May 25, 2021. The Departments of Labor and Homeland Security Publish Rule Increasing the Number of H-2B Visas Available in the Second Half of Fiscal Year 2021
The U.S. Departments of Labor and Homeland Security have published a temporary rule increasing the numerical limitation on H-2B nonimmigrant visas to authorize the issuance of no more than 22,000 additional visas through the end of the second half of Fiscal Year (FY) 2021 to employers likely to suffer irreparable harm. The FY 2021 allocation of 22,000 visas consists of up to 16,000 visas for returning workers and up to 6,000 visas for nationals of Guatemala, El Salvador, and Honduras. The rule provides additional protections for U.S. workers, flexibility for foreign workers, and additional recruitment requirements for certain employers.
- View the Temporary Rule, Exercise of Time-Limited Authority to Increase the Fiscal Year 2021 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking to Change Employers
In support of this rule, the Office of Foreign Labor Certification (OFLC) has posted the new Form ETA-9142-B-CAA-4 and the accompanying instructions. The temporary rule requires an employer to attest, among others, to the fact that it will likely suffer irreparable harm if it cannot employ the requested H-2B workers. This attestation must be submitted to the United States Citizenship and Immigration Services along with Form I-129, in support of an H-2B application subject to the H-2B cap before the end of FY 2021. The attestation is also available on the Forms page of the OFLC website found at: www.dol.gov/agencies/eta/foreign-labor/forms.
May 19, 2021. OFLC Announces 60-Day Public Comment Period on Proposed Revision to the CW-1 Application for Temporary Employment Certification
The Employment and Training Administration (ETA) published a 60-day notice in the Federal Register announcing its intent to revise this information collection, by amending the Form ETA-9141C, Application for Prevailing Wage Determination, and its instructions, to make sure this form, which is specific to the CW-1 program, conforms to the information collected through the general Form ETA-9141, Application for Prevailing Wage Determination (Form ETA-9141C), which is generally used by employers in connection with prevailing wage requests for other labor certification application programs and for labor condition applications. The information collected through the Form ETA-9142C, CW-1 Application for Temporary Employment Certification (Form ETA-9142C), and its instructions, remain unchanged. The Federal Register notice informs the public of the Department’s request to seek an extension of the validity of this information collection while also revising the Form-9141C, and its instructions, and invites comments from the public for 60 days.
Written comments must be submitted in accordance with the Federal Register notice instructions. The deadline to submit comments is Monday, July 19.
May 13, 2021. The Department of Labor Announces an 18-Month Delay in Effective Date of Final Rule Affecting Wages for H-1B and PERM Workers
The Department of Labor (Department) has published a final rule delaying the effective date of the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, published on January 14, 2021, 86 FR 3608, for a period of eighteen months. This action, which includes corresponding delays to the Final Rule’s transition dates, follows an initial 60-day delay announced on March 12, 2021.
The Department’s Request for Information issued last month will inform further action on the Final Rule and/or the development of a future notice of proposed rulemaking to revise the computation of prevailing wage levels in these programs.
May 6, 2021. U.S. Department of Labor Publishes Proposed Rule to Amend its Regulations on the Adjudication of Temporary and Seasonal Need for Range Occupations Under the H-2A Program
The Department of Labor published a Notice of Proposed Rulemaking (NPRM) in the Federal Register that proposes to amend its regulations regarding the adjudication of temporary need for employers seeking herding or production of livestock on the range job opportunities under the H-2A program. Consistent with the court-approved settlement agreement in Hispanic Affairs Project, et al. v. Perez et al., No. 15-cv-1562 (D.D.C.), the NPRM proposes to rescind the regulation that governs the period of need for such job opportunities to ensure the Department’s adjudication of temporary or seasonal need is conducted in the same manner for all applications for temporary agricultural labor certification. Public comments on the proposal must be received by Monday, June 7, 2021. For more information, please see the link below.
April 30, 2021. OFLC Announces a Reminder to Filers of Form ETA-9141 to Submit Their Initiated Cases Prior to May 3, 2021
The Office of Foreign Labor Certification (OFLC) will implement the new Form ETA-9141, Application for Prevailing Wage Determination, beginning May 3, 2021. As a result, any initiated cases not submitted prior to 6:00 a.m. EST on May 3, 2021 will be deleted and a new application using the revised Form ETA-9141 will need to be created. For more information, please refer to our original announcement on April 2, 2021.
OFLC is providing advance copy of the Form ETA-9141 documents that will go live on May 3, so that our stakeholders can familiarize themselves with the revised forms:
April 28, 2021. OFLC Provides Revised Form ETA-9141 Webinar Materials and Information to Stakeholders in Advance of May 3 Transition
On April 27, 2021, the Office of Foreign Labor Certification (OFLC) conducted a webinar to provide an overview on how to complete the revised Form ETA-9141, Application for Prevailing Wage Determination, in OFLC’s Foreign Labor Application Gateway case management system. The presentation materials and a recording of the webinar are now available at the hyperlinks below.
April 28, 2021. OFLC Announces 60-Day Public Comment Period on Proposed Three-Year Extension of Labor Condition Application and WH-4 Forms for the H-1B, H-1B1, and E-3 Temporary Programs
The Employment and Training Administration (ETA) published a 60-day notice in the Federal Register announcing its intent to extend the Office of Foreign Labor Certification’s Labor Condition Application (LCA) forms and the Wage and Hour Division’s WH-4 complaint form for three years. The Department proposes an extension of the LCA and WH-4 complaint forms, without changes. The information collection request includes the LCA Forms ETA-9035, ETA-9035E (electronic), ETA-9035 & 9035E Appendix A, ETA-9035CP Instructions, and the WH-4 complaint form. The Federal Register notice informs the public of the Department’s three-year extension request for the forms and invites comments from the public for 60 days.
Written comments must be submitted in accordance with the Federal Register notice instructions. The deadline to submit comments is Monday, June 28.
April 20, 2021. OFLC Releases Public Disclosure Data and Selected Program Statistics for Q2 of Fiscal Year 2021
The Office of Foreign Labor Certification (OFLC) has released a comprehensive set of public disclosure data (through the second 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 March 31, 2021, reporting period of fiscal year 2021.
OFLC has also released selected program statistics for the second quarter of fiscal year 2021 for the PERM, H-1B, H-1B1, E-3, H-2A, H-2B, CW-1, and Prevailing Wage programs.
April 20, 2021. OFLC Releases the H-2B Foreign Labor Recruiter List for Q2 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 March 31, 2021, reporting period of FY 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.
April 2, 2021. The Department of Labor Publishes a Request for Information Inviting Interested Parties to Provide Information on Sources of Data and Methodologies for Determining Prevailing Wage Levels in the H-1B, H-1B1, E-3, and PERM Programs
The Department of Labor (Department) is seeking information on the best available sources of data and methodologies that can be used in computing different levels of wages based on the Occupational Employment Statistics (OES) wage survey administered by the Bureau of Labor Statistics (BLS), commensurate with experience, education, and level of supervision for a specific occupation and geographic area. The information received in response to this Request for Information (RFI) will inform and be considered by the Department as it reviews the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, which may result in the development of a future notice of proposed rulemaking to revise the computation of prevailing wage levels in a manner that more effectively ensures the employment of certain immigrant and nonimmigrant workers does not adversely affect the wages of U.S. workers similarly employed.
The Department invites the submissions of comments, information, data, and supporting materials based on the questions provided in the RFI for a period of 60 days. All comments must be received on or before June 1, 2021.
April 2, 2021. OFLC Announces New Form ETA-9141, Application for Prevailing Wage Determination, for Use Beginning May 3, 2021
The Office of Management and Budget approved the Office of Foreign Labor Certification’s (OFLC) revisions to the Form ETA-9141, corresponding appendix, and instructions. The revisions will better align information collection requirements with the Department’s regulations, provide greater clarity to employers on regulatory requirements, and standardize and streamline information collection to reduce employer time preparing applications. They will also promote greater efficiency and transparency in OFLC’s review and issuance of prevailing wage determinations. This new form must be used for all new prevailing wage applications beginning May 3, 2021.
Transition Schedule for Submitting Prevailing Wage Application Forms
- May 3, 2021 5:59 a.m. EST, all initiated cases must be submitted prior to 6:00 a.m. EST, when system maintenance will begin. After maintenance begins, initiated cases not yet submitted will be deleted and a new application using the new Form ETA-9141 will need to be created.
- May 3, 2021 8:00 a.m. EST (approximate) OFLC will only accept prevailing wage applications submitted using the new Form ETA-9141. OFLC will reject—without further review—prevailing wage paper applications submitted using the current version of Form ETA-9141.
April 2, 2021. OFLC Announces Webinar to Update Stakeholders on the New Form ETA-9141, Application for Prevailing Wage Determination
The Office of Foreign Labor Certification (OFLC) invites interested stakeholders to participate in a webinar that provides an overview of updates to Form ETA-9141, Application for Prevailing Wage Determination. The webinar will:
- Identify changes in the new Form ETA-9141 from the current Form ETA-9141
- Discuss how the changes appear in FLAG
- Provide technical assistance and helpful tips for preparing the new form
Date and Start Time:
Tuesday, April 27, 2021
2:00 PM Eastern Time (US & Canada) (UTC-04:00) | 2 hrs.
Join from the meeting link
Join by meeting number
Meeting number (access code): 199 919 9129
Meeting password: OFLCNew9141
Join by phone
1-877-465-7975 US Toll Free
1-210-795-0506 US Toll
Join from a video system or application
You can also dial 22.214.171.124 and enter the meeting number listed above.
Join using Microsoft Lync or Microsoft Skype for Business
Please note: Webinars are limited to 1,000 participants.
April 1, 2021. The Department of Labor’s Response to Requests to Raise the H-2B Visa Cap
The Department of Labor recognizes that obtaining a reliable workforce is crucial to meeting the labor needs of American businesses. We also recognize how important it is to put Americans back to work.
On Dec. 27, 2020, the Consolidated Appropriations Act, 2021, was signed into law. This act authorizes the Secretary of Homeland Security, after consultation with the Secretary of Labor, to increase the number of H-2B visas available to U.S. employers in Fiscal Year (FY) 2021 if American businesses’ needs cannot be met with qualified, willing, and able U.S. workers. The Department of Labor will help inform the Department of Homeland Security’s decision whether to increase the number of H-2B visas available during FY 2021.
While the current cap for H-2B visas has been met for FY 2021, 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.
We understand the importance of this issue to both American workers and American employers. We will continue working collaboratively with our partners at DHS in an ongoing effort to ensure effective operation of the H-2B program.