December 1, 2021. The Department of Labor Publishes Proposed 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 has published a Notice of Proposed Rulemaking (NPRM) that proposes revisions to the methodology used to determine the Adverse Effect Wage Rates (AEWRs) for non-range agricultural occupations in the H-2A visa program. The AEWR determination methodology proposed in the NPRM will strike a reasonable balance between the statute’s competing goals of providing employers with an adequate legal supply of agricultural labor and protecting the wages and working conditions of U.S. workers similarly employed.
The NPRM proposes to determine AEWRs using wage data reported by the U.S. Department of Agriculture’s Farm Labor Survey (FLS) and the Department’s Bureau of Labor Statistics Occupational Employment and Wage Statistics (OEWS) survey. For the six occupations comprising the field and livestock worker (combined) category within the FLS, which constitute the majority of H-2A job opportunities, the NPRM proposes to set a single AEWR using the annual average hourly wage for field and livestock workers (combined) for the State or region, as determined by the FLS. For all other job opportunities, and in circumstances where the FLS does not report wage data for the field and livestock worker occupations, the NPRM proposes to use OEWS wage data to set the AEWR at the statewide annual average hourly wage for the occupational classification, or the national annual average hourly wage if statewide data is unavailable.
November 29, 2021. OFLC Announces Webinar on December 7, 2021, to Update Stakeholders on the Process for Filing H-2B Applications with a Start Date of April 1, 2022, 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, 2022, or later;
- Procedures OFLC uses to randomly select H-2B applications for review and processing;
- Recent enhancements the Department has made to Foreign Labor Application Gateway (FLAG) System;
- Helpful hints and reminders to avoid deficiencies during application process.
Details of the webinar are as follows:
Tuesday, December 7, 2021: 2:00 PM | Eastern Time (US & Canada) | 1 hr
Join from the meeting link
Join by meeting number
Meeting number (access code): 2760 511 6481; Meeting password: H2BPeak
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
Please note: Webinars are limited to 1,000 participants
November 24, 2021. U.S. Department of Agriculture Releases 2021 Farm Labor Survey
On November 24, 2021, the United States Department of Agriculture (USDA) issued the Farm Labor Survey (FLS) report in which it established the average annual wage rates, by region and the United States, for field and livestock workers. The Department of Labor (Department) relies on the average annual combined hourly wage for field and livestock workers in order to establish the Adverse Effect Wage Rates (AEWR) in the H-2A program. The AEWRs are the minimum hourly wage rates the Department has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment, so that the wages of workers similarly employed in the United States will not be adversely affected.
The Department is reviewing the USDA FLS average annual wage rates for 2022 and will soon publish a notice in the Federal Register announcing new AEWRs for each state. To obtain more information on the National Agricultural Statistic Service (NASS) surveys and reports, please call the NASS Agricultural Statistics Hotline at (800) 727-9540, 7:30 a.m. EST to 4:00 p.m. EST, or email email@example.com.
November 19, 2021. OFLC Announces Enhancements to SeasonalJobs.dol.gov to Improve U.S. Worker Access to H-2A and H-2B Job Opportunities
Initially launched in December 2018, SeasonalJobs.dol.gov is a mobile-friendly online portal that leverages the latest technologies to broaden dissemination of available temporary and seasonal job opportunities for which U.S. workers may be interested in applying. On November 19, 2021, OFLC implemented several enhancements designed to improve customer service and broaden U.S. worker access to available job opportunities. First, SeasonalJobs.dol.gov now makes information about H-2A and H-2B job opportunities more accessible to U.S. workers with limited English proficiency by offering a Spanish translation of both the website content and specific terms and conditions of the job opportunity. Second, to facilitate broader dissemination of available job opportunities, OFLC has significantly expanded the amount of job information available to any third-party (e.g., job search websites) through data feeds, which can be extracted daily and indexed for further advertising to U.S. workers. And finally, a new customer feedback feature is available that allows any person visiting the website to quickly report a defect or offer an idea or suggestion for improving the functional capabilities of the website.
To learn more about these new enhancements, please visit SeasonalJobs.dol.gov.
November 15, 2021. Office of Foreign Labor Certification Announces Update to Appendix A to the Preamble–Education and Training Categories by O*NET–SOC Occupations; Labor Certification for Permanent Employment of Immigrants in the United States and Procedures to Establish Job Zone Values when O*NET Job Zone Data Are Unavailable
The Employment and Training Administration issued a Federal Register notice informing the public that the Office of Foreign Labor Certification (OFLC) is updating Appendix A to the Preamble–Education and Training Categories by Occupational Information Network (O*NET)–Standard Occupational Classification (SOC) Occupations. Appendix A is a list of professional occupations that serves as a guide for employers to distinguish between professional and non-professional occupations in order to comply with the professional recruitment requirements of the PERM program. The FRN notifies the public that the list of occupations in Appendix A will be updated based on BLS’s current occupational and corresponding education data. In particular, OFLC will publish the updated list of occupations on its website, and intends to review BLS data each year to publish a new list of occupations on its website, even when BLS data remain the same from the previous year. In addition, this FRN announces procedures OFLC will apply in situations where O*NET Job Zone data are not yet available as O*NET transitions to the 2018 SOC occupations.
November 3, 2021. The Department of Labor’s Response to Stakeholder Requests to Raise the H-2B Visa Cap for the First Half of Fiscal Year 2022
The Department of Labor (Department or DOL) continues to recognize that obtaining a reliable workforce is crucial to meeting the temporary or seasonal labor needs of American businesses. The Department also recognizes how important it is to help Americans get back to work. We are committed to building a modern, inclusive workforce – ensuring all workers have good jobs, fair wages and working conditions, and opportunities for advancement.
The Immigration and Nationality Act (INA) sets the cap on the annual number of non-citizens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status to perform temporary non-agricultural work at 66,000, to be distributed semi-annually beginning in October and April (H-2B cap). The Department of Homeland Security’s (DHS) United States Citizenship and Immigration Services (USCIS) has the statutory responsibility for determining whether the H-2B cap has been reached in each semi-annual period based on the number of H-2B petitions it receives.
On October 12, 2021, USCIS announced that on September 30, 2021 it had reached the congressionally mandated cap for H-2B visas for temporary nonagricultural workers for the first half of the FY 2022. Except where the H-2B petition qualifies for an exemption from the statutory visa cap, USCIS is currently rejecting new cap-subject petitions received after September 30, 2021 that request an employment start date before April 1, 2022.
While the 33,000 H-2B cap for the first half of FY 2022 has been reached, we encourage every employer seeking workers to visit the almost 2,400 American Job Centers (AJC) nationwide to find and hire talented workers, as well as to train and retain qualified workers. Additionally, the Department recognizes the incredible value of our nation’s veterans and encourages tapping into their skills and talents. There are Veteran Employment Representatives in every AJC across the country who can assist businesses and veterans with their employment needs. You may also consider working with the Department’s Veterans’ Employment and Training Service to facilitate recruitment efforts in the veteran community.
Again, we understand the importance of this issue to both workers and employers. In recent years, Congress has enacted a series of public laws that provided the Secretary of Homeland Security with time-limited, discretionary authority to increase the H-2B cap beyond the number set forth in the INA after consultation with the Secretary of Labor. The Department will continue working collaboratively with our partners at DHS in an ongoing effort to ensure effective operation of the H-2B program.
November 1, 2021. OFLC Releases Public Disclosure Data and Selected Program Statistics for Q4 of Fiscal Year 2021
The Office of Foreign Labor Certification (OFLC) has released a comprehensive set of public disclosure data (through the fourth quarter of fiscal year 2021) 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, 2020, through September 30, 2021, reporting period of fiscal year 2021.
OFLC has also released selected program statistics for the fourth quarter of fiscal year 2021 for the PERM, H-1B, H-1B1, E-3, H-2A, H-2B, CW-1, and Prevailing Wage programs.
November 1, 2021. OFLC Releases the H-2B Foreign Labor Recruiter List for Q4 of Fiscal Year 2021
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, 2020, through September 30, 2021.
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.
September 17, 2021. OFLC Issues H-2A Program Frequently Asked Questions, Round 15, Covering the H-2A Labor Contractor Filing Requirements of Farm Labor Contractor and Farm Labor Contractor Employee Certificates of Registration
The Office of Foreign Labor Certification has posted a set of Frequently Asked Questions (FAQs), Round 15, related to H-2A Labor Contractor filing requirements in the H-2A temporary labor certification program. These FAQs address questions related to obtaining a Farm Labor Contractor and/or Farm Labor Contractor Employee Certificate of Registration from the Department’s Wage and Hour Division as well as submitting evidence to the Certifying Officer of authorization to perform all farm labor contracting activities that will be done under the H-2A Application for Temporary Employment Certification.
September 1, 2021. Hurricane Ida Disaster Guidance
Please click here for guidance regarding reasonable case accommodations in light of the damage done by Hurricane Ida.
August 17, 2021. OFLC Announces Important Enhancements to the Foreign Labor Application Gateway (FLAG) System to Improve Customer Service and Processing
As part of the Department's technology modernization initiative, the FLAG system was implemented to improve customer service and modernize the administration of foreign labor certification programs. On August 16, 2021, the Office of Foreign Labor Certification (OFLC) released several important enhancements to the FLAG system that improves accessibility to OFLC case decisions, reduces the burden associated with completing requests for prevailing wage determinations, and enhances a system user’s ability to manage their requests for labor certification.
Specifically, the FLAG system features a new “Notification Center” within the user account that provides real-time access to OFLC decisions, and permits users to quickly upload responses and view documents associated with the labor certification application. Additionally, users have an ability to “reuse” a previously filed Form ETA-9141, Application for Prevailing Wage Determination, which will save the employer significant time and burden by pre-populating key sections of the previous application into a new request. Finally, FLAG system account users will have new options for re-assigning cases among other authorized users within their account network in order to better manage the labor certification applications under OFLC review. More detailed information explaining these updates can be found on the FLAG site including user guides and a video.