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Announcements
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
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Meeting number (access code): 2819 732 9475
Meeting password: OFLC2024
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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.
July 26, 2024. The Department of Labor Announces Helpful Filing Tips and Recommendations Webinar for the 2024 H-2A Farmworker Protection Final Rule to be Held on August 7, 2024
On August 7, 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 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 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 7, 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=m58015af37f0bc1748261c4591aabad6b
Join by meeting number:
Meeting number (access code): 2828 285 0217
Meeting password: OFLC2024
Join by phone:
1-877-465-7975 US Toll Free
1-210-795-0506 US Toll
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Dial 28282850217@usdol.webex.com
July 9, 2024. OFLC Publishes List of Randomized H-2B Applications Submitted July 3-5, 2024, for Employers Seeking H-2B Workers Starting October 1, 2024
To keep the public informed regarding the submission and assignment of H-2B applications for review, the Office of Foreign Labor Certification (OFLC) published the Assignment Groups for 2,158 H-2B applications covering 44,238 worker positions with a work start date of October 1, 2024. OFLC completed the randomization process on July 6, 2024 and assigned to National Processing Center analysts all H-2B applications placed in Assignment Group A for issuance of Notices of Deficiency or Acceptance. Group A includes enough worker positions to reach the H-2B semi-annual visa allotment of 33,000. One additional Assignment Group was created for the remaining applications and associated worker positions. Each filing was randomly given a unique number in accordance with OFLC's randomization process and placed into a group for assignment to analysts for review and processing.
On July 9, 2024, OFLC provided written notice to each employer (and the employer's authorized attorney or agent) informing them about the Assignment Group for their application(s).
July 3, 2024. OFLC Announces Updates to H-2A Prevailing Wage Rates in Washington State for Non-Range Occupations; Compliance with District Court Order
On July 2, 2024, the U.S. District Court for the Western District of Washington issued an order in Familias Unidas Por La Justicia v. DOL, et al., No. 24-cv-00637, enjoining the Department of Labor from implementing 20 CFR 655.120(c)(2) (the “One-Year Rule”) for prevailing wages in Washington State, and ordering the Department of Labor to reinstate and enforce the prevailing wage rates for Washington State published on January 24, 2022. Through this notice the Department is reinstating the relevant prevailing wage rates in Washington State, which is included in the link below, and available on the Department’s Agricultural Online Wage Library.
Effective immediately, and until further notice, H-2A job orders seeking temporary labor certification for work to be performed in the State of Washington on or after July 3, 2024, including job orders filed concurrently with an Application for Temporary Employment Certification to the OFLC National Processing Center for emergency situations under 20 CFR 655.134, must use the prevailing wage rate available in the link below if it is the highest applicable wage rate.
Important Reminder: In accordance with 20 CFR 655.120(c)(3), if a prevailing wage for the geographic area and crop activity or agricultural activity and distinct work task(s), if applicable, is adjusted during a work contract, and is higher than the highest of the AEWR, a previous prevailing wage for the geographic area and crop activity or agricultural activity or, if applicable, a distinct work task or tasks performed in that activity, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage, the employer must pay at least that higher prevailing wage upon the Department's notice to the employer of the new prevailing wage.
July 2, 2024. *Update* Employment and Training Administration Publishes Federal Register Notice (FRN) Updating the H-2A Hourly Adverse Effect Wage Rates (AEWR) for Non-Range Occupations Using the Occupational Employment and Statistics Survey (OEWS)
The Employment and Training Administration published an FRN on June 24, 2024 updating the AEWRs under the H-2A temporary agricultural employment program that apply to a limited set of H-2A job opportunities for which the AEWR is determined using the Bureau of Labor Statistics OEWS survey. These changes will go into effect, as stated in the FRN, on July 8, 2024. The Department is also making available a preview of the non-range OEWS-based AEWRs which will go into effect on July 8, 2024.
July 1, 2024. OFLC Publishes Updated Wage Data for the Commonwealth of Northern Mariana Islands
The Office of Foreign Labor Certification (OFLC) received the 2024 Commonwealth of Northern Mariana Islands (CNMI) Prevailing Wage Study survey from the Governor of the CNMI for the CW-1 program. OFLC has approved the 2024 CNMI Prevailing Wage Study survey for 432 occupations and will issue updated CW-1 prevailing wages using this data from July 1, 2024 through June 30, 2025. The updated wage table includes prevailing wage data for a total of 848 occupations.
July 1, 2024. OFLC Issues Technical Release Notes for the Occupational Employment and Wage Statistics Update for the July 2024 through June 2025 Wage Year
The Office of Foreign Labor Certification has published the latest prevailing wage data from the Occupational Employment and Wage Statistics (OEWS) as generated by the Bureau of Labor Statistics for the new wage year from July 2024 through June 2025, effective July 1, 2024. Prevailing wage determinations issued from the National Prevailing Wage Center reflect the 2018 SOC codes.
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