Announcements

March 23, 2023. OFLC Provides CW-1 Webinar Materials and Information to Stakeholders

On March 20, 2023, the Office of Foreign Labor Certification (OFLC) conducted a webinar to provide an overview on common issues the National Processing Center has identified with CW-1 Applications for Temporary Employment Certification and offered filing tips that can minimize the common application errors. The presentation materials are now available at the hyperlinks below and located on our website under the “Webinars” tab at the bottom of the CW-1 Program page located here: https://www.dol.gov/agencies/eta/foreign-labor/programs/cw-1.

March 14, 2023. The Department of Labor Publishes 2022 H-2A Final Rule Frequently Asked Questions; Joint Employers

OFLC has issued a set of Frequently Asked Questions (FAQs), Round 5 – Joint Employers, associated with the publication of the final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (“2022 H-2A Final Rule”).

March 13, 2023. The Department of Labor Reminds Employers About Requirements for Fiscal Year 2023 Supplemental H-2B Visas

On December 15, 2022, the Department of Labor (Department) and Department of Homeland Security (DHS) published a temporary final rule (TFR) increasing the numerical limitation on H-2B nonimmigrant visas to authorize the issuance of no more than 64,716 additional visas for Fiscal Year (FY) 2023 positions to employers that are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase (“FY 2023 cap”). Of the 64,716 visas available, up to 44,716 are limited to H-2B returning workers, and up to 20,000 are reserved for nationals of Guatemala, El Salvador, Honduras, and Haiti.

The FY 2023 cap has been allocated in the following manner:

  • For the first half of FY 2023, DHS made 18,216 visas immediately available upon publication of this TFR on December 15, 2022, limited to returning workers (i.e. workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality). These petitions must have requested a date of need starting on or before March 31, 2023.
  • For the second half of FY 2023, DHS will initially make available 16,500 visas limited to returning workers. These petitions must request a date of need starting on or after April 1, 2023, through and including May 14, 2023.
  • For the late second half of FY 2023, DHS will make available an additional allocation of 10,000 visas limited to returning workers. To assist employers needing workers to begin work during the late spring and summer seasons in the fiscal year, these petitions must request a date of need starting on or after May 15, 2023.

DHS will make available 20,000 additional visas that are reserved for foreign nationals of the Northern Triangle countries, or Haiti, as attested by the petitioner (regardless of whether such nationals are returning workers). These 20,000 visas will be available for petitioners requesting an employment start date before the end of FY 2023, up to and including September 30, 2023.

The TFR provides additional protections for U.S. workers, flexibility for foreign workers, and additional recruitment requirements for certain employers. This is the first year a TFR has been published covering both H-2B cap periods, so the Department is reminding employers who may now be considering accessing authorized the supplemental visas about those protections, flexibilities and requirements.

The TFR requires employers to complete the Department’s Form ETA-9142-B-CAA-7, which includes an attestation that the employer is suffering from or will suffer irreparable harm without the ability to hire all of the H-2B workers requested on the Form I-129 submitted to the United States Citizenship and Immigration Services (USCIS) and that it has evidence to support its claim of irreparable harm which it will submit to the Department or DHS upon request.

Employers with a certified start date 30 or more days prior to submitting their petition to USCIS must attest that they conducted additional recruitment, including working with American Job Centers and State Workforce Agencies for recruitment assistance, provide notice of the job opportunity at worksites or to bargaining representatives, and where the occupation is traditionally or customarily unionized, provide written notification of the job opportunity to the nearest American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) office covering the area of intended employment. When contacting the AFL-CIO, employers must provide a copy of the job order and request assistance in recruiting qualified U.S. workers for the job opportunity. Employers must also contact and rehire former employees, including those who were laid off or furloughed since January 1, 2021.

The TFR further requires employers to attest that they will comply with health and safety laws and laws related to COVID-19 worker protections and any right to time off or paid time off for COVID-19 vaccination, or to reimbursement for travel to and from the nearest available vaccination site, and that they will notify any H-2B workers, in a language the workers understand, as necessary or reasonable, that they have equal access to COVID-19 vaccines and vaccine distribution sites.

The TFR once again includes a portability provision which provides H-2B workers and their employers more flexibility by allowing H-2B workers to more quickly, change employers and avoid disruptions and uncertainty in visa processing and travel caused by COVID-19.

PLEASE NOTE: The TFR requires employers with a certified start date which is 30 or more days prior to the submission of their visa petition to USCIS to engage in additional recruitment of U.S. workers. Employers required to conduct additional recruitment must provide the Office of Foreign Labor Certification (OFLC) with the case number for each temporary certification which will be used in support of a visa petition to USCIS concurrently with their placement of new job orders with the State Workforce Agency. Employers who must conduct this concurrent notification requirement are encouraged to notify OFLC by sending an email to H-2Bsupplementalvisas@dol.gov, and including the words “H-2B TFR 2023 Recruitment” followed by the unique TLC case number in the subject line of the email.

March 9, 2023. OFLC Announces Webinar on March 20, 2023, to Update Stakeholders on the Process for Filing CW-1 Applications for Employment in the Commonwealth of the Northern Mariana Islands

The Office of Foreign Labor Certification invites interested stakeholders to participate in a webinar that provides technical assistance and helpful tips for preparing the CW-1 Application for Prevailing Wage Determination (Form ETA-9141C) and the Application for Temporary Employment Certification (Form ETA-9142C). The webinar will provide technical assistance to employers (and authorized attorneys or agents) on how to complete and submit Forms ETA-9141C and ETA-9142C and cover some of the most pressing post-filing issues employers encounter.

Meeting Details:
March 20, 2023 7:00 PM | (UTC-05:00) Eastern Time (US & Canada) | 1 hr / March 21, 2023 9:00AM | (UTC+10:00) Chamorro Standard Time | 1 hr

Join from the meeting link:
https://usdol.webex.com/usdol/j.php?MTID=m09be869a77a13aa13dd691296393fff7

Join by meeting number:
Meeting number (access code): 2763 487 7128
Meeting password: CW1Update

Tap to join from a mobile device (attendees only):
1-877-465-7975, # US Toll Free
+1-210-795-0506, # US Toll

Join by phone:
1-877-465-7975 US Toll Free
1-210-795-0506 US Toll

March 9, 2023. The Department of Labor Publishes 2023 Adverse Effect Wage Rate Final Rule Frequently Asked Questions

OFLC has issued a set of Frequently Asked Questions (FAQs) regarding the final rule, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, (“2023 AEWR Final Rule”), which published on February 28, 2023. The FAQs address implementation of the final rule, including explanations of the major changes in AEWR methodology, information on when and where new AEWRs have been posted and will be posted in the future, how to determine the AEWR that applies, and how future AEWR adjustments will impact employer obligations on adjusting pay rates in existing contracts.

February 28, 2023. The Department of Labor Publishes Final Rule Revising the Methodology Used to Determine the Adverse Effect Wage Rates for Non-Range Occupations in the H-2A Program

The U.S. Department of Labor (Department) has published a final rule that amends its regulations regarding the methodology used to determine the Adverse Effect Wage Rates (AEWRs) for non-range agricultural occupations in the H-2A visa program. The new methodology will result in AEWRs that better protect against adverse effect on the wages of workers in the United States similarly employed, while providing stability and predictability for employers in complying with their wage obligations.

For the vast majority of H-2A job opportunities, the rule does not change the methodology that has been in place since 1987, which uses the annual average gross hourly wage for field and livestock workers (combined) for the State or region, as reported by the U.S. Department of Agriculture’s Farm Labor Survey (FLS), whenever such wage data is available. The methodology results in a single statewide hourly AEWR, adjusted annually, for all H-2A job opportunities in six Standard Occupational Classification (SOC) codes within the field and livestock worker (combined) category.

For H-2A job opportunities that require performance of duties outside the six field and livestock workers (combined) SOC codes, the rule introduces a new methodology, which uses the annual average gross hourly wage for each SOC code, as reported by the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics survey. This methodology will yield a statewide hourly AEWR, adjusted annually, for each SOC code outside the six field and livestock workers (combined) SOC codes.

The new methodology will apply to H-2A job orders submitted for non-range occupations beginning on March 30, 2023. OFLC will post additional information and guidance to stakeholders in the form of Frequently Asked Questions on this website.

February 14, 2023. OFLC Releases Public Disclosure Data and Selected Program Statistics for Q1 of Fiscal Year 2023.

The Office of Foreign Labor Certification (OFLC) has released a comprehensive set of public disclosure data (through the first quarter of fiscal year 2023) drawn from employer applications requesting prevailing wage determinations and labor certifications for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.

The public disclosure files include all final determinations OFLC issued for these programs during the October 1, 2022 through December 31, 2022 reporting period of fiscal year 2023.

OFLC has also released selected program statistics for the first quarter of fiscal year 2023 for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.

February 14, 2023. OFLC Releases the H-2B Foreign Labor Recruiter List for Q1 of Fiscal Year 2023

The Office of Foreign Labor Certification (OFLC) has published an updated list of the names of foreign labor recruiters for the H-2B program as required by 20 CFR 655.9(c).

The list contains the name and location of persons or entities identified on Appendix C of the Form ETA-9142B that were hired by, or working for, the recruiter that employers have indicated they engaged, or planned to engage, in the recruitment of prospective H-2B workers to perform the work described on their H-2B application.

The H-2B Foreign Labor Recruiter List includes only those names and locations associated with H-2B applications that were processed or issued a final decision during the October 1, 2022 through December 31, 2022.

By publishing the foreign labor recruiter list, OFLC is ensuring greater transparency for the H-2B worker recruitment process and facilitating information sharing between the U.S. Department of Labor and other agencies.

February 9, 2023. Office of Foreign Labor Certification Publishes 2023 Update to Allowable Charges for H-2A Agricultural Workers' Meals and for H-2A and H-2B Travel Subsistence Reimbursement, Including Lodging

The Employment and Training Administration has issued a notice in the Federal Register to announce the annual updated dollar amount H-2A employers may charge workers, other than workers in herding or production of livestock on the range occupations, for providing meals and the maximum and minimum rate at which H-2A and H-2B workers must be reimbursed for travel-related subsistence expenses. The notice also includes a reminder of the continuing obligation of H-2A and H-2B employers to pay certain lodging and travel-related expenses workers incur while traveling to and from H-2A and H-2B employment.

January 9, 2023. OFLC Publishes List of Randomized H-2B Applications Submitted January 1-3 for Employers Seeking H-2B Workers Starting April 1, 2023

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 8,693 H-2B applications covering 142,796 worker positions with the start date of work of April 1, 2023.

Following the randomization procedures published in the Federal Register on March 4, 2019, OFLC completed the randomization process on January 4 and assigned to National Processing Center analysts all H-2B applications placed in Assignment Group A for issuance of Notices of Deficiency or Acceptance. Group A includes enough worker positions to reach the H-2B semi-annual visa allotment of 33,000. Six additional Assignment Groups were created for the remaining applications, each of which includes no more than 20,000 worker positions.

On January 4, 2023, OFLC provided written notice to each employer (and the employer's authorized attorney or agent) informing them about the Assignment Group for their application(s).

View the Assignment Groups for H-2B Applications Submitted January 1-3, 2023

January 4, 2023. OFLC Conducts Randomization Process on H-2B Applications Submitted Requesting an April 1, 2023, Work Start Date

The Office of Foreign Labor Certification has completed the randomization process to randomly assign all H-2B applications submitted during the initial three-day filing window, January 1-3, 2023, requesting an April 1, 2023, work start date for the second half of the Fiscal Year 2023 H-2B statutory visa cap.

OFLC received a total of 8,693 H-2B applications requesting 142,796 worker positions during this filing period.

OFLC will be providing written notification to employers (and the employer's authorized attorney or agent) with their H-2B Assignment Group. On January 9, 2023, OFLC will also publish on its website the list of the H-2B applications assigned to each Assignment Group.

December 30, 2022. The Department of Labor Publishes 2022 H-2A Final Rule Frequently Asked Questions; H-2A Application Filing and Processing

OFLC has issued a set of Frequently Asked Questions (FAQs), Round 4 – H-2A Application Filing and Processing, associated with the publication of the final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (“2022 H-2A Final Rule”).

 

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