TEGL 21-20.pdf

EMPLOYMENT AND TRAINING ADMINISTRATION

ADVISORY SYSTEM

U.S. DEPARTMENT OF LABOR

Washington, D.C. 20210

CLASSIFICATION

Foreign Labor Certification

CORRESPONDENCE SYMBOL

OFLC

DATE

May 10, 2021

RESCISSIONS:

None

EXPIRATION DATE:

Continuing

ADVISORY: TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 21-20

TO: STATE WORKFORCE AGENCY ADMINISTRATORS

FROM: SUZAN G. LEVINE

Principal Deputy Assistant Secretary

SUBJECT: Fiscal Year (FY) 2021 Foreign Labor Certification Grant Planning Guidance

1. Purpose. To provide guidance to State Workforce Agencies (SWAs) regarding FY 2021 annual grant allocations for foreign labor certification activities.

2. 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 foreign labor certification activities for FY 2021. By June 11, 2021, SWAs must submit their grant applications to the Employment and Training Administration (ETA), Department of

Labor (DOL or Department), unless they are in receipt of an approved written extension from the ETA Office of Foreign Labor Certification (OFLC). ETA requests that SWA

Administrators receiving this guidance share this information within their respective organizations in order to ensure that fiscal and programmatic staff are fully aware of the required FY 2021 foreign labor certification grant application processes and timelines contained in this Training and Employment Guidance Letter (TEGL).

3. Summary and Background.

a. This TEGL provides programmatic guidance and financial information to SWA

Administrators to support state foreign labor certification activities for FY 2021.

b. The mission of ETA’s 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 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.

c. The Consolidated Appropriations Act, 2021 (P.L. 116-260) authorizes $20,282,000 for foreign labor certification state grants, a $6,000,000 increase from the previous year’s appropriation of $14,282,000. In order to maintain an adequate level of base funding for SWAs while ensuring the additional resources appropriated by Congress for FY 2021 are based on more recent actual foreign labor workload factors impacting SWAs, the Department is allocating the appropriated funds in two components: a base allocation and a supplemental allocation. Each SWA’s base allocation is equivalent to its FY 2020 grant award, except where a SWA (1) processed an annual average of less than five total H-2A job orders during the three most recently completed fiscal years; (2) processed an annual average of less than five total H-2B job orders during the three most recently completed fiscal years; and

(3) less than five housing units were identified on H-2A job orders processed by the

SWA during FY 2020. In circumstances where a SWA’s workload met all three of the above factors, the SWA was only allocated $5,000 in base funding to support costs associated with processing this minimal level of foreign labor certification workload and no supplemental funding.

For all other SWAs receiving a supplemental allocation, the amount of funding was determined by each SWA’s proportion of the total number of H-2A and H-2B job orders processed during the three previous fiscal years and each SWA’s proportion of the total housing units identified on H-2A job orders processed during FY 2020.

A more detailed description of these workload factors and the allocation of funding to each SWA is included 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;

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, 2021 (P.L. 116-260).

7. Attachment(s).

Attachment I. Table of Contents

Attachment II. Program Planning Guidance and Information Package

Attachment III. Fiscal Year (FY) 2021 Annual Plan

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 2021 Actual Funding Guidance and Funding Levels

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

CW-1 Fiscal Year (FY) 2021 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 2021 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) 2021 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-2

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-4

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-6

1. Stakeholder Education and Outreach p. III-7

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

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

a. Compliance Review of Job Orders p. III-8

b. Processing of Approved Job Orders p. III-8

c. Referral of Qualified and Available U.S. Workers p. III-9

d. Providing Written Notice of Certain H-2A Job Opportunities p. III-10

4. Conducting Prevailing Wage Surveys p. III-10

5. Conducting Prevailing Practice and Normal/Accepted Requirements Surveys

p. III-11

6. Scheduling and Conducting Housing Inspections p. III-13

7. Post-Determination Services p. III-15

D. Permanent Labor Certification Program p. III-16

E. Grantee Contact Information p. III-16

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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 2021 Actual Funding Levels Attachment VIII Amendment A: Commonwealth of the Northern Mariana Islands (CNMI) CW-1 Fiscal Year (FY) 2021 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 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. These state grants fund services are provided by State Workforce Agencies (SWAs) 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. The

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 in FY 2021.

This TEGL provides SWAs with the necessary guidelines for updating their annual plans and requesting funds in order to carry out their foreign labor certification program responsibilities. The annual plan must reflect foreign labor program activities to be performed between October 1, 2020 and September 30, 2021. While the Department expects 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.

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 should 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 12/31/2022, 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 02/28/2022, 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 and 2 CFR 200.308(c)(1)(vi). 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 FY 2021.

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 for actual funding levels based on the Consolidated Appropriations Act, 2021.

FY 2021 Annual Plan Table of Contents:

Foreign Labor Certification Workload (Attachment III, Section A)

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

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

Permanent Labor Certification Program (Attachment III, Section D)

Grantee Contact Information (Attachment III, Section E)

Annual Plan Certification (Attachment IV)

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

SWA 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-TEGL-21-20. SWAs may find it helpful to review their prior grant application package submissions and revisions to prepare the FY 2021 grant application package.

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http://www.grants.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 following 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 FY 2021 funds. The funding received from the OFLC annual distribution is a cost reimbursable grant provided to the SWAs. Although the Department generally allows states to spend Wagner-Peyser funds over a three-year period of performance, please note that the Department is limiting the expenditure of funds allocated pursuant to this TEGL to a two-year period. As referenced above, the Department expects states to spend the entirety of their allocated funds within the FY 2021 fiscal year based on the plan that they submit pursuant to this TEGL, but the Department will allow states up to two years to expend funds to account for unforeseen circumstances.

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 FY 2021 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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http://www.grants.gov/ 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. Therefore, CNMI may use funding provided under its foreign labor certification program grant to fund activities related to foreign labor certification programs, such as the placement and 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 funds.

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:

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

Fiscal Year 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 http://www.doleta.gov/grants/pdf/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:

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

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

3. Please note, SWAs 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, SWAs 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 may be used for conducting prevailing wage and prevailing practice surveys only.

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_Instruc tions_7369.pdf

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mailto:e-grants.help@dol.gov mailto:FLC.Grant@dol.gov

Fiscal Year 2021 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 PPII-12-200

Washington, D.C. 20210

Attn: H-2A Prevailing Wage Surveys

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mailto:FLC.Grant@dol.gov.

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

If the SWA experiences any technical issues conducting the prevailing wage survey or submitting the 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 any 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 identify a matter that falls within the jurisdiction of DOJ’s IER. The SWA is 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). Information on how to make a written notification on the IER’s charge form is available at www.justice.gov/crt/filing-charge.

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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 http://www.justice.gov/crt/filing-charge

OMB Approval: 1225-0086

Expiration Date: 05/31/2021

Attachment III

FISCAL YEAR (FY) 2021 ANNUAL PLAN

(Please complete all yellow highlighted fields) (Insert Official Name of SWA – not that of an individual)

Hereafter referred to as the “state agency,” has prepared the following plan and statement of assurances for delivering services during FY 2021

(October 1, 2020 through September 30, 2021) to support the administration of foreign labor certification programs in accordance with all applicable regulations, policies, procedures, handbooks, manuals, and other directives.

A. Foreign Labor Certification Workload Category of OFLC Program

Services/Activities FY 2019 FY 2021 FY 2021 Total

Estimated

FY 2021

Workload Workload Workload Workload(1) Actual per ETA

Report

Completed Projected [add previous 2 columns]

A. Number of H-2A agricultural clearance job orders processed and projected to be processed.

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B. Number of H-2A prevailing wage surveys conducted and projected to be conducted.

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C. Number of H-2A prevailing practice surveys conducted and projected to be conducted.

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D. Number of H-2A housing inspections conducted and projected to be conducted.(2)

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E. Number of H-2A range housing inspections conducted and projected to be conducted, as required by 20 CFR

655.230 (if applicable).

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F. Number of written notices provided to organizations providing employment and training services to workers likely to apply for H-2A job opportunities or placed in physical locations where such workers are likely to gather.

G. Number of H-2B job orders processed and projected to be processed.

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H. Number of CW-1 job offers maintained on website (only applicable for CNMI).(3)

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I. Number of Full Time Equivalent

(FTE) staff funded by this grant.

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(1) Workload includes completed OFLC program services/activities provided and services/activities planned for the period between October 1, 2020 and September 30, 2021.

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: Make available in a conspicuous location on the SWA 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 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.

No less frequently than once a year, the SWA 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

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.

In addition, pursuant to the President’s Executive Order on Advancing Racial Equity and

Support for Underserved Communities through the Federal Government, the SWA will make efforts to conduct education and outreach activities with businesses of color and other historically underserved groups.

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.

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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;

OR

☐ 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]

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]

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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 655.181, 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 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 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 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;

The Consolidated Appropriations Act, 2021 prohibits DOL from using FY 2021 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. 116-260, 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.

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– 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 work set forth in 20 CFR 655.40(c));

– Promptly transmit a copy of the approved job order to other

SWAs, 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;

– Where the DOL CO determines 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

– To the extent practicable, 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.

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

The SWA’s public labor exchange services has 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;

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

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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.

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;

In accordance with 29 CFR 503.7, the SWA agrees to refer to the appropriate office of the Wage Hour Division (WHD) 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 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 workers in the United States similarly employed.

III-6

mailto:h2bcomplaints.chicago@dol.gov

In accordance with DOL regulations at 20 CFR 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 using the SWA FLAG

System account. Specifically, the SWA agrees to carry out the following 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-

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 SWA 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 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.

In addition, pursuant to the President’s Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government, the

SWA will make efforts to conduct education and outreach activities with businesses of color and other historically underserved groups.

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 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’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 to 20 CFR

655.121. More specifically, the SWA 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 job orders]

3. Processing of H-2A Job Orders: Upon receipt of the job order using the SWA

FLAG System account, the SWA 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.

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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 SWA will make every effort to review the proposed or draft job order, upon request by the DOL CO, and made available using the SWA FLAG System account.

a. Compliance Review of Job Orders

– The SWA 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 SWA will promptly record the decision using the SWA FLAG

System account and 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, and make a copy of this notification available for the DOL CO’s review using the

SWA FLAG System account;

– The SWA agrees to respond within three calendar days after receipt of the employer’s response, and make a copy of this response available for the DOL CO’s review using the SWA FLAG System account; and

– In circumstances where a timely review of the job order cannot be performed, the SWA 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 SWA or the DOL CO in the NOA under 20 CFR 655.143, the

SWA will (1) promptly record the decision on the job order using the

SWA FLAG System account, and (2) place the approved job order in intrastate clearance per 20 CFR 655.121(b)(2) and commence recruitment of U.S. workers;

– The SWA 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);

III-8

– Where the approved job order includes worksites in an area of intended employment that falls within the jurisdiction of more than one SWA, the SWA agrees to forward a copy of the approved job order to other SWAs 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; and

– Upon receipt of a NOA under 20 CFR 655.143, the SWA 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 SWAs, for intrastate clearance per 20 CFR 655.121(b)(2) 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 SWAs, 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.

Provide written notice of the job opportunity to organizations that provide employment and training services to workers likely to apply for the job and/or to place written notice of the job opportunity in other physical locations where such workers are likely to gather per 20 CFR 655.143(b)(5).

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

– The SWA’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 SWA 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 until

50% of the contact period calculated from the first date indicated in Section

A.3 of Form ETA-790A. Please note that these activities are covered by existing Wagner-Peyser formula grants and not by the…