

 We verified with the employers that 

none of these workers actually began employment with them. We spoke with two 

workers who reported that the employer used discouraging language, such as 

references to age and inquiries about speaking another language, which are not valid 

conditions of employment. 

Once finalized and implemented, ETA’s proposed regulations will change the design 

and operation of the H-2B application process from a self-attestation model to a 

program that emphasizes the review of compliance through documentation provided to 

ETA in advance of the certification determination. However, until the new proposed 

regulations are finalized, the H-2B program continues to operate under the 

self-attestation model and ETA needs to address the recommendations identified in our 

report. 

SWAs Did Not Fulfill Their H-2B Responsibilities. 

The four employers (Summit Forestry, Cutting Edge, GE Forestry, and Ponderosa) 

posted job orders between October 1, 2009 and January 31, 2011, with SWAs in 

Arizona, California, Idaho, Washington, and Wyoming. Based on our review of the 

responsibilities required of the five SWAs in processing the nine job orders in our audit, 

we identified that none of the SWAs provided interstate clearance (i.e., shared job 

orders with other states on itinerary).6 

5

 Based on the employers’ applications, ETA reduced their foreign labor certification approval by 29 H-2B workers. 

6 We also contacted SWA officials in Oregon who stated that Oregon provides interstate clearance of each job order. 

However, we were unable to validate this because no job orders selected for our review were posted in Oregon. 

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U.S. Department of Labor – Office of Inspector General 

20 CFR, Part 655.15(e), Job Order. (1), states: 

... If the job opportunity contains multiple work locations within the same 

area of intended employment and the area of intended employment is 

found in more than one State, the employer shall place a job order with 

the SWA having jurisdiction over the place where the work has been 

identified to begin. Upon placing a job order, the SWA receiving the job 

order under this paragraph shall promptly transmit, on behalf of the 

employer, a copy of the active job order to all States listed in the 

application as anticipated worksites. 

Furthermore, none of the SWAs were able to verify whether or not actual referrals were 

made to employers because their data systems could not differentiate between whether 

an individual only viewed the job posting or applied for the job.7

 Therefore, the SWAs 

were unable to verify employment eligibility of actual referrals. 

20 CFR, Part 655.15(i), Referral of U.S. workers, states: 

SWAs may only refer for employment individuals for whom they have 

verified identity and employment authorization through the process for 

employment verification of all workers that is established by INA sec. 

274A(b). SWAs must provide documentation certifying the employment 

verification that satisfies the standards of INA sec. 274A(a)(5) and its 

implementing regulations at 8 CFR 274a.6. 

This failure by the SWAs to carry out their H-2B program responsibilities further 

contributed to the difficulties that U.S. workers from Oregon and other states faced in 

becoming aware of and applying for jobs with these four employers. 

ETA Could Improve Its Initial Review of Applications, Post-Adjudication Review 

Process, and Monitoring of SWAs. 

• Initial Review of Applications 

During the initial H-2B application review, ETA did not validate that the petitioning 

employer was a bonafide business. Also, ETA did not independently validate that the 

employer-submitted prevailing wage represented the specific wage for the job 

classification named in the submitted H-2B application for the specific geographical 

location(s).8

 While these verifications are not required by the current regulations, we 

do not believe that ETA is precluded from verifying the information and ensuring the 

credibility of the application. 

7 The California, Idaho, and Washington SWAs did not provide any U.S. applicant referrals to the employer. 8 Since our audit fieldwork, ETA officials stated the NPC now has access to the iCert system to independently 

validate the prevailing wage. 

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U.S. Department of Labor – Office of Inspector General 

We also identified two employer recruitment reports from an employer that did not 

contain all the required U.S. worker contact information, such as applicant’s first and 

last name, and/or address and phone number. Although the employer’s recruitment 

reports were missing required contact information, ETA certified both applications.9 

Without complete contact information, ETA cannot ensure the credibility of the 

employer assertions in the application. 

• Post-adjudication Review 

ETA conducts reviews of certified or partially certified H-2B applications within its 

sole discretion and authority under 20 CFR, Part 655.24. ETA performs these 

reviews to ensure quality control and program compliance, and to further validate in 

detail, employer-submitted support documents. 

ETA’s post-adjudication selection process was based on applications that had 

complaints against submitting employers, and were from employers on ETA’s 

consistency watch list, as well as randomly selected applications at the discretion of 

a Certifying Officer (CO). For the applications selected, ETA may notify the employer 

of a review approximately 6 months after certification. Once ETA initiates a review, it 

can issue a Request for Supplemental Information, such as employer payroll 

records. The CO performs a final review to determine if the support documentation 

provided by the employer supports attestations made on the H-2B application. 

Based on the complaint received from Congressman DeFazio, ETA performed 

reviews of 11 forestry employer applications. ETA’s review included 4 applications 

that we reviewed. During our analysis of the four, we compared employer payroll 

records to the recruitment reports and identified 17 U.S. workers that were reported 

as being hired, but never began employment.10 While the regulations do not prohibit 

ETA from performing the same comparison, ETA did not verify if the U.S. workers 

listed on the recruitment report as hired were actually hired by the employer. 

ETA lacked a standardized methodology for selecting employer applications for 

post-adjudication review, as well as procedures detailing the process to follow in 

performing the review, including which employer documents to request. In addition, 

ETA’s post-adjudication reviews have not included comparisons of employer payroll 

records to names of U.S. workers listed on the recruitment reports. A thorough 

review of employer payroll records is essential for determining whether U.S. workers 

who were listed as hired were hired and paid the prevailing wage. We verified that 

the foreign workers the employers hired were paid the prevailing wage and were 

legally able to work in the U.S. (see Exhibit 2 for prevailing wages paid to foreign 

workers). 

9 These H-2B applications did not contain any worksites in Oregon. 10The 17 U.S. workers reported as being hired were part of the 29 U.S. workers that we identified from the same two 

employers. We reviewed five additional applications that ETA did not review from the four employers listed in 

Congressmen DeFazio’s complaint and identified an additional 12 U.S. workers reported as being hired, but were not 

actually hired. 

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We determined that all four employers significantly overstated their actual need for 

foreign workers. A total of 700 workers were approved on the H-2B applications, but 

the employers only hired 323 foreign workers (see Table 2). We verified the number 

of foreign workers eligible to be employed in the United States to determine the 

extent to which employers actually hired foreign workers relative to the number they 

had requested. 

Table 2: U.S. Applicant Breakdown Per Employer 

Number of 

Number of U.S. Number of 

Employer Name 

Number 

of Job 

Orders 

Number 

of 

Workers 

Approved 

Number 

of 

Foreign 

Workers 

Hired11 

U.S. 

Applicants 

Listed on 

Employer 

Recruitment 

Report 

Applicants 

Listed on 

Employer 

Recruitment 

Report Not 

Hired 

U.S. 

Applicants 

Hired Per 

Employer 

Recruitment 

Report 

Number of 

U.S. 

Applicants 

Hired from 

Recruitment 

G.E. Forestry 3 300 69 41 41 0 0 

Medford Cutting Edge Forestry 3 184 106 112 92 20 0 

Summitt Forestry, Inc. 2 166 120 25 16 9 0 

Ponderosa Reforestations, Inc. 1 50 28 9 9 0 0 

TOTALS: 9 700 323 187 158 29 0 

• Monitoring of SWAs’ Job Order Process 

The regulations state the primary duties all SWAs must perform when processing 

H-2B job orders, which include accepting and placing job orders into intra and 

interstate clearance, reviewing and providing referrals to employers, and verifying 

employment eligibility of applicants referred to the employer. When we requested 

clarification of SWA H-2B responsibilities, ETA responded that SWAs’ role was limited 

to the placement of the employer’s required job order into their respective 

labor-exchange systems under the current attestation design. The regulations require 

the SWAs to perform more duties than placing the employer’s required job order into 

their respective labor-exchange systems. However, ETA provided little to no guidance 

to the SWAs we reviewed to ensure their compliance with regulations. ETA’s ability to 

protect the interests of U.S. workers is dependent upon the SWAs performing their 

regulatory roles. If SWAs do not perform their H-2B responsibilities, U.S. worker 

protections are further diminished. 

• Monitoring SWAs H-2B Funding 

For FY 2010, ETA issued TEGL 20-09, requiring the monitoring of SWAs’ allocation 

and use of H-2B funding by reviewing the SWAs’ (1) annual plan that identifies how 

foreign labor program funds would be used and how they split the allocation between 

11 323 foreign workers were hired related to the nine H-2B job orders we reviewed in total (an employer must 

submit a job order to the State Workforce Agency for each H-2B application). Table 1 reflects only those 254 

foreign workers who were hired under the six job orders which listed worksites in Oregon. 

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agricultural (H-2A) and nonagricultural (H-2B), and (2) quarterly financial reports 

submitted to ETA. However, ETA was unable to provide us with a breakdown of how 

each SWA allocated foreign labor program funds — totaling $15 million — between 

the H-2A and H-2B programs. Furthermore, ETA informed us they did not begin 

reviewing the SWAs’ quarterly financial reports until March 2011. As such, no 

monitoring of the expenditure of these foreign labor funds was conducted by the 

agency. As a result, ETA had no assurance that SWAs were allocating and using 

foreign labor program funds as intended. 

During our discussions with the SWAs, we requested that each provide us with the 

amount of funding spent on H-2B activities. We found the following: 

•	 California received no H-2B funding for FY 2010.12 

•	 Idaho allocated less than one percent of its funding to the H-2B program. 

•	 Wyoming could not identify the amount of funds it allocated to the H-2B 

program. 

•	 Arizona, Oregon, and Washington did not provide a budget or the 

allocation of funds. 

As a result, we requested ETA provide us a copy of each of the six SWAs’ annual 

plans. ETA could not provide us a copy of the FY2010 annual plan for the State of 

California, although they provided us with a copy of the FY2009 plan. In FY2009, the 

State of California received $1.5 million in H-2B funding but none in FY2010. Only two 

of the six states (Oregon and Washington) allocated funds between H-2A and H-2B, 

as required by the TEGL, by providing a percentage breakdown of the funding. 

Furthermore, ETA was unable to provide us with a breakdown of how the remaining 

SWAs and territories allocated foreign labor program funds. 

ETA indicated it did not have access to the SWAs’ quarterly FY 2010 reports, even 

though the TEGL required SWAs to submit them to ETA. ETA officials told us they 

have since gained access to the electronic grant management system and allocated 

staff to begin review of SWA quarterly financial reports. In addition, ETA stated they 

are in the process of implementing a full grant management and monitoring program. 

ETA’s failure to monitor the six SWAs’ allocation of foreign labor program funds 

increased the risk for misuse, waste, or abuse. 

SWAs will have increased responsibilities and involvement under the proposed new 

regulations, including a collaborative recruitment effort with ETA. Given the problems 

with SWAs’ performance identified during our audit, ETA will need to more closely 

monitor SWA activities and results. 

12The California SWA declined all H-2B funding for FY2010 as it did not plan to spend extended time or funds for the 

H-2B program, believing the regulations relieved the state of its H-2B responsibilities 

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RECOMMENDATIONS 

We recommend that the Assistant Secretary for Employment and Training 

Administration: 

1. Reassess the requirement for employers to only recruit U.S. workers in the state of 

initial employment. 

2. Develop and implement procedures to strengthen the application review and 

post-adjudication processes. 

3. Develop and implement controls to better monitor SWAs’ compliance with program 

requirements. 

We appreciate the cooperation and courtesies that ETA personnel extended to the OIG 

during this audit. OIG personnel who made major contributions to this report are listed in 

Appendix E. 

Elliot P. Lewis 

Assistant Inspector General 

for Audit 

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Exhibits 

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Exhibit 1 

Reasons U.S. Workers Were Not Hired 

Exhibit 1: Employer Reasons for Non-hire 

Reasons Totals 

No reason provided 5 

Applicant could not fulfill requirements 8 

Applicant wanted a different job 9 

Applicant looking for local work 12 

Applicant looking for permanent position 1 

Applicant looking for higher level work 3 

Employer attempted to contact applicant but received no response 38 

Applicant already employed 10 

Applicant no longer interested 29 

Applicant could not accept job - attending school 2 

Total: 117 

NOTE: Of the 146 U.S. applicants listed on the employer recruitment reports, 117 were 

not hired for reasons noted above. Furthermore, an additional 29 workers were reported 

by two employers as hired on the recruitment reports; however, none actually went to 

work for the employer. The employers confirmed the individuals never worked for them 

and they did not have any payroll records for the individuals. The two employers, 

Summitt and Cutting Edge, provided similar reasons why the U.S. applicants did not 

come to work for them, such as the lag time between the application and the start of 

work, and the applicants were concerned about committing to a future employment date 

versus immediate employment. 

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Exhibit 2 

Prevailing Wages Paid to Foreign Workers 

Exhibit 2: Prevailing Wages Paid to Foreign Workers 

Employer Case Number 

GE Forestry-C-11003-52965 

Prevailing Wage 

$9.57 to $10.33 

Employer Paid Prevailing 

Wage to Foreign Workers 

Yes13 

GE Forestry-C-09337-47479 $8.41 Yes 

GE Forestry-C-09357-48056 

Cutting Edge-C-09331-47412 

Cutting Edge-C-10074-49639 

Cutting Edge-C-10316-51688 

Summitt-C-10306-51455 

$10.86 

$10.60 

$10.60 to $15.90 

$9.57 to $12.92 

$9.57 to $14.05 

Yes 

N/A14 

Yes15 

Yes16 

Yes17 

Summitt-C-09313-47045 $9.55 to $14.33 Yes18 

Ponderosa-C-10243-50945 $9.18 to $12.62 Yes19 

13 Based on payroll records reviewed, GE Forestry paid all workers the prevailing wage for the 3 job orders, however, 

the information provided did not distinguish between foreign or U.S. workers. 14 Application denied 15 67 foreign workers 16 39 foreign workers 17 51 foreign workers 18 69 foreign workers 19 28 foreign workers 

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Appendices 

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Appendix A 

Background 

Concerned about the potential for abuse in the H-2B visa program, Oregon 

Congressman Peter DeFazio in a letter dated September 3, 2010, asked the OIG to 

review the certification of H-2B applications for those employers listed in the Oregon 

Bend news article, dated August 9, 2010, for any improprieties. He was concerned that 

the H-2B visa program, which was created to provide American employers access to 

foreign workers for temporary, non-agricultural jobs, was preventing U.S. workers in 

Oregon from getting forestry jobs. Furthermore, he was concerned that the forestry 

employers were hiring non-American workers for projects funded by Recovery Act funds 

from contracts with the U.S. Forest Service. According to U.S. Forest Service officials, 

the four employers reviewed were awarded 14 FY 2010 Recovery Act contracts totaling 

approximately $7,140,782 for forestry jobs in Oregon. 

The H-2B nonimmigrant 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, peakload or intermittent basis. The H-2B visa program regulations 

require the petitioning employer to first apply for a temporary labor certification from the 

Secretary of Labor indicating that (1) there are not sufficient U.S. workers who are 

capable of performing the temporary services or labor at the time of filing the petition for 

H-2B classification, and at the place where the foreign worker is to perform the work; 

and (2) the employment of the foreign worker will not adversely affect the wages and 

working conditions of similarly employed U.S. workers. The Secretary has delegated 

H-2B responsibilities to ETA. Within ETA, OFLC processes applications for labor 

certification. 

For the period October 1, 2009, through January 31, 2011, there were 7,007 H-2B 

applications requesting 169,363 positions submitted. Of these, 6,051 H-2B applications 

for 145,094 positions were certified or partially certified. ETA amended its regulations in 

January 2009 to modernize the procedures for ETA’s issuance of labor certifications to 

employers sponsoring H-2B non-immigrants and the procedures for enforcing 

compliance with attestations made by those employers, including post-adjudication 

reviews. Specifically, this Final Rule re-engineered the application filing and ETA’s 

review process by centralizing processing and by enabling employers to conduct 

pre-filing recruitment of U.S. workers. 

Prior to obtaining an H-2B labor certification, employers must determine that there are 

not sufficient U.S. workers who are capable of performing the work for which labor 

certification is sought. Specifically, the regulations require that the employer (1) post a 

job order with the SWA serving the area of intended employment in order to obtain 

referrals of interested U.S. workers through the interstate job order clearance system; 

(2) publish two newspaper advertisements, one of which must be on a Sunday; (3) 

contact the applicable union for referral of U.S. workers if the employer is a party to a 

collective bargaining agreement that covers the job classification that is the subject of 

H-2B Certification for Temporary Non-Agricultural Work 

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U.S. Department of Labor – Office of Inspector General 

the H-2B labor certification; and (4) contact workers who were laid off in the occupation 

and in the area of intended employment, within 120 days of the first date on which an 

H-2B worker is needed, to inform them of the position(s). The regulations also outline 

specific information that must be included in all newspaper advertisements and job 

orders, such as the name of the employer, the area of intended employment, the rate of 

pay, a description of the position, and whether tools or equipment is to be provided by 

the employer. 

Additionally, the regulations require the employer to prepare, sign, and date a written 

recruitment report that summarizes the recruitment steps undertaken, and the results of 

such recruitment, including the lawful job-related reason(s) for not hiring any U.S. 

workers who applied or were referred to the position. Employers seeking H-2B 

certification must file an ETA Form 9142, Application for Temporary Employment 

Certification, along with a copy of the recruitment report. In Section F.c, of the 

completed form, employers are required to list the specific place(s) of employment. 

ETA reviews the H-2B application and recruitment report. Prior to rendering a decision, 

ETA can request further documentation through a Request for Information (RFI) when 

the employer has submitted an application that does not comply with the regulations. 

Based on their review, they can certify, partially certify, issue a second RFI, or deny the 

application. Subsequent to certifying an application, effective January 2009, ETA can 

conduct a post-adjudication review. The purpose of the post-adjudication review is to 

verify the accuracy of applications, particularly those applications with complaints 

against the filing employer and employers on the consistency watch list, with the goal of 

acting as a deterrent to employer fraud. 

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U.S. Department of Labor – Office of Inspector General 

Appendix B 

Objective, Scope, Methodology, and Criteria 

Objective 

Was ETA able to ensure that the H-2B visa program provided adequate protections for 

U.S. workers in the applications filed by the four Oregon forestry employers? 

Scope 

The audit focused on four Oregon forestry employers noted in the Bend Bulletin news, 

who submitted nine H-2B applications between October 1, 2009, and January 31, 2011, 

and ETA’s application and post adjudication review process for the period 

October 1, 2009 to January 31, 2011. 

Field work was conducted at both, ETA’s National Office located in Washington, D.C., 

and the ETA’s NPC in Chicago, Ill. 

We conducted this performance audit in accordance with generally accepted 

government auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on the audit objective. We believe that the evidence 

obtained provides a reasonable basis for our findings and conclusions based on the 

audit objective. 

Methodology 

We compiled background information concerning Congressman DeFazio’s complaint by 

researching various media outlets to include news publications and internet news sites. 

We also researched the Recovery Act’s website and determined that Recovery Act 

funding does not prohibit an employer from participating in the H-2B program or using 

H-2B labor. During this process, we identified prior and current laws and regulations 

governing the H-2B program and gained understanding of program processes and 

procedures. We also reviewed recent performance data reported by ETA and identified 

data trends based on previous report years. 

We conducted multiple interviews with OIG – Office of Labor Racketeering and Fraud 

Investigations representatives to determine if they have any investigations or planned 

investigations that would have an impact on our audit. 

We held an entrance conference with ETA national office management to obtain H-2B 

policies and procedures, ETA’s response to Congressman DeFazio’s complaint, and 

other requested documentation. 

We contacted U.S. Forest Service representatives to determine if they require 

contractors to describe the type of workers they will use if awarded forestry contracts, 

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U.S. Department of Labor – Office of Inspector General 

including H-2B workers. Additionally, we confirmed Recovery Act funded employers are 

not precluded from hiring H2-B workers. 

We visited ETA’s NPC to perform the following: 

1. Conduct interviews with ETA officials. 

2. Have staff provide a walkthrough of the entire application review process. 

including post-adjudication reviews. 

3. Obtain essential documentation including Standard Operating Procedures of the 

application review process and post-adjudication process. 

4. Identify internal controls for both the application review and post-adjudication 

processes. 

We evaluated internal controls used by ETA for reasonable assurance that they 

complied with appropriate regulations and procedures in approving foreign labor 

certifications. Our consideration of ETA’s internal controls for foreign labor certification 

procedures would not necessarily disclose all matters that might be reportable 

conditions. Because of inherent limitations in internal controls, noncompliance may 

nevertheless occur and not be detected. 

To test the controls, we judgmentally reviewed six Forest Industry H-2B applications not 

related to the complaint and identified areas where these processes can be improved. 

We discussed potential recommendations with ETA’s NPC management. 

Prior to our sampling process, ETA provided us with all H-2B applications received and 

processed beginning October 1, 2009, through January 31, 2011. The data was 

generated from ETA’s Case Management System. We performed a data reliability 

assessment to ensure we received a complete and accurate data file. To determine 

whether the data was reliable to select our sample, we performed various testing of 

required data elements, interviewed ETA officials knowledgeable about the data, and 

reviewed employer-submitted applications, which served as source data for all 

information found in the Case Management System, including relevant general and 

application controls. We concluded the data to be sufficiently reliable for our purposes. 

From this universe, we extracted all Forest Industry applications submitted by 

employers listed in Congressman DeFazio’s complaint to include: 

1. G.E. Forestry 

2. Medford’s Cutting Edge Forestry 

3. Summitt Forests Inc. 

4. Ponderosa Reforestation 

During our testing phase, we provided the NPC the list of 4 forestry employers and 

requested documentation to be included in each application file (i.e. recruitment report, 

applicant resumes, newspaper advertisements, and SWA job order postings). The NPC 

complied with our request and provided the documentation. 

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U.S. Department of Labor – Office of Inspector General 

In order to facilitate our analysis of employer recruitment/hiring efforts, we contacted the 

four employers and requested the following documentation for comparison and 

verification: 

1. A comprehensive Recruitment Report, which would include full names, 

addresses and phone contact information for any worker who applied, and the 

results of that application, including whether interviewed and hired 

2. Supporting documentation for recruitment, including applications, resumes, 

and any other applicant documentation 

3. A copy of the completed U.S. Citizenship and Immigration Services (USCIS) 

I-9, Employment Eligibility Verification, with related documentation 

4. A copy of the completed and approved USCIS I-129, Petition for a 

Non-immigrant Worker 

5. For any person hired, the last available payroll records for each hired, 

accompanied by the state location of the worker during this time. Specifically, 

we requested the payroll records include gross pay, any payroll deductions, 

net pay, the number of hours worked, and the hourly rate. 

USCIS documentation and employer payroll documents were used to determine the 

number of foreign workers hired; the number of foreign workers who were retained or 

rehired from a prior H-2B Job Order; whether the foreign worker’s eligibility status was 

current; and whether the employer paid each worker the prevailing wage. Moreover, the 

employers actual hiring of foreign workers was compared to the number of foreign 

workers requested by each employer on the H-2B applications. Additionally, the 

Recruitment Reports and supporting documentation were used to verify the number of 

U.S workers hired by the employer, and to contact individual U.S workers, including 

those reported as hired, to discover their recruitment experiences with the given 

employer. 

We requested and obtained contact information from ETA for the SWAs responsible for 

posting the job orders related to the four forestry employers. The resulting SWAs were 

Arizona, California, Idaho, Oregon, Washington, and Wyoming. We contacted each of 

the six SWAs to determine their role in assisting employers identify U.S. applicants for 

Forest Industry employment. If available, we also requested the SWA employee 

referrals to Forestry H-2B employers and compared the referrals to each employer’s 

recruitment report. We initially contacted the applicants listed by employers on their 

recruitment report who were not hired and determined the reason for not hiring. 

Subsequently, we contacted applicants only reported as hired by the employers. Their 

reasons were then compared back to the reason provided by the employers on their 

respective recruitment reports to identify any variances. 

The Assistant Secretary for Employment and Training responded to draft report 

No.17-11-002-03-321. However, our final report was not issued until FY12, and was 

renumbered as 17-12-001-03-321. 

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U.S. Department of Labor – Office of Inspector General 

Criteria 

•	 20 CFR Part 655, Labor Certification Process and Enforcement for Temporary 

Employment in Occupations Other Than Agriculture or Registered Nursing in the 

United States (H-2B Workers), and Other Technical Changes 

•	 Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (INA) 

•	 Federal Register E928963 

•	 TEGL 27-06: Special Guidelines for Processing H-2B Temporary Labor 

Certification in Tree Planting and Related Reforestation Occupations 

•	 ETA’s internal H-2B Standard Operating Procedures 

•	 ETA’s Post Adjudication Audit Standard Operating Procedures 

•	 OMB Circular A 123 – Management’s Responsibility for Internal Control 

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Appendix C 

Acronyms and Abbreviations 

CFR Code of Federal Regulations 

CO Certifying Officer 

DOL Department of Labor 

ETA Employment and Training Administration 

FY Fiscal Year 

INA Immigration and Nationality Act 

NPC (Chicago) National Processing Center 

OFLC Office of Foreign Labor Certification 

OIG Office of Inspector General 

RFI Request for Further Information 

SWA State Workforce Agency 

TEGL Training and Employment Guidance Letter 

USCIS U.S. Citizenship and Immigration Services 

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u.s. Department of Labor 

MEMORANDUM FOR: 

FROM: 

SUBJECT: 

Date: 

Employment and Training Administration 

200 Constitution Avenue, N.W. 

Washington, D.C. 20210 

ELLIOT P. LEWIS 

Assistant Inspector General 

JANE OATES ~.~ 

Assistant Secretary U . 

Response to the Office of the Inspector General's Audit of 

the Employment and Training Administration's Efforts to 

Ensure That the H-2B Visa Program Provided Adequate 

Protections for u.S. Forestry Workers in Oregon 

Draft Audit Report 17-11-002-03-321 

September 30, 2011 

The Employment and Training Administration (ETA) appreciates the opportunity to 

provide a response to the Office of the Inspector General's (OIG) draft audit report on the 

Office of Foreign Labor Certification's (OFLC) efforts to ensure the H-2B visa program 

provides adequate protections for u.S. forestry workers in Oregon. We appreciate the 

time and effort OIG staff spent reviewing H-2B forestry applications, interviewing 

personnel at the Chicago National Processing Center (NPC), and the professional and 

collaborative manner in which the audit was conducted with OFLC staff. The following 

represents our responses and recommended actions for your consideration. 

Recommendation 1: Reassess the requirement for employers to only recruit U.S. 

workers in the state of initial employment. 

ET A Response: While our current regulations do not necessarily limit recruitment of 

U.S. workers to just one state, we acknowledge that we should consider strengthening the 

recruitment of U.S. workers for work occurring in multiple states. Under the current 

H-2B regulation published in December 2008, an employer is required to place an active 

job order for at least 10 calendar days with the State Workforce Agency (SWA) serving 

the area of intended employment no more than 120 calendar days before the employer's 

date of need. If the job opportunity contains multiple worksites within the same area of 

intended employment and that area covers multiple states, the regulations require the 

employer to place the job order with the SW A where the work is expected to begin. The 

SWA receiving the job order must then transmit, on behalf of the employer, a copy of the 

active job order to all States listed in the application as anticipated worksites. During the 

same period oftime that the job order is being circulated with the SWA, the employer is 

required to publish an advertisement on two separate days in a newspaper of general 

circulation serving the area of intended employment. 

I 

U.S. Department of Labor – Office of Inspector General 

Appendix D 

ETA Response to Draft Report 

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Further, Training and Employment Guidance Letter (TEGL) No. 27-06 provides special 

procedures for processing H-2B temporary labor certification applications in tree planting 

and related reforestation occupations. The TEGL allows for multi-state itineraries and 

provides employers with the option of either filing a single master application covering 

multiple itineraries or separate applications for each itinerary where the tree planting or 

related reforestation work will begin. If the itinerary includes worksite locations 

covering multiple SWAs, the employer may submit a single application to the SW A 

where the employment will begin, or ifthe start dates for each worksite location in the 

itinerary are exactly the same, the employer may submit a single application to anyone of 

the SW As covered by the itinerary. The SWA receiving the job order would not only 

have to place the job order in its own state for 10 days but also clear the job order with 

the other appropriate states where the work is to be performed for 10 days and accept for 

referral qualified applicants from those states. We will review this TEGL in light of the 

Department's pending H-2B rulemaking when that process concludes. 

Recommendation 2: Develop and implement procedures to strengthen the application 

and post-adjudication processes. 

ETA Response: While we agree with the recommendation generally, the current H-2B 

regulation authorizes employers to simply attest to compliance with program 

requirements. Under this attestation-based program model, our ability to verify employer 

compliance with the program's regulations is limited during application processing; 

however, compliance reviews may be conducted following the granting of a labor 

certification. 

We are, however, taking some steps where we can improve our ability to monitor 

employer compliance during the application process. OIG noted a concern about the 

process for employer verification as a bonafide business. Currently, OFLC requires the 

employer to provide a Federal Employer Identification Number (FEIN) on ETA Form 

9142 and attest to the accuracy of the FEIN. To strengthen employer compliance, OFLC 

is designing an information technology system to support the H-2B program which 

includes verifying the FEINs provided during the initial review of the application for 

processing. 

OIG also expressed concern about OFLC's practice for prevailing wage validation. 

Historically, OFLC has only validated prevailing wage determinations when there was an 

indication of a problem. However, with recent technological enhancements in OFLC's 

iCERT system, staffs now verify for each application that the employer-stated wages 

offered for the job opportunity meet or exceed the prevailing wage. This recent 

advancement allows OFLC to strengthen the validation of prevailing wage attestations. 

The current H-2B regulation authorizes, for the first time, the Department to audit H-2B 

applications. Prior to beginning the actual audit process, OFLC had to develop the 

processes and standard operating procedures required to effectuate the audit ofH-2B 

labor certifications, including the training of staff. This process delayed the immediate 

2 

U.S. Department of Labor – Office of Inspector General 

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30 Report No. 17-12-001-03-321 
 

implementation of the new audit authority. OFLC consistently reviews its audit 

procedures for continuous improvement and will continue to do so. 

Recommendation 3: Develop and implement controls to better monitor SWAs' 

compliance with program requirements. 

ETA Response: We agree that OFLC can strengthen aspects of its internal controls with 

respect to SW A monitoring and the office routinely receives information from a variety 

of sources when a SW A may not be meeting a regulatory or program guidance 

responsibility. OFLC increased its monitoring ofSWA activities during FY 2011 and will 

continue to review those procedures in light of available federal and state resources. 

Thank you again for the opportunity to comment on this report. 

3 

U.S. Department of Labor – Office of Inspector General 

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H-2B Certification for Temporary Non-Agricultural Work 

32 Report No. 17-12-001-03-321 
 

 

U.S. Department of Labor – Office of Inspector General 

Appendix E 

Acknowledgements 

Key contributors to this report were Tracy Katz (Audit Director), Michael Kostrzewa, 

Barry Winnicki, Jerry Howe, Kathy Vochatzer, Fernando M. Paredes, and David 

Sterling. 

H-2B Certification for Temporary Non-Agricultural Work 

33 Report No. 17-12-001-03-321 
 

 

TO REPORT FRAUD, WASTE OR ABUSE, PLEASE CONTACT: 

Online: http://www.oig.dol.gov/hotlineform.htm 

Email: hotline@oig.dol.gov 

Telephone: 1-800-347-3756 

202-693-6999 

Fax: 202-693-7020 

Address: Office of Inspector General 

U.S. Department of Labor 

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 Room S-5506 

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