Foreign Labor Certification

May 30, 2023. Office of Foreign Labor Certification Announces Solicitation of Input for the Annual Determination of Labor Supply States to Enhance U.S. Worker Recruitment

The 2022 H-2A Final Rule, effective on November 14, 2022, implemented a new process for the OFLC Administrator’s determination of labor supply States (i.e., additional States in which an employer’s job order will be circulated and, if appropriate, where additional recruitment may be required). Annually, under 20 CFR 655.154(d), the OFLC Administrator will gather and review public input about labor supply and related recruitment mechanisms and will publish a labor supply State determination on the OFLC website. The OFLC Administrator’s determination will identify with respect to each State whether there are other traditional or expected labor supply States. Where appropriate, within a traditional or expected labor supply State, the determination will identify particular area(s) in which a significant number of qualified workers located in the United States have been identified, who if recruited through positive employer recruitment activities, would be willing to make themselves available for work in the State. The labor supply State determination will become effective on the date of publication for employers who have not commenced recruitment after receiving a Notice of Acceptance. The determination will remain valid until the OFLC Administrator publishes a new determination on the website.

The OFLC Administrator will consider general information about labor flow trends (e.g., information contained in the agricultural recruitment clearance system) to inform a determination regarding expanded interstate circulation of H-2A job orders. To make a determination regarding labor supply and the positive recruitment needed to reach qualified workers within a State, the OFLC Administrator requests information from the public regarding the availability of qualified workers, and the appropriate, effective means of recruiting those workers. Information that could be helpful to the OFLC Administrator’s determination include, but are not limited to, the following:

The type of qualified workers available (e.g., tomato harvest workers);
The State and area within the State where the workers may be found (e.g., city, county, regional non-metropolitan area);
The methods for apprising the workers of a job opportunity (e.g., local newspaper or periodical, posting with a particular community organization engaged with those workers); and/or
Contact information for the person or entity to be contacted to conduct the recommended recruitment activity.

OFLC is seeking information, and particularly welcomes specific information, on or before Monday, July 31, 2023.

HOW TO SUBMIT INFORMATION: OFLC will only consider electronic submissions to the email box, H2ALaborSupply@dol.gov, for making determinations as to the labor supply States. Any submissions sent through mail or other correspondence will not be accepted.

The OFLC Administrator will make and publish on the OFLC website its determinations after careful review of all information received.

May 26, 2023, OFLC announces case submission for the Form ETA 9089 for PERM in FLAG on June 1, 2023

OFLC previously announced a delay to the date on which it will transition PERM submission and processing to the Foreign Labor Application Gateway (FLAG) and the concurrent implementation of the revised Form ETA 9089. In response to stakeholder requests, OFLC used this delay to work with the Department’s Office of Chief Information Officer to provide filers the option to link prevailing wage determinations to a PERM application where users no longer have access to the FLAG account from which the prevailing wage request was submitted. Information and guidance on how to use this option can be found in the addendum to the Form ETA 9089 User Guide on the PERM program page on FLAG.

As stated in OFLC’s announcement on May 11, 2023, OFLC will not accept applications in the legacy PERM Online system after 6:59 pm EST on May 31, 2023, however, mailed-in applications post-marked on or before May 31, 2023, will be accepted in the legacy system. The PERM module in FLAG will be fully deployed on June 1, 2023. Please Note: The external submission functionality in the PERM Online system is the only part of the system which will be disabled on May 31, 2023, at 6:59 PM EST; the PERM Online system will otherwise remain operational. Users who have pending applications in the legacy PERM Online System can still upload responsive documents to an Audit request or request for information, withdraw applications, request reconsideration or appeal, and use the Help Desk Inquiry system as normal.

May 26, 2023, OFLC announces case technical guidance for case submission of the Form ETA 9089

Filers have been able to use the case creation functionality in the PERM module in the Foreign Labor Access Gateway (FLAG) since April 24, 2023. During the time that functionality has been available, OFLC has received and reviewed numerous help desk inquiries pertaining to the filing of the revised version of Form ETA 9089. As a reminder, OFLC does not provide case-specific guidance on the filing procedures. Each case has its own specific requirements and circumstances. OFLC strongly encourages all applicants to review the PERM regulations, the frequently asked questions (FAQs), and the Instructions to the Form ETA 9089 for general guidance. OFLC will continue to review received Help Desk inquiries and will provide additional guidance in the form of new FAQs. OFLC has identified one question which has been so commonly received we believe it should be addressed prior to the PERM module in FLAG being fully deployed to prevent confusion when filers try to submit PERM applications.

Q: I’m filling out work experience in Appendix A.E - Foreign Worker Work Experience. What should I enter for the 'end date' when the worker is presently working for the employer?
A: You can enter the current month and year for when you’re completing the application. Make sure to select "Yes" to question 1.j. Present.

May 15, 2023. OFLC Releases Public Disclosure Data and Selected Program Statistics for Q2 of Fiscal Year 2023

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

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

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

May 15, 2023. OFLC Releases the H-2B Foreign Labor Recruiter List for Q2 of Fiscal Year 2023

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

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

The H-2B Foreign Labor Recruiter List includes only those names and locations associated with H-2B applications that were processed or issued a final decision during the October 1, 2022 through March 31, 2023.

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.

May 11, 2023. Office of Foreign Labor Certification Postpones Date for Submitting Revised PERM and CW-1 Forms in the Foreign Labor Application Gateway to June 1, 2023

Following up on the announcements of April 21, April 27, May 1, and May 8, 2023, the Office of Foreign Labor Certification (OFLC) is postponing the date for filers to begin submitting the new, revised applications for permanent employment certification and CW-1 applications for temporary employment certification in the Foreign Labor Application Gateway (FLAG) from May 16, 2023, to June 1, 2023. Applicants should continue to use the current PERM and CW-1 forms until such time.

As a result of the transition to the revised version of the form and the transition to FLAG, OFLC will no longer accept any new applications submitted via the legacy PERM Online System after May 31, 2023, at 6:59 pm Eastern Standard Time. OFLC will no longer accept the previous version of Form ETA-9089 or Forms ETA-9141C/9142C, and their related forms, after May 31, 2023, either electronically or submitted by mail.

May 8, 2023. Office of Foreign Labor Certification Posts Unofficial Watermarked Preview Copy of Revised CW-1 Temporary Employment Certification Program's Forms, Appendices, and General Instructions to Allow Stakeholders to Become Familiar with Revisions

The Office of Foreign Labor Certification (OFLC) will begin accepting the revised CW-1 Temporary Employment Certification Program’s forms, appendices and general instructions on May 16, 2023.

In anticipation of the revised Form ETA-9142C, CW-1 Application for Temporary Employment Certification, Form ETA-9141C, Application for Prevailing Wage Determination, general instructions, and associated Appendices A, B, and C, going into effect, OFLC is publishing an unofficial, watermarked preview copy of these documents to permit filers to become familiar with the revised forms and related documents. OFLC is also providing an unofficial version of the Form ETA-9142C, Final Determination, to allow the public to view what they will see upon an application being certified.

IMPORTANT NOTE: The form and appendices located at the hyperlinks below are for informational purposes only. These versions of the forms, instructions and appendices may not be submitted to OFLC at any time; any submission to OFLC using these forms will be rejected. OFLC will post on its Forms page (https://www.dol.gov/agencies/eta/foreign-labor/forms) official, fillable, and 508 compatible PDF versions of the Form ETA-9142C, Form ETA-9141C, their general instructions and Appendices A, B, and C on May 16, 2023, which is the first day the revised forms will be accepted.

May 1, 2023. OFLC Provides Webinar Materials and Information to Stakeholders on the PERM and H-2A Programs

In April 2023, the Office of Foreign Labor Certification (OFLC) conducted three webinars to provide stakeholder updates on: Developments on the new Adverse Effect Wage Rate Rule in the H-2A Program; An update to the new PERM Form ETA-9089; And an update on the modernization of the PERM Program. The presentation materials are now available at the hyperlinks below and under the "Webinars" tabs at the bottom of the respective program pages on our website located here: https://www.dol.gov/agencies/eta/foreign-labor/programs.

Presentation Materials for the H-2A Program New AEWR Rule:

Presentation Materials for the PERM Program: