July 16, 2021. OFLC Announces Relocation of the Office of Foreign Labor Certification's Atlanta National Processing Center; Change of Physical Mailing Address
The Employment and Training Administration issued a Federal Register notice informing the public that the Office of Foreign Labor Certification’s (OFLC) mailing address for its Atlanta National Processing Center (ANPC) will be changing beginning August 25, 2021, with the exception of mail associated with the processing of applications requesting permanent labor certification subject to supervised recruitment.
Effective August 25, 2021, any mail, including U.S. Postal Service and other courier mail or parcel delivery packages, etc., sent to ANPC must be submitted to the following new mailing address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, 200 Constitution Avenue, NW, Room N-5311, Washington, DC 20210. The one exception is mail associated with Supervised Recruitment under 20 CFR 656.21, which must continue to be submitted to: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Atlanta National Processing Center, Attn: Supervised Recruitment, P.O. Box 56625, Atlanta, GA 30343.
Employers are reminded to adhere to regulatory requirements at 20 CFR 656.10(d), including providing ANPC’s correct new mailing address, specified above, on the Notice of Filing (NOF) that must be posted when employers file a Form ETA-9089, Application for Permanent Employment Certification. If the required 10-day posting period for a NOF commences after September 5, 2021, employers must include the new mailing address contained in the notice. 20 CFR 656.10(d)(3)(iii).
July 16, 2021. OFLC Releases Frequently Asked Questions for Implementation of the Revised Form ETA-9141
The Office of Foreign Labor Certification (OFLC) has released Round 3 of frequently asked questions (FAQs) from the National Prevailing Wage Center (NPWC) to respond to inquiries from the April 27, 2021, webinar on implementing the revised Form ETA-9141. The revised Form ETA-9141 provides a separate section to be completed by employers who accept alternative job requirements in addition to the minimum job requirements. The new alternative job requirements section: (1) improves NPWC’s ability to ensure that prevailing wages provided to employers and listed on the Form ETA-9089 do not adversely affect U.S. workers and support a valid labor market test in instances where the alternative requirements would result in a higher wage; and (2) reduces employers’ burden of completing a separate Form ETA-9141 for each set of requirements.
July 9, 2021. OFLC Publishes List of Randomized H-2B Applications Submitted July 3-5, 2021, for Employers Seeking H-2B Workers Starting October 1, 2021
To keep the public informed regarding the submission and assignment of H-2B applications for review, the Office of Foreign Labor Certification (OFLC) published the Assignment Group(s) for 873 H-2B applications covering 21,116 worker positions with a work start date of October 1, 2021. Since the number of the H-2B applications received during the three-day filing window collectively requested fewer worker positions for certification than the number of visas available under the semi-annual visa allotment for the first half of Fiscal Year 2022, all H-2B applications filed within that time period that requested workers starting October 1, 2021, were randomly given a unique number in accordance with OFLC's randomization process and placed into the same group for assignment to analysts for review and processing.
July 7, 2021. OFLC Conducts Randomization Process on H-2B Applications Submitted Requesting an October 1, 2021, Work Start Date
The Office of Foreign Labor Certification (OFLC) completed the randomization process to randomly assign to analysts for review and processing all H-2B applications submitted during the three-day filing window, July 3-5, 2021, requesting an October 1, 2021, work start date.
During this filing period, OFLC received a total of 873 H-2B applications requesting 21,116 worker positions for work beginning on October 1, 2021.
OFLC will be providing written notification to employers (and, if applicable, the employer's authorized attorney or agent) with their H-2B Assignment Group. On July 9, 2021, OFLC will also publish the list of the H-2B applications assigned to each Assignment Group on its website.
July 6, 2021. OFLC Announces Number of H-2B Applications Filed in the Foreign Labor Application Gateway (FLAG) System During the Three-day Filing Window of the Peak Filing Season
During the three-day filing window (July 3-5, 2021) of the H-2B peak filing season, employers filed 873 applications in the FLAG System requesting more than 21,116 worker positions with an October 1, 2021, work start date.
On July 6, 2021, the Office of Foreign Labor Certification (OFLC) plans to randomly order all applications requesting a work start date of October 1, 2021, that were submitted during the three-day filing window. OFLC will use the randomization procedures published in the Federal Register on March 4, 2019, to randomize the applications for assignment to analysts for review and processing.
July 6, 2021. OFLC Announces Implementation of District Court Order Granting Backpay to Qualifying Workers: H-2A Adverse Effect Wage Rates
On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers, et al. v. DOL, et al., No. 20-cv-01690, enjoining the Department of Labor (Department or DOL) from implementing its Final Rule, Adverse Effect Wage Rate Methodology (AEWR) for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 85 FR 70445 (Nov. 5, 2020), and ordering the Department to operate under the 2010 rule, Temporary Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884 (Feb. 12, 2010).
On January 15, 2021, in compliance with an order issued by the court on January 12, the Department notified state workforce agencies (SWAs), employers, and the general public that all H-2A job orders filed on or after December 21, 2020, in accordance with 20 CFR 655.121--including job orders filed concurrently with an Application for Temporary Employment Certification with the OFLC National Processing Center for emergency situations under 20 CFR 655.134--were required to use the 2020 AEWRs in effect on December 20, 2020, until the publication of the 2021 AEWRs in the Federal Register. Consistent with the court’s January 12, 2021 order, the Department further notified all SWAs, employers, and the general public that employers submitting job orders and applications between December 21, 2020, and publication of the final 2021 AEWRs may be required to pay the wage differential between the 2020 and 2021 AEWRs. Additionally, the Department reminded employers of their regulatory obligation to maintain accurate and adequate earnings records (see 20 CFR 655.122(j)), including the names and permanent home addresses of all H-2A workers, and make reasonable efforts to ensure that such information for each worker remains current. On February 23, 2021, the Department published the 2021 AEWRs as a notice in the Federal Register with an immediate effective date (86 FR 10996).
On May 14, 2021, the court issued an order requiring H-2A employers that submitted job orders and applications between December 21, 2020, and February 23, 2021, to pay the wage differential between the 2020 and 2021 AEWRs to all H-2A workers and U.S. workers in corresponding employment for work performed between January 15, 2021, and February 23, 2021. On June 11, 2021, the court issued an amended order clarifying that the obligation to pay the wage differential applies to all employers that filed either a job order or an application between December 21, 2020, and February 23, 2021. The court directed the Department to provide notice of its order to all SWAs, employers, and the general public. Accordingly, the Department provides the following notice:
- H-2A employers that submitted job orders (Form ETA-790/790A) to the SWAs or applications for H-2A temporary labor certification (Form ETA-9142A) to DOL between December 21, 2020 and February 23, 2021 are required to make wage adjustment payments to qualifying H-2A workers and U.S. farmworkers in corresponding employment who worked during the period from January 15, 2021 to February 23, 2021 and received an hourly wage below the geographically applicable 2021 AEWR;
- Each wage adjustment payment must equal the total number of hours a farmworker worked from January 15, 2021 and February 23, 2021 multiplied by the difference between the wage received and the geographically applicable 2021 AEWR;
- H-2A employers covered by the court’s order are required to make wage adjustment payments to the qualifying H-2A workers and U.S. farmworkers in corresponding employment on or before Saturday, September 4, 2021; and
- H-2A employers covered by the court’s order are responsible for maintaining accurate and adequate earnings records, in accordance with 20 CFR 655.122(j), to establish compliance with the equitable restitution obligation specified in the court’s order and noted above.
Finally, consistent with the amended order, all H-2A employers covered by the court’s order must certify compliance with the wage adjustment requirement to DOL by taking the following steps:
- STEP 1
Prepare a statement of compliance, signed and dated by the employer, certifying that the required wage adjustment payments were made to all qualifying H-2A workers and workers in corresponding employment on or before Saturday, September 4, 2021.
The statement must include the DOL H-2A Case Number; number of H-2A workers issued the required wage adjustment; number of U.S. workers in corresponding employment issued the required wage adjustment; and the date(s) on which the required wage adjustments were made to the workers.
- STEP 2
Send a copy of the signed and dated statement of compliance to OFLC using the following email address: H-2A.email@example.com
- STEP 3
Retain the original signed and dated statement of compliance and a copy of the receipt confirmation email received from OFLC.
Important Note: H-2A employers must review the equitable restitution obligation specified in the court’s order and determine whether H-2A workers or workers in corresponding employment actually performed any work from January 15, 2021, to February 23, 2021, and received an hourly wage below the geographically applicable 2021 AEWR.
To assist H-2A employers in determining whether they may be covered by the court’s order, DOL has sought to identify all H-2A applications granted temporary labor certification in a non-range occupation where either the Form ETA-790/790A or Form ETA-9142A was submitted between December 21, 2020, and February 23, 2021, and the certified period of work included at least one (1) calendar day from January 15, 2021, to February 23, 2021. To see the list of potentially covered H-2A employers, click here.