Recovery Act WOTC certification processing

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2010/TEGL3-09c2acc.pdf

CLASSIFICATION
      EMPLOYMENT AND TRAINING ADMINISTRATION
                                                    WOTC
                  ADVISORY SYSTEM                   CORRESPONDENCE SYMBOL
             U.S. DEPARTMENT OF LABOR
                                                    OWI
                Washington, D.C. 20210              DATE
                                                    March 5, 2010


TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 3-09 Change 2

TO:           ALL STATE WORKFORCE AGENCIES
              ALL STATE WORKFORCE LIAISONS
              ALL REGIONAL WOTC COORDINATORS

FROM:         JANE OATES /s/
              Assistant Secretary

SUBJECT:      Final Guidance to State Workforce Agencies (SWAs) and Employers for
              the Implementation of the Two American Recovery and Reinvestment Act
              (ARRA) of 2009 Work Opportunity Tax Credit (WOTC) Target Groups
              Requirements

1. Purpose. The purpose of this advisory is to inform the SWAs about a change in
   guidance jointly reached by the Employment and Training Administration (ETA)
   and the Internal Revenue Service (IRS). ETA and IRS have jointly agreed to a
   number of processing changes that will allow the states to accept and process all
   ARRA certification requests submitted between January 1, 2009 and October 17,
   2009, and beyond October 17, provided certain conditions are met.

2. References. The American Recovery and Reinvestment Act (Recovery Act) of 2009
   (Public Law 111-5); Internal Revenue Code (IRC) of 1986, Section 51, as amended;
   Paperwork Reduction Act of 1995; Notice 2009-28, 2009-24 I.R.B. 1082, dated June 15,
   2009; Notice 2009-69, dated August 31, 2009; the Small Business and Work
   Opportunity Tax Credit Act of 2007 (Public Law 110-28); the Tax Relief and Health
   Care Act of 2006 (Public Law 109-432); Training and Employment Guidance Letter
   (TEGL) 3-09 Change 1, dated October 7, 2009, Extension to All State Workforce
   Agencies (SWAs) and Employers for the Uninterrupted Use of 2008 Work
   Opportunity Tax Credit (WOTC) Processing Forms; TEGL 3-09, dated September 1,
   2009, Information and Guidance on the Two New Work Opportunity Tax Credit
   (WOTC) Targeted Groups Introduced by the American Recovery and Reinvestment

RESCISSIONS                                       EXPIRATION DATE
None                                              Continuing

                                           -2-


   Act of 2009; TEGL No. 11-08, dated February 19, 2009, Extension of the Information
   Collection for the Consolidated Work Opportunity Tax Credit Program: Revised
   Reporting and Processing Forms; TEGL No. 11-08, Change 1, Extension Period
   Granted to the State Workforce Agencies and Employers for the Uninterrupted Use
   of All 2007 and 2008 Work Opportunity Tax Credit (WOTC) Program Processing
   Forms; ETA Handbook No. 408, November 2002, Third Edition (the Handbook); and
   the updated August 2009 Addendum to the Handbook (Addendum, OMB No. 1205-
   0371).

3. Background. Following the release of TEGLs 03-09 and 03-09 Change 1, ETA and
   IRS received numerous inquiries for clarification on: 1) the use of the June 2007 or
   May 2009 version of the IRS Form 8850 for certification requests submitted prior to
   October 17, 2009; 2) the information that must be contained in youth self-attestation
   forms; and 3) whether states can accept employer created self-attestation forms that
   were submitted prior to October 17, 2009. The questions and concerns submitted to
   ETA and IRS involve the workload and logistical challenges of resubmitting an
   August 2009 IRS Form 8850 and the numerous versions of youth self-attestation
   forms (SAFs) created by the states.

4. New Guidance. To address the current challenges faced by the SWAs in processing
   all ARRA certification requests for the two new WOTC groups filed by
   employers/consultants, ETA announces the following changes:

   A. Use of IRS Form 8850

   Under our authority to determine procedures for administering the WOTC Program,
   and following communications with IRS, ETA has determined that timely
   submission of either the June 2007 or 2009 version of IRS Form 8850 satisfies the
   requirement to submit a Form 8850 with the request for certification. Accordingly,
   SWAs are to accept and process immediately, all certification requests submitted by
   employers or their consultants for the two new ARRA groups using either the June
   2007 or May 2009 OMB approved versions of IRS Form 8850 that were submitted
   between January 1, 2009, and October 17, 2009. Either version of IRS Form 8850
   must be accompanied by a November 2008 ETA Form 9061.

   B. Self-Attestation Documentation Requirements

   ETA clarifies that the only information required for the youth self-attestation form is
   that which ensures that the individual meets the legislative requirements in IRC
   Section 51(d)(14)(B)(ii)(II) - not regularly attending any secondary, technical or post-
   secondary school during the 6-month period preceding the hiring date; and Section
   51(d)(14)(B)(ii)(IV) - not readily employable by reason of lacking a sufficient number
   of basic skills. Additional information, including employment or education history;

                                        -3-


names of previous employers or educational institution; wages; and date of birth for
individuals older than 24, are not required by this legislation, the IRS Code or ETA.

To facilitate timely certifications for the disadvantaged youth category, ETA is now
issuing a national Youth Self-Attestation Form (SAF), which is attached to this
TEGL. This attestation meets the legislative requirements while incorporating the
IRS definitions for Disadvantaged Youth categories II., and IV., described above and
in IRS Notice 2009-28 and Notice 2009-69. The national Youth Self-Attestation Form
will reduce burden: 1) for states which were required to create their own attestation
forms; 2) for multi-state employers who will not have to manage multiple state
forms; and 3) for individuals, as the Attestation will require only the necessary
information that states need to verify eligibility under the above two statutory
provisions.

No later than 90 days after issuance of this TEGL, ETA requires employers and
states to use only this national Youth Self-Attestation Form and cease use of any
previously created state forms for all newly filed requests for certifications. After 90
days, the national Youth Self-Attestation Form is required for all newly filed
Disconnected Youth certification requests. Certification requests submitted before
that date that contain youth self-attestations that meet the legislative requirements
outlined above may be certified without the new hire filling out the national Self-
Attestation Form. However, ETA encourages states and employers to begin using
the national Youth Self-Attestation Form for new requests for certification, in lieu of
previously created state attestation forms, as soon as possible as the national Youth
Self-Attestation Form contains only the information necessary to meet both
legislative and IRS requirements.

Note: States should instruct employers to submit the national Youth Self-Attestation
Form at the same time as the ETA Form 9061 and IRS Form 8850 for each
certification request for the Disconnected Youth target group.

C. Employer/Consultant Created Self-Attestation Forms

TEGL 03-09 Change 1, dated October 7, 2009, required SWAs to send out a Needs
Notice and a Youth Self-Attestation Form to all employers/consultants that
submitted certification requests for new hires under the Disconnected Youth group.
It has come to ETA’s attention that, after the Recovery Act passed, some employers
and employer consultants created youth self-attestation forms, based on the
legislative requirements, in order to meet the filing deadlines. ETA’s goals for the
WOTC program are to have expeditious processing of certification requests
submitted for the two ARRA target groups; to avoid or reduce backlogs; and to
prevent additional burden for SWAs or employers. Therefore, ETA examined
possible ways to improve the efficiency of processing and reduce burden on the

                                       -4-


SWAs and employers. ETA believes it is in the interest of administrative efficiency
to accept the previously submitted employer-created self-attestations so long as they
meet the legislative requirements outlined above in Section B of this TEGL.

Therefore, ETA would like to clarify that states have the authority to and should
accept employer created SAFs for previously submitted ARRA applications. For
those applications already submitted, states should only reject the employer
generated SAFs if they determine the SAFs do not provide the information necessary
to verify the two statutory provisions requiring self-attestation for the Disconnected
Youth group. States should note ETA is aware that the National Employment
Opportunity Network (NEON), a group of consultants which represents the
interests of those employers they work for in regards to the WOTC, created two
youth self-attestation forms: 1) the first youth self-attestation form was used by
NEON members (consultants) and their employers and was submitted to SWAs
with their requests for certification for the ARRA Disconnected Youth group before
release of IRS Notices 2009-28 and 2009-69, and 2) the second form was created and
used after the release of these IRS Notices. ETA’s opinion is that the NEON-created
forms satisfy the legislative requirements. If there are other employer- or employer
consultant-created forms that provide sufficient information to satisfy the legislative
requirements as detailed in Section B of this TEGL, and if so, they should be
accepted as well.

This clarification eliminates the need for the SWAs to undertake additional
processing of previously submitted certification requests because it removes the
requirement to send out Needs Notices for those applications that were submitted
with an employer-created self-attestation form that meets the legislative
requirements.

This clarification is only intended to reduce the burden for the already submitted
requests for certifications. ETA and IRS issued guidance about the definitions of the
legislative terms and believe that the clarifications on self-attestation requirements
contained in Section B of this TEGL and the attached national Youth Self-Attestation
Form will result in a more comprehensive self-attestation documentary form for
individuals, employers, and SWAs. Therefore, for requests for certification filed
after the end of the 90 day period after the issuance of this TEGL, the employer-
created SAFs must no longer be accepted by the SWAs and will be replaced by the
national Youth Self-Attestation Form attached to this TEGL. Please note that until
the 90-day period is up, states should continue to accept and process applications
that contain employer- or consultant-created self-attestation forms that meet the
statutory requirements in Section B of this TEGL.

Note: As stated in TEGL 03-09 Change 1, OMB’s approval includes permission for
the SWAs to continue to accept the November 2008 Forms 9061 and 9062 through

                                           -5-


   October 17, 2009 only. This Change 2 does not alter or extend that date. As stated
   above, states can process these previously submitted forms when accompanied by a
   state-, employer-, or employer consultant-created SAF as detailed above. SWAs do
   not have to go back and require use of the national Youth Self-Attestation Form
   retroactively.

   D. Guidance for Employer-ARRA Certification Requests Filed after October 17,
      2009

   Consistent with the guidance in the Change 1 to TEGL 3-09, all certification requests
   submitted after October 17, 2009, must be filed by using only the OMB-approved
   August 2009, IRS Form 8850 in conjunction with either an OMB-approved August
   2009 ETA Form 9061 or 9062 with the November 30, 2011 expiration date.

   However, the IRS has also indicated that employers may continue to file the June
   2007, OMB-approved IRS 8850 so long as the certification request is for any of the
   target groups listed on that form and not for the new ARRA target groups.

5. Reporting Authority. Recovery Act reporting, program administration and
   processing forms and all other program-related materials are approved according to
   the Paperwork Reduction Act of 1995, under OMB No. 1205-0371, and all are dated
   August 2009. This authority is effective through November 30, 2011. SWAs are to
   report all program workload processing data using the August 2009, ETA Form 9058
   beginning with the first quarter of Fiscal Year 2010, which closed on December 31,
   2009.

6. Paperwork Reduction Act (PRA) Notice. According to the PRA, no persons are
   required to respond to a collection of information unless such collection displays a
   valid OMB control number. The Department notes that a Federal agency may not
   conduct or sponsor a collection of information, nor is the public required to respond
   to a collection of information unless it is approved by OMB under the PRA, and
   displays a currently valid OMB control number (44 U.S.C. 3507). Also,
   notwithstanding any other provisions of law, no person shall be subject to penalty
   for failing to comply with a collection of information if the collection of information
   does not display a currently valid OMB control number (44 U.S.C. 3512). The
   currently valid OMB Control Number for this collection is OMB 1205-0371.

   Please note that while self-attestation requirements are mandated by the IRS to
   document eligibility for the new ARRA Youth group, use of the attached national
   Youth Self-Attestation Form supersedes past ETA guidance in TEGL 3-09 and in the
   Change 1 to TEGL 3-09. ETA is providing the national form to states so they can
   uniformly meet DOL’s policy guidance and IRS’s legal interpretations to the Internal
   Revenue Code’s current ARRA legislative requirements for the ARRA Disconnected

                                         -6-


   Youth target group. Additionally, the national Youth Self-Attestation Form attached
   to this TEGL does not add to or change the burden of states in processing requests
   for certification or for individuals/employers in applying for certification. The
   burden for providing the information to meet the self-attestation requirements is
   estimated to average five minutes per respondent.

7. Action Requested. SWA administrators are requested to provide this TEGL to all
   WOTC State Coordinators and related program staff, and ensure the information
   and guidance provided is shared with the private sector businesses, their
   representatives, and all other Federal and state partners effective, immediately,
   upon receipt of this TEGL.

8. Inquiries. Direct all questions to the appropriate Regional WOTC Coordinator.

9. Attachments.
   a. Youth Self-Attestation Form
   b. Forma de Auto-Juramentacion o Declaracion Personal Para Jovenes (Spanish
      Version)

Attachment 1 (official PDF): https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2010/TEGL3-09c2a1.pdf

OMB Control No. 1205-0371
                                                                                            Expiration Date: November 30, 2011

                                       YOUTH SELF-ATTESTATION FORM
                                      Work Opportunity Tax Credit Program

Instructions: This Self-Attestation Form (SAF) is to be completed, signed and dated by the new hire on
or before the day the job offer is made. The employer or consultant is to submit the SAF to the state
workforce agency together with IRS Form 8850 within 28 calendar days from the employment start date
of the new hire.

New Hire Name: ___________________________________________________________

Social Security Number: _________________ Date of Birth:_______________________

Employer Name: ___________________________________________________________

Employer Federal ID (EIN) Number: ___________________________________________

Please check all the statements that apply to you. Sign and date this form where
indicated below.

          In the past 6 months, I have not attended a secondary, technical or
          postsecondary school for more than an average of 10 hours per week, not
          counting periods during which the school is closed for scheduled vacations.

          I do not have a High School Diploma or GED certificate.

          I have a High-School diploma or GED certificate awarded more than 6 months
          ago and I have not attended or been admitted to a technical or post-secondary
          school. I also have not held a job (other than occasionally) since receiving my
          High-School diploma or GED certificate.



Under penalties of perjury, I declare that this information is true and correct to the best of my knowledge.




New Hire’s Signature: _______________________________________________Date_________




Public Burden Statement:
Persons are not required to respond to this collection of information unless it displays a currently valid OM B control number.
Respondents' obligation to complete this form is required to obtain or retain benefits (P.L. 111-5). Public reporting burden is estimated to
average 5 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the collection of Information. Send comments regarding this burden
estimate to the U.S. Department of Labor, Division of Adult Services, Room S-4209, Washington, D.C. 20210 (Paperwork Reduction
Project 1205-0371).

                                                                                                  ETA Form 9154 (February 2010)

Attachment 2 (official PDF): https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2010/TEGL3-09c2a2.pdf

Versión en Español                                                                                  OMB No: 1205-0371
                                                                                  Expiration Date: November 30, 2011

                          YOUTH SELF-ATTESTATION FORM
          (Forma de Auto-Juramentación o Declaración Personal Para Jóvenes)
                       “Work Opportunity Tax Credit Program”

Instrucciones: Esta forma debe ser completada, debidamente firmada, y fechada por el joven
empleado nuevo en o antes del día en que el patrono le hizo la oferta de trabajo. El patrono o su
representante deberá enviar esta Auto-Juramentación o Declaración Personal junto con la “IRS Form
8850” dentro de los primeros 28 días después de la fecha en que el joven comenzó a trabajar.

Nombre del Empleado: ______________________________________________________

Numero de Seguro Social: _________________Fecha de Nacimiento:________________

Nombre del Patrono ________________________________________________________

Numero o ID Federal (EIN) del Patrono:________________________________________

Por favor marque todos los encasillados que le apliquen a Usted. Luego firme y
feche esta forma en los blancos al final de la forma.

          En los últimos 6 meses, no he asistido a ninguna escuela secundaria o técnica,
          ni he cursado estudios post secundarios durante mas de un promedio de 10
          horas por semana, sin contar los periodos durante los cuales la escuela esta
          cerrada por vacaciones programadas.

          No tengo ni un Diploma de Escuela Secundaria ni un Certificado GED.

          Tengo un Diploma de Escuela Secundaria o un Certificado GED otorgado hace
          más de 6 meses y no he asistido ni he sido aceptado en una escuela técnica o
          de estudios post secundarios. Tampoco he tenido ningún empleo (excepto de
          vez en cuando) desde que recibí mi Diploma de Escuela Secundaria o mi
          Certificado de GED.


    Bajo las sanciones o penalidades de perjurio, declaro que esta información es correcta y verdadera.



Firma del Empleado: _______________________________________Fecha: ________________


“Public Burden Statement (Declaración):” Las personas no están obligadas a proveer la información que esta forma pide a
menos que dicha forma despliegue o muestre un número de control valido de OMB. Las personas interesadas en obtener y
mantener los beneficios que este programa ofrece tienen la obligación de responder a las preguntas en esta forma. (P.L. 111-5).
El tiempo que toma contestar esta forma se ha estimado que toma un promedio de 5 minutos por cada contestación, incluyendo
el tiempo para leer las instrucciones, reunir y mantener los datos necesarios y completar y revisar esta colección de información.
Puede enviar comentarios sobre este estimado de tiempo al Departamento del Trabajo, División de Servicios a Personas
Adultas (Division of Adult Services) Room S-4209, Washington, D.C. 20210 (Paperwork Reduction Project 1205-0371).
                                                                                           ETA Form 9154 (February 2010)