Foreign Labor Certification

December 16, 2020. OFLC Announces H-2B Application Filing Timelines for 2021 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, 2021, or later, will open on January 1, 2021, at 12:00 a.m. Eastern Time.

Following OFLC’s standard operating procedures, H-2B applications requesting an April 1, 2021, work start date will be denied if they are filed before January 1, 2021, 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, 2021, that are filed during the initial three calendar days (January 1-3, 2021) using the randomization procedures published in the Federal Register on March 4, 2019. Each day, from January 2, 2021 through January 4, 2021, 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, 2020. The Department of Labor Publishes New 2021 H-2A Monthly Adverse Effect Wage Rate (AEWR) for Herding or Production of Livestock on the Range

The Department of Labor (DOL) has published a notice in the Federal Register announcing the new AEWR for herding or production of livestock on the range for the H-2A Program. The AEWR is the minimum wage rate DOL has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment, so that the wages of similarly employed U.S. workers will not be adversely affected. The notice announces the new national monthly AEWR for herding or production of livestock on the range.

• View the Federal Register notice announcing the 2021 AEWR for herding or production of livestock on the range.
• View the AEWR page for the new rate for herding or production of livestock on the range for 2021.
   

December 10, 2020. OFLC Provides H-2B Webinar Materials and Information to Stakeholders for the 2021 Peak Filing Season

On December 9, 2020, 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, 2021, 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 at the hyperlink below.

• View the H-2B FY 2020 Best Practices Presentation

IMPORTANT REMINDER: Employers are reminded that they 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 review and process only the application that is 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.

Any necessary corrections or amendments should be made to the first application filed. For further information on requesting a correction or amendment of an H-2B application before a final determination is issued, please refer to H-2B Frequently Asked Questions Round 11, regardless of any H-2B visa cap administered by USCIS.

December 3, 2020. OFLC Announces Updates to Implementation of the Wage Protections Interim Final Rule; Compliance with District Court Orders

On December 1, 2020, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331, finding that the U.S. Department of Labor (the Department) failed to show it had good cause to forgo advance notice and comment under the Administrative Procedure Act for the Interim Final Rule (IFR), Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 85 FR 63872 (Oct. 8, 2020).  The court’s order sets aside the IFR, which took effect on October 8, 2020 and implemented reforms to the prevailing wage methodology for the Permanent Employment Certification, H-1B, H-1B1, and E-3 visa programs.  Similarly, on December 3, 2020, the U.S. District Court for the District of New Jersey issued a preliminary injunction in ITServe Alliance, Inc., et al. v. Scalia, et al., No. 20-cv-14604, applying to the plaintiffs in that case.

The Department is taking necessary steps to comply with the courts’ orders, including making required technical changes to the Foreign Labor Application Gateway (FLAG) system, in a manner that minimizes service disruptions for customers and OFLC staff.  Specifically, the Department must make changes to the FLAG system modules to replace the 10/8/2020-6/30/2021 wage source year data that was implemented under the IFR with the OES prevailing wage data that was in effect on October 7, 2020.  To reduce the risk of unintended system problems or errors while this occurs, employers and their authorized attorneys or agents may experience a brief delay in their ability to use the FLAG system to submit new Labor Condition Applications for Nonimmigrant Workers (LCAs), Form ETA-9035/9035E, and receive determinations on Applications for Prevailing Wage Determination, Form ETA-9141, where the Occupational Employment Statistics (OES) survey data is the prevailing wage source. 

Implementation Timeframe for Technical Changes to FLC Online Data Center

• The OES prevailing wage data for each SOC and area of intended employment that was in effect on October 7, 2020 (i.e., data for 7/1/2020-10/7/2020) has remained publicly accessible at https://www.flcdatacenter.com/. 
• To limit any confusion for stakeholders, beginning at approximately 12:00PM (Noon) Eastern Time on December 4, 2020, this data source will be updated at https://www.flcdatacenter.com/ to reflect the correct prevailing wage data for each SOC and area of intended employment through June 30, 2021.

Implementation Timeframe for Filing LCAs

• All Form ETA-9035/9035Es submitted using the FLAG system through 5:59AM Eastern Time on December 4, 2020, where the OES survey data is the prevailing wage source, will continue to be processed and issued a final determination without delay.
• Beginning around 6:00AM Eastern Time on December 4, 2020, the FLAG system will be temporarily unavailable to deploy necessary code changes to temporarily disable the OES prevailing wage calculator, which uses the 10/8/2020-6/30/2021 wage source year data to prepare Form ETA-9035/9035Es.
• Around 8:30AM Eastern Time on December 4, 2020, the FLAG system will be back online; however, employers and their authorized attorneys or agents will temporarily not be able to submit applications for processing where OES survey data is the prevailing wage source.
• Beginning around 8:30AM Eastern Time on December 9, 2020, employers and their authorized attorneys or agents will be able to submit new LCAs, Form ETA-9035/9035E, using the OES survey data that was in effect on October 7, 2020. 

Implementation Timeframe for Processing Prevailing Wage Determinations

• OFLC’s National Prevailing Wage Center (NPWC) has temporarily paused processing pending Form ETA-9141s for use in filing LCA and PERM applications.  However, employers and their authorized attorneys or agents may continue to file new requests for a prevailing wage determination at any time. 
• Beginning around 8:30AM Eastern Time on December 15, 2020, OFLC’s NPWC will resume processing all pending and new Form ETA-9141s for use in filing LCA and PERM applications, and will use the OES survey data that was in effect on October 7, 2020 for prevailing wage determinations where the OES survey data is the prevailing wage source. 

Opportunity to Request NPWC Review of a PWD Issued Under the IFR

Any employer desiring review of a PWD issued using the 10/8/2020-6/30/2021 wage source year data that was implemented under the IFR may make a request for review by the NPWC Director under 20 CFR 656.41 on or before January 4, 2021, and the Director will consider such request timely under 20 CFR 656.41(a).

Please use one of the following methods to submit a timely request for NPWC Director review:

November 23, 2020. OFLC Announces Webinar on December 9, 2020, to Update Stakeholders on the Process for Filing H-2B Applications With a Start Date of April 1, 2021, 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 for filing applications with a start date of need of April 1, 2021, or later;
• Procedures OFLC uses to randomly select H-2B applications for review and processing; and
• Actions the Department is taking to prepare the Foreign Labor Application Gateway (FLAG) System to support the submission of applications beginning January 1, 2021.

Details of the webinars are as follows:

Date: December 9, 2020
Start Time: 2:30 EST
Link: https://usdol.webex.com/usdol/j.php?MTID=m7935686fca176037f113697ee0501664
Meeting password: hfGmm4EkT36
Call-in information: *Due to the size of the call, please use the following toll-free number for audio:

• Conference Number: 800-779-2595
• Participant Passcode: 7995398

Please note: Webinars are limited to 1,000 participants.