FY 2005 Alien Labor Certification grant guidance

Official packet: letter, Attachment 1, Attachment 2, Attachment 3, Attachment 4, Attachment 5, Attachment 6, Attachment 7, Attachment 8.

Letter

EMPLOYMENT AND TRAINING ADMINISTRATION ADVISORY SYSTEM
U.S. DEPARTMENT OF LABOR
Washington, D.C. 20210
CLASSIFICATION: Alien Labor Certification
CORRESPONDENCE SYMBOL: ONP/DFLC
DATE: March 11, 2005

ADVISORY: TRAINING AND EMPLOYMENT GUIDANCE LETTER No. 19-04

TO: STATE WORKFORCE AGENCIES
FROM: EMILY STOVER DeROCCO, Assistant Secretary for Employment and Training
SUBJECT: FY 2005 ALIEN LABOR CERTIFICATION GRANT GUIDANCE

1. Purpose. To provide guidance for the funding and management of FY 2005 annual
grant allocations for the Alien Labor Certification (ALC) program.

2. References. The Immigration and Nationality Act, Sections 101(a), 212(n), 214(c)
and 218

8 CFR 214

The Wagner-Peyser Act, Section 7(d)

29 CFR Part 93

OMB Circular A-87

Employment and Training Administration (ETA) Handbook No. 385

Guide for Employment Service Reimbursable Grant Activities
ETA No. 398, H-2A Program Handbook, January 1988

Labor Certification Technical Assistance Guide (TAG) No. 656, 1981
Other ETA instructions as noted

3. Background. The purpose of this memorandum is to define the roles state
agencies play in the ALC program, the funding that will be allocated to the state
agencies to support these activities, the required actions necessary on the part of
the states to request funding, and the required activities on the part of the National
Office to monitor grant funds.

RESCISSIONS: EXPIRATION DATE:
None Continuing


4. Changes to Alien Labor Certification Activities. On July 21, 2004, the
Department of Labor (DOL) published an interim final rule to amend 20 CFR Part
656 by adding Section 656.24a. This section provides the National Certifying Officer
(Chief, Division of Foreign Labor Certification) with the discretion to direct State
Workforce Agencies (SWAs) and Employment and Training Administration (ETA)
Regional Offices to transfer pending permanent labor certification applications to
centralized processing (backlog) centers. The rule also allows DOL to “combine”
state and Federal processing functions at the backlog centers, one each in
Philadelphia and Dallas. The opportunity to process cases in this fashion will
generate certain efficiencies and allow for less duplication of effort.

Over the next several months, we anticipate making significant progress in removing
backlogged permanent cases from state agencies and transferring them to the two
Federal backlog reduction centers. The guidance for transferring cases from your
agency to the appropriate backlog reduction center has been issued via an
information memorandum from the Division of Foreign Labor Certification (DFLC).

A Notice of Proposed Rulemaking (NPRM), 20 CFR Parts 655 and 656, Labor
Certification for the Permanent Employment of Aliens in the United States;
Implementation of New System, was published in the Federal Register on May 6,
2002. The NPRM comment period closed on July 6, 2002, and comments were
organized, reviewed, and evaluated. A final regulation implementing the
reengineered permanent labor certification program (PERM) was published on
December 27, 2004.

Since this final rule includes a 90-day implementation period, SWAs will continue to
accept applications for permanent labor certification until March 28, 2005. However,
unlike current practice, SWAs will not process these applications but will instead
“date stamp” and log in the applications before sending them to their respective
backlog reduction center. SWAs will continue all other DOL-funded functions of
alien labor certification, i.e., providing prevailing wage determinations, conducting H-2A activities (job orders, housing inspections, and prevailing wage/practice surveys),
and processing H-2B applications.

Under the PERM program, beginning on March 28, 2005, SWAs will issue to
employers prevailing wage determinations to accompany their applications for
permanent labor certification. These wage determinations will be provided to
employers in a responsive and timely manner. All other functions of permanent
labor certification will be performed by the national processing centers, one each in
Atlanta and Chicago.

Changes in the Reimbursable Grant

• In FY 2005, states will receive funds to accept and process open permanent
labor certification cases, transfer backlogged permanent cases to the backlog
processing centers, provide prevailing wage determinations, conduct H-2A
activities (job orders, housing inspections, and prevailing wage/practice surveys),
and process H-2B applications.

• All new applications for permanent labor certification that are received after
January 1, 2005, and before March 28, 2005, are not to be processed by the
SWA, but rather transferred to the appropriate backlog center for processing
based on the schedule provided by ETA. SWAs must “date stamp” and log in
the applications before sending them to their respective backlog center (Dallas or

Philadelphia). By law, these cases must be processed under the current
program's regulations.

• Once the backlog permanent cases are transferred to the backlog centers,
SWAs will remain responsible for the following labor certification activities:

(1) Receiving new applications for permanent labor certification until March 28,
2005, and then transferring these unprocessed cases to the Dallas or
Philadelphia backlog center;

(2) Processing H-2A cases, including performing prevailing wage and prevailing
practice surveys, ensuring that housing inspections are made, and
processing job orders;

(3) Providing prevailing wage determinations for all non-agricultural labor
certification programs; and

(4) Processing H-2B cases in accordance with existing policy.

• The final rule to reengineer the permanent program provides ETA with 90 days
to implement and transition to the PERM program. Therefore, SWAs will stop
accepting applications for permanent labor certification from employers on March
28, 2005.

• Under the PERM program, employers will no longer send applications to the
SWAs beginning on March 28, 2005. Instead, employers will apply directly to
one of the two national processing centers for the processing of applications for
permanent labor certification.

• Under the PERM program, SWAs will issue to employers prevailing wage
determinations to accompany their applications for permanent labor certification.

These wage determinations will be provided to employers in a responsive and
timely manner.

• Once the PERM program is fully implemented and the backlogged cases are
eliminated at the state level, SWAs will remain responsible for the following labor
certification activities:

(1) Processing H-2A cases, including performing prevailing wage and prevailing
practice surveys, ensuring that housing inspections are made, and
processing job orders;

(2) Providing prevailing wage determinations for all non-agricultural labor
certification programs; and

(3) Processing H-2B cases in accordance with existing policy.

Changes in the Prevailing Wage Determination Function

Under the PERM program, employers will be required to obtain a prevailing wage
determination from the SWA prior to submitting their application for processing to
DOL. This differs from past practice where the wage offered on the ETA 750 was
reviewed by the SWA after the application was submitted.

Employers will request a prevailing wage determination from the SWA using the
appropriate State Workforce Agency Prevailing Wage Determination form. The
SWA will respond to the employer with the wage determination, which the employer
may be required to supply to the Department in support of the PERM application, in
the case of an audit being conducted. A new directive updating GAL 2-98 and
succeeding directives regarding prevailing wage determinations will be issued prior
to the program's effective date.

SWAs should send appropriate staff to program training, when such training is
offered. The costs of SWA travel to regional and national meetings and training
sessions are included in grant funds. Attendance at these sessions is a condition of
the grant.

5. Actions. State Workforce Agencies are required to complete the actions listed
below.

• Respond to these guidelines within thirty (30) days of receipt to ensure
allocation of remaining funds.

• Establish program priorities. This will include identifying how program funds
would best be utilized including the split of the enclosed ALC planning allocation
between agricultural and non-agricultural activities.

• Inform the National Office via written communication of the proposed program
priorities and the split that will be used to allocate funds between agricultural and
non-agricultural activities.

6. Inquiries. Alien Labor Certification funding questions should be directed to Mr.
Greg Wilson at (202) 693-2954. All program related questions should be directed to
Ms. Melanie Shay at (202) 693-3055.

7. Mailing Address. U.S. Department of Labor, Division of Foreign Labor

Certification, 200 Constitution Avenue, NW, Room C-4312, Washington, D.C.
20210.

8. Attachments.

1. Grant Guidance and Information Package
2. FY 2005 ALC Funding Levels
3. Statement of Work and Work Plan for Ag and Non-Ag Programs
4. Major SWA responsibilities for the ALC Ag Program
5. Major SWA responsibilities for the ALC Non-Ag Programs
6. Annual Plan Procedures
7. Costing of H-2A Activities
8. Contact Information

Attachment 1

Attachment No.: 1
                             Grant Guidance and Information Package

Introduction
This document provides the necessary guidelines to be used by State Workforce Agencies (SWAs) to
request funds in order to administer their Alien Labor Certification (ALC) responsibilities.

Wagner-Peyser funding allocations for SWA National Activities in FY 2005 (shown in Attachment 2), are
only for agricultural and non-agricultural ALC programs. Planning targets, included in this document,
reflect a postage assessment of 2.8 percent.

The available FY 2005 allocation for state ALC activities is $17,007,998. Of this amount, $5,665,000 was
provided in November during the Continuing Resolution period. This guidance package coincides with
the distribution of the remaining $11,342,998. Each SWA’s total FY 2005 funding (see Attachment 2) is
identical to their planning figure provided in the September 29, 2004, FY 2005 Transition Guidance.

FY 2005 Annual Plan
The procedures for submission of the twelve (12) month plan (October 1, 2004, through September 30,
2005) are provided in Attachment 6. Upon receipt and approval of the plan at the national office (Division
of Foreign Labor Certification), the National Office Grant Officer (Division of Federal Assistance) will issue
an additional Notice of Obligation to provide the balance of funds due to each state from its annual
allocation.

Each state will be funded for two quarters to process applications for permanent labor certification and to
transfer unprocessed cases to the appropriate backlog center. At a minimum, SWAs must fund one full-
time position devoted to coordinating the transition from a state-Federal system to primarily a federally
administered program. This position is responsible for coordinating, with ETA’s backlog center contractor,
the shipping of “pending” permanent labor certification cases either currently residing with the SWA or
which are filed with the state prior to the full implementation of the PERM program. The FY 2005 funding
for permanent, prevailing wage, H-2B, and H-2A activities is based on the cost breakout table that was
included in the FY 2004 grant package. The minimum funding level for a state to conduct ALC activities
has increased from $60,000 to $75,000 in FY 2005. This amount will account for at least one full-time
ALC position in each state.

Changes in General Administration
ETA Regional Offices are no longer responsible for the review and approval of ALC annual plans. Also,
Certifying Officers are no longer responsible for monitoring of the cost reimbursable grants. Instead, plan
approval and monitoring of these cost reimbursable grants will be handled entirely by national office
DFLC staff.

National Office Responsibilities
The national office responsibilities include the review and approval of the grant plan applications, analysis
of expenditure and performance data, execution of programmatic plan modifications, and on-site reviews.
States are advised to administer the plan in accordance with the approved plan and the terms and
conditions of the Wagner-Peyser Annual Funding Agreement. The National Office Grant Officer funding
authority remains with the national office, Division of Federal Assistance.

Labor certification funds are provided for labor certification activities only and cannot be used for other
Wagner-Peyser activities, such as the routine referral of workers on job bank orders, MSFW activities,
and processing of complaints under the SWA complaint system.

SWA Responsibilities
SWAs are responsible for administering grant funds for ALC programs within established guidelines.
These responsibilities include:

1. Certifications and Assurances.
    Regulations require recipients of SWA grants to submit various standard certifications and
    assurances. These have already been provided under the FY 2005 Annual Funding Agreement.
    Current SWA regulations at 20 CFR, Part 658, subpart E (20 CFR 658.400-658-426) cover the
    complaint and appeals procedures. Regulations at 20 CFR, Part 653, subpart F, and 20 CFR, Part
    654, subpart E apply to housing inspection activities under the reimbursable grant. Other applicable
    regulatory provisions and special assurances are incorporated in the Statements of Work (attached).

2. Utilize Mandated Forms for Inter-Agency Communications.
   SWAs must utilize the proper formats to ensure uniform communications. These formats include, but
   may not be limited to, the following:

    •   Form ETA-7147
        Form ETA-7147 is the Alien Certification State Agency Transmittal of Application for an alien
        employment certification.

    •   Form ETA-232
        Form ETA-232 is the Domestic Agricultural In-Season Wage Report.

3. Reporting Responsibilities.
   The required reports are listed below:

    •   SF-269
        The SF-269 is the Financial Status Report and must be submitted by the SWA on a quarterly
        basis for each fiscal year of funds.

    •   Form ETA-9037
        Form ETA-9037 is the Semi-Annual Alien Labor Certification Activity Report.

4. Fiscal Management Responsibilities.
   The national office will retain flexibility to recommend the modification of the negotiated split of ALC
   funds between agricultural and non-agricultural ALC activities for a given state. Recommendations
   must be submitted in writing to the Chief, Division of Foreign Labor Certification for approval.

    National office approval must be obtained for all equipment purchases made using ALC funds that
    are above five thousand dollars ($5,000) in value. If such requests are included in the work plan and
    are clearly detailed in a cover memorandum, the national office can pre-approve the purchases.
    Otherwise, states must provide a written justification and cost estimate for the purchase(s). The
    national office will not approve capital purchases such as buildings and vehicles.

    Although Employment Service (ES) grants are valid for three (3) years, ALC grants are intended to be
    used during the Fiscal Year that they are issued. Any carry over funds in excess of fifteen (15)
    percent of the total grant value are subject to recuperation by the national office. See the
    Employment and Training Order “Closeout Procedures for ETA Expired Grants, Agreements, and
    National Office Contracts” for information regarding the procedures for closing grants.

5. Training.
   SWAs are required to send appropriate staff to program training, when such training is offered. The
   costs of SWA travel to regional and national meetings and training sessions are included in grant
   funds. Attendance at these sessions is a condition of the grant. If SWAs do not attend mandatory
   meetings, funds may be recaptured.

Conclusion
Grant funding balances will be issued to SWAs as soon as possible. The National Office Grant Officer
will issue a Notice of Obligation (NOO) to SWAs upon approval of the SWA Alien Labor Certification Plan.
Budgets can only be approved for annual plans after the national office (Division of Foreign Labor
Certification) has approved the Statement of Work and Work Plans for the Agricultural/Non-Agricultural
programs.

Attachment 2

Attachment No.: 2

                                    Alien Labor Certification
                          Agricultural and Non-Agricultural Programs
                                    FY 2005 Funding Levels*


Atlanta National Processing Center                     Chicago National Processing Center
U.S. Department of Labor                               U.S. Department of Labor
Employment and Training Administration                 Employment and Training Administration
Harris Tower                                           844 North Rush Street, 12th Floor
233 Peachtree Street, Suite 410                        Chicago, Illinois 60611
Atlanta, Georgia 30303                                 Phone: (312) 886-8000
Phone: (404) 893-0101                                  Fax:   (312) 886-1688
Fax:     (404) 893-4642


Alabama                       $ 87,500                 Alaska                        $ 80,000
Connecticut                   $ 291,848                Arizona                       $ 299,688
Delaware                      $ 111,034                Arkansas                      $ 92,500
Florida                       $ 658,994                California                    $ 2,732,381
Georgia                       $ 613,080                Colorado                      $ 260,503
Kentucky                      $ 368,401                Guam                          $ 75,000
Maine                         $ 327,581                Hawaii                        $ 75,000
Maryland                      $ 571,840                Idaho                         $ 238,227
Massachusetts                 $ 867,218                Illinois                      $ 475,893
Mississippi                   $ 105,000                Indiana                       $ 80,000
New Hampshire                 $ 97,996                 Iowa                          $ 90,000
New Jersey                    $ 678,141                Kansas                        $ 134,623
New York                      $ 1,543,704              Louisiana                     $ 182,900
North Carolina                $ 227,929                Michigan                      $ 332,338
Pennsylvania                  $ 631,133                Minnesota                     $ 113,327
Puerto Rico                   $ 75,000                 Missouri                      $ 139,866
Rhode Island                  $ 80,000                 Montana                       $ 85,000
South Carolina                $ 100,753                Nebraska                      $ 117,912
Tennessee                     $ 187,662                Nevada                        $ 90,411
Vermont                       $ 114,357                New Mexico                    $ 92,500
Virgin Islands                $ 75,000                 North Dakota                  $ 102,360
Virginia                      $ 953,266                Ohio                          $ 229,586
Washington DC                 $ 132,032                Oklahoma                      $ 87,500
West Virginia                 $ 82,500                 Oregon                        $ 97,282
                                                       South Dakota                  $ 90,000
                                                       Texas                         $ 1,059,310
                                                       Utah                          $ 111,106
                                                       Washington                    $ 234,783
                                                       Wisconsin                     $ 143,539
                                                       Wyoming                       $ 82,500


* = Amount includes funds distributed in November during the Continual Resolution period

Attachment 3

Attachment No.: 3
                              Agricultural/Non-Agricultural Programs
                                 Statement of Work and Work Plan

As a condition for receiving funds in support of the Secretary’s responsibilities under Sections
101(a)(15)(H)(i)(b) and 212(n), Sections 101(a)(15)(H)(ii)(a) and 218, and Section 212(a)(5)(A) of the
Immigration and Nationality Act (Act), under the United States Citizenship and Immigration Services
(USCIS) regulations at 8 CFR 214.2(h)(6) under Sections 101(a)(15)(H)(ii)(b) and 214(c) of the Act, under
Section 221 of the Immigration Act of 1990, and under Department of Labor (DOL) regulations at 20 CFR
parts 655 and 656,       ( agency name)            agrees to assist ETA to determine the availability of U.S.
workers and the potential adverse effect on wages and working conditions that the admission of alien
workers might have on similarly employed U.S. workers before employers can obtain a labor certification,
and agrees to assist ETA by conducting the Occupational Employment Survey and appropriate
agricultural surveys and providing wage determination information to employers wishing to file or update a
labor attestation or labor condition application.

The sections of the Act and regulations cited above relate to DOL programs involving foreign workers as
follows:

    o   Section 101(a)(15)(H)(i)(b)(8 U.S.C. 1101 (a)(15)(H)(i)(b)), called H-1B nonimmigrant
        classification, applies to professionals in specialty occupations and certain models; Section
        212(n) (8 U.S.C. 1182(n)), specifies the requirements or labor condition applications which must
        be filed by employers seeking to employ such workers.

    o   Section 101(a)(15)(H)(ii)(a) (8 U.S.C.1101 (a)(15)(H)(ii)(a)), called H-2A nonimmigrant
        classification, applies to agricultural workers; Section 218 (8 U.S.C. 1188), specifies the
        conditions for admission of temporary H-2A workers. DOL regulations at 20 CFR part 655 specify
        the labor certification requirements.

    o   Section 101(a)(15)(H)(ii)(b) (8 U.S.C. 1101(a)(15)(H)(ii)(b)), called H-2B nonimmigrant
        classification, applies to temporary non-agricultural workers. USCIS regulations at 8 CFR
        214.2(h)(6) and section 214(c) of the Act require consultation with DOL before aliens are admitted
        to the United States. The regulations for the H-2B program are found in DOL regulations at 20
        CFR part 655. Procedures pursuant to those regulations are documented in General
        Administration Letter (GAL) No. 1-95, GAL No. 1-95, Change 1 and Field Memorandum No. 25-
        98. The H-2B program is authorized only if two conditions are met:
             • The alien must be coming temporarily to the U.S., and
             • The services or labor which the alien will be performing must also be temporary in nature.

    o   Section 212(a)(5)(A) requires a labor certification from the Secretary of Labor for permanent
        employment of aliens in the United States. DOL regulations at 20 CFR part 656 specify the
        requirements for permanent labor certification.


State Workforce Agency Requirements and Responsibilities

    (Agency Name) shall:
•   Provide labor certification services to protect job opportunities for U.S. workers and prevent adverse
    effect on U.S. workers' wages and working conditions which may be caused by the employment of
    aliens;

•   Provide labor certification application forms and conduct certain labor market services necessary for
    the Secretary of Labor to make determinations on applications for permanent and temporary alien
    labor certification; and

•   Conduct certain labor market services necessary for the Secretary of Labor to accept for filing
    attestations and labor condition applications with respect to the employment of certain nonimmigrant
    aliens.

1. SWA Responsibilities under Labor Certification Programs.

    Employers requesting permanent labor certification, H-2A temporary agricultural certification, or H-2B
    temporary non-agricultural certification for alien workers are required to do the following:

    •   Demonstrate that they have attempted to recruit U.S. workers through advertising, the State
        Workforce System, and/or by other specified means.

    •   Offer prevailing wages and working conditions that will not adversely affect similarly employed
        U.S. workers.

    •   Fulfill the duties listed in regulation 20 CFR 656.21 listed below:

            o   Performing initial processing of non-agricultural applications
            o   Conducting special recruitment (outside of regular workforce agency recruitment and
                referral activities) for U.S. workers
            o   Conducting prevailing wage surveys for agricultural occupations
            o   Determining prevailing wage rates using the Occupational Employment Statistics system
                and review of employer supplied surveys
            o   Preparing Form ETA 232 reports
            o   Obtaining data needed for making prevailing practice determinations
            o   Submitting required reports
            o   Gathering other information which forms the basis for Division of Foreign Labor
                Certification determinations to grant or deny labor certifications

2. SWA Responsibilities under Labor Attestation and Labor Condition Application Programs.

    Employers filing labor attestations and labor condition applications for H-1B nonimmigrant workers
    must file such attestations directly with the H-1B processing center. Employers filing labor condition
    applications for H-1B nonimmigrant workers have the option of requesting prevailing wage data from
    the SWA or using other legitimate sources such as appropriate published wage surveys.

    If requested to do so, the SWA must provide to employers or their representatives requesting such
    information the prevailing wage data for the occupation in the area of intended employment. This
    wage determination must be made from the Occupational Employment Statistics data unless the
    SWA is requested by an employer or employer’s representative to review a survey provided for
    prevailing wage purposes to determine if the survey meets standards published by DOL. If so
    requested, the SWA must inform the employer or the employer’s representative if the survey may be
    used as the prevailing wage in that instance.


3. Special Assurances.

   •   Services provided for activities shall be in conformity with regulations at 20 CFR parts 655 and
       656, handbooks, field issuances, and other instructions issued by DOL, e.g., Technical
       Assistance Guide No. 656 Labor Certifications, ETA Handbook No. 398 (H-2A Program
       Handbook), ETA Handbook No. 385 (Employment Service Forms Preparation Handbook),
       General Administration Letter (GAL) No. 1-95, "Procedures for H-2B Temporary Labor
       Certifications in Non-Agricultural Occupations" (November 10, 1994), GAL No. 1-95, Change 1,
       "Procedures for H-2B Temporary Labor Certifications in Non-Agricultural Occupations” December
       1997), Field Memorandum No. 25-98, “H-2B Temporary Non-Agricultural Labor Certification
       Program Requirements” (April 1998), Training and Employment Guidance Letter No. 12-03,
       “Policy Clarification for Processing H-2B Temporary Labor Certification for Occupations in the
       Landscaping Industry, 2004-2005”, Training and Employment Guidance Letter No. 4-03,
       “Procedures for Temporary Labor Certification in the Entertainment Industry”, and GAL 1-97,
       Change 1,”Measures for Increasing Efficiency in the Permanent Labor Certification Process”
       (May 1999).

   •   Services provided for temporary agricultural and logging alien certification activity shall be in
       conformity with regulations at 20 CFR part 655, handbooks, field issuances, and other
       instructions issued by the DOL, e.g., ETA Handbook No. 398, issued March 4, 1988;

   •   Summary data relating to prevailing wage surveys conducted by the SWA shall be released to
       those who request it. However, information identifying, or which might contain, information
       leading to the identification of a specific employer surveyed shall not be released by the SWA
       since such action could result in possible competitive damage to the employer and could inhibit
       the employer from cooperating in future surveys;

   •   The state shall assure that job orders placed into the regular SWA recruitment system pursuant to
       regulations at 20 CFR 656.21(f) do not contain symbols or words which identify the job order as
       an alien certification order, and that SWA staff are instructed to refrain from discouraging U.S.
       workers who seek referral to employers on such job orders;

   •   Contracting out any aspects of the ALC programs will not be allowed without a pre-approval in
       writing from the national office. If such requests are included in the work plan and are clearly
       detailed in a cover memorandum, the national office can provide pre-approval. Otherwise, states
       must provide a written justification and cost estimate; and

   •   Advertisements, though they must include many specific elements of information, should be
       written in a style consistent with non-ALC advertisements, organized, titled, and placed in a
       logical section of the publication so as to reach the maximum number of U.S. workers.

4. Allowable Costs.

   •   Costs may be attributed to activities directly in support of the regulations at 20 CFR part 656; 20
       CFR part 655, subparts A, B, C, H, and L, including costs for all activities related to the
       preparation of and submittal of ETA 232 and ETA 9037 reports, and for indirect support as a fair
       share of overhead.

   •   Regular workforce agency activities under Wagner-Peyser, such as referring workers to job bank
       orders, migrant and seasonal farmworker recruitment, and the processing of complaints under the
       SWA complaint system, are not allowable costs unless the activity can be directly attributed to
       extraordinary functions in the processing of a specific labor certification application/attestation.

5. Performance Standards.

   •   The state’s performance shall be reviewed according to labor certification TAG No. 656; GAL No.
       1-95, "Procedures for H-2B Temporary Labor Certifications in Non-Agricultural

           Occupations"(November 10, 1994), Field Memorandum No. 25-98, “H-2B Temporary Non-
           Agricultural Labor Certification Program Requirements” (April 1998), General Administration
           Letter No. 2-98, "Prevailing Wage Policy for Non-Agricultural Immigration Programs" (October 31,
           1997) and Field Memorandum No. 1-00, “Availability and Use of Occupational Statistics Survey
           Data for Alien Labor Certification Prevailing Wage Purposes” (May 16, 2000); ETA Handbooks
           Nos. 398 and 385; and any subsequent ETA advisories concerning alien certification activities.
           Fund utilization will be reviewed against the Funding Plan and actual workload levels, and when
           expenditures are significantly below plan, ETA may de-obligate funds for redistribution.

   •       The state shall continue to staff prevailing wage activities for labor certification/attestation
           programs with individuals who have relevant skills. Current programs; however, require enhanced
           knowledge, skills, and expertise in evaluating prevailing wage surveys and in making prevailing
           wage determinations. To increase the state’s capacity to perform this work, and to assure
           credibility, validity, and reliability of wage surveys and determinations, state allocations include
           funding to support a prevailing wage expert function. In states with a small labor certification
           workload, it is appropriate for that function to be filled on a part-time basis. Each state shall:

             1.    Staff this function with an individual who has at least a bachelor’s degree in statistics or
                   economics, or a degree in another field with a minimum of six (6) hours in statistics, and
                   at least two years of experience in data collection, statistical analysis, sampling
                   techniques, labor market analysis, or conducting wage surveys and classifying jobs;

             2.    Make the incumbent responsible for implementing national prevailing wage policies,
                   evaluating prevailing wage surveys for labor certification/attestation programs, training
                   other staff, responding to prevailing wage issues and challenges, and giving expert
                   testimony in litigation cases.

   •       When requested by the national office, states shall ensure that appropriate labor certification staff
           travel within or outside the state to attend meetings, training sessions, speaking engagements, or
           other activities deemed necessary by the national office to carry out effective program operations.
           Travel for such activities is accounted for within program funding levels.

   •       The state shall continue to maintain an automated Alien Certification Processing System(s) for
           receiving and tracking applications, writing letters, and maintaining a prevailing wage database.

   •       Due to continued growth of the H-2B non-agricultural temporary labor program, states are
           expected to initially screen each H-2B application to ensure that the employer’s need for the
           duties to be performed is truly temporary. That need may be neither ongoing nor continuous. The
           employer has the burden of establishing the facts necessary to support such a finding in the
           application. States should immediately consult with their respective national processing center
           when there is doubt. Because of the need to make a determination on applications within 60
           days of receipt by states, the state is responsible for informing its Certifying Officer regarding the
           status of the H-2B case workload on a monthly basis to ensure timely completion. H-2B
           applications should be processed in an expedited manner and processed applications
           should be transmitted to the Certifying Officer within 30 days from the date the application
           was received by the state.

6. Reporting Requirements.

       •     Basic reporting requirements for Labor Certification include financial and program reporting
             requirements as specified by ETA. The required program reports, including the ETA 9037 and
             the ETA 232 reports, will be submitted in accordance with ETA TAG No. 656, ETA Handbook
             No. 385, and ETA Handbook No. 398.

       •     Financial reports relating to staff time and other charges to the alien certification reimbursable
             grant shall be available to national office staff. Inappropriate charges shall be questioned and
             may be disallowed.


     •   Informally, states will report to the field office increases in H-2A and H-2B activity. In addition,
         states should report all new occupations or crop activity for these programs.


                                             ENCLOSURE I

                              Work Plan (Attached to Statement of Work)


  (Agency Name)           shall prepare a narrative plan which explains how it will deliver labor
certification/attestation services in FY 2005. This narrative should include, at a minimum, the following:

A. The projected number of permanent applications to be processed until the effective date of the PERM
   program.

B. The projected number of job orders related to temporary agricultural alien certification applications to
   be processed.

C. The projected number of temporary non-agricultural alien certification applications to be processed.

D. The projected number of prevailing wage surveys to be conducted in agricultural activities including
   projected wage surveys in anticipation of H-2A requests (this includes logging).

E. The projected number of housing inspections to be conducted in anticipation of H-2A orders (this
   includes logging).

F. The projected number of prevailing wage determinations to be provided to employers for non-
   agricultural occupations by the following categories: Permanent program; H-1B nonimmigrant
   program; and H-2B program.

G. Any plans for changes in existing operations including the prevailing wage program that will
   substantially affect negotiated goals.


                                              ENCLOSURE II

                               Work Plan (Attached to Statement of Work)


Statement of Work for Housing Inspections

Note: Due to the special nature of housing inspections, a separate Statement of Work is included.

   (Agency Name)          shall prepare a narrative plan which explains how it will deliver this activity in
FY 2005. This narrative should include, at a minimum, the following:

1.   Statement of the negotiated goals to be achieved. Number of pre-occupancy housing
     inspections to be conducted;

2.   Plans for changes in the existing operations, if any, which may substantially affect negotiated
     goals.

In addition, as a condition for receiving funds in support of the Secretary’s responsibility,       (Agency
Name)         agrees to do the following:

•    Conduct pre-occupancy inspections of housing to be furnished to migrant and seasonal farmworkers
     or other U.S. workers, or to nonimmigrant aliens admitted to the United States under temporary labor
     certification programs for temporary employment in agriculture or logging.

•    Assist employers in recruiting agricultural and logging workers. These employers are required to
     provide housing at no cost, or public housing, for workers who are not reasonably able to return to
     their place of residence the same day. In the case of employers seeking H-2A agricultural or logging
     labor, free housing must be provided. The housing must meet ETA standards described in 20 CFR
     part 654, subpart E or OSHA standards at 29 CFR 1910.142 and be sufficient to house the number of
     workers required.

•    Determine, through a pre-occupancy inspection, that such housing is, in fact, available and meets
     appropriate standards. The employer seeking labor certification may also provide rental or other
     public accommodation-type housing. Such housing must meet applicable local or state standards,
     and does not have to be inspected by state agency staff when such standards exist. However, in the
     absence of applicable local or state standards, such housing must meet Federal standards at 29 CFR
     1910.142 (OSHA) and must be inspected by the state agency or other appropriate public agency prior
     to occupancy.

1. Special Assurances.

     •   The state shall adhere to regulations at: 20 CFR, part 655, subparts B and C, Labor
         Certification Process for Temporary Agricultural and Logging Employment; part 654,
         subpart E, Housing for Agricultural Workers; and, part 653 subpart F, Agricultural
         Clearance Order Activity. Actual housing inspections may be conducted under certain
         conditions in accordance with OSHA standards at 29 CFR 1910.142, Temporary
         Labor Camps.

     •   SWAs should encourage employers who expect to obtain their certification 30 days
         before the date of need to have housing ready for inspection at the time of filing their
         H-2A application or earlier.

     •   SWAs should be prepared to conduct housing inspections prior to the filing of
         applications.

     •   SWAs should plan to schedule housing inspections prior to the filing of H-2A
         applications for those employers who regularly use the H-2A program.

    •   SWAs should be encouraged to evaluate alternative methods of conducting pre-
        occupancy housing inspections. (i.e., State Health Department, Agricultural
        Department, etc.)

2. Allowable Costs.

•   Costs may be attributed to activities in support of tasks described in 20 CFR part 654
    subpart E, Housing for Agricultural Workers and/or 29 CFR 1910.142, Temporary Labor
    Camps, and for indirect support as a fair share of overhead.

3. Performance Standards.

•   The state’s performance will be reviewed according to the applicable Housing Inspection Checklist in
    ETA Handbook No. 398, the applicable Federal housing standards.

4. Reporting.

•   Required reporting of activity is specified on the ETA 9037, semi-annual report. Financial reporting
    will be as specified by the Employment and Training Administration.

•   States should plan to track the costs associated with conducting pre-occupancy housing inspections
    to assist the national office in the allocation of future resources. The costs include, but are not limited
    to, staff resources, travel expenditures, and administrative costs (see Attachment 6).

•   States should submit an estimate of their annual cost for conducting pre-occupancy housing
    inspections by April 29, 2005 (see Attachment 7).


                                             ENCLOSURE III

                              Work Plan (Attached to Statement of Work)


Statement of Work for Agricultural Wage Surveys

Note: Due to the special nature and importance of agricultural prevailing wage surveys, a separate
Statement of Work is included.

  (Agency Name)         shall prepare a narrative plan which explains how it will deliver this activity in FY
2005. This narrative should include the number of prevailing wage surveys to be conducted and for
which crop activity.

As a condition for receiving funds in support of the Secretary's responsibility,       (Agency Name)
agrees to conduct prevailing wage surveys of agricultural and logging activities in accordance with ETA
Handbook No. 385. The SWA assists employers in recruiting agricultural and logging workers. Since
those workers do not have knowledge of wages in distant locations, the SWA provides a level of wage
protection by requiring that intra- and inter-state clearance orders offer a prevailing wage (20 CFR
653.501(d)(4)), if it is higher than the state or Federal minimum. For H-2A orders involving alien workers,
the prevailing wage must be offered if it is higher than the state or Federal minimum and the Adverse
Effect Wage Rate (AEWR) (20 CFR 655.102(b)(9)).

In order to establish the required prevailing wages, surveys must be done in accordance with ETA
Handbook No. 385 for each agricultural reporting area in which a crop activity meets the threshold
specified in Section I, C. 1. a. of the Handbook. When the data are collected and compiled in accordance
with the Handbook, a signed Form ETA 232 must be submitted to the national office for review and
confirmation before publication.

1. Special Assurances.

•   The state shall submit to the national office a plan for the surveys it is scheduling for the
    coming year. This plan must include all the surveys which will be conducted by the state in the
    upcoming season. Accordingly, the state’s survey targets should be based on estimated job order
    activity to be produced by H-2A applications. Prevailing wage surveys must be completed in the
    following instances: 1) When there were more than 100 workers in one crop last season or you
    expect more than 100 workers in the current season; 2) When there were H-2A workers last season
    or you expect H-2A workers in the current season; 3) When it is a very complex method of payment
    (i.e., piece rates); and 4) all mandatory national interest surveys such as Custom Combine, Sheep
    and Goat herding, Nurseries, and East Coast apples. Wage surveys should not be conducted if
    they do not fit into the above categories. The plans should be mailed to Mr. Ben Orona, Division
    of Foreign Labor Certification, 200 Constitution Avenue, NW, Room C-4312, Washington, D.C
    20210 or fax to (202) 693-2768.

•   The state shall submit the results of its prevailing wage surveys (ETA 232) promptly to the national
    office as well as to the respective national processing center (Atlanta or Chicago), so the correct
    wage is established for the next cycle of crop activity. Timely submission is critical to ensure release
    of wage determinations by the national office well ahead of the crop activity start date. The ETA 232
    forms should be mailed to Mr. Ben Orona, Division of Foreign Labor Certification, 200 Constitution
    Avenue, NW, Room C-4312, Washington, D.C. 20210 or fax to (202) 693-2768.


2. Allowable Costs.

•   Costs may be attributed to tasks described in ETA Handbook No. 385 for crop activities which meet
    the criteria specified above and for indirect support as a fair share of overhead.


3. Performance Standards.

•   The state’s performance will be reviewed according to its adherence to the procedures for wage
    surveys in ETA Handbook No. 385. Irrespective of the Adverse Effect Rate (AEWR) published for a
    given state each year, the procedures contained in the ETA Handbook No.385 require that prevailing
    wage surveys be conducted for any crop activity that is anticipated in the upcoming season.

4. Reporting.

•   Completed surveys will be submitted on the ETA-232. Financial reporting will be as specified by
    ETA. The ETA-9037 will continue to be used to report activity on a semi-annual basis.

•   States should plan to track the costs associated with conducting prevailing wages in order to assist
    the national office in the allocation of future resources. The costs include, but are not limited to, staff
    resources, travel expenditures, and administrative costs (see Attachment 6).

•   States should submit an estimate of their annual cost for conducting H-2A prevailing wage
    surveys by April 29, 2005 (see Attachment 7).

Attachment 4

Attachment No.: 4

                Major SWA Responsibilities for the ALC Agricultural Program

1. Before Required Filing Date.

•   Meet with employers to encourage early filing; inform employers of any new/emerging requirements;
    and assist employers in preparing job offers/orders. Special emphasis shall be placed by SWAs in the
    areas of Agricultural Prevailing Wage Surveys, assisting employers to prepare job orders and positive
    recruitment plans which are most likely to reach and encourage response by U.S. workers, and in
    increased use of America’s Job Bank (AJB) for all H-2A orders.

•   Conduct prevailing wage surveys and submit them to the national office for verification.

•   Conduct housing inspections (where conditional access is not involved). Housing inspections should
    be scheduled by the State Agency prior to the filing of applications for those employers who regularly
    use the H-2A program.

•   Gather information and provide advice to the national processing center (Atlanta or Chicago) on
    prevailing practices (family housing, utilization of crewleaders and crewleader overrides,
    transportation advances, and frequency of payment).

•   Gather information on U.S. worker availability to assist the national processing center in determining
    positive recruitment requirements.

2. Forty-Five (45) Days Before Date of Need.

•   Receive duplicate of employer application and job offer.

•   Prepare local job order and begin local recruitment.

•   Advise the national processing center if any components appear unacceptable for H-2A clearance
    purposes.

•   Maintain record of referrals and actions taken thereon; report to the national processing center any
    "questionable" refusals to hire.

•   Respond to national processing center requests for assistance/clarification on employer’s application.

•   Begin preparation of clearance order based on employer's job offer portion of application (if not done
    before).

•   Assist employer in preparing advertisement plans based on the requirements from the national
    processing center.

3. Upon Receiving Notification by Telephone (or E-mail) from the National Processing Center on
   Whether or not the Application is Accepted.

•   If application accepted, finalize clearance order; clear to states designated by the national processing
    center.

•   If application not accepted, revise clearance order to incorporate modifications required by the
    national processing center (but do not submit).

•   Consult with employer to determine if employer agrees to modifications.


•   If employer intends to appeal to the Administrative Law Judge (ALJ), put clearance order in
    abeyance.

•   Assist employer in making modifications, if appropriate (Form ETA 795 if clearance order already
    prepared and ready for transmittal).

4. After Clearance Order Approved by the National Processing Center.

•   Enter order into AJB.

•   Mail order to other areas specified by the national processing center.

•   Perform other actions related to recruitment specified by the national processing center.

•   Review employer advertising--ensure it is published/broadcast.

•   Refer workers; facilitate referrals from other states; (maintain records of referrals and actions taken
    thereon).

•   Assist employer in processing requests for amendments (the national processing center must
    approve).

•   Ensure that approved amendments are included in job order package.

•   Ensure previous editions of job orders are corrected or updated.

5. Housing Inspections.

•   Complete all scheduled housing inspections.

•   If deficiencies are found, inform employer(s) that they have five calendar days to correct. Re-inspect
    five days later.

•   If housing not approved after the re-inspection, the clearance order must be canceled and referred
    workers should be notified.

•   The Immigration and Nationality Act requires that employers furnish housing that meets applicable
    standards before certification can be issued (INA 218(c)(4)). Documentation that the employer’s
    housing meets applicable standards must be received by the Certifying Officer prior to certification
    being granted. SWAs should encourage employers who expect to obtain their certification 30 days
    before the date of need to have housing ready for inspection at the time of filing their application or
    earlier. SWAs should be prepared to conduct housing inspections prior to the filing of applications, as
    appropriate; and should even plan to schedule housing inspections prior to filing for those employers
    who regularly use the H-2A program.

6. Twenty-Four (24) Hours Before Date of Need (Suggested).

•   Submit report on SWA recruitment to the national processing center.

7. After Certification Determination.

•   Continue to refer workers who apply for the job.

•   If proof of advertising is not received, prior to the granting of the labor certification, obtain from
    employer.

•   Respond to national processing center requests for assistance/advice on re-determination requests.

8. After Date of Need.

•   Continue to refer workers who apply if comparable alternative employment is not available (up to 50
    percent of the contract period).

•   Advise the national processing center if employer refuses to accept referred workers.

•   Respond to national processing center requests for assistance/advice on re-determination requests
    and recruitment of replacement workers (employer must report workers not accepted or fired to the
    SWA; the national processing center has 72 hours to act on re-determination requests).

•   Refer worker complaints on non-performance of contracts to the Wage and Hour Division (DOL).

•   Provide information (and other assistance) to the Wage and Hour Division in its investigations.

•   Investigate employer complaints on 50 percent rule violations (655.106(g)).

•   Advise employers, and the national processing center if appropriate, of legal or regulatory actions
    mandating changes in work situation.

•   Conduct field checks at job sites only where U.S. workers have been placed through the clearance
    system (coordinate with the national processing center and Wage and Hour Division; do not duplicate
    Wage and Hour targeted enforcement visits).

•   Cancel job order when 50 percent of work contract has elapsed.

Attachment 5

Attachment No.: 5

             Major SWA Responsibilities for the ALC Non- Agricultural Programs


1. Before Filing of Application.

•   Respond to written and telephone inquiries about non-agricultural certification and attestation
    programs.

•   Advise employers, applicants, and aliens, as appropriate, about requirements of non-agricultural labor
    certification and attestation programs.

•   Refer employers, applicants, and aliens, as appropriate, to the national processing center for further
    information regarding non-agricultural labor certification and attestation programs.

•   Provide prevailing wage information.

•   Mail forms, regulations, instructions, etc., to employers, attorneys, and other interested members of
    the public.

2. After Filing of Application (H-2B program).

•   Review application for completeness.

•   Advise employers, as appropriate, of deficiencies and corrections that should be made to application.

•   Provide prevailing wage determinations to employers.

•   Prepare job orders from the ETA 750 and transmit to Job Bank for regular SWA recruitment activity.
    Monitor and collect referrals from SWA verification system.

•   Advise employers of recruitment and other regulatory requirements.

•   Screen applicant resumes received against advertisements to assure that applicants meet employer
    requirements and make referrals of only qualified applicants to employers.

•   Collect recruitment results from employers on all applicants who responded to the employer's
    recruitment efforts, including those who responded directly to the employer.

•   Prepare case file for review by the Certifying Officer.

•   Transmit case file to the national processing center with state recommendations.

•   Furnish information on applications, employers, and beneficiaries to the U.S. Citizenship and
    Immigration Services (USCIS) and other law enforcement agencies.

3. After Transmission of Case File to the National Processing Center.

•   Respond to requests for further information from the national processing center and law enforcement
    agencies, such as USCIS and the Office of the Inspector General.

Attachment 6

Attachment No.: 6
                                         Annual Plan Procedures

1. Annual Funding Agreement.

The current agreement includes an Assurances and Certifications package to encompass all PY 2004/FY
2005 program activities. Notice of Obligation documents for the allotment balances will be issued by the
National Office Grant Officer based upon national office approval of Annual Plans.

2. Annual Plan.

The Annual Plan includes an Application for Federal Assistance (SF-424), transmittal letter, work
statements, and budget information. Consistent with national office guidelines, negotiations between ETA
and the Grantee will determine each state’s annual level of funding for Alien Labor Certification.

•   The Annual Plan will have a performance period of 12 months beginning October 1, 2004, and
    ending September 30, 2005.

•   The plan package submitted from the states to the National Office Grant Officer should consist
    of a transmittal letter and one original and two copies of the following:

    A. Application for Federal Assistance (SF-424)

    B. Annual Budget and Quarterly Funding Plan (SF-424A—Section D only)
         Note: Please include a budget supplement to explain and list all proposed equipment
         purchases of $5,000 or more and any subcontracts.

    C. Statement of Work/Work Plan

•   The national office will negotiate work plans with states for each activity to be funded. The state is to
    prepare a description of the goals to be achieved as negotiated with the national office.

3. Plan Modifications.

The national office and the state may jointly modify the Annual Plan including negotiated changes in
funding levels during the year. The grant modification requests must include a transmittal letter, a revised
annual budget, and the quarterly spending plan. The National Office Grant Officer has the authority to
execute funding adjustments where a state is not spending at agreed upon levels. When an adjustment is
necessary, a unilateral modification may be issued. In the event that the Secretary of Labor may be
required by future legislation to carry out other responsibilities, not currently anticipated, the states will be
requested to submit a modification to the Annual Plan in order to carry out these additional duties.

4. Financial Reconciliation.

After the end of the fiscal year, a financial reconciliation procedure will be conducted to reconcile
accounting records maintained by the grantee and the Department of Labor’s original accounts. It may
become necessary to revise funding levels in the new plan for a particular state when the reconciliation is
completed.

Attachment 7

Attachment No.: 7
                                      Costing of H-2A Activities
                                          FY 2005 Estimate


1. Instructions.

Complete the table below using data from the prior fiscal year to estimate the cost of conducting H-2A
activities. The completed table must be mailed to Mr. Greg Wilson, Division of Foreign Labor
Certification, 200 Constitution Avenue, NW, Room C-4312, Washington, D.C. 20210 or fax to (202) 693-
2768 by April 29, 2005.

(1) Housing Inspections:
    • Include in the total cost: estimate travel time, inspection time, travel mileage, and completion of
        paperwork.
    • If housing inspections are done by another organization, estimate the cost that the H-2A portion
        adds to their total cost and include this amount in the table.

(2) Prevailing Wage/Practice Surveys:
    • Include in the total cost estimate the development of the survey instrument, postage, collection of
        responses, collation of information, and publication of results.

(3) Job Orders Processed:
     • Include in the total cost estimate the creation and maintenance of files, taking into account the
        cost associated with receiving applications, referring applicants, and releasing orders into
        inter/intra-state job system.


2. Costing Sheet.

                    Activity                          Total         Total Cost       Average
                                                     Number                           Cost
Housing Inspections


Prevailing Wage/Practice Surveys


Job Orders Processed


Total Cost of H-2A Activities


3. Calculations.

    •   Average Cost = Total Cost / Total Number
    •   Total Cost of H-2A Activities = Total Cost of Housing Inspections + Total Cost of Prevailing
        Wage/Practice Surveys + Total Cost of Job Orders Processed

Attachment 8

Attachment No.: 8
                                        Contact Information


1. Instructions.

Contact information for this grant must be mailed to Mr. Greg Wilson, Division of Foreign Labor
Certification, 200 Constitution Avenue, NW, Room C-4312, Washington, D.C. 20210 or faxed to (202)
693-2768 by April 29, 2005. If more than one contact person is appropriate, please provide the additional
information.


Name: ____________________________________________


Title: ____________________________________________


Address: _________________________________________


        _________________________________________


        _________________________________________


        __________________________________________


Telephone Number: _______________________________


Email Address:      ________________________________