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Announcements
December 7, 2024. OFLC Announces Webinar on December 18, 2024, to Update Stakeholders on the Process for Filing H-2B Applications with a Start Date of April 1, 2025, 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, 2025, 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 18, 2024: 2:00 PM | (UTC-05:00) Eastern Time (US & Canada) | 1 hr.
Join from the meeting link:
https://usdol.webex.com/usdol/j.php?MTID=m3f82a7f4c9aa28ac90132aefdd1233ba
Join by meeting number:
Meeting number (access code): 2818 634 4345
Meeting password: H2BUpdate
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
December 2, 2024. The Departments of Labor and Homeland Security Publish Rule Increasing the Number of H-2B Visas Available in Fiscal Year 2024
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) 2024 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 Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica. 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-9 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. DHS will not accept any H-2B petitions under provisions related to the FY 2025 supplemental numerical allocations after September 15, 2025, and will not approve any such H 2B petitions after October 1, 2025. The attestation is also available on the Forms page of the OFLC website at: https://www.dol.gov/agencies/eta/foreign-labor/forms.
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 H2Bsupplementalvisas@dol.gov, and including the words “H-2B TFR 2025 Recruitment” followed by the unique TLC case number in the subject line of the email.
December 1, 2024. IMPORTANT ANNOUNCEMENT: The Permanent Online System Has Been Decommissioned and is No Longer Available
The Office of Foreign Labor Certification (OFLC) is making this public service announcement to alert employers and other interested stakeholders the legacy Permanent Online System, which provided public access to permanent labor certification applications and final determinations, was fully decommissioned effective December 1, 2024.
As part of the Department's technology modernization initiative, the Foreign Labor Application Gateway (FLAG) System was implemented to replace the legacy Permanent Online System, to improve customer service, and modernize the administration of foreign labor certification programs.
The legacy Permanent Online System is no longer accessible. Account holders and the general public are redirected to the FLAG System to submit new permanent labor certification applications.
Applications pending in the Permanent Online System after November 30, 2024, will continue to be processed by OFLC. Stakeholders who need to submit a response to the Department’s request for information, upload documents, or request a specific case action on an application that was submitted in the Permanent Online System can send an email to the Permanent Labor Certification Help Desk at plc.atlanta@dol.gov.
November 27, 2024. The Department of Labor Announces Court Orders Were Issued on November 25, 2024 by the Eastern District of Kentucky and Southern District of Mississippi Associated with Implementation of the 2024 Farmworker Protection Final Rule
Background
On April 29, 2024, the U.S. Department of Labor (Department) published the final rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” (“The Farmworker Protection Rule”). On August 26, 2024, the United States District Court for the Southern District of Georgia issued a preliminary injunction in the case Kansas, et al. v. U.S. Department of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga., Aug. 26, 2024) (“Kansas”), prohibiting the Department from enforcing the Farmworker Protection Rule in certain states and with respect to certain entities. The preliminary injunction specifically prohibits the Department from enforcing the Farmworker Protection Rule in the states of Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia, and against Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024. On August 28, 2024 and again on September 10, 2024, the Employment and Training Administration issued announcements (here) regarding the Department’s compliance with the Kansas order.
District Court Order: Eastern District of Kentucky
On November 25, 2024, the United States District Court for the Eastern District of Kentucky issued a preliminary injunction in the case Barton, et al. v. U.S. Department of Labor, et al., No. 5:24-cv-249-DCR (E.D. Ky., Nov. 25, 2024) (“Barton”), enjoining and restraining the Department from implementing, enacting, enforcing, or taking any action in any manner to enforce certain provisions of the Farmworker Protection Rule. Specifically, the Barton order applies to the following provisions:
- Seatbelt modifications to enhanced safety requirements including but not limited to 20 C.F.R. § 655.122(h)(4);
- Any and all worker voice and empowerment provisions, and provisions allowing workers to invite and accept guests under 20 C.F.R. § 655.135 and any and all parallel provisions under §501.4, including but not limited to 20 C.F.R. § 655.135(h), § 655.135(m), and § 655.135(n);
- Updated information collection requirements including but not limited to 20 C.F.R. § 655.130(a); and
- New minimum pay requirements including but not limited to 20 C.F.R. § 655.120(a) and 655.122(l).
See Barton, slip op. at 40-41.
The Barton preliminary injunction is effective within the Commonwealth of Kentucky and the States of Alabama, Ohio, and West Virginia. In addition, the Department is enjoined from enforcing those subject provisions of the Farmworker Protection Rule in connection with the activities of the following plaintiffs to the proceeding, including any members of any association or entity which is a plaintiff to the proceeding as of the effective date of the preliminary injunction (November 25, 2024): Richard Barton; Doug Langley; Benny Webb; Dale Seay; David DeMarcus, II; David De Marcus, Sr.; Steve Stakelin; Agriculture Workforce Management Association, Inc. (including its shareholders/members); North Carolina Growers’ Association, Inc. (including members of that non-profit association); Workers and Farmer Labor Association, also known as “Wafla” (including members of that non-profit association); USA FARMERS, Inc. (including members of that non-profit association); National Council of Agricultural Employers (including members of that non-profit association).
District Court Order: Southern District of Mississippi
On November 25, 2024, the United Stated District Court for the Southern District of Mississippi issued a Section 705 stay in International Fresh Produce Association, et al. v. U.S. Department of Labor, et al., No. 1:24-cv-309-HSO-BWR (S.D. Miss., Nov. 25, 2024) (“IFPA”), staying the effective date of 20 C.F.R. § 655.135(h)(2) and (m) in the Farmworker Protection Rule nationwide until the conclusion of proceedings in the case, including any appellate proceedings.
Initial Guidance Related to District Court Orders
The Department will issue additional information and guidance on its ongoing compliance and implementation of these orders as soon as possible. Until additional guidance is published by the Department, as of November 27, 2024, employers (or an employer’s authorized attorney or agent) will be directed on the Foreign Labor Application Gateway (FLAG) System to prepare and submit H-2A job orders and Applications for Temporary Employment Certification using the forms applicable under the version of 20 CFR part 655, subpart B in effect on June 27, 2024.
November 26, 2024. The Department of Labor (Department) Announces a Webinar for H-2A and H-2B filers to help them understand their responsibilities under anti-discrimination laws.
The Department, in conjunction with the Equal Employment Opportunity Commission (EEOC), will be hosting a webinar on December 9, 2024, from 1:00 to 2:30 pm EST for the H-2A and H-2B filing communities that will discuss the importance of compliance with program requirements and their responsibilities under federal law, including anti-discrimination laws enforced by the EEOC. During the webinar, the EEOC will provide an overview of anti-discrimination laws, examples of unlawful fact patterns, and information for the public on how to refer suspected federal law violations and program noncompliance to the appropriate enforcement agencies.
To ensure we have sufficient space to accommodate all interested attendees, we ask that you pre-register at the webinar link below.
https://usdolevents.webex.com/weblink/register/re36addc80d775c1e948ddaf3f3fed78f
November 25, 2024. IMPORTANT ANNOUNCEMENT: Less Than One Week Of Access To The Permanent Online System Remains Before December 01, 2024, Decommissioning
The Office of Foreign Labor Certification (OFLC) is making this public service announcement to alert employers and other interested stakeholders the legacy Permanent Online System, which provides public access to permanent labor certification applications and final determinations, will be fully decommissioned on December 1, 2024.
As part of the Department's technology modernization initiative, the Foreign Labor Application Gateway (FLAG) System was implemented to replace the legacy Permanent Online System, to improve customer service, and modernize the administration of foreign labor certification programs.
On December 1, 2024, the legacy Permanent Online System will no longer be accessible to account holders and the general public will be redirected to the FLAG System. Stakeholders who require documents from their Permanent Online System accounts are strongly encouraged to access and download those documents well in advance of December 1, 2024. Permanent Online System account holders who need to upload documents or request a specific case action on an application submitted in the Permanent Online System (e.g., request reconsideration, withdraw applications, etc.) should complete action in the system by November 30, 2024, at 7 PM EST.
Applications still pending in the Permanent Online System after November 30, 2024, will continue to be processed by OFLC. Starting December 1, 2024, stakeholders who need to submit a response to the Department, upload documents, or request a specific case action on an application that was submitted in the Permanent Online System must do so by email, sent to the PLC Help Desk at PLC.Help@dol.gov. Documents should be submitted as PDF attachments and named with the case number assigned and title of the attachment. After November 30, 2024, stakeholders with applications pending in the Permanent Online System will not be able to upload documents directly. Employers and their attorney/agents should continue to check their email for correspondence and notifications related to these pending applications.
November 18, 2024. Office of Foreign Labor Certification Publishes Notice of Proposed Rulemaking: H-2B Employer-Provided Wage Surveys.
The Employment and Training Administration (ETA) published a notice of proposed rulemaking (NPRM) in the Federal Register proposing to amend its regulations at 20 CFR 655.10(f) for employer-provided wage surveys for the H-2B program. The publication of the NPRM is necessary because the U.S. District Court for the District of Columbia held the 2015 Wage Rule (the Rule), specifically the data and methodology requirements of 20 CFR 655.10(f)(2) and (f)(4), to be procedurally invalid for failure to comply with the Administrative Procedure Act’s (APA) notice-and-comment requirements. Williams, et al. v. Walsh, et al., 648 F.Supp.3d 70, 75 (D.D.C. 2022). Although declining to vacate the Rule, the court remanded it for further consideration.
ETA is publishing this NPRM to cure the APA violation found by the court. Additionally, this NPRM proposes to amend the Rule to clarify existing requirements for employer-provided surveys in the H-2B program, add new requirements to increase the accuracy of employer-provided surveys, and eliminate Form ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OEWS Survey, to increase efficiency. The comment period will close on Friday, January 17, 2025.
November 15, 2024. OFLC Releases Public Disclosure Data and Selected Program Statistics for Q4 of Fiscal Year 2024
The Office of Foreign Labor Certification (OFLC) has released a comprehensive set of public disclosure data (through the fourth quarter of fiscal year 2024) 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.
Please Note: OFLC recently implemented the revised form ETA-9089. As a result, there will be two distinct PERM disclosure data files. These files will each have their own record layout documents.
The public disclosure files include all final determinations OFLC issued for these programs during the October 1, 2023 through September 30, 2024 reporting period of fiscal year 2024.
OFLC has also released selected program statistics for the fourth quarter of fiscal year 2024 for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.
November 15, 2024. OFLC Releases the H-2B Foreign Labor Recruiter List for Q4 of Fiscal Year 2024
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, 2023 through September 30, 2024.
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 1, 2024. IMPORTANT ANNOUNCEMENT: ONE MONTH OF ACCESS TO THE PERMANENT ONLINE SYSTEM REMAINS BEFORE DECEMBER 01, 2024, DECOMMISSIONING
The Office of Foreign Labor Certification (OFLC) is making this public service announcement to alert employers and other interested stakeholders the legacy Permanent Online System, which provides public access to permanent labor certification applications and final determinations, will be fully decommissioned on December 1, 2024.
As part of the Department's technology modernization initiative, the Foreign Labor Application Gateway (FLAG) System was implemented to replace the legacy Permanent Online System, to improve customer service, and modernize the administration of foreign labor certification programs.
On December 1, 2024, the legacy Permanent Online System will no longer be accessible to account holders and the general public will be redirected to the FLAG System. Stakeholders who require documents from their Permanent Online System accounts are strongly encouraged to access and download those documents well in advance of December 1, 2024. Permanent Online System account holders who need to upload documents or request a specific case action on an application submitted in the Permanent Online System (e.g., request reconsideration, withdraw applications, etc.) should complete action in the system by November 30, 2024, at 7 PM EST.
Applications still pending in the Permanent Online System after November 30, 2024, will continue to be processed by OFLC. Starting December 1, 2024, stakeholders who need to submit a response to the Department, upload documents, or request a specific case action on an application that was submitted in the Permanent Online System must do so by email, sent to the PLC Help Desk at PLC.Help@dol.gov. Documents should be submitted as PDF attachments and named with the case number assigned and title of the attachment. After November 30, 2024, stakeholders with applications pending in the Permanent Online System will not be able to upload documents directly. Employers and their attorney/agents should continue to check their email for correspondence and notifications related to these pending applications.
October 30, 2024. Office of Foreign Labor Certification Announces Annual Determination of H-2A Labor Supply States for U.S. Worker Recruitment
Pursuant to 20 CFR 655.154(d), the Office of Foreign Labor Certification (OFLC) Administrator announces the annual determination of labor supply states (LSS). LSS are additional states in which an employer’s job order will be circulated and, if appropriate, where additional recruitment may be required. On June 14, 2024, consistent with 20 CFR 655.154, the OFLC Administrator solicited public input for 60 days about LSS and related recruitment mechanisms to make a determination that identifies whether there are areas of traditional or expected labor supply for each state with respect to the availability of qualified workers and the appropriate and effective means of recruiting those workers. This determination includes specific geographic area(s) of the United States in which a significant number of qualified workers have been identified and who, if recruited through additional positive employer recruitment activities, would be willing to make themselves available for work in the state.
The LSS determination is effective as of the date of this announcement for employers who have not commenced recruitment after receiving a Notice of Acceptance. This determination will remain valid until the OFLC Administrator publishes a new determination on the OFLC website as provided by 20 CFR 655.154(d).
After consideration of the information received, the OFLC Administrator has determined that all current LSS requirements will remain in full effect, with the following modifications:
- Pennsylvania: OFLC is replacing Puerto Rico and Virgina as expected labor supply states with Delaware, Maryland, New Jersey, Ohio, and West Virginia for jobs in the Commonwealth of Pennsylvania.
Updated labor supply state information is available on OFLC's labor supply State page on the Foreign Labor Application Gateway (FLAG).
September 10, 2024. The Department of Labor’s Office of Foreign Labor Certification Announces Revised Transition Schedule and Technical Guidance for Implementing H-2A Job Orders and Applications Associated with the 2024 Farmworker Protection Final Rule; Compliance with District Court Order
On August 26, 2024, the United States District Court for the Southern District of Georgia issued a preliminary injunction in the case Kansas, et al. vs. U.S. Department of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga., Aug. 26, 2024) (“Kansas”), prohibiting DOL from enforcing the final rule “Improving Protections for Workers in Temporary Agricultural Employment in the United States” (Farmworker Protection Rule) in certain states and with respect to certain entities. The preliminary injunction specifically prohibits DOL from enforcing the Farmworker Protection Rule in the states of Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia, and against Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024.
On August 28, 2024, the Department issued a notice regarding its compliance with the Kansas Order. Following this notice, OFLC has continued to receive and process H-2A job orders and Applications for Temporary Employment Certification in accordance with 20 CFR part 655, subpart B in effect on June 27, 2024, the calendar day before the effective date of the Farmworker Protection Rule.
Revised Transition Schedule
The Department is announcing the following revised transition schedule for receiving and processing H-2A job orders and Applications for Temporary Employment Certification under the Farmworker Protection Rule:
- The National Processing Center (NPC) will continue to process all completed H-2A Applications for Temporary Employment Certification (i.e., Forms ETA-790/790A and 9142A) submitted before 7:00 p.m. Eastern Daylight Time on or before September 11, 2024, in accordance with 20 CFR part 655, subpart B in effect on June 27, 2024.
- Beginning at 7:00 p.m. Eastern Daylight Time on September 11, 2024, until 12:00 a.m. Eastern Daylight Time on September 12, 2024, DOL will initiate procedures to deploy and test changes to the FLAG System to implement both the changes required by the Farmworker Protection Rule and changes designed to comply with the Kansas Order. No H-2A job orders (Forms ETA-790/790A) and Applications for Temporary Employment Certification can be submitted during this timeframe. All initiated, but unsubmitted, H-2A job orders and completed Applications for Temporary Employment Certification in the FLAG System as of 7:00 p.m. Eastern Daylight Time on September 11, 2024, will be deleted as of that time. Consistent with 20 CFR 655.134(a), the NPC Certifying Officer will grant a waiver of the regulatory time period for filing Applications for Temporary Employment Certification for employers who may be impacted by the deletion of initiated, but unsubmitted, H-2A job orders and Applications for Temporary Employment Certification.
- The NPC will process all H-2A job orders and Applications for Temporary Employment Certification submitted on or after 12:00 a.m. Eastern Daylight Time, September 12, 2024, as follows:
- The NPC will process H-2A job orders and Applications for Temporary Employment Certification not covered by the Kansas Order in accordance with 20 CFR part 655, subpart B in effect as of June 28, 2024.
- The NPC will process H-2A job orders and Applications for Temporary Employment Certification covered by the Kansas Order — that is, applications from the states of Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia, as well as from Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024 — in accordance with 20 CFR part 655, subpart B in effect on June 27, 2024.
FLAG System Change Required to Comply with Court Order
Beginning at 12:00 a.m. Eastern Daylight Time, September 12, 2024, the FLAG System will require the employer, or the employer’s authorized attorney or agent, prior to initiating an H-2A job order and Application for Temporary Employment Certification, to identify whether the work to be performed under the H-2A job order will be located in one or more of the states or will be performed for entities subject to the Kansas Order. Specifically, when the employer, or the employer’s authorized attorney or agent, selects the option to initiate a new H-2A job order and Application for Temporary Employment Certification, the FLAG System will first present the following question requiring a “YES” or “NO” response before proceeding:
Are you seeking to submit an H-2A Application under any of the following conditions?
All places of employment where work will be performed under the Form ETA-790/790A are located in one or more of the following states:
- Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, or Virginia;
OR
- The legal business name of the employer identified on the Form ETA-790/790A seeking to employ or jointly employ H-2A workers is “Miles Berry Farm;”
OR - The legal business name of the employer identified on the Form ETA-790/790A seeking to employ or jointly employ H-2A workers is a member of the “Georgia Fruit and Vegetable Growers Association” as of August 26, 2024.
Where a “YES” response is provided (i.e., all the places of employment where work will be performed under the H-2A job order are subject to the Kansas Order), the FLAG System will navigate the employer, or the employer’s authorized attorney or agent, to begin preparing the H-2A job order using the Form ETA-790/790A applicable under the version of 20 CFR part 655, subpart B in effect on June 27, 2024.
Where a “NO” response is provided (i.e., all the places of employment where work will be performed under the H-2A job order are not subject to the Kansas Order), the FLAG System will navigate the employer, or the employer’s authorized attorney or agent, to begin preparing the H-2A job order using the Form ETA-790/790A applicable under the version of 20 CFR part 655, subpart B in effect as of June 28, 2024.
For employers seeking to file H-2A job orders and Applications for Temporary Employment Certification where the place(s) of employment on the single H-2A job order include states subject to the Kansas Order and states not subject to the Kansas Order, the Department provides the additional guidance below.
Additional Technical Guidance for Filing H-2A Job Orders and Applications for Temporary Employment Certification with Worksites in Both Enjoined and Non-Enjoined States in the FLAG System
- To ensure compliance with the Kansas Order, OFLC will not, on the basis of a single H-2A job order and Application for Temporary Employment Certification, grant temporary labor certification where the place(s) of employment on the single H-2A job order include both states subject to the Kansas Order and states not subject to the Kansas Order (i.e., at least one of the States is subject to the Kansas Order and at least one of the States is not subject to the Kansas Order). Employers must submit a job order for work performed in states subject to the Kansas Order and a separate job order for work performed in states not covered by the Kansas Order. Otherwise, depending on the version of the Form ETA-790/790A submitted, the State Workforce Agency or the NPC will issue a Notice of Deficiency requesting removal of the applicable place(s) of employment and direct the employer, or the employer’s authorized attorney or agent, to file a separate H-2A job order for the removed place or places of employment using the appropriate version of the Form ETA-790/790A.
- While the Kansas Order remains in effect, employers seeking temporary labor certification to perform herding and range livestock or itinerant animal shearing, commercial beekeeping, and custom combining with work itineraries, who would normally submit a single job order covering multiple areas of intended employment that include states which are both covered and not covered by the Kansas Order, should submit two H-2A job orders and Applications for Temporary Employment Certification: one for all places of employment covered by the injunction and another one for all places of employment not covered by the injunction.
Employers, or their authorized attorneys or agents, who have questions or need additional technical assistance regarding how to file H-2A job orders in the FLAG System may contact the OFLC H-2A Ombudsman at h2a.ombudsman@dol.gov.
August 28, 2024. The Department of Labor’s Office of Foreign Labor Certification Announces Delay in Transition Schedule for Implementing the H-2A Application and Job Order Associated with the 2024 Farmworker Protection Final Rule
The U.S Department of Labor (Department) has published the final rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States” (the “Farmworker Protection Rule”). The Farmworker Protection Rule is effective June 28, 2024. The Department previously announced that it would process clearance orders and associated H-2A applications filed before 7:00 PM Eastern Daylight Time on August 28, 2024, in accordance with 20 CFR part 655, subpart B in effect as of June 27, 2024. The Department explained that its case processing system, the Foreign Labor Application Gateway (“FLAG”), would then be updated to accept applications filed under the Farmworker Protection Rule. In addition, the Department explained that, to better align the implementation of the Farmworker Protection Rule’s revisions to 29 CFR 501.4(a) with parallel revisions in 20 CFR 655.135(h), the Department would begin to enforce the requirements of 29 CFR 501.4(a) as revised by the Farmworker Protection Rule only with respect to conduct or actions occurring on or after August 29, 2024. The Department also previously explained that applications submitted on or after 12:00 AM Eastern Daylight Time on August 29, 2024, would be processed in accordance with the provisions of the Farmworker Protection Rule tied directly to a temporary labor certification.
However, on August 26, 2024, the United States District Court for the Southern District of Georgia issued a preliminary injunction in the case Kansas, et al. vs. U.S. Department of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga., Aug. 26, 2024) (“Kansas”) prohibiting DOL from enforcing the Farmworker Protection Rule in certain states and with respect to certain entities. The preliminary injunction specifically prohibits DOL from enforcing the Farmworker Protection Rule in the states of Georgia, Kansas, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and Virginia, and against Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024. Accordingly, consistent with the Kansas Order, the Department will not be enforcing the Final Rule in these states or with respect to these entities while the Order remains in effect.
The Department is carefully reviewing the Kansas Order and assessing various options to comply with the Order. For now, the Office of Foreign Labor Certification (OFLC) will delay updating its FLAG system to implement revised H-2A job order and application forms associated with the Farmworker Protection Rule, originally scheduled to begin at 7:00 p.m. Eastern Daylight Time on August 28, 2024, until further notice.
As a result of this delay, OFLC will continue to receive and process H-2A job orders and applications in accordance with 20 CFR part 655, subpart B in effect as of the calendar day before the effective date as stated in the Farmworker Protection Rule. OFLC will provide additional public notice regarding a revised transition schedule as soon as possible.
August 23, 2024. OFLC Provides Materials on the 2024 Farmworker Protection Final Rule Webinar on New Forms and Helpful Filing Tips
On August 21, 2024, the Department of Labor hosted 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 2024 H-2A Farmworker Protection Final Rule. Participants of this webinar received a demonstration of new forms and changes to the FLAG processing system. The Final Rule became effective June 28, 2024, and OFLC will begin accepting applications subject to the provisions of this rule on August 29, 2024.The presentation materials are now available at the hyperlinks below and located on our website under the “Webinars” tab at the bottom of the H-2A Program page located here: https://www.dol.gov/agencies/eta/foreign-labor/programs/h-2a
August 15, 2024. OFLC Releases Public Disclosure Data and Selected Program Statistics for Q3 of Fiscal Year 2024
The Office of Foreign Labor Certification (OFLC) has released a comprehensive set of public disclosure data (through the third quarter of fiscal year 2024) 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, 2023 through June 30, 2024 reporting period of fiscal year 2024.
OFLC has also released selected program statistics for the third quarter of fiscal year 2024 for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.
August 15, 2024. OFLC Releases the H-2B Foreign Labor Recruiter List for Q3 of Fiscal Year 2024
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, 2023 through June 30, 2024.
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.
August 14, 2024. OFLC Provides Materials on the 2024 Farmworker Protection Final Rule Webinar on New Forms and Helpful Filing Tips
On August 7, 2024, the Department of Labor hosted 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 2024 H-2A Farmworker Protection Final Rule. Participants of this webinar received helpful tips on the new forms, filing instructions, and explanation of the transition process. The Final Rule became effective June 28, 2024, and OFLC will begin accepting applications subject to the provisions of this rule on August 29, 2024.The presentation materials are now available at the hyperlinks below and located on our website under the “Webinars” tab at the bottom of the H-2A Program page located here: https://www.dol.gov/agencies/eta/foreign-labor/programs/h-2a
August 13, 2024. The Department of Labor Announces a Foreign Labor Application Gateway System Demonstration Webinar for the 2024 H-2A Farmworker Protection Final Rule to be Held on August 21, 2024
On August 21, 2024, the Department of Labor 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 2024 H-2A Farmworker Protection Final Rule. Participants of this webinar will receive a demonstration of the new forms in the Foreign Labor Application Gateway (FLAG) system. The Final Rule became effective June 28, 2024, and OFLC will begin accepting applications subject to the provisions of this rule on August 29, 2024.
The meeting details are below. *Please note – there is an attendee maximum of 1000 and both the webinar recording and a copy of the presentation will be placed on our website for review at a later date.
Wednesday, August 21, 2024
3:00 PM | (UTC-04:00) Eastern Time (US & Canada) | 1 hr
Join from the meeting link:
https://usdol.webex.com/usdol/j.php?MTID=mf4bd8d51d9ebc817d757c72fd6fe1e56
Join by meeting number:
Meeting number (access code): 2819 732 9475
Meeting password: OFLC2024
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
August 7, 2024. OFLC Announces Final Decommission of the Permanent Online System
The Office of Foreign Labor Certification (OFLC) is making this public service announcement to alert employers and other interested stakeholders the legacy Permanent Online System, which provides public access to permanent labor certification applications and final determinations, will be fully decommissioned on December 1, 2024.
As part of the Department's technology modernization initiative, the Foreign Labor Application Gateway (FLAG) System was implemented to replace the legacy Permanent Online System, to improve customer service, and modernize the administration of foreign labor certification programs.
On December 1, 2024, the legacy Permanent Online System will no longer be accessible to account holders and the general public will be redirected to the FLAG System. Stakeholders who require documents from their Permanent Online System accounts are strongly encouraged to access and download those documents well in advance of December 1, 2024. Permanent Online System account holders who need to upload documents or request a specific case action on an application submitted in the Permanent Online System (e.g., request reconsideration, withdraw applications, etc.) should complete action in the system by November 30, 2024, at 7 PM EST.
Applications still pending in the Permanent Online System after November 30, 2024, will continue to be processed by OFLC. Starting December 1, 2024, stakeholders who need to submit a response to the Department, upload documents, or request a specific case action on an application that was submitted in the Permanent Online System must do so by email, sent to the PLC Help Desk at PLC.Help@dol.gov. Documents should be submitted as PDF attachments and named with the case number assigned and title of the attachment. After November 30, 2024, stakeholders with applications pending in the Permanent Online System will not be able to upload documents directly. Employers and their attorney/agents should continue to check their email for correspondence and notifications related to these pending applications.
Email Updates