TEGL 12-21.pdf

EMPLOYMENT AND TRAINING ADMINISTRATION

ADVISORY SYSTEM

U.S. DEPARTMENT OF LABOR

Washington, D.C. 20210

CLASSIFICATION

Foreign Labor Certification

CORRESPONDENCE SYMBOL

OFLC

DATE

June 10, 2022

RESCISSIONS:

None

EXPIRATION DATE:

Continuing

ADVISORY:

TO:

TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 12-21

STATE WORKFORCE AGENCY ADMINISTRATORS

FROM: BRENT PARTON

Acting Assistant Secretary

SUBJECT: Foreign Labor Certification Grant Planning Guidance for Fiscal Years (FYs) 2022 through FY 2024

1. Purpose. To provide guidance to State Workforce Agencies (SWAs) regarding FY 2022 – FY 2024 annual grants for foreign labor certification activities.

2. Action Requested. ETA requests that SWA Administrators receiving this guidance share the information within their respective organizations to ensure that fiscal and programmatic staff are fully aware of the required FY 2022 – FY 2024 foreign labor certification grant application processes and timelines contained in this Training and Employment Guidance Letter (TEGL).

Grant Approval. SWAs will continue to submit their grant applications to the Employment and Training Administration (ETA), Department of Labor (DOL or Department), annually, 30 calendar days from the date of issuance of this programmatic TEGL or 30 calendar days from the date of any subsequent guidance. ETA does not intend to issue a new programmatic TEGL through FY 2024; however, it will issue guidance to announce additional funding allotments as necessary.

SWAs must continue to submit their annual grant applications to ETA, unless they are in receipt of an approved written extension from the ETA Office of Foreign Labor Certification (OFLC).

These applications should be submitted no later than 30 calendar days after the issuance of this programmatic TEGL or subsequent guidance. OFLC will review the grant application package and, generally within 30 calendar days of receipt, inform the SWA in writing of any concerns or deficiencies that may prevent the grant application package from being approved.

3. Summary and Background.

a. Summary – This TEGL provides programmatic guidance and financial information to SWA Administrators to support state foreign labor certification activities for FY 2022 – FY 2024. A change to this TEGL will be issued each year to provide financial information pursuant to the funding levels authorized in the appropriations act for the fiscal year, and changes may also be issued, as appropriate, to implement changes in the law or legal obligations applicable to the activities covered under this grant.

b. Background – ETA’s OFLC must determine, on a case-by-case basis, whether there are able, willing, and qualified U.S. workers available for a job, and whether there will be adverse impact on the wages and working conditions of similarly employed U.S. workers should a labor certification be granted. The Immigration and Nationality Act (INA) assigns certain responsibilities to the Secretary of Labor (Secretary) for employment-based immigration programs. The Secretary has delegated the non-enforcement responsibilities of these labor certification programs to the OFLC. Accordingly, statutory and regulatory provisions of the labor certification programs administered by OFLC require many employers seeking to hire either permanent or temporary foreign labor to apply to the Secretary for a labor certification.

Congress appropriates funding for state foreign labor certification activities through the State Unemployment Insurance and Employment Service Operations (SUIESO) account.

The Consolidated Appropriations Act, 2022 (P.L. 117-103) authorizes $21,282,000 for foreign labor certification state grants, a $1,000,000 increase from the previous year’s appropriation. In order to maintain an adequate level of base funding for SWAs while ensuring the resources appropriated by Congress are distributed based on recent foreign labor workloads, the Department is allocating the appropriated funds in two components:

a base allocation and a supplemental allocation, as further described in Attachment VII.

4. Content. Please see Attachment II for guidance.

5. Inquiries. SWA staff should direct all questions to the OFLC National Office at FLC.Grant@dol.gov.

6. References.

• Immigration and Nationality Act (INA), as amended, 8 U.S.C. 1101(a), 1182(a)(5)(A), 1184(c), and 1188;

• Approval of Covenant to Establish a Commonwealth of the Northern Mariana Islands, 48

U.S.C. 1801, 1806;

• Wagner-Peyser Act, 29 U.S.C. 49f(d);

• U.S. Citizenship and Immigration Services regulations at 8 Code of Federal Regulations

(CFR) Part 214;

• 20 CFR Parts 653, subpart F; 654, subpart E; 655, subparts A, B and E; 656; and 658;

• 2 CFR Part 200 Uniform Administrative Requirements, Cost Principles, and Audit

Requirements for Federal Awards;

mailto:FLC.Grant@dol.gov mailto:FLC.Grant@dol.gov

• 2 CFR Part 2900, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Department of Labor;

• Guide for Employment Service Reimbursable Grant Activities;

• ETA H-2A Program Handbook No. 398, January 1988;

• Training and Employment Guidance Letter (TEGL) No. 04-06, Plans to Phase out

Penalty Mail Costs for “Employment Security” Programs and Availability of Supplemental Budget Funds for Conversion to Commercial Mail Methods; and

• Consolidated Appropriations Act, 2022 (P.L. 117-103)].

7. Attachment(s).

Attachment I. Table of Contents

Attachment II. Program Planning Guidance and Information Package

Attachment III. Fiscal Year (FY) 2022-2024 Annual Plans

Attachment IV. Annual Plan Certification

Attachment V. Procedures for Prior Approval of Equipment Purchase Requests

Attachment VI. Instructions for Completing Budget Narrative

Attachment VII. FY 2022 Funding Guidance and Funding Levels

Attachment VIII. Amendment A: Commonwealth of the Northern Mariana Islands (CNMI)

CW-1 Fiscal Year (FY) 2022 Grant Planning Guidance

Attachment I Table of Contents

Attachment II - Program Planning Guidance and Information Package A. Introduction, p. II-1 B. Grant Procedures, Requirements, and Timeline p. II-1

1. Grant Application p. II-1

2. Grant Submission p. II-2

3. Grant Approval p. II-3

4. Use of FY 2022 Funds p. II-3

5. Grant Signatures p. II-3

6. Grant Modifications p. II-3

C. Grant Reporting Procedures p. II-4

1. Financial Status Report p. II-4

2. Program Activity Report p. II-5

3. Agricultural Prevailing Wage Survey Reports p. II-6

4. Agricultural Employment Practice Survey Reports p. II-7

5. Referrals to Department of Justice, Immigrant and Employee Rights (IER) p. II-7

Attachment III - Fiscal Year (FY) 2022 Annual Plan A. Foreign Labor Certification Workload p. III-1 B. H-2B Temporary Nonagricultural Program Activities p. III-2

1. Stakeholder Education and Outreach p. III-2

2. Placement of H-2B Job Orders p. III-3

3. Processing of H-2B Job Orders p. III-4

a. Compliance Review of Job Orders p. III-4

b. Processing of Approved Job Orders p. III-5

c. Referral of Qualified and Available U.S. Workers p. III-5

4. Post-Determination Services p. III-6 C. H-2A Temporary Agricultural Program Activities p. III-7

1. Stakeholder Education and Outreach p. III-7

2. Placement of Agricultural Clearance Orders attached to applications for H-2A workers p. III-8

3. Processing of Agricultural Clearance Orders attached to applications for H-2A workers p. III-8

a. Compliance Review of Clearance Orders p. III-9

b. Processing of Approved Clearance Orders p. III-9

c. Referral of Qualified and Available U.S. Workers p. III-11

d. Providing Written Notice of Certain H-2A-related Job Opportunities p. III-11

4. Conducting Prevailing Wage Surveys p. III-12

5. Conducting Prevailing Practice and Normal/Accepted Requirements Surveys

p. III-13

6. Scheduling and Conducting Housing Inspections p. III-15

7. Post-Determination Services p. III-17

D. Permanent Labor Certification Program p. III-18 E. Grantee Contact Information p. III-17 to III-18

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Attachment IV - Annual Plan Certification

Attachment V - Procedures for Prior Approval of Equipment Purchase Requests

Attachment VI - Instructions for Completing Budget Narrative

Attachment VII - FY 2022 Funding Guidance and Funding Levels

Attachment VIII Amendment A: Commonwealth of the Northern Mariana Islands (CNMI) CW-1 Fiscal Year (FY) 2022 OFLC Grant Planning Guidance

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Attachment II Program Planning Guidance and Information Package

A. Introduction

The mission of the Employment and Training Administration’s (ETA) Office of Foreign Labor Certification (OFLC) is to determine, on a case-by-case basis, whether there are able, willing, and qualified U.S. workers available for a job, and whether there will be adverse impact on the wages and working conditions of similarly employed U.S. workers should a labor certification be granted. The Immigration and Nationality Act (INA) assigns certain responsibilities to the Secretary of Labor (Secretary) for employment-based immigration programs. The Secretary has delegated the non-enforcement responsibilities of these labor certification programs to OFLC. Accordingly, statutory and regulatory provisions of the labor certification programs administered by OFLC require many employers seeking to hire either permanent or temporary foreign labor to apply to the Secretary for a labor certification.

Congress appropriates funding for state foreign labor certification activities through the State Unemployment Insurance and Employment Service Operations (SUIESO) account. These state grants fund services are provided by State Workforce Agencies (SWA) in support of the foreign labor certification program, including the placement and review of employer job orders, inspection of housing for agricultural workers, and the administration of prevailing wage and practice surveys.

OFLC distributes this grant funding annually in accordance with approved state plans. This Training and Employment Guidance Letter (TEGL) provides programmatic guidance and financial information to SWAs to support state foreign labor certification activities for Fiscal Year (FY) 2022 through FY 2024.

SWAs are required to submit their annual plans 30 calendar days from the issuance of this TEGL or subsequent guidance. The annual plan must reflect foreign labor program activities to be performed between October 1 and September 30 of the applicable fiscal year. The programmatic guidance and financial information in this TEGL also apply to SWAs’ annual plans for FYs 2023 and 2024. Those plans will be due after issuance of guidance announcing the funding allocations for those subsequent fiscal years. While the Department strongly encourages states to spend the entirety of their allocated funds within the fiscal year, the Department understands that unforeseen circumstances may affect fund expenditure and will allow states up to two years to expend all funds allocated for a fiscal year.

B. Grant Procedures, Requirements, and Timeline

In an effort to achieve greater efficiency and as part of ETA’s on-going efforts to streamline the grant award process, grantees are required to submit the application through www.grants.gov.

1. Grant Application. The SWA grant application must be developed in accordance with the instructions contained in this TEGL. The grant application package must be submitted via the www.grants.gov portal and must consist of the following documents:

• Fiscal Year Annual Plan, Expiration Date 07/31/2022, Office of Management and Budget

(OMB) Control No. 1225-0086.

• SF-424: Application for Federal Assistance, Expiration date 1/31/2023, OMB Control No.

4040-0004.

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https://www.grants.gov/ http://www.grants.gov/

• SF-424A: Budget Information, Non-Construction Programs, Expiration Date 02/28/2025, OMB Control No. 4040-0006.

• Justification and supporting documentation for any proposed equipment purchases of $5,000 or more. Prior approval of any equipment purchases exceeding $5,000 and the contracting out of any work must be obtained per 2 CFR 200.439, 2 CFR 200.308(c) and 2 CFR 200.300

(c)(6). Please see the Uniform Administrative Requirements, Cost Principles, and Audit

Requirements for Federal Awards at 2 CFR part 200 and the Department of Labor exceptions to these requirements at 2 CFR part 2900 for additional information about prior approval requirements.

• Indirect Cost Rate Agreement (if applicable): SWAs requesting indirect costs must submit a current copy of the Negotiated Indirect Cost Rate Agreement (NICRA) or Cost Allocation

Plan (CAP) supplied by the Federal Cognizant Agency on file as part of this application.

Note: For any grantee that chooses to include estimated indirect costs in its budget and that either does not have a NICRA/CAP or has a pending NICRA/CAP, the Grant Officer will release funds in the amount of ten percent of salaries and wages to support indirect costs at the time of the award. Within 90 days of award, the grantee must submit an approved NICRA or

CAP to the Grant Officer for modification of the award to allow indirect costs as indicated in the NICRA or CAP.

Important Reminders:

• An electronically submitted SF-424, Application for Federal Assistance through www.grants.gov constitutes the official signed document and must reflect the total amount requested in item #18, Estimated Funding. Item #11 must include the Catalog of Federal

Domestic Assistance Number (CFDA), 17.273. The application/budget must be based on the projected state/territory needs for the fiscal year.

• Full-year funding levels will not be confirmed until the annual plans have been reviewed and full funding for the year is authorized by appropriations legislation. Please use Attachment

VII of this TEGL or subsequent guidance for each fiscal year’s actual funding level.

2. Grant Submission. A completed grant application package must be submitted by the SWA to

ETA using the www.grants.gov portal no later than 30 calendar days from the date of this

TEGL’s issuance or subsequent guidance. The SF-424 must be electronically signed and the completed package must be submitted through www.grants.gov for the Funding Opportunity

Number described in the guidance (in the format ETA-TEGL-12-21). SWAs may find it helpful to review their prior grant application package submissions and revisions to prepare their annual grant application packages.

Starting on April 4, 2022, the DUNS Number will be replaced by a new, non-proprietary identifier requested in and assigned by SAM.gov. This new identifier is being called the Unique

Entity Identifier (UEI), or the Entity ID. Each applicant must have a UEI number available, and it must be registered with the System for Award Management (SAM) at https://www.sam.gov, before submitting an application.

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http://www.grants.gov/ http://www.grants.gov/ http://www.grants.gov/ https://sam.gov/content/home https://www.sam.gov/

To submit the required documents, applicants must follow the “Apply for Grants” link on www.grants.gov and search for the TEGL number or CFDA number to access the grant application workspace. For this grant opportunity, applicants should not follow the “Find Grants” link, as this is not a competitive funding opportunity. If applicants encounter a problem with www.grants.gov and do not find an answer in any of the other resources, please call 1-800- 518-4726 or 606-545-5035 to speak to a Customer Support Representative or email support@grants.gov.

3. Grant Approval. Within 30 calendar days of receipt, OFLC will review the grant application package and inform the SWA, in writing, of any concerns or deficiencies that may prevent the grant application package from being approved.

After verifying that a SWA’s grant application package meets the established criteria in the attachments to this TEGL, the OFLC Administrator will recommend approval to the ETA Grants Officer. After reviewing the SWA grant application package recommended for approval by the OFLC Administrator, the ETA Grant Officer will issue the grant award, including the approved grant application package and a Notice of Acceptance (NOA), to the SWA.

4. Use of Fiscal Year funds. The funding received from the OFLC in response to a SWA’s annual grant application package is a cost reimbursable grant provided to the SWAs. These grants are administered under the SWA’s corresponding FY Wagner-Peyser Annual Funding Agreement, for the period of October 1 through September 30 of the applicable FY. Funds must be used for OFLC activities during this period only. The Department strongly encourages states to spend the entirety of their allocated funds within the fiscal year for which the annual plan applies, but the Department will allow states an additional year to expend funds to account for unforeseen circumstances. A budget modification may be required if funds are not obligated or expended accordingly. SWAs should notify the OFLC Federal Project Officer for assistance.

5. Grant Signatures. The SWA’s authorized representative must electronically sign all signature pages of the grant application. If that individual has changed from the prior year, the SWA must provide an official letter, on state letterhead, with the grant application package identifying the new authorized representative.

6. Grant Modifications. The grantee and the ETA Grant Officer, at the recommendation of the OFLC Administrator, may jointly modify the SWA Annual Plan including negotiated changes in program activities (e.g., review of job orders, wage or prevailing practice surveys, etc.) and funding levels during the grant period of performance. Any grant plan modification request must include a transmittal letter, written narrative of the proposed modification(s), revised annual budget, and quarterly spending plan. In the event that the Secretary is required by future legislation, regulatory action, or court order to carry out responsibilities related to the administration of foreign labor certification programs not currently anticipated, the OFLC Administrator will notify the SWAs and request that they submit appropriate modifications to their approved grant plans directly to the ETA Grant Officer in order to fully carry out their responsibilities based on their existing foreign labor certification grant allocations.

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https://www.grants.gov/web/grants/applicants/apply-for-grants.html http://www.grants.gov/https:/www.grants.gov/web/grants/applicants/apply-for-grants.html mailto:support@grants.gov

C. Grant Reporting Procedures

As a condition of receiving these grant funds, SWAs agree to carry out responsibilities supporting the administration of foreign labor certification programs in accordance with all applicable regulations and guidance, including, but not limited to, 20 CFR parts 655, and 656 and 2 CFR Parts 200 and 2900. Financial and programmatic reporting by SWAs enables OFLC to report key information to Congress and OFLC stakeholders regarding the use of grant funds. Accurate reporting of required financial and program management data provides vital information to support future OFLC funding levels and ensure the appropriate management of grant funds.

OFLC is responsible for monitoring these cost-reimbursable grants. Monitoring activities may include review and recommendation for approval of the grant application package; analysis of expenditure and performance data submitted by grantees; execution of programmatic plan modifications; assessing a grantee’s timely and accurate submission of all required reports; and on-site reviews where needed. ETA will advise SWAs on how to administer the grant in accordance with the approved plan and the terms and conditions of their Wagner-Peyser Annual Grant Funding Agreement. Please note that the Commonwealth of the Northern Mariana Islands (CNMI) is not covered by the Wagner-Peyser Act and therefore not required to conduct Wagner-Peyser funded program activities.

SWAs will report financial and program management information using the following required reports:

1. Financial Status Report. ETA requires all grant recipients to submit the Form ETA-9130, U.S.

DOL Financial Report (OMB Control No. 1205-0461) on a quarterly basis providing detailed expenditure information on the grant award activities. The Form ETA-9130 report is due no later than 45 calendar days after the end of each quarter in the FY and must be submitted online through ETA’s Grantee Reporting System at:

https://www.etareports.doleta.gov/CFDOCS/grantee_prod/reporting/index.cfm.

SWAs can obtain a copy of the Form ETA-9130 at the following Web site:

https://www.dol.gov/sites/dolgov/files/ETA/grants/pdfs/ETA-9130-Basic.pdf.

Fiscal Year 2022 Reporting Months Report Due Date*

1st Quarter October – December February 15

2nd Quarter January – March May 15

3rd Quarter April – June August 15

4th Quarter July – September November 15

*The reporting system is available 24-hours-a-day, including weekends; however, technical support is not available on weekends.

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https://www.etareports.doleta.gov/CFDOCS/grantee_prod/reporting/index.cfm https://www.dol.gov/sites/dolgov/files/ETA/grants/pdfs/ETA-9130-Basic.pdf https://www.dol.gov/sites/dolgov/files/ETA/grants/pdfs/ETA-9130-Basic.pdf

If the SWA experiences any technical issues submitting the report, please contact the e-Grants Helpdesk via e-mail at e-grants.help@dol.gov or by phone at 202-693-2682.

Important Reminders on Allowable Costs:

a. Costs incurred under the grant may only be attributed to activities supporting the direct administration of foreign labor certification programs, as identified under Attachment III of this TEGL

b. Costs may include staff resources, travel expenditures, other direct administrative costs, and indirect/overhead support (where an approved indirect cost plan is in place).

c. SWAs must not spend more than 20% of the OFLC grant funds conducting the prevailing wage and prevailing practice surveys described in 20 CFR Part 653. Wagner-Peyser Employment Service grant funds and Workforce Information Grants to States may also be used for conducting prevailing wage and prevailing practice surveys, if the requirements of those grants have been fully met.

2. Program Activity Report. To account for work performed under the grant, SWAs must submit the Form ETA-9127, Foreign Labor Certification Quarterly Activity Report (OMB Control No.

1205- 0457), on a quarterly basis providing detailed information on H-2A and H-2B program activities.

The data required by the Form ETA-9127 is available to the SWAs as part of their routine processing of requests from employers (SWAs currently maintain this data). The Form ETA- 9127 report is due within two weeks after the end of each quarter during the fiscal year and may be submitted by e-mail directly to OFLC at FLC.Grant@dol.gov. SWAs may find it helpful to review their prior Form ETA-9127 submissions during completion of the grant application package.

OFLC will promptly review the report for completeness and notify the SWA of any inaccuracies or deficiencies requiring correction. SWAs can obtain a copy of the Form ETA-9127 and instructions at the following websites:

Fillable Form:

https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_9127_7369.pdf

Form Instructions:

https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_9127_Instructions_7369.pdf

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mailto:e-grants.help@dol.gov mailto:FLC.Grant@dol.gov https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_9127_7369.pdf https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_9127_7369.pdf https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_9127_Instructions_7369.pdf

Fiscal Years 2022-2024 Reporting Months

Report Due Date*

1st Quarter October – December January 15

2nd Quarter January – March April 15

3rd Quarter April – June July 15

4th Quarter July – September October 15

*If the 15th day falls on a weekend (Saturday or Sunday, or Federal holiday), then the report is due the next business day.

If the SWA experiences any technical issues submitting the report, please contact the OFLC Grants and Finance Team at FLC.Grant@dol.gov.

3. Agricultural Prevailing Wage Survey Reports. Under the Department’s regulations at 20 CFR 655.120, an employer participating in the program is required to offer and pay the highest of several wages, as applicable, namely: the Adverse Effect Wage Rate (AEWR), the prevailing hourly wage or piece rate, the agreed upon collective bargaining wage, or the Federal or state minimum wage, except where a special procedure is approved for an occupation or specific class of agricultural employment. SWAs can collect and provide information to OFLC with respect to whether a prevailing hourly wage or piece rate exists for the crops or other agricultural activity.

These employer wage results are collected through survey instruments designed by the SWA and documented using the following form:

Form ETA-232A, Wage Survey Interview Record (OMB Control No. 1205-0017, Expiration 03/31/2023) https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA-232A.pdf.

Once SWAs tabulate wage results, SWAs transmit them to OFLC as soon as the wage results are completed (based on the SWAs’ wage survey plans) using the following standard form:

Form ETA-232, Domestic Agricultural In-Season Wage Report (OMB Control No. 1205-0017, Expiration 03/31/2023) https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA-232.pdf.

Form ETA-232 may be submitted electronically (recommended) at the dedicated e-mail address:

agwage.surveys@dol.gov.

The forms may also be mailed to the following address:

U.S. Department of Labor Employment and Training Administration Office of Foreign Labor Certification 200 Constitution Avenue, NW, Room N-5311 Washington, D.C. 20210 Attn: H-2A Prevailing Wage Surveys

I -I 6 mailto:FLC.Grant@dol.gov.

https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA-232A.pdf https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA-232.pdf mailto:agwage.surveys@dol.gov

If the SWA experiences technical issues submitting survey results, please e-mail agwage.surveys@dol.gov. SWAs should monitor the Agricultural Online Wage Library on the OFLC website at https://www.foreignlaborcert.doleta.gov/aowl.cfm for the posting of prevailing wages for their state.

4. Agricultural Employment Practice Survey Reports. The Department’s regulations at 20 CFR 655.122(b) require that each job qualification and requirement listed in the employer’s job offer must be bona fide and consistent with the normal and accepted qualifications required by employers that do not use H-2A workers in the same or comparable occupation and crops. In addition, Departmental regulations at 20 CFR 655.122 allow for certain terms of employment, provided that those terms constitute a prevailing practice. In making a determination as to whether a job offer contains normal and accepted qualifications and requirements or whether a term of employment would be considered a prevailing practice, OFLC may rely on any information or data collected through state-conducted surveys. The SWA is responsible for designing the survey instruments to collect the data and once tabulated, transmitting the survey results in summary form to OFLC’s Chicago National Processing Center (CNPC) as soon as the employment practice results are completed. The prevailing practice or normal and accepted requirements survey results may be submitted electronically directly to the CNPC at H2ASWA.Chicago@dol.gov (recommended) or mailed to the following address:

U.S. Department of Labor Employment and Training Administration Office of Foreign Labor Certification Chicago National Processing Center 11 West Quincy Court Chicago, IL 60604-2105 Attn: H-2A Prevailing Practice Surveys

If the SWA experiences technical issues conducting or submitting the employment practice results, please contact the CNPC by e-mail at H2ASWA.Chicago@dol.gov or call 312-886-8000.

SWAs should monitor the Employment Practice Library on the OFLC website at https://www.foreignlaborcert.doleta.gov/aowl_survey_pdf.cfm for the posting of employment practices for their state.

5. Referrals to Department of Justice (DOJ), Immigrant and Employee Rights (IER) section.

SWAs may receive complaints or identify apparent violations regarding matters that fall within the jurisdiction of DOJ’s IER. If that occurs, the SWA must document the complaints or apparent violations using ETA Form 8429, Complaint/Apparent Violation Form. SWAs must process the complaints or apparent violations as described in the Employment Service and Employment- Related Law Complaint System regulations at 20 CFR 658.400 through 419, including documenting the complaint or apparent violation on the complaint system log. SWAs are encouraged to contact IER’s hotline and ask to speak to a referral duty attorney at 1-800-255- 7688 or 1-800-237-2515 (TTY for hearing impaired).

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mailto:agwage.surveys@dol.gov https://www.foreignlaborcert.doleta.gov/aowl.cfm mailto:H2ASWA.Chicago@dol.gov mailto:H2ASWA.Chicago@dol.gov https://www.foreignlaborcert.doleta.gov/aowl_survey_pdf.cfm

OMB Approval: 1225-0086 Expiration Date: 07/31/2022

Attachment III

FISCAL YEAR (FY) 2022 ANNUAL PLAN

(Please complete all yellow highlighted fields)

((Insert Official Name of SWA – not that of an individual)Insert Official Name of SWA – not that of an individual)

Hereafter referred to as the “state agency,” [FILL IN] has prepared the following plan and statement of assurances for delivering services during the FY (October 1 through September 30) to support the administration of foreign labor certification programs in accordance with all applicable statutes, regulations, policies, procedures, handbooks, manuals, and other directives.

A. Foreign Labor Certification Workload

Category of OFLC Program Previous FY 2021 Current FY 2022 Current FY 2022 Total Estimated for Current Services/Activities

FY 2022

(1)Workload Workload Workload Workload

(Actual per ETA (Completed) (Projected) (Add previous 2 9127 Report) columns)

A. Number of agricultural prevailing Click or Click or Click or Click or wage surveys conducted and tap here to tap here tap here tap here to enter text. to enter to enter enter text. projected to be conducted under text. text. section C.4.

B. Number of agricultural prevailing Click or Click or Click or Click or practice surveys conducted and tap here to tap here tap here tap here to enter text. to enter to enter enter text. projected to be conducted under text. text. section C.5.

C. Number of CW-1 job offers Click or Click or Click or Click or maintained on website (only tap here to tap here tap here tap here to enter text. to enter to enter enter text. applicable for CNMI).

text. text.

D. Number of H-2A and H-2B related Click or Click or Click or Click or stakeholder outreach events under tap here to tap here tap here tap here to enter text. to enter to enter enter text. sections B.1 and C.1.

text text.

E. Number of stakeholders reached by Click or Click or Click or Click or H-2A and H-2B related outreach tap here to tap here tap here tap here to enter text. to enter to enter enter text events conducted under sections B.1 text text and C.1.

F. Number of Full Time Equivalent Click or Click or Click or Click or (FTE) staff funded by this grant. tap here to tap here tap here tap here to enter text to enter to enter enter text.

text text

(1) Workload includes completed OFLC program services/activities provided, and services/activities planned for the period between October 1st and September 30th of each fiscal year. For completion of this chart, SWAs should refer to data from SWA job order systems and Form ETA 9127 submissions.

(2) Data provided for reporting items should exclude range housing units inspected under 20 CFR 655.230, H-2A Herder Rule for the Temporary Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States.

(3) Workload includes the tracking of CNMI labor exchange website recruitment reports uploaded by employers in accordance with the governing provision of the CNMI Interim Final Rule, codified at 20 CFR 655.442.

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B. H-2B Temporary Nonagricultural Program Activities

Section 214(c)(1) of the Immigration and Nationality Act, 8 U.S.C. 1184(c)(1) requires the Secretary of Homeland Security to make H-2B visa determinations in specific cases “after consultation with appropriate agencies of the Government, upon petition of the importing employer.” Under Department of Homeland Security (DHS) regulations at 8 CFR 214.2(h)(6)(iii)(C), an H-2B petition for temporary employment must be accompanied by an approved temporary labor certification from DOL, which serves as DOL’s advice to DHS regarding whether a qualified U.S. worker is available to fill the petitioning H-2B employer’s job opportunity and whether a foreign worker’s employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers. In accordance with regulations at 20 CFR part 655, Subpart A, the SWA agrees to carry out all state activities to support DOL’s review and processing of job orders and applications seeking temporary labor certification under the H-2B program. Specifically, the SWA agrees to carry out the following state activities:

1. Stakeholder Education and Outreach: As part of a comprehensive education and outreach plan, the SWA should make available in a conspicuous location on the state agency website the following resources, such as:

• Information on how employers can participate in the H-2B program, for example, easy-to-understand instructions on how to prepare and submit a job order; a copy of the SWA job order form that is accessible and can be completed electronically; and current contact information within the SWA for employers to request technical assistance.

• Worker rights information developed by the SWA or as provided below that covers at minimum the following information:

o Employee Rights Under the H-2B Program Poster (PDF);

o Spanish Version Poster (PDF);

o H-2B Worker Rights and COVID-19 (PDF);

o Spanish Version Poster (PDF).

• Information educating employers about the responsibilities associated with the use of foreign labor recruiters and ban on prohibited fees.

The SWA agrees to maintain an up-to-date listing of contacts associated with the central office of the State Federation of Labor and office(s) of local union(s) representing employees in occupations traditionally or customarily unionized, if any, and make the list readily available to employers.

No less frequently than once a year, the SWA will electronically disseminate to employers who routinely use the H-2B program information about their obligations to fully comply with relevant employment-related laws, particularly those that relate to the working conditions and health and safety of employees, and the consequences for failing to do so; information on any relevant state-specific and local employment-related laws, including health and safety laws and requirements impacting the material terms or conditions of employer job orders; helpful tips or best practices on preparing high quality job orders; and the most current version of the state agency’s job order form and instructions. In addition, the SWA will also :

• Remind and educate employers about their obligations to fully comply with Title VII of the Civil Rights Act of 1964, which makes it illegal to discriminate against someone or harass someone on the basis of race, color, religion, national origin or sex, and makes employers accountable for providing a work environment that is free from harassment and other kinds of discrimination.

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https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/H2B-eng.pdf https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/H2B-span.pdf https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID.pdf https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID_SPA.pdf

OR

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Where requested and funds permitting, the SWA will participate in local or state employer roundtables, conferences or other stakeholder forums to present and/or disseminate information related to the H-2B program.

2. Placement of H-2B Job Orders: In accordance with funds appropriated under the Wagner- Peyser Act (29 U.S.C. 49 et seq.), the SWA already administers a public labor exchange system that facilitates the placement of employer job orders and referral of prospective U.S.

applicants to current and future job opportunities.

The SWA labor exchange system, which is referred to as [insert Labor Exchange System name here], is accessible to employers required to place a job order in connection with a concurrently filed H-2B Application for Temporary Employment Certification with DOL, pursuant to 20 CFR 655.16. The SWA has capability for employers to place job orders for review in the following manner:

Please check all that apply:

☐ Self-services by accessing the SWA’s labor exchange system:

[Insert state labor exchange system website link here]

☐ Staff-assisted job order services by submitting a draft job order at:

[Insert SWA contact information including email address where employers can submit H-2B job orders]

Please check one of the following:

☐ The SWA’s job order form and/or system DOES contain an entry field or option permitting employers to identify that the job order is being placed in connection with a concurrently submitted Application for Temporary Employment Certification for H-2B workers;

☐ The SWA’s job order form and/or system DOES NOT contain an entry field or option permitting employers to identify that the job order is being placed in connection with a concurrently submitted Application for Temporary Employment Certification for H-2B workers. Therefore, employers can provide the notification required by regulation at 20 CFR 655.16(a)(1) to the SWA in the following manner:

[Insert a brief description of how and to whom employers can provide the state agency with the required notification]

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Please check all that apply:

☐ The SWA has submitted with this grant plan a current electronic copy of the form and general instructions employers are required to use to submit job orders.

☐ The standard job order form and general instructions are easily accessible to employers on a website maintained by the SWA at:

[Insert state agency website link here]

3. Processing of H-2B Job Orders: Upon receipt, the SWA will review the job order submitted by the employer for compliance with the regulatory criteria under 20 CFR 655.18,1 as well as any state-specific requirements. In circumstances where a waiver of the required time period for filing an Application for Temporary Labor Certification is granted under 20 CFR 655.17 for emergency situations, the SWA will review the proposed or draft job order, upon request by the DOL Certifying Officer (CO) and made available through the OFLC Foreign Labor Application Gateway (FLAG) System.

a. Compliance Review of Job Orders

• Using an authorized SWA FLAG System account, the SWA will notify the DOL CO of any deficiencies within six business days of the date the employer’s job order was received;

• For each deficiency identified, the SWA will state the reason(s) why the job order fails to meet the criteria under 20 CFR 655.18;

• For each deficiency identified related to a state-specific requirement, the SWA will provide the applicable statutory or regulatory citation(s) and state the modification(s) needed for the DOL CO to issue a Notice of Acceptance (NOA);

and

• In circumstances where a timely review of the job order by the SWA cannot be performed, the state agency understands that the DOL CO has the authority to

1 The Consolidated Appropriations Act, 2022 prohibits DOL from using FY 2022 appropriations to enforce the definition of corresponding employment found in 20 CFR 655.5 or the three-fourths guarantee rule definition found in 20 CFR 655.20, or any reference thereto (P.L. 117-103, Div. H, Tit. I, Sec.

111). In order to comply with this limitation, the state agency will not use any funds provided under this grant to implement these provisions in any manner. The state agency understands that the appropriation riders did not vacate these regulatory provisions, and they remain in effect, thus imposing a legal duty on H-2B employers, even though the DOL is currently prohibited from using funds to enforce them.

issue a Notice of Deficiency (20 CFR 655.31) or a Notice of Acceptance (20 CFR 655.33) within seven business days of receipt.

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b. Processing of Approved Job Orders

• Upon receipt of a NOA under 20 CFR 655.33, the SWA will perform the following actions when instructed by the DOL CO:

– Promptly make, on behalf of the employer, any necessary modifications to the job order under 20 CFR 655.32 or amendments granted by the DOL CO under 20 CFR 655.35 and uploads the modified documents through the SWA FLAG System account;

– Promptly place on its active file the job order approved by the DOL CO, as well as job orders received from other SWAs pursuant to 20 CFR 655.16(c), for intrastate clearance until the end of the recruitment period, as specified by the DOL CO (i.e., 21 days before the start date of need set forth in 20 CFR 655.40(c));

– Promptly transmit a copy of the approved job order to other SWAs for interstate clearance, as instructed by the DOL CO, with instructions that each SWA keep the approved job order on its active file until the end of the recruitment period;

– Based on the SWA’s determination that the employer’s job opportunity covers an occupation or industry that is traditionally or customarily unionized, promptly transmit a copy of the approved job order to the central office of the State Federation of Labor and any local union office(s) representing employees in the same or substantially equivalent job classification in the area(s) in which work will be performed under the approved job order; and

– The SWA agrees to maintain an up-to-date listing of contacts associated with the central office of the State Federation of Labor and office(s) of local union(s) representing employees in occupations traditionally or customarily unionized, if any.

c. Referral of Qualified and Available U.S. Workers

• The SWA’s public labor exchange services have the capability, whether by self-service or staff-assisted services, to apprise prospective U.S. workers of all the material terms and conditions of the employer’s job opportunity prior to referral, as required by 20 CFR 655.47;

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• The SWA will use its public labor exchange services (i.e., self-service job bank system and/or one-stop career centers) to refer to the employer all qualified U.S.

workers who apply for the job opportunity or on whose behalf a job application is made. Please note that these activities will be covered by existing Wagner-Peyser formula grants and not by the foreign labor certification grants that are the subject of this TEGL;

• Upon request by the DOL CO, the SWA will make available records of U.S. workers referred through an approved job order to assist the DOL CO in making a final determination on the employer’s Application for Temporary Employment Certification, as specified in 20 CFR 655.50, using the SWA FLAG System account; and

• For complaints against an employer about a specific H-2B job order to which U.S.

workers were referred, the SWA agrees to utilize the existing complaint system for public labor exchange services established under 20 CFR 658, Subpart E. Please note that these activities will be covered by existing Wagner-Peyser formula grants and not by the foreign labor certification grants that are the subject of this TEGL.

U.S. workers may submit a complaint using one or more of the following methods:

Website: [Insert the website URL where a complaint can be filed online, if applicable]

Email: [Insert the email address where a complaint can be filed online, if applicable]

Telephone: [Insert the toll-free phone number where a complaint can be filed online, if applicable]

Other Method(s):

[Insert a brief description of any other methods U.S. workers can submit complaints for review and processing by the SWA, if applicable]

4. Post-Determination Services: The SWA agrees to provide support services to the DOL CO after a final determination is issued under 20 CFR 655.50 in the following manner:

• In accordance with 20 CFR 655.57 and upon request by the DOL CO, the SWA agrees to promptly provide information concerning the availability of U.S. workers to replace some or all of the qualified U.S. workers who were initially deemed available in support of a partial certification or denial determination on the employer’s Application for Temporary Employment Certification using the SWA FLAG System account;

• For complaints involving allegation of fraud or misrepresentation, the SWA agrees to refer all such complaints to the DOL CO at H2BSWA.Chicago@dol.gov for appropriate handling and resolution;

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• In accordance with 29 CFR 503.7 and 29 CFR 503.15, the SWA agrees to refer to the appropriate office of the Wage and Hour Division any complaint or report of a violation received by any person of the obligations imposed by 8 U.S.C. 1184(c), INA section 214(c), 20 CFR part 655, Subpart A, or 29 CFR part 503 covering the geographic area in which the reported violation is alleged to have occurred, and provide a copy of such referral to the DOL CO at h2bcomplaints.chicago@dol.gov; and

• The SWA agrees to cooperate and make available all appropriate records and information upon request from any employee or agent of the DOL who is exercising or attempting to exercise the Department’s authority pursuant to 8 U.S.C. 1184(c), including investigations as described in 29 CFR 503.25.

C. H-2A Temporary Agricultural Program Activities

Section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), authorizes the Secretary of Homeland Security to permit employers to employ foreign workers to perform agricultural labor or services of a temporary or seasonal nature where the DOL certifies that there are not sufficient qualified U.S. workers available to fill the petitioning employer’s job opportunity and a foreign worker’s employment in the job opportunity will not adversely affect the wages or working conditions of workers in the United States similarly employed. In accordance with DOL regulations at 20 CFR 655 Subpart B, the SWA agrees to carry out all state activities to support DOL’s review and processing of job orders and applications seeking temporary labor certification under the H-2A program. The SWA will use the FLAG System to submit clearance orders to OFLC. Specifically, the SWA agrees to carry out the following activities:

1. Stakeholder Education and Outreach: As part of comprehensive education and outreach plan, the SWA will make available in a conspicuous location on the state agency website the following:

• Information on how employers may attach H-2A applications to Agricultural Clearance Orders through the Agricultural Recruitment System for U.S. workers, such as easy-to-understand instructions on how to prepare and submit the Form ETA-790 Agricultural and Food Processing Clearance Order, request a pre-occupancy inspection of housing for farmworkers (if applicable), and the current contact information for employers to request technical assistance from the state agency.

• Worker rights information created by the SWA or as provided below that covers at minimum the following information:

o Employee Rights Under the H-2A Program English Version (PDF);

o Employee Rights Under the H-2A Program Spanish Version (PDF);

o H-2A Worker Rights Card - English Version (PDF);

o H-2A Worker Rights Card - Spanish Version (PDF);

o Farm Worker Rights Flyer – English & Spanish Version (PDF);

mailto:H2BSWA.Chicago@dol.gov mailto:h2bcomplaints.chicago@dol.gov https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WHD1491Eng_H2A.pdf https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WHD1491Span_H2A.pdf https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/H2AEnglish.pdf https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/H2ASpanish.pdf https://www.dol.gov/sites/dolgov/files/WHD/publications/Farm_Worker_Rights_Flyer.pdf

• Information educating employers about the responsibilities associated with the use of foreign labor recruiters and ban on prohibited fees.

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No less frequently than once a year, the SWA will electronically disseminate to employers who routinely use the H-2A program information about their obligations to fully comply with relevant employment-related laws, particularly those that relate to the working conditions and health and safety of employees, and the consequences for failing to do so; if applicable, information on any relevant state-specific requirements (e.g., current prevailing practices or normal and accepted requirements) and local employment-related laws, including health and safety laws impacting the material terms or conditions of employer job orders; and helpful tips or best practices on preparing high quality job orders.

In addition, the SWA will:

• Remind and educate employers about their obligations to fully comply with Title VII of the Civil Rights Act of 1964, which makes it illegal to discriminate against someone or harass someone on the basis of race, color, religion, national origin or sex, and makes employers accountable for providing a work environment that is free from harassment and other kinds of discrimination.

Where requested and funds permitting, the SWA will participate in local or state employer roundtables, conferences or other stakeholder forums to present and/or disseminate information related to the H-2A program.

2. Placement of Clearance Orders Attached to H-2A Applications: In accordance with funds appropriated under the Wagner-Peyser Act (29 U.S.C. 49 et seq.), the SWA already administers a public labor exchange system that facilitates the placement of employer job orders and referral of prospective U.S. applicants to current and future job opportunities.

The SWA fully utilizes the Department’s FLAG System to process the Agriculture Clearance Order (Form ETA-790/790A) filed by employers in connection with a future filed H-2A Application for Temporary Employment Certification (Form ETA-9142A) with DOL, pursuant to 20 CFR 655.121.

3. Processing of Clearance Orders Attached to H-2A Applications:…