1205_0563_ Supporting Statement_4.7.25

Attestation for Employers Seeking to Employ H-2B Nonimmigrant Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47, as extended by sections 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118-83

OMB Control Number: 1205-0563

March 2025

SUPPORTING STATEMENT

ATTESTATION FOR EMPLOYERS SEEKING TO EMPLOY H-2B NONIMMIGRANT WORKERS UNDER SECTION 105 OF DIVISION G, TITLE I OF THE FURTHER CONSOLIDATED APPROPRIATIONS ACT, 2024, PUBLIC LAW 118-47, AS EXTENDED BY SECTION 101(6) AND 106 OF DIVISION A, TITLE I OF THE CONTINUING APPROPRIATIONS AND EXTENSIONS ACT, 2025, PUBLIC LAW 118-83, FORM ETA-9142-B-CAA-9

A. Justification.

This information collection request (ICR) seeks an Extension of a currently approved ICR.

This ICR supports the Temporary Final Rule (TFR), Exercise of Time-Limited Authority to Increase the Numerical Limitation for Fiscal Year 2025 for H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, which is being promulgated by the Department of Labor (DOL or Department) and the Department of Homeland Security (DHS) (collectively, the Departments). The regulatory requirements are codified at 8 CFR part 214 and 20 CFR part 655. The ICR includes a form, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers under Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47 (FY 2024 Omnibus), as extended by section 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118-83, Form ETA-9142-B-CAA-9 (Form ETA-9142-B-CAA-9), along with other requirements (e.g., recruitment efforts; recordkeeping requirements), which are covered under Office of Management and Budget (OMB) Control Number 1205-0563 (OMB 1205-0563).

Background Information and General Instructions:

Since FY 2017, Congress has enacted a series of public laws providing the Secretary of Homeland Security with the discretionary authority to increase the H-2B cap beyond the annual numerical limitation set forth in section 214 of the Immigration and Nationality Act (INA). The previous statutory provisions were materially identical to section 105 of the FY 2024 Omnibus, which is the same authority provided for FY 2025 by the recent continuing resolution. During each fiscal year from FY 2017 through FY 2019, and FY 2021 through FY 2024, the Secretary of Homeland Security, after consulting with the Secretary of Labor, determined that some American businesses could not satisfy their needs in a particular year with U.S. workers who were willing, qualified, and able to perform temporary nonagricultural labor. On the basis of these determinations, on July 19, 2017, and May 31, 2018, DHS and DOL jointly published TFRs for FY 2017 and FY 2018, respectively, each of which allowed an increase of up to 15,000 additional H-2B visas for those businesses that attested that if they did not receive all of the workers requested on the Petition for a Nonimmigrant Worker (Form I-129), they were likely to suffer irreparable harm, in other words, suffer a permanent and severe financial loss.

On May 8, 2019, DHS and DOL jointly published a TFR authorizing an increase of up to 30,000 additional H-2B visas for the remainder of FY 2019. The additional visas were limited to returning workers who had been counted against the H-2B cap or were otherwise granted H-2B status in the previous three fiscal years, and for those businesses that attested to a level of need such that, if they did not receive all of the workers requested on the Form I-129, they were likely to suffer irreparable harm, in other words, suffer a permanent and severe financial loss. The Secretary determined that limiting returning workers to those who were issued an H-2B visa or granted H-2B status in the past 3 fiscal years was appropriate, as it mirrored the standard that Congress designated in previous returning worker provisions.

Although Congress provided the Secretary of Homeland Security with the discretionary authority to increase the H-2B cap in FY 2020, the Secretary did not exercise that authority. DHS initially intended to exercise its authority and, on March 4, 2020, announced that it would make available 35,000 supplemental H-2B visas for the second half of the fiscal year. On March 13, 2020, President Trump declared a National Emergency concerning COVID-19, a communicable disease caused by the coronavirus SARS-CoV-2. On April 2, 2020, DHS announced that the rule to increase the H-2B cap was on hold due to economic circumstances, and that DHS would not release additional H-2B visas until further notice. DHS also noted that the Department of State had suspended routine visa services.

In FY 2021, DHS in consultation with DOL determined it was appropriate to increase the H-2B cap for FY 2021 coupled with additional protections (for example, post-adjudication audits, investigations, and compliance checks), based on the demand for H-2B workers in the second half of FY 2021, continuing economic growth, the improving job market, and increased visa processing capacity by the Department of State. Accordingly, on May 25, 2021, DHS and DOL jointly published a TFR authorizing an increase of up to 22,000 additional H-2B visas for the remainder of FY 2021. The supplemental visas were available only to employers that attested they were likely to suffer irreparable harm without the additional workers. The allocation of 22,000 additional H-2B visas under that rule consisted of 16,000 visas available only to H-2B returning workers from one of the last three fiscal years (FY 2018, 2019, or 2020) and 6,000 visas that were initially reserved for nationals of the Northern Central American countries of El Salvador, Guatemala, and Honduras, who were exempt from the returning worker requirement.

On January 28, 2022, DHS and DOL jointly published a TFR authorizing an increase of up to 20,000 additional H-2B visas for FY 2022 positions with start dates on or before March 31, 2022. These supplemental visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The allocation of 20,000 additional H-2B visas under that rule consisted of 13,500 visas available only to H-2B returning workers from one of the last three fiscal years (FY 2019, 2020, or 2021) and 6,500 visas reserved for Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were exempted from the returning worker requirement.

For the second half of FY 2022, DHS in consultation with DOL determined it was appropriate to increase the H-2B cap for FY 2022 positions with start dates beginning on April 1, 2022 through September 30, 2022, based on the continued demand for H-2B workers for the remainder of FY 2022, continuing economic growth, increased labor demand, and increased visa processing capacity by the Department of State. Accordingly, on May 18, 2022, DHS and DOL jointly published a TFR authorizing an increase of no more than 35,000 additional H-2B visas for the second half of FY 2022. As in the January 2022 TFR, the supplemental visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The allocation of 35,000 additional H-2B visas under the rule applicable to the second half of FY 2022 consisted of 23,500 visas available only to H-2B returning workers from one of the last three fiscal years (FY 2019, 2020, or 2021) and 11,500 visas reserved for Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were exempted from the returning worker requirement.

On December 15, 2022, DHS and DOL jointly published a TFR authorizing an increase of up to 64,716 additional H-2B visas for the entirety of FY 2023. As in the FY 2022 TFRs, the additional visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The 64,716 additional visas included 44,716 reserved for returning workers from one of the last three fiscal years (FY 2020, 2021, or 2022), which were distributed in several allocations based on date of employer need: 18,216 for employers with requested employment start dates on or before March 31, 2023; 16,500 for employers with requested employment start dates from April 1, 2023, to May 14, 2023 (early second half allocation); and 10,000 for employers with requested employment start dates from May 15, 2023, to Sept. 30, 2023 (late second half allocation). The remaining 20,000 visas were available for the entirety of FY 2023, and were set aside for nationals of El Salvador, Guatemala, Honduras, and Haiti, who were exempt from the returning worker requirement.

On November 17, 2023, DHS and DOL jointly published a TFR authorizing an increase of up to 64,716 additional H-2B visas for the entirety of FY 2024. As in the FY 2023 TFR, the additional visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The 64,716 additional visas included 44,716 reserved for returning workers from one of the last three fiscal years (FY 2021, 2022, or 2023), which were distributed in several allocations based on date of employer need: 20,716 for employers with requested employment start dates on or before March 31, 2024; 19,000 for employers with requested employment start dates from April 1, 2024, to May 14, 2024 (early second half allocation); and 5,000 for employers with requested employment start dates from May 15, 2024, to September 30, 2024 (late second half allocation). The remaining 20,000 visas were available for the entirety of FY 2024, and were set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, who were exempt from the returning worker requirement.

On March 23, 2024, the FY 2024 Consolidated Appropriations Act (CAA) was enacted into law. The CAA contains a provision, section 105 of Division G, Title I, which permits the Secretary of Homeland Security, under certain circumstances and after consultation with the Secretary of Labor, to increase the number of H-2B visas available to U.S. employers, notwithstanding the otherwise-established statutory numerical limitation set forth in the INA. Specifically, section 105 provides that “the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon determining that the needs of American businesses cannot be satisfied in [FY] 2024 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor,” may increase the total number of noncitizens who may receive an H-2B visa in FY 2024 by the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from the H-2B numerical limitation.

On September 25, 2024, Congress passed the FY 2025 Authority, Public Law 118-83. This law extended the authorization under the same terms and conditions provided in section 105 of Division G, Title I of the FY 2024 CAA permitting the Secretary of Homeland Security to increase the number of H-2B visas available to U.S. employers in FY 2025. Public Law 118-83 permits the Secretary of Homeland Security, after consultation with the Secretary of Labor, to provide up to 64,716 additional H-2B visas for FY 2025, notwithstanding the otherwise established statutory numerical limitation set forth in the INA, for eligible employers whose employment needs for FY 2025 cannot be met. Under Public Law 118-83 authority, DHS and DOL jointly published this TFR to authorize the issuance of no more than 64,716 additional visas for FY 2025 to those businesses that were or are suffering irreparable harm or would have or will suffer impending irreparable harm, as attested by the employer on a new attestation form. The authority to approve H-2B petitions under this FY 2025 supplemental cap expires at the end of that fiscal year (FY 2025). Therefore, USCIS will not approve H-2B petitions filed in connection with this FY 2025 supplemental cap authority on or after October 1, 2025.

As with the previous H-2B supplemental cap rules, the Secretary of Homeland Security determined that the additional visas will only be available for returning workers, that is workers who were issued H-2B visas or otherwise granted H-2B status in FY 2022, 2023, or 2024, with the exception that up to 20,000 visas will be exempt from the returning worker requirement and will be reserved for nationals of El Salvador, Guatemala, and Honduras (Northern Triangle countries), and Haiti, as well as for nationals of Ecuador, Colombia, and Costa Rica.

The TFR sought to mitigate or prevent irreparable harm to certain U.S. employers by allowing them to hire additional H-2B workers within FY 2025. This increase in the FY 2025 H-2B visa cap is based on a time-limited statutory authority and does not affect the H-2B program in future fiscal years. The exigency created by the FY 2024 Omnibus and Public Law 118-83 to meet the high demand by U.S. employers for H-2B workers, to mitigate or avoid irreparable harm to their businesses, requires initial clearance using emergency procedures. The regulations at 8 CFR 214.2(h)(6)(xv)(C) provide that U.S. Citizenship and Immigration Services (USCIS) will reject petitions filed pursuant to the TFR that are received after the numerical limitation has been reached or after October 1, 2025, whichever is sooner.

An employer seeking authorization to employ H-2B workers under this time-limited authority that submits the Form ETA-9142B-CAA-9 and the Form I-129 petition to USCIS 30 or more day after the certified start date of work, as shown on the employer’s approved Application for Temporary Employment Certification, is required to conduct additional recruitment to confirm that there are no qualified U.S. workers available for the positions.

Employers are also required to maintain the records associated with the filing of Form ETA-9142-B-CAA-9, including those related to the additional recruitment efforts and detailed written statement explaining how they meet the irreparable harm standard, for three years from the date DOL certified the Application for Temporary Employment Certification.

Lastly, DOL sought public comments in connection with Form ETA 9142-B-CAA-9 and associated requirements to revise and extend the information collection, as appropriate, using notice and comment processes under the Paperwork Reduction Act (PRA), via a 60-day notice that was included in the TFR.

1. Explain the circumstances that make the collection of information necessary. Identify any legal or administrative requirements that necessitate the collection. Attach a copy of the appropriate section of each statute and regulation mandating or authorizing the collection of information.

This information collection is required by regulations exercising authority delegated to the Secretary of Homeland Security and the Secretary of Labor under the FY 2024 Omnibus and Public Law 118-83. The H-2B program generally is governed by a range of statutory authorities, including sections 101(a)(15)(H)(ii)(b) and 214(c) of the Immigration and Nationality Act (INA) (8 U.S.C. 1011(a)(15)(H)(ii)(b) and 1184(c)), as well as regulatory authorities appearing at 8 CFR parts 103 and 214, 20 CFR part 655, and 29 CFR part 503. In general, before an employer may petition for temporary nonagricultural foreign workers, it must submit an Application for Temporary Employment Certification to the Secretary of Labor satisfying the elements prescribed by the INA and implementing regulations.

The regulations at 8 CFR part 214 and 20 CFR part 655 require a form for employers to submit to USCIS. Under 8 CFR 214.2(h)(6)(xv)(B)(2), the employer is required to file the Form ETA-9142B-CAA-9 with USCIS as part of its Form I-129 petition. Through the Form ETA-9142-B-CAA-9, the Departments collect information necessary to ensure that employers seeking to hire H-2B workers under the supplemental cap meet all requirements to hire H-2B workers provided in the TFR. Specifically, through this form, employers must attest that they meet the irreparable harm standard, and that they seek to hire either returning workers or workers from the Northern Triangle countries of El Salvador, Guatemala, and Honduras or Haiti, Ecuador, Colombia, or Costa Rica, as well as other program requirements. Employers that submit the form and the Form I-129 petition to USCIS 30 or more days after the start date of work must also attest, through this form, that they will complete a new assessment of the labor market by taking certain enumerated recruitment steps.

Finally, the employer is required to retain documents and records demonstrating compliance with the TFR, including a detailed written statement explaining how it meets the irreparable harm standard, and must provide the documents and records to DHS or DOL upon request. The retention of Form ETA-9142-B-CAA-9 and supporting documentation is required by regulations at 20 CFR part 655.68. The Departments intend to conduct a minimum of 250 audits of employers hiring H2B workers under this TFR focusing on irreparable harm, additional recruitment efforts, when applicable, record keeping compliance, general program requirements, and other worker protection provisions. The requirement to retain the form and supporting documentation, as with other prior rules, will assist the Departments in assessing an employer’s compliance with the TFR’s requirements. DHS will also routinely conduct at least 150 targeted site visits annually to determine compliance with H-2B program requirements overall.

Authority: 8 CFR Parts 103 and 214; 20 CFR Part 655, subpart A; 29 CFR Part 503; Sections 101(a)(15)(H)(ii)(b), 103(a)(6), and 214 of the INA, 8 U.S.C. 1101, 1103(a)(6), 1184; Pub. L. 118-47; and Pub. L. 118-83.

2. Indicate how, by whom, and for what purpose the information is to be used. Except for a new collection, indicate the actual use the agency has made of the information received from the current collection.

The information collection is necessary to implement the temporary cap increase authorized by the FY 2024CAA and Public Law 118-83. After obtaining a temporary labor certification (TLC), employers must complete and submit a signed attestation (Form ETA-9142-B-CAA-9) to USCIS and retain that form, along with the required supporting documentation, for three years, from the date the TLC is issued. Retaining these records for the specified period of time allows federal agencies to assess compliance with applicable regulatory standards.

3. Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses, and the basis for the decision for adopting this means of collection. Also, describe any consideration of using information technology to reduce burden.

This form and its instructions will be made available via the internet (https://www.dol.gov/agencies/eta/foreign-labor/forms). The form, once fully completed and signed, must be submitted to USCIS. The employer must retain a copy of the form, as it is submitted to USCIS, along with all necessary supporting documentation, for three years from the date DOL issues the TLC.

The employer may sign the Form ETA-9142-B-CAA-9 attestation form electronically using digital signatures that meet OMB requirements; alternatively, the employer may also use a wet ink signature on the attestation form.

The Form ETA-9142-B-CAA-9 has been created as a fillable .pdf. The Form ETA-9142-B-CAA-9 is not electronically fileable. The form is to be attached to the I-129 petition the employer submits to USCIS.

4. Describe efforts to identify duplication. Show specifically why any similar information already available cannot be used or modified for use for the purposes described in Item 2 above.

The procedures and documentation requirements are sufficiently distinct to avoid duplication of collection activities. The information collections covered by this request apply only to employers who seek H-2B workers under the TFR; consequently, there is no duplication of the information collection requirements.

5. If the collection of information impacts small businesses or other small entities, describe any methods used to minimize burden.

The requirements associated with this information collection apply to some small businesses that will submit applications to hire H-2B workers under the cap increase. Recordkeeping requirements, for example, may be satisfied in part by using information that already exists in payroll and other records kept by most employers for other general employment or business purposes.

DOL considered the memorandum issued to all heads of departments and agencies by OMB on June 22, 2012,¹ about Reducing Reporting and Paperwork Burdens. It would not be appropriate to include exemptions for small entities (including small businesses) from the requirements under the TFR. The requirements are not disproportionately more burdensome for small entities than large ones.

6. Describe the consequence to Federal program or policy activities if the collection is not conducted or is conducted less frequently, as well as any technical or legal obstacles to reducing burden.

In the absence of this information collection, DOL and DHS would be unable to enforce compliance with the terms of the attestation, and DHS would be unable to ensure that visas made available by the temporary H-2B cap increase are reserved for those businesses that meet the irreparable harm standard.

7. Explain any special circumstances that would cause an information collection to be conducted in a manner that requires further explanation pursuant to regulations 5 CFR 1320.5.

These data collection efforts do not involve any special circumstances.

8. If applicable, provide a copy and identify the date and page number of publication in the Federal Register of the agency's notice, required by 5 CFR 1320.8(d), soliciting comments on the information collection prior to submission to OMB. Summarize public comments received in response to that notice and describe actions taken by the agency in response to these comments. Specifically address comments received on cost and hour burden.

Describe efforts to consult with persons outside the agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or reported.

Consultation with representatives of those from whom information is to be obtained or those who must compile records should occur at least once every 3 years—even if the collection of information activity is the same as in prior periods. There may be circumstances that may preclude consultation in a specific situation. These circumstances should be explained.

The TFR published in the Federal Register on December 2, 2024, at 89 FR 95626, invited public comments on the information collection Form ETA–9142B–CAA–9 for a period lasting 60 days. The Department received a total of 39 comments. All comments can be found under the rule’s docket at https://www.regulations.gov/docket/ETA-2024-0002/comments. Out of the 39 comments received, only three (3) were deemed to be substantive. However, only two of the three substantive comments addressed the form. One of the three substantive comments was deemed to be out of scope as it does not address the form. The Department is only addressing the substantive comments on the form in this supporting statement.

One of the substantive commenters was in favor of the form and stated in its submission that it “supports the introduction of Form ETA-9142-B-CAA-9 to implement the attestation requirements of the rule.” The Department appreciates the input from the commenter.

The other substantive commenter disfavored the use of the form by stating that “…this form is overly burdensome and may discourage employer participation even when noncitizen workers are needed to address labor shortages. [The commenter] believes that, in addition to filling out the three-page Form ETA-9142-B-CAA-9 and the 38-page Form I-129 (note the page counts do not include additional paperwork that may be needed to accurately complete these forms), the DHS’s new attestation form is duplicative and unnecessary. If petitioners invest resources into seeking a temporary labor certification from DOL and submitting Form I-129 and other documentation, the Departments should recognize within these efforts the implied need for H-2B workers. Therefore, we urge the Departments to remove this requirement as part of this notice and exclude the attestation form from subsequent rulemakings.”

In response to this comment, as the Departments stated in the rule, to file any H-2B petition under this rule, the employers, who are the petitioners, must meet all existing H-2B eligibility requirements, including having an approved, valid, and unexpired temporary labor certification (TLC). See 8 CFR 214.2(h)(6) and 20 CFR part 655, subpart A. The TLC process focuses on establishing whether a petitioner has a temporary need for workers and whether there are U.S. workers who are able, willing, qualified, and available to perform the temporary service or labor. It does not address the harm a petitioner is facing or will face if it is unable to receive the H-2B workers for which it has been certified, which is a requirement to access supplemental H-2B visas. The petitioner must submit an attestation to USCIS in which the petitioner affirms, under penalty of perjury, that it meets the business need standard—that they are suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on their petition. In addition to asserting that it meets the business need standard, the employer must attest that, by the time of submission of the petition to USCIS, they have prepared and retained a detailed written statement describing how the evidence gathered in support of their petition demonstrates that irreparable harm is occurring or impending. The employer must also attest that, upon request, it will provide to DHS and/or DOL all of the types of documentary evidence it selected in the attestation form that support its claim of irreparable harm, along with the detailed written statement supporting its claim of Irreparable Harm, which an employer must have prepared prior to submitting a request for supplemental workers to USCIS. The petitioner must submit the attestation directly to USCIS, together with Form I-129, the approved and valid TLC, and any other necessary documentation. As explained above, the TLC process, with its focus on whether a petitioner has a temporary need for workers, and the Form ETA-9142-B-CAA-9, which relates to whether a petitioner has met the business need standard, serve different purposes such that the attestation form is neither duplicative of the TLC process nor unnecessary.

Moreover, as the rule states, it is the petitioner’s burden to establish that it meets the irreparable harm standard because the burden rests with the petitioner to prove eligibility by a preponderance of the evidence for supplemental H-2B visas. INA sec. 291, 8 U.S.C. 1361; Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). The attestation form will serve as prima facie initial evidence to DHS that the petitioner’s business is suffering irreparable harm or will suffer impending irreparable harm. USCIS will reject in accordance with 8 CFR 103.2(a)(7)(ii) or may deny in accordance with 8 CFR 103.2(b)(8)(ii), as applicable, any petition requesting H-2B workers under this FY 2025 supplemental cap that is lacking the requisite attestation form. Although this rule does not require submission of the evidence selected in the attestation and/or a detailed written statement at the time of filing of the petition, other than an attestation, the employer must have the evidence selected in the attestation and the accompanying detailed written statement on hand and ready to present to DHS and/or DOL at any time starting with the date of filing the I-129 petition, through the prescribed document retention period discussed below.

Finally, the rule also explained that the Secretaries of Homeland Security and Labor considered “that requiring a post-TLC attestation to USCIS is the most practical approach to applying the eligibility requirements of this rule without causing undue delays in the filing or adjudication processes for those employers with start dates in the first half of the fiscal year, many of whom will have already begun or completed the TLC application process. The Departments have determined that, if such employers were required to submit the attestation form to DOL before filing a petition with DHS, the attendant delays would negatively impact the ability of American businesses to timely get the help that they need given TLC processing timeframes. For consistency and to avoid confusion, the Departments will also maintain the post-TLC attestation process for employers with start dates in the second half of the fiscal year that seek supplemental H-2B visas under this rule. This approach, in conjunction with additional integrity safeguards, has been used consistently in prior supplemental H-2B TFRs, and the Departments will continue to monitor its effectiveness and sufficiency.”

The requirement to complete and submit the attestation form, as well as the other requirements associated with the rule cannot be amended or eliminated in connection with a PRA action. While the Department appreciates and has carefully considered the second commenter’s concerns, the attestation form is necessary in order to implement the requirements stipulated in the rule for the reasons stated above. The Department will move forward to request the extension of the information collection before OMB, as required by law.

9. Explain any decision to provide any payment or gift to respondents, other than remuneration of contractors or grantees.

There is no payment or gift to respondents involved with this information collection.

10. Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy.

No assurances of confidentiality or privacy are provided. The information collected is not submitted to the Departments unless requested. As a practical matter, information from an investigation file would be disclosed only in accordance with the Freedom of Information Act.

11. Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private. This justification should include the reasons why the agency considers the questions necessary, the specific uses to be made of the information, the explanation to be given to persons from whom the information is requested, and any steps to be taken to obtain their consent.

This information collection does not involve sensitive matters.

12. Provide estimates of the hour burden of the collection of information.

The attestation form includes attestations, including an attestation that the employer meets the irreparable harm standard, and document retention obligations spelled out in the TFR and described above. DOL estimates the time burden for completing and signing the form to be 0.25 hours and 0.75 hours for notifying third parties and retaining records relating to the returning worker requirements. Using the total hourly wage for an HR specialist ($53.03), the estimated opportunity cost of time for an HR specialist to complete the attestation form, notify third parties, and retain records relating to the returning worker requirements, is $53.03 per response.²

Additionally, employers are required to assess and document supporting evidence for meeting the irreparable harm standard. Employers are also required to retain all records associated with these attestations and with their requests for H-2B workers pursuant to the TFR. DOL estimates the average time burden for complying with the recordkeeping requirement is approximately 0.25 hour (15 minutes).

DOL believes that an estimated 4,373 remaining unfilled certifications for FY 2025 will include all potential employers that might request to employ H-2B workers under the TFR. This number of certifications is a reasonable proxy for the estimated number of employers that will need to review and sign the attestation based on the average number of workers requested on each H-2B Application for Temporary Employment Certification. Using this estimate for the total number of certifications, DOL estimates that the cost for HR specialists conducting the recordkeeping activities is $57,975.

The burden for this ICR is summarized in the following table:

Estimated Annualized Respondent Hour and Cost Burdens

Forms	Number of Respondents	Frequency	Total Number of Responses	Time Per Response (In Hours)	Total  Burden Hours	Hourly Wage Rate*	Total Burden Costs
Completing Form ETA-9142-B-CAA-9	4,373	1	4,373	0.25	1,093	$53.03	$57,962
Recruitment efforts	1,400	1	1,400	3	4,200	$53.03	$222,726
Record keeping	4,373	1	4,373	0.25	1,093	$53.03	$57,962
Returning Workers’ attestation	4,373	1	4,373	0.5	2,187	$53.03	$115,977
Irreparable harm step	4,373	1	4,373	5	21,865	$78.74	$1,721,541
Union Notification Requirement	4,373	1	4,373	0.17	743	$53.03	$39,401
Notify Current Employees	1,400	1	1,400	0.5	700	$53.03	$37,121
Post Job Openings in Company Website	1,400	1	1,400	0.5	700	$53.03	$37,121
Unduplicated Totals	26,065	1	26,065	Varies	32,581	Various	$2,289,811

* Bureau of Labor Statistics.  U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment Statistics May 2022, Financial Analysts: https://www.bls.gov/oes/current/oes132051.htm

**Calculation: $53.03 ($36.57 mean hourly wage * 1.45 benefits-to-wage multiplier = $53.03) x 0.75 (time burden for the new attestation form and notifying third parties and retaining records related to the returning worker requirements.) = $38.21.

^***Calculation: $54.30 (average per hour wage for a financial analyst, based on BLS wages) x 1.45 (benefits-to-wage multiplier) = $78.84 (fully loaded hourly wage for a financial analyst) x 5 hours (time burden for assessing, documenting and retention of supporting evidence demonstrating the employer is likely to suffer irreparable harm) = $393.68

†This estimate cannot be aggregated; DOL estimates that approximately 4,373 will file this attestation form and comply with all requirements.

13. Provide an estimate for the total annual cost burden to respondents or record keepers resulting from the collection of information. (Do not include the cost of any hour burden already reflected on the burden worksheet).

1. Start-up/capital costs: There are no start-up costs.

2. Maintenance and operations costs: None

14. Provide estimates of annualized costs to the Federal government. Also, provide a description of the method used to estimate cost, which should include quantification of hours, operational expenses (such as equipment, overhead, printing, and support staff), and any other expense that would not have been incurred without this collection of information. Agencies may also aggregate cost estimates from Items 12, 13, and 14 in a single table.

DOL anticipates some additional costs will be incurred by DHS in adjudicating the Form ETA-9142-B-CAA-9. DOL, however, expects these costs will be covered by the fees associated with forms filed with USCIS in support of a petition for H-2B workers. DOL will not incur government costs associated with the employers’ retention of the necessary information associated with this collection.

15. Explain the reasons for any program changes or adjustments reported on the burden worksheet.

No programmatic changes or adjustments are reported.

16. For collections of information whose results will be published, outline plans for tabulation and publication. Address any complex analytical techniques that will be used. Provide the time schedule for the entire project, including beginning and ending dates of the collection of information, completion of report, publication dates, and other actions.

The information on Form ETA-9142-B-CAA-9 will not be published; however, DHS and DOL may publicly disclose information regarding the H-2B program consistent with applicable law and regulations.

17. If seeking approval not to display the expiration date for OMB approval of the information collection, explain the reasons that display would be inappropriate.

ETA will display the OMB approval number and expiration date.

18. Explain each exception to the topics of the certification statement identified in “Certification for Paperwork Reduction Act Submissions.”

DOL is not seeking any exception to the certification requirements.

B. Collections of Information Employing Statistical Methods

This information collection does not employ statistical methods.

1 Office of Management and Budget Memorandum “Reducing Reporting and Paperwork Burden” (June 22, 2012), https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/memos/reducing-reporting-and-paperwork-burdens.pdf.

2 Calculation: $50.94 (average per hour wage for an HR specialist) × 1 (time burden for the new attestation form and notifying third parties and retaining records related to the returning worker requirements (0.25 + 0.75)) = $50.94.

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