TEGL_15-17.pdf

CLASSIFICATION

EMPLOYMENT AND TRAINING ADMINISTRATION Foreign Labor Certification

ADVISORY SYSTEM CORRESPONDENCE SYMBOL

U.S. DEPARTMENT OF LABOR OFLC

Washington, D.C. 20210 DATE

ADVISORY:

TO:

FROM:

SUBJECT:

April 25, 2018

TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 15-17

STA TE WORKFORCE AGENCY ADMINISTRATORS

ROSEMARY LAHASKY Y\- / L /'

Deputy Assistant Secretary , v r

Fiscal Year (FY) 2018 Foreign Labor Certification (FLC) Grant Planning Guidance

1. Purpose. To provide guidance for the funding and management of the FY 2018 annual grant allocations in order to perform FLC program activities.

2. References.

• Immigration and Nationality Act (INA), as amended, 8 U.S.C. 1 l0l(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 ;

• 48 U.S.C. 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 and B, and 658;

• 2 CFR 200 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; Final Rule;

• 2 CFR 2900, Uniform Administrative Requirements; Cost Principles, and Audit

Requirements for Federal Awards, Department of Labor; Final Rule;

• Guide for Employment Service Reimbursable Grant Activities;

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

• 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.

3. Background. The mission of the Employment and Training Administration (ETA)'s Office of Foreign Labor Certification (OFLC) is to help U.S. employers fill jobs while protecting U.S. and foreign workers. OFLC carries out this mission by determining, on a case-by-case basis, whether there are able, willing, and qualified U.S. workers available for the job and whether there will be

RESCISSIONS

None

EXPIRATION DATE

Continuing any adverse impact on similarly-employed U.S. workers should a labor certification be granted.

The 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 nearly all employers seeking to hire either permanent or temporary foreign labor to apply to the Secretary for a labor certification.

Congress appropriates funding for OFLC Federal Administration and related State foreign labor certification activities through the State Unemployment Insurance and Employment Service Operations (SUIESO) account. The Federal Administration activ ity funds federa l program functions, including salaries and expenses, IT development and maintenance, contract services to support case adjudications, rent, and overhead costs. The State Grants activity funds services provided by State Workforce Agencies (SWAs) in support of the foreign labor certification program, including the placement 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 TEGL provides programmatic guidance and financial information to SW As to support state foreign labor certification activities in FY 2018.

4. Action Requested. SWA Administrators are requested to immediately provide copies of this guidance to all staff involved in the preparation and submission of the annual grant plan for FLC program activities for FY 2018. Within 30 calendar days from the date of this TEGL's issuance, SW As must submit their grant app lications to ETA unless they are in receipt of an approved written extension from the OFLC National Office. We request that Administrators receiving this guidance share this information within their respective organizations in order to ensure that fiscal and programmatic public workforce system members are fully aware of the required FY 2018 FLC grant application processes and timelines.

5. Inquiries. SW A staff should direct a ll questions to the OFLC National Office at FLC.Grant@dol. gov.

6. Attachments.

Attachment l - Table of Contents Attachment 2 - Program Planning Gu idance and Information Package Attachment 3 - Fiscal Year (FY) 2018 Annual Plan Attachment 4 - Ann ual Plan Certification Attachment 5 - Instructions for Completing the Budget Narrative Attachment 6 - FY 2017 Funding Leve ls

Attachment 1 Table of Contents

Attachment 2 - Program Planning Guidance and Information Package A. Introduction, p. 1 B. Grant Procedures, Requirements, and Timeline p. 1

1. Grant App li cation p. 1

2. Grant Submission p. 2

3. Grant Approval p. 3

4. Use ofFY18 funds p. 3

5. Grant Signatures p. 3

6. Grant Modifications p. 3

C. Grant Reporting Procedures p. 4 I. Financial Status Report p. 4

2. Program Activity Report p. 5

3. Agricultural Prevail ing Wage Survey Reports p. 6

4. Agricultural Employment Practice Survey Reports p. 7

Attachment 3 - Fiscal Year (FY) 2018 Annual Plan A. Foreign Labor Certification Workload p.1 B. H-2B Temporary Nonagricultural Program Activities p. 2

l. Stakeholder Education and Outreach p. 2

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

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

a. Compliance Review of Job Orders p . 4

b. Processing of Approved Job Orders p. 4

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

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

1. Stakeholder Education and Outreach p. 6

2. Placement of H-2A Job Orders p. 7

3. Processing of H-2A Job Orders p. 7

a. Compliance Review of Job Orders p. 7

b. Processing of Approved Job Orders p. 8

c. Referral of Qualified and Available U.S. Workers p. 8

4. Conducting Prevailing Wage Surveys p. 9

5. Conducting Prevailing Practice and Normal/Accepted Requirements Surveys p. 10

6. Scheduling and Conducting Housing Inspections p. 12

7. Post-Determination Services p. 13

D. Permanent Labor Certification Program p. 14 E. Grantee Contact Information p. 14

Attachment 4 - Annual Plan Certification Attachment 5 - Instructions for Completing the Budget Narrative Attachment 6 - FY 2017 Funding Levels

Attachment 2 Program Planning Guidance and Information Package

A. Introduction

The mission of the Office of Foreign Labor Certification (OFLC) of the Employment and Training Administration is to help US. employers fill jobs while protecting US. and foreign workers. OFLC carries out this mission by determining, on a case-by-case basis, whether there are able, willing, and qualified U.S. workers avai lable for the job and whether there will be any adverse impact on 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 nearly all employers seeking to hire either permanent or temporary foreign labor to apply to the Secretary for a labor certification.

Congress appropriates fund ing for OFLC Federal Administration and related State foreign labor certification activities through the State Unemployment Insurance and Employment Service Operations (SUIESO) account. The Federal Administration activity funds federal program functions, including salaries and expenses, IT development and maintenance, contract services to support case adjudications, rent, and overhead costs . The State Grants activity funds services provided by State Workforce Agencies (SWAs) in support of the foreign labor ce1tification program, including the placement of employer job orders, inspection of housing for agricultural workers, and the administration of prevailing wage and practice surveys. The OFLC distributes this grant funding annually in accordance with approved state plans. This TEGL provides programmatic guidance and financia l information to SW As to support state foreign labor certification activ ities in FY 2018.

This Training and Employment Guidance Letter (TEGL) provides SW As with the necessary guidelines for updating their annual plans and requesting funds in order to carry out their foreign labor certifi cation program responsibilities . The annual plan must show activity to be performed between October 1, 2017 and September 30, 2018.

B. Grant Procedures, Requirements, and Timeline

In an effo1t to achieve greater efficiency and as part of the Employment and Training Administration ' s (ETA) on-going effort to streamline the grant award process, grantees are required to submit the application through Grants.gov at 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 should consist of the following documents:

• Fiscal Year Annual Plan, Expiration Date 05/31/2019, Office of Management and Budget (0MB) Control No. 1225-0086

• SF-424: Application for Federal Assistance, Expiration date 10/31/2019, 0MB Control No.

4040-0004;

• SF-424A: Budget Information -Non-Construction Programs, Expiration Date 01/31 /2019, 0MB Control No. 4040-0006; and

• Indirect Cost Rate Agreement (if applicable): SW As 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 and 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 Notes:

• An electronically submitted SF-424, Application for Federal Assistance through

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 a period of the Fiscal Year 2018.

• Full-year fundin g 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 5 to this TEGL as guidance for estimated funding.

• FY 2018 Annual Plan Table of Contents

• Foreign Labor Certification Workload (Attachment 2, Section A)

• H-2B Program Activities (Attachment 2, Section B)

• H-2A Program Activities (Attachment 2, Section C)

• Permanent Labor Certification Program (Attachment 2, Section D)

• Grantee Contact Information (Attachment 2, Section E)

• Annual Plan Certification (Attachment 3)

2. Grant Submission. A completed grant application package must be submitted by the SW A to ETA using the www.grants.gov portal within 30 calendar days following the date of issuance of the planning guidance . The SF-424 should be electronically signed and the completed package should be submitted through www.grants.gov for the Funding Opportunity Number ETA-FLC- TEGL-15-17- FY2018 [CFDA # 17.273]. SWAs may find it helpful to review their prior grant application package submissions and revisions for completion of the FY2018 grant application package.

To submit the required documents, applicants must follow the "Apply for Grants" link on Grants .gov, and search for the TEGL number or CFDA number to access the grant application workspace. For this grant opportunity, applicants should not fol low the "Find Grants" link, as this is not a competitive funding opportunity.

If applicants encounter a problem with Grants.gov and do not find an answer in any of the other resources, call 1-800-518-4 726 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 SW A, in writing, of any concerns or deficiencies that may prevent the grant application package from being approved. ETA will determine the amount of funding to be awarded based on several factors, including the amount requested in the grant application, the amount received and obligated in previous years, and any amount returned to ETA in previous years. Additionally, ETA will attempt to ensure that funding remains relatively stable across years. The amount distributed will depend on the amount of resources available to

ETA.

After determining the amount to be awarded and verifying the grant application package meets the established criteria, the OFLC Administrator will recommend approval to the ETA Grants Officer. After reviewing the approved grant application package from the OFLC Administrator, the ETA Grant Officer will issue the grant award , including the approved grant application package and a Notice of Acceptance, to the SW A.

4. Use ofFY18 funds. The funding received from the OFLC annual distribution is a cost reimbursable grant provided to the SW As. Although Wagner-Peyser allows three years to spend funds, please note when spending these funds they are for a specific period of performance based on the TEGL. It is permissible to use Wagner-Peyser funds until OFLC funds allocated.

Though the period of performance for current FY 2018 grants ends Sep tern ber 30, 2018, ET A OFLC will continue to measure performance on a 12 month program year. The extra quarter in the period of performance will allow grantees the flexibility to absorb minor fluctuations in spending within the three-year cycle without the need to request extensions from year to year.

Grantees must continue to file a Federal Financial Report Form ETA-9130 each quarter for PY 2018 funds until those funds are fully expended or the end of the grant's period of performance is reached.

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, you 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 FY 2018 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 a court order to carry out responsibilities related to the admin istration of Foreign Labor Certification programs not currently anticipated, the OFLC Administrator will notify the SW As 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.

C. Grant Reporting Procedures

As a condition of receiving these grant funds , SW As agree to carry out responsibilities supporting the administration of foreign labor certification programs in accordance with all applicab le regulations and gu idance, including but not limited to 20 CFR parts 655 and 656 and 2 CFR Parts 200 and 2900. Financial and programmatic reporting by SW As enab les 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 SW As 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 hence is not required to conduct Wagner-Peyser funded program activities. Therefore, CNMI may use funding provided under its foreign labor certification program grant to fund activities related to the foreign labor certification program, such as the review of H-2A or H-2B job orders or conducting referrals of qualified U.S. workers that other grantees are required to fund with Wagner-Peyser fund s.

SW As w ill 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 (0MB Control No. 1205-0461) on a quarterly basis providing detailed expenditure information on the grant award activities. The Form ETA-9130 repo1i is due no later than 45 calendar days after the end of each quarter left in the fiscal year and must be submitted online through ETA ' s Grantee Reporting System at https://www.etareports.doleta.gov/CFDOCS/grantee prod/reporting/index.cfm .

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

http ://www.doleta.gov/grants/pdf/ET A-9130-Basic.pdf.

Fiscal Year Reporting Report

Months Due Date*

1st Quatier October-December ~ bruary 14

2nd Quatier January - March May 15

3rd Quarter April - June ugust 14

4th Quarter July- September November 14

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

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

Important Notes on Allowable Costs :

• Costs incurred under the grant may only be attributed to activities supporting the direct administration of foreign labor certification programs; and

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

• Please note, states must not spend more than 20% of the OFLC grant funds conducting prevailing wage and prevailing practice surveys and performing field checks or visits in accordance with 20 CFR Part 653. If additional funding is needed, states may use other Wagner-Peyser funds if available. Employment Service grants may be used for conducting prevailing wage and prevailing practice surveys and performing field checks or visits in accordance with 20 CFR Part 653;

Workforce Information Grants to States may be used for conducting prevailing wage and prevailing practice surveys only.

2. Program Activity Report. To account for work performed under the grant, SW As must submit the Form ETA-9127, Foreign Labor Certification Quarterly Activity Report (0MB Control No. 1205-0457, Expiration 10/3 1/2018) 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 SW As as part of their routine processing of requests from employers (SW As 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 . SW As may find it helpful to revi ew 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. You can obtain a copy of the Form ETA- 9127 and instructions at the following Web site:

Fillable Form:

https ://www.foreignlaborcert.doleta.gov/pdf/9l271nstructions Final.pdf

Form Instructions:

https://www.foreignlaborcert.doleta.gov/pdf/ lnstructions Form 9127.pdf

Fiscal Year 2018 Reporting Report

Months Due Date*

1st Quarter October - December January I 5, 2018

2nd Quarter January - March If\ ril 15 , 2018

3rd Quarter April - June July 15 , 2018

4th Quarter July - September October I 5, 2018

* 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 SW A experiences any technical issues submitting the report please contact the OFLC Grants/Finance Team at FLC.Grant@dol.gov or 202-513-7350.

3. Agricultural Prevailing Wage Survey Repotis. Under the Department' s regulations at 20 CFR 655.120, an employer participating in the program is generally required to offer and pay the highest of several wages, 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.

SW As can collect and provide information to OFLC with respect to whether a prevailing hourly wage or piece rate exists for the occupation or crop in the area of intended employment. These employer wage results are collected through survey instruments designed by the SW A and transmitted to OFLC as soon as the wage results are completed (based on the SW A's wage survey plan) using the following standard form s:

Form ETA-232, Domestic Agricultural In-Season Wage Rep ort (0MB Control No. 1205- 0017, Expiration 1/31/2020) https://www.foreignlaborcert .do leta.gov/pdf/in season.pd[

Form ETA-232A, Wage Survey Interview Record (0MB Control No. 1205-0017, Expiration 0 l /31/2020) https ://www.foreignlaborcert.do leta.gov/pdf/ETA %20232A %20Form%20Final fillable2 .pdf

Form 232/232A 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 PPII-12-200 Washington, D.C. 20210 Attn: H-2A Prevailing Wage Surveys

If the SWA experiences any technical issues conducting the prevailing wage survey or submitting the results , please e-mail agwage.surveys@dol.gov. SW As 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 regulations 20 CFR

655. l 22(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, Department regulations allow for ce1iain 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 for transmitting the survey results in summary form to the Chicago National Processing Center (CNPC) as soon as the employment practice results are completed. Absent employment practice survey results , the SW A will be required to conduct ad hoc surveys. The prevailing, normal , or common practice survey results may be submitted electronically directly to the CNPC at H2ASW A.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 SW A experiences any technical issues conducting or submitting the employment practice results , please contact the CNPC by e-mail at H2ASWA.Chicago(a)dol.gov or call 312-886-8000.

SW As 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.

0MB Approval : 1225-0086 Expiration Date: 05/3 1 /20 I 9

Attachment 3

FISCAL YEAR (FY) 2018 ANNUAL PLAN

(Please complete all yellow highlighted fields)

(Insert OfJJs;ial Name o[SWA - not that of an individual) hereafter referred to as the "State Agency", has prepared the fo llowing plan and statement of assurances for de livering services during FY 201 8 (October 1, 201 7 through September 30, 2018) to support the admini stration of fore ign labor certification (FLC) programs in accordance with a ll applicable regulations, pol icies, procedures, handbooks, manuals, and other directives.

A. Foreign Labor Certification Workload

Total Category of OFLC Program

FY 2017 FY 2018 FY 2018 Estimated Services/ Activities

FY 2018

Workload Workload Workload Workload<1)

Actual per ETA 9127 Co mpleted Projected add previous 2

Re port co lumns

A. N umber ofH-2A agricultural c learance job orders processed and projected to be processed.

B. N umber ofH-2A prevaili ng wage surveys conducted and projected to be conducted.

C. N umber ofH-2A prevai ling practice surveys conducted and proj ected to be conducted.

D. N umber ofH-2A housing inspections cond ucted and projected to be conducted.<2)

E. Number ofH-2A range hous ing inspections conducted and projected to be conducted, as required by 20 CFR 655.230 (if applicable).

F. N umber of H-2B job orders processed and projected to be processed.

G. N umber of Fu ll Time Equiva lent (FTE) staff funded by this grant.

(1) Workload includes completed OFLC program services/activities provided and services/activities planned.for the period between October 1, 2016 and September 30, 2018. 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, l-J-2A Herder Rule for the Temporary Employment of J-J-2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States

B. H-2B Temporary Nonagricultural Program Activities

Section 214(c)(l) of the INA, 8 U.S.C. 1184(c)(1), requires the Secretary of Homeland Security to consult with "appropriate agencies of the government" before authorizing the classification of aliens as H-2B workers. 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 the Department of Labor (DOL), which serves as DOL' s advice to DHS regarding whether a qualified U.S. worker is available to fi ll 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 Subpai1 A, the State Agency agrees to carry out a ll state activities to support DO L's review and processing of job orders and applications seeking temporary labor certification under the H-2B program. Specifically, the State Agency agrees to carry out the following state activities:

1. Stakeholder Education and Outreach: Make available in a conspicuous location on the State Agency website information on how employers can participate in the H-2B program, such as easy-to-understand instructions on how to prepare and submit a job order; a copy of the State Agency job order form that is accessible and can be completed electronically; and current contact information within the State Agency for employers to request technical assistance.

No less frequently than once a year, the State Agency will electronically disseminate to employers who routinely use the H-2B program helpful tips or best practices on preparing high quality job orders, information on any state-specific requirements impacting the material terms or conditions of employer job orders, and the most current version of the State Agency's job order form and instructions. Where requested and funds permitting, the State Agency 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 State Agency already admin isters 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 oppotiunities.

The State Agency's 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 20 CFR 655.16. The State Agency has a capability for employers to place job orders for review in the following manner:

Please check all that apply:

D Self-services by accessing the State Agency's labor exchange system:

(Insert State labor exchange svstem website link here/

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

(Insert State Agencv contact information including email address where emplovers can submit H-2B iob orders/

Please check one of the following:

D The State Agency' 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;

OR

D The State Agency' 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 regulatory required notification to the State Agency in the following manner:

(Insert a brief description of how and to whom emplovers can provide the State Agencv with the required notification!

Please check all that apply:

D The State Agency 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.

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

(Insert State Agencv website link here/

3. Processing of H-2B Job Orders: Upon receipt, the State Agency 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 State Agency will make every effort to review the proposed or draft job order, upon request by the DOL Certifying Officer.

a. Compliance Review of Job Orders

• The State Agency will notify the DOL Certifying Officer (CO) of any deficiencies within six business days of the date the employer's job order was received;

• For each deficiency identified, the State Agency will state the reason(s) why the job order fails to meet the criteria under 20 CFR 655. l 8;

• For each deficiency identified related to a state-specific requirement, the State Agency 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; and

• In circumstances where a timely review of the job by the State Agency order cannot be performed, the State Agency understands that the DOL CO has the authority to issue a Notice of Deficiency (20 CFR 655.31) or Acceptance (20 CFR 655 .33) within seven business days of receipt.

b. Processing of Approved Job Orders

• Upon receipt of a Notice of Acceptance under 20 CFR 655.33 , the State Agency 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;

Promptly place on its active file the job order approved by the DOL CO, as

1 The Department of Labor Appropriations Act, 2016, Division H, Title I of Public Law 114-113 ("2016 DOL Appropriations Act ''.) , provided that the DOL may not use any funds 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 ref erence thereto. This limitation is continued in FY2018 Further Continuing and Security Assistance Act (2018 Continuing Resolution), Public Law 114-254. Therefore, in order to comply with the 2018 Continuing Resolution, 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 2016 DOL Appropriations Act and 2018 Continuing Resolution 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 prohibitedf,-om usingfunds to enforce them.

well as job orders received from other State Workforce Agencies (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 work set forth in 20 CFR 655.40(c));

Promptly transmit a copy of the approved job order to other SW As, as instructed by the DOL CO, with instructions that each SW A keep the approved job order on its active file until the end of the recruitment period;

Where the DOL CO determines the employer's job oppo1tunity 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 of 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

To the extent practicable, the State Agency agrees to maintain an up-to-date li sting 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 unioni zed.

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

• The State Agency's public labor exchange services has the capability, whether by self-serv ice or staff-assisted serv ices, 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;

• The State Agency will use its public labor exchange services (i.e. , se lf-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 FLC grants that are the subject of this TEGL;

• Upon request by the DOL CO, the State Agency will make available records of U.S. workers referred against an approved job order to ass ist the DOL CO in making a final determination on the employer ' s Application for Temporary Employment Certification, as specified in 20 CFR 655.50; and

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

workers were referred , the State Agency 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 ex isting Wagner-Peyser formula grants and not by the FLC grants that are the subject of this TEGL.

4. Post-Determination Services: The State Agency 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 State Agency 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;

• In accordance with 29 CFR 503.7, the State Agency agrees to refer to the appropriate office of the Wage Hour Division any complaint or report of a vio lation rece ived by any person ofthe 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.ch icago@dol.gov; and

• The State Agency agrees to cooperate and make available a ll appropriate records and information upon request from any employee or agent of the DOL who is exercising or attempting to exercise the Depatiment's authority pursuant to 8 U.S.C. l 184(c), including investigations as described in 29 CFR 503.25.

C. H-2A Temporary Agricultural Program Activities

Section 218(a)(l) of the INA, 8 U.S.C. 1188, authorizes the Secretary of Homeland Security to permit employers to import 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 H-2A employer's job opportunity and a foreign worker's employment in the job opportunity will not adversely affect the wages or working conditions of similarly employed U.S. workers.

In accordance with DOL regulations at 20 CFR Subpart B, the State Agency agrees to carry out all state activities to support DO L' s review and processing of job orders and applications seeking temporary labor cetiification under the H-2A program. Specifically, the State Agency agrees to carry out the following state activities:

1. Stakeholder Education and Outreach: Make avai lable in a conspicuous location on the State Agency website information on how employers can participate in the H-2A program, 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 current contact information within the State Agency for employers to request technical assistance.

No less frequently than once a year, the State Agency will electronically disseminate to employers who routinely use the H-2A program helpful tips or best practices on preparing high quality job orders and, if applicable, information on any state-specific requirements (e.g., current prevailing practices or normal and accepted requirements) impacting the material terms or conditions of employer job orders. Where requested and funds permitting, the State Agency 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 H-2A Job Orders: In accordance with funds appropriated under the Wagner-Peyser Act (29 U.S.C. 49 et seq.), the State Agency 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 State Agency's labor exchange system is publicly accessible and possesses the capability for employers to submit the Form ETA-790 and all supporting documentation in connection with a future filed H-2A Application for Temporary Employment Certification (Form ETA-9142A) with DOL, pursuant 20 CFR 655.121. More specifically, the State Agency requires that employers submit the Form ETA-790 for review in the following manner:

{Insert State Agency contact information including email address where employers can submit H-2A iob orders[

3. Processing of H-2A Job Orders: Upon receipt, the State Agency will review the job order submitted by the employer for completeness, obvious errors or inaccuracies, and compliance with the regulatory criteria under 20 CFR 655.122 and 20 CFR 653 , subpart F. In circumstances where a waiver of the required time period for filing an H-2A Application is granted under 20 CFR 655.134 for emergency situations, the State Agency will make every effort to review the proposed or draft job order, upon request by the DOL Ce1iifying Officer.

a. Compliance Review of Job Orders

• The State Agency will notify the employer of any deficiencies within seven calendar days of the date the employer's job order was received;

• In circumstances where deficiencies are identified, the State Agency will provide written notification to the employer stating the reason(s) why the job order fails to meet the regulatory criteria and offering an opportunity to respond to the deficiencies within five calendar days after receipt of the State Agency's written notification;

• The State Agency agrees to respond within three calendar days after receipt of the employer's response; and

• In circumstances where a timely review of the job order cannot be performed, the State Agency understands that the employer is permitted to use the emergency filing procedures for filing an H-2A application set forth in 20 CFR 655.134.

b. Processing of Approved Job Orders

• Upon determining the job order meets the regulatory criteria, whether by the State Agency or the DOL CO in the NOA under 20 CFR 655.143, the State Agency will promptly (l) provide written notification (preferably using email) to the employer and, if applicable, the employer's authorized representative and include the State Agency's Job Order Number (if available), and (2) place the approved job order in intrastate clearance and commence recruitment of U.S. workers;

• The State Agency agrees to keep the approved job order on its active file until the end of the recruitment period (i.e., 50 percent of the period of employment), as set forth in 20 CFR 655.135(d);

• Where the approved job order includes worksites in an area of intended employment that falls within the jurisdiction of more than one SW A, the State Agency agrees to forward a copy of the approved job order to other SW As serving the area of intended employment with instructions to place a copy of the approved job order on its active file until the end of the recruitment period;

• Upon receipt of a NOA under 20 CFR 655.143 , the State Agency will perform the following actions when instructed by the DOL CO:

In the case of emergency situations, promptly place on its active file the job order approved by the DOL CO, as well as job orders received from other SW As, for intrastate clearance until the end of the recruitment period, as set forth in 20 CFR 655.135(d); and

Promptly transmit a copy of the approved job order to other SW As, as instructed by the DOL CO, with instructions that each SWA keep the approved job order on its active file under the end of the recruitment period.

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

• The State Agency' s public labor exchange services has the capability 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 655.155;

• The State Agency will use its public labor exchange services (i.e., one-stop career center system) 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 are covered by existing Wagner-Peyser formula grants and not by the FLC grants that are the subject of this TEGL; and

• Upon request by the DOL CO, the State Agency will make available records of U.S. workers referred against 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 .160.

4. Conducting Prevailing Wage Surveys: This section of the grant plan identifies the schedule of the agricu ltural prevailing wage surveys (includ ing logging activities) the State Agency plans to conduct during the performance period of the grant, including anticipated survey timeframes by area (e.g. , statewide, regional) , crops or other agricu ltural activities/commodities, survey means ( e.g., field survey, te lephone survey) and approximately when wage results are expected to be transmitted to the OFLC National Office (via the Forms ETA-232) for review.

• To the extent practicable, the State Agency has prioritized its limited resources on conducting wage surveys in the major crops or other agricu ltural activities/commodities where seasonal H-2A workers are regularly employed and , where practicable, at a broader wage reporting area (e.g. , statewide) that will yield statisticall y valid wage findings from year to year, particularly those agricu ltural activities paying workers on a piece rate basis;

• In circumstances where substantial dissimilarities in crop or related conditions exists in different parts of the state, the State Agency may use sub-state reporting areas for conducting prevailing wage surveys; and

• The State Agency agrees to submit all completed and signed Form ETA-232/232A prevailing wage survey findings to the DOL OFLC National Office in accordance with instructions contained in this TEGL.

[SWA schedule ofwa e surveys inserted here and, (f necessary, include attachments]

Survey Survey Areas Crops/ Agricul tural Survey Means Survey Timeframes (e.g., Commodities (e .g., fi e ld Transmiss ion statewide, survey, T imeframe to regional) telephone) OFLC

5. Conducting Prevailing Practice and Normal/Accepted Requirements Surveys: This section of the grant p lan identifies the schedu le of the agricultural prevai ling practice and normal and accepted requirement surveys (including logging activities) the State Agency plans to conduct during the performance period of the grant in accordance with ETA Handbook No. 398, including antic ipated survey timeframes by area (e.g., statewide, regional) and crops or other agricu ltural activities/commodities, and approximately when employment practice results are expected to be transmitted to the OFLC CNPC) for review.

The State Agency agrees to submit all completed prevailing practice and normal and accepted requirement surveys promptly to the DOL OFLC CNPC in accordance with instructions contained in thi s TEGL.

[SWA schedule of employment practice surveys inserted here and, if necessary, include attachments]

If this is the same as provided above, please indicate "Same survey schedule", without completing this table.

Survey Survey Areas Crops/ Agricultural Survey Means Survey Timeframes (e.g., Commodities ( e.g. , field Transmission statewide, survey, Timeframe to regional) telephone) OFLC

6. Scheduling and Conducting Housing Inspections:

• Employer-Provided Housing. In accordance with 20 CFR 655.122(d)(])(i) , the State Agency agrees to schedule and conduct pre-occupancy inspections of housing to be furnished to U.S . and H-2A workers who are not reasonably able to return to their place of residence the same day. Employer-provided housing must meet the full set of DOL Occupational Safety and Health Administration (OSHA) standards set forth at 29 CFR 1910.142, or the full set of standards at 20 CFR 654.404 through 654.417, whichever are applicable under 20 CFR 654.401. Requests by employers whose housing does not meet the applicable standards for conditional access to the interstate clearance system, will be processed under the procedures set forth at 20 CFR

654.402. Special requirements for range housing are provided below;

• Rental and/or Public Accommodations.

D The State Agency DOES NOT have jurisdiction to inspect rental and/or pub! ic accommodation housing.

D The State Agency DOES have jurisdiction under a state or local law/regulation to perform an inspection of rental and/or public accommodation housing.

[Insert citation of state or local law/regulation and the criteria under which the inspections o(rental or public accommodation housing will be performed/

• Range Housing. If applicable, the State Agency agrees to schedule and conduct inspections of range housing and certify that such housing used on the range is sufficient to accommodate the number of certified workers and meets the requirements under 20 CFR 655.230 and all applicable standards contained in 20

CFR 655 .235;

• The State Agency agrees to develop and maintain a plan to schedule housing inspections prior to filing of job order for employers who regularly use the…