Announcements

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”).

December 19, 2022. OFLC Publishes Attestation Form for Employers to Request Additional H-2B Workers Under the FY2023 H-2B Cap Increase; Available for Immediate Public Use

The Office of Foreign Labor Certification has received OMB approval for the Form ETA-9142-B-CAA-7, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Under Section 204 of Division O of the Consolidated Appropriations Act, 2022, Public Law 117-103, and Public Law 117-180. Employers seeking to obtain H-2B nonimmigrant workers under the FY2023 cap increase must complete this form and submit to USCIS. The form and its instructions are now available for immediate public use at: https://www.dol.gov/agencies/eta/foreign-labor/forms.

For more information, please see OFLC’s December 15, 2022, website announcement.

December 16, 2022. Office of Foreign Labor Certification Publishes 2023 H-2A Monthly Adverse Effect Wage Rate (AEWR) for Herding or Production of Livestock on the Range

The Employment and Training Administration has published a notice in the Federal Register announcing the new AEWR for occupations involving herding or production of livestock on the range for the H-2A Program. AEWRs are the minimum wage rates the Department of Labor has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment to help ensure the Department meets its statutory obligation to certify that the employment of H-2A foreign workers will not adversely effect the wages of agricultural workers in the U.S. similarly employed. The notice announces the new national monthly AEWR for herding or production of livestock on the range.

December 16, 2022. Office of Foreign Labor Certification Publishes New 2023 H-2A Hourly Adverse Effect Wage Rates (AEWR) for Non-Range Occupations

The Employment and Training Administration has published a notice in the Federal Register announcing the AEWRs for the employment of H-2A workers to perform agricultural labor or services other than the herding or production of livestock on the range. AEWRs are the minimum wage rates the Department of Labor has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment to help ensure the Department meets its statutory obligation to certify that the employment of H-2A foreign workers will not adversely effect the wages of agricultural workers in the U.S. similarly employed. The notice announces the new hourly AEWRs by State, for all agricultural employment (except for occupations involving herding or production of livestock on the range, which is covered by 20 CFR 655.200-235). Pursuant to the district court’s order in United Farm Workers, et al. v. U.S. Dep’t of Labor, et al., No. 20-cv-01690, 2022 WL 1004855 (E.D. Cal. April 4, 2022) , which vacated the Department’s 2020 AEWR final rule, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 85 FR 70445 (Nov. 5, 2020) and remanded the rule to the Department for further rulemaking, the new hourly AEWRs are set according to the methodology in the 2010 rule, Temporary Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884 (Feb. 12, 2010). The new hourly AEWRs are equal to the annual weighted average hourly wage rate for field and livestock workers (combined) in the State or region as published by the U.S. Department of Agriculture in the Farm Labor Report. In addition, the average AEWR across all surveyed States constitutes the average AEWR, which is used to calculate adjustments to required bond amounts for H-2A Labor Contractors.

December 15, 2022. H-2B Application Filing Timelines for 2023 Peak Filing Season

The Office of Foreign Labor Certification (OFLC) reminds employers and other interested stakeholders that the filing window to submit an H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) requesting work start dates of April 1, 2023, or later, will open on January 1, 2023, at 12:00 a.m. Eastern Time.

Following OFLC’s standard operating procedures, H-2B applications requesting an April 1, 2023, work start date will be denied if they are filed before January 1, 2023, at 12:00 a.m. Eastern Time.

OFLC will randomly order for processing all H-2B applications requesting a work start date of April 1, 2023, that are filed during the initial three calendar days (January 1-3, 2023) using the randomization procedures published in the Federal Register on March 4, 2019. Each day, from January 3, 2023 through January 6, 2023, OFLC will publish on the Foreign Labor Application Gateway System website the number of H-2B applications it has received to date and the total number of requested worker positions on those applications.

December 15, 2021. H-2B Webinar Materials and Information for 2023 Peak Filing Season

On December 7, 2022, the Office of Foreign Labor Certification (OFLC) conducted a webinar to update stakeholders on the process for filing H-2B applications requesting a work start date of April 1, 2023, or later.

This webinar also provided best practices and helpful tips for preparing and submitting H-2B Applications for Temporary Employment Certification (Form ETA-9142B and appendices) using the Foreign Labor Application Gateway System. The presentation materials are now available on the H-2B Temporary Non-Agriculture Program page of the OFLC website and at the hyperlink below.

IMPORTANT REMINDER: Employers should file only one application for the same job opportunity. With limited exception, under 20 CFR 655.15(f), only one Application for Temporary Employment Certification (Form ETA-9142B and appendices) may be filed for worksite(s) within one area of intended employment for each job opportunity with an employer for each period of employment.

OFLC will only review and process the application that was filed first, according to its timestamp. If OFLC identifies multiple applications that appear to have been filed for the same job opportunity, OFLC will consider the first application filed in timestamp order - irrespective of randomization group assignments - as the official application submitted by (or on behalf of) the employer. OFLC will issue a Notice of Deficiency on the first application reviewed (i.e., the application that is randomized closest to the top of the processing order) to require the employer to establish a bona fide need for all potentially duplicative applications. Employers that fail to establish a bona fide need for each of the applications will receive a non-acceptance denial for each application identified as a duplicate and received after the application that was filed first.

Employers should make any necessary corrections or amendments to the first application filed. For further information on requesting a correction or amendment of an H-2B application before issuance of a final determination, please refer to H-2B Frequently Asked Questions Round 11.

December 15, 2022. The Departments of Labor and Homeland Security Publish Rule Increasing the Number of H-2B Visas Available in Fiscal Year 2023

The U.S. Departments of Labor and Homeland Security have 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. 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 the Northern Triangle Countries (Guatemala, El Salvador, and Honduras) and Haiti. The TFR provides additional protections for U.S. workers, flexibility for foreign workers, and additional recruitment requirements for certain employers.

In support of this rule, the Office of Foreign Labor Certification (OFLC) has posted the new Form ETA-9142-B-CAA-7 and the accompanying instructions. The TFR requires an employer to attest, among other things, to the fact that it is 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. This attestation must be submitted to the United States Citizenship and Immigration Services (USCIS) along with Form I-129, in support of an H-2B application subject to the H-2B cap on or before September 15, 2023. Upon OMB providing final approval, OFLC will issue a separate announcement informing the public that the Form ETA-9142-B-CAA-7 is available for immediate public use.

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 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 NPC 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.

December 7, 2022. The Department of Labor Publishes 2022 H-2A Final Rule Frequently Asked Questions; Job Offers, Assurances, and Obligations – Wages

OFLC has issued a set of Frequently Asked Questions (FAQs), Round 3 – Job Offers, Assurances, and Obligations – Wages, associated with the publication of the final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (“2022 H-2A Final Rule”).

The Wage and Hour Division (WHD) is also posting guidance and information regarding H-2A program obligations, requirements, and compliance under the 2022 H-2A Final Rule. For example, fact sheets posted on WHD’s website provide general information about recruitment, notifications, wages, and housing.

December 5, 2022. OFLC Announces Webinar on December 7, 2022, to Update Stakeholders on the Process for Filing H-2B Applications with a Start Date of April 1, 2023, or Later

The Office of Foreign Labor Certification (OFLC) invites stakeholders to participate in a webinar that provides best practices and helpful tips for preparing H-2B Applications for Temporary Employment Certification (Form ETA-9142B and appendices). The webinar will discuss:

•    Regulatory timeframes and filing requirements for H-2B applications with a start date of need of April 1, 2023, or later;
•    Procedures OFLC uses to randomly select H-2B applications for review and processing;
•    Helpful hints and reminders to avoid deficiencies during application process.

This webinar will be recorded and posted to the OFLC website along with presentation materials for future reference. Please be advised there is a 1000-person participant limit to this webinar. *Also note, if you are experiencing audio difficulties using a computer, please combine the presentation with the ”Join by Phone” details indicated below.

Details of the webinar are as follows:

Wednesday, December 7, 2022: 2:00 PM to 3:00 PM  |  (UTC-05:00) Eastern Time (US & Canada)  |  1 hr 
 
Join from the meeting link:
https://usdol.webex.com/usdol/j.php?MTID=m826dbe7a51c4c60ea13e22638f270822

Join by meeting number: 
Meeting number (access code): 2764 494 5346 
Meeting password: H2BUpdate2022

Tap to join from a mobile device (attendees only):
1-877-465-7975,,27644945346## US Toll Free
+1-210-795-0506,,27644945346## US Toll

Join by phone:
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1-210-795-0506 US Toll

Join from a video system or application:
Dial 27644945346@usdol.webex.com
You can also dial 207.182.190.20 and enter your meeting number.

December 1, 2022. The Department of Labor’s Office of Foreign Labor Certification Will Propose Rescission of H-2B Registration Requirements and Will Provide Unique H-2B Temporary Registration Numbers Per District Court’s Order

The Department of Labor (Department) published the current H-2B regulations, Temporary Non-Agricultural Employment of H-2B Aliens in the United States, as an interim final rule with the Department of Homeland Security (DHS) on April 29, 2015. 80 FR 24042. With the interim final rule, the Department created a separate H-2B registration process to determine whether an employer has a temporary need for nonagricultural services or labor, subject to review by DHS as the final arbiter of temporary need. The interim final rule stated the registration process would be implemented through the publication of a notice in the Federal Register. The Department has not implemented the H-2B registration process.

On November 2, 2022, the U.S. District Court for the Central District of California issued an order in Padilla Construction Company, et. al. v. Martin J. Walsh, et. al., No. 2:18-cv-1214 (C.D. Cal. Nov. 2, 2022). Under the order, the Department will propose to rescind H-2B registration requirements contained in 20 CFR 655.11 and 655.12 and propose conforming edits throughout its H-2B regulations at 20 CFR part 655, subpart A to remove references to the H-2B registration process through future notice and comment procedures. In the interim, the Department will use the Notice of Acceptance (NOA), which is issued when an H-2B application meets regulatory requirements and is permitted to commence recruitment of U.S. workers, to inform an H-2B employer of the Department’s determination on its temporary need for services or labor. Where an employer is determined to have a temporary need for services or labor, the NOA will provide the employer with a unique temporary need registration number, which may remain active for up to three years and which will be considered as one piece of evidence during the Department’s adjudication of the employer’s temporary need in future application filings. The Department will use a Notice of Deficiency to inform an H-2B employer when its temporary need for an application filing is in question, to request additional information, and also to inform an employer of deactivation of its temporary need registration number if the number has expired or if it appears that the employer no longer demonstrates a temporary need. For more information, please see the district court’s order below.

Important Note: This announcement of the Department’s future proposal to rescind H-2B registration requirements will not affect H-2B application filings for the 2023 peak application filing season for the second half visa cap.

November 25, 2022. U.S. Department of Labor Announces Additional Listening Sessions on H-2A Program

The U.S. Department of Labor previously announced that it intends to engage in additional rulemaking concerning the H-2A visa program for temporary agricultural employment of foreign workers. The Department will consider new ways to support worker voice and promote employer accountability. As we review the Department’s H-2A regulations, we are eager to hear from stakeholders that represent diverse interests and perspectives.

The Department of Labor initially announced it would conduct two virtual listening sessions, one for employers and their representatives and another for workers and their advocates to gather input about possible changes to the H-2A regulations. The Department has added two additional listening sessions. Each listening session will offer the opportunity to give input into the possible rulemaking, so participants need attend only one session.

Our goals are to listen, engage the public, and hear from many voices who could be impacted by potential changes to the regulations. We are interested in hearing about the experiences of workers and employers, so we encourage worker and employer representatives to include their members’ perspectives in their remarks or to invite workers or employers to share their experiences directly.

We invite you to join the virtual listening sessions for worker and employer representatives with Department of Labor officials. Please find below the breakdown and registration links to each of the sessions:

These are public events. Registrants will be emailed a Zoom link one day before the event begins. Please note that if you have already registered for a session, you do not need to register again.

If you require an accommodation or language interpretation to attend this listening session, please email whd-events@dol.gov at least five (5) business days prior to the event so we can make arrangements.

Please direct any questions to WHD-Events@dol.gov.

November 21, 2022. The Department of Labor Publishes 2022 H-2A Final Rule Frequently Asked Questions, Prevailing Wage Surveys

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

November 17, 2022. U.S. Department of Labor Announces Listening Sessions on H-2A Program

The U.S. Department of Labor previously announced that it intends to engage in additional rulemaking concerning the H-2A visa program for temporary agricultural employment of foreign workers. The Department will consider new ways to support worker voice and promote employer accountability. As we begin a review of the Department’s H-2A regulations, we are eager to hear from stakeholders that represent diverse interests and perspectives.

The Department of Labor will conduct two virtual listening sessions, one for employers and their representatives and another for workers and their advocates to gather input about possible changes to the H-2A regulations. Our goals are to listen, engage the public, and hear from many voices who could be impacted by potential changes to the regulations.

We are interested in hearing about the experiences of workers and employers, so we encourage worker and employer representatives to include their members’ perspectives in their remarks or to invite workers or employers to share their experiences directly.

We invite you to join the virtual listening session for worker and employer representatives with Department of Labor officials. Please find below the breakdown and registration links to each of the sessions:

These are public events. Registrants will be emailed a Zoom link one day before the event begins.

If you require an accommodation or language interpretation to attend this listening session, please email whd-events@dol.gov at least five (5) business days prior to the event so we can make arrangements.

Please direct any questions to WHD-Events@dol.gov.

November 15, 2022. OFLC Releases Public Disclosure Data and Selected Program Statistics for Q4 of Fiscal Year 2022

The Office of Foreign Labor Certification (OFLC) has released a comprehensive set of public disclosure data (through the final quarter of fiscal year 2022) 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, 2021 through September 30, 2022 reporting period of fiscal year 2022.

OFLC has also released selected program statistics for the second quarter of fiscal year 2022 for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.

November 15, 2022. OFLC Releases the H-2B Foreign Labor Recruiter List for Q4 of Fiscal Year 2022

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, 2021 through September 30, 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.

November 9, 2022. Department of Labor Announces a Stakeholder Webinar on the 2022 H-2A Final Rule Filing and Processing Updates to be Held on November 17, 2022

On November 17, 2022, the Department of Labor’s Office of Foreign Labor Certification (OFLC) will host a public webinar to educate stakeholders, program users, and other interested members of the public on the changes to the H-2A program made by the H-2A 2022 Final Rule. The provisions adopted in this final rule strengthen protections for agricultural workers, enhance enforcement to prevent fraud and abuse, and simplify and modernize the H-2A application, Temporary Labor Certification, and the prevailing wage determination processes. 
 
This presentation will provide a detailed overview of how the 2022 H-2A rule will affect filing and processing including preparations to the FLAG filing system, reviewing changes to ETA Forms 790/ 790A and 9142A, calculating surety bonds, and additional topics. This webinar will be recorded and posted to the OFLC website along with presentation materials for future reference. Please be advised there is a 1000-person participant limit to this webinar. *Please note, if you are experiencing audio difficulties using a computer, please combine the presentation with the ”Join by Phone” details indicated below. 
  
Meeting Details: 

Thursday, November 17, 2022: 2:00 PM – 3:30 PM  |  (UTC-04:00) Eastern Time (US & Canada)  |  2 hrs 
 
Join from the meeting link:
https://usdol.webex.com/usdol/j.php?MTID=mf83cd84e497e3b27d31101d7b95df9a7

Join by meeting number: 
Meeting number (access code): 2761 874 1502 
Meeting password: H2AUpdate2022

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:
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You can also dial 207.182.190.20 and enter your meeting number.

October 25, 2022. The Department of Labor Publishes 2022 H-2A Final Rule Frequently Asked Questions; Job Order Filing and Processing

OFLC has issued a set of Frequently Asked Questions (FAQs), Round 2 – Job Order 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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