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2017 foreign labor certification grant plans
Summary ETA gave state workforce agencies FY 2017 grant planning and management instructions for foreign labor certification activities. Four attachments provide the planning package, annual plan, certification and prior-year funding figures. ETA now lists this advisory as Canceled.
Document
Federal guidance
Agency
U.S. Department of Labor, Employment and Training Administration (ETA)
Document number
TEGL No. 25-16
Date issued
March 30, 2017
Status
Withdrawn
ETA lists this advisory Canceled as of 2026-10-24, although its PDF prints Expiration Date: Continuing.
Status last verified October 24, 2026
Is this still the rule?
This document has been withdrawn. Ezel checks what federal law requires today, under current federal labor law, and answers your situation with citations.
About this page: The full text below is the official document from U.S. Department of Labor, Employment and Training Administration (ETA). Ezel adds the plain-English summary and tracks the document's status. The official source linked on this page is authoritative for any reliance.
CLASSIFICATION
EMPLOYMENT AND TRAINING ADMINISTRATION Foreign Labor Certification
ADVISORY SYSTEM CORRESPONDENCE SYMBOL
U.S. DEPARTMENT OF LABOR OFLC
Washington, D.C. 20210 DATE
March 30,2017
ADVISORY: TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 25-16
TO: STATE WORKFORCE AGENCY ADMINISTRATORS
FROM: BYRON ZUIDEMA /s/
Deputy Assistant Secretary
SUBJECT: Fiscal Year (FY) 2017 Foreign Labor Certification (FLC) Grant Planning
Guidance
1. Purpose. To provide guidance for the funding and management of FY 2017 annual grant
allocations in order to perform FLC program activities.
2. 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;
48 U.S.C. 1806;
Wagner-Peyser Act, 29 U.S.C. 49f(d);
U.S. Citizenship and Immigration Services regulations at 8 Code of Federal
Regulations(CFR) Part 214;
20 CFR Parts 653, subpart F, 654, subpart E, 655, subparts A and B, and 658;
2 CFR 200 Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards; Final Rule;
2 CFR 2900, Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards, Department of Labor; Final Rule
Guide for Employment Service Reimbursable Grant Activities;
ET H-2A Program Handbook No. 398, January 1988; and
Training and Employment Guidance Letter (TEGL) No. 04-06, Plans to Phase out
Penalty Mail Costs for “Employment Security” Programs and Availability of
Supplemental Budget Funds for Conversion to Commercial Mail Methods.
3. Background. The mission of the Office of Foreign Labor Certification (OFLC) of the
Employment and Training Administration is to help U.S. employers fill jobs while protecting
U.S. and foreign workers. OFLC carries out this mission by determining, on a case-by-case
basis, whether there are able, willing, and qualified U.S. workers available for the job and
whether there will be any adverse impact on similarly-employed U.S. workers should a labor
certification be granted. The Immigration and Nationality Act (INA) assigns certain
RESCISSIONS EXPIRATION DATE
None Continuing
responsibilities to the Secretary of Labor (Secretary) for employment-based immigration
programs that require a labor certification. 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 all
employers seeking to hire either permanent or temporary foreign labor to apply to the
Secretary for a labor certification.
Congress appropriates funding for OFLC Federal Administration and related State foreign
labor certification activities through the State Unemployment Insurance and Employment
Service Operations (SUIESO) account. The Federal Administration activity funds federal
program functions, including salaries and expenses, IT development and maintenance,
contract services to support case adjudications, rent, and overhead costs. The State Grants
activity funds services provided by State Workforce Agencies in support of the foreign labor
certification program, including the placement of employer job orders, inspection of housing
for agricultural workers, and the administration of prevailing wage and practice surveys. The
OFLC distributes this grant funding annually in accordance with approved state plans. This
TEGL provides programmatic guidance and financial information to SWAs to support state
foreign labor certification activities in FY 2017.
4. Action Requested. SWA Administrators are requested to immediately provide copies of this
guidance to all staff involved in the preparation and submission of the annual grant plan for
FLC program activities for FY 2017. Within 30 calendar days from the date of this
TEGL’s issuance, SWAs must submit their grant applications to OFLC unless they are in
receipt of an approved written extension from the OFLC National Office. We request that
Administrators receiving this guidance share this information within their respective
organizations in order to ensure that fiscal and programmatic public workforce system
members are fully aware of the required FY 2017 FLC grant application processes and
timelines.
5. Inquiries. SWA staff should direct all questions to the OFLC National Office at
[email protected].
6. Attachments.
Attachment 1 - Program Planning Guidance and Information Package
Attachment 2 - Fiscal Year (FY) 2017 Annual Plan
Attachment 3 - Annual Plan Certification
Attachment 4 - FY 2016 Funding Level (provided as estimates for use in determining
FY 2017 final funding levels)
Attachment (official PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2017/TEGL_25-16_Attachment_1.pdf)
Attachment 1
Program Planning Guidance and Information Package
I. Introduction
The mission of the Office of Foreign Labor Certification (OFLC) of the Employment and
Training Administration is to help U.S. employers fill jobs while protecting U.S. and foreign
workers. OFLC carries out this mission by determining, on a case-by-case basis, whether
there are able, willing, and qualified U.S. workers available for the job and whether there
will be any adverse impact on similarly-employed U.S. workers should a labor certification
be granted. The Immigration and Nationality Act (INA) assigns certain responsibilities to
the Secretary of Labor (Secretary) for employment-based immigration programs that require
a labor certification. 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 all employers
seeking to hire either permanent or temporary foreign labor to apply to the Secretary for a
labor certification.
Congress appropriates funding for OFLC Federal Administration and related State foreign
labor certification activities through the State Unemployment Insurance and Employment
Service Operations (SUIESO) account. The Federal Administration activity funds federal
program functions, including salaries and expenses, IT development and maintenance,
contract services to support case adjudications, rent, and overhead costs. The State Grants
activity funds services provided by State Workforce Agencies in support of the foreign labor
certification program, including the placement of employer job orders, inspection of housing
for agricultural workers, and the administration of prevailing wage and practice surveys. The
OFLC distributes this grant funding annually in accordance with approved state plans. This
TEGL provides programmatic guidance and financial information to SWAs to support state
foreign labor certification activities in FY 2017.
This Training and Employment Guidance Letter (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 show
activity to be performed between October 1, 2016 and September 30, 2017.
II. Grant Procedures
A. Grant Application. The SWA grant application must be developed in accordance with
the instructions contained in this TEGL. The grant application package submitted by
the SWA to OFLC should consist of: (1) a transmittal letter and (2) the original of the
following documents:
Application for Federal Assistance (SF-424), Expiration Date 10/31/2019, Office of
Management and Budget (OMB) Control No. 4040-0004 (Grants.gov). The current
version of the form must be submitted. Expired forms will not be accepted.
http://www.grants.gov/web/grants/forms/sf-424-family.html
Budget Information -Non-Construction Programs, SF 424A (sections B and D
only), Expiration Date 01/31/2019, OMB Control No. 4040-0006 (Grants.gov). The
current version of the form must be submitted. Expired forms will not be accepted.
http://apply07.grants.gov/apply/forms/sample/SF424A-V1.0.pdf
Important Notes:
1. Submit the total grant amount requested as specified in the 424 and 424a.
Please note that the application/budget must be based on projected
State/territory needs for a period of one year.
2. Submit a justification and supporting documentation for any proposed
equipment purchases of $5,000 or more, in addition to the grant budget form
narrative. Prior approval of any equipment exceeding $5,000 and any
contracts/subcontracts must be obtained per 2 CFR 200.33(equipment) and 2
CFR 2900.16 (sub-grants/contracts).
3. Please submit, in addition to the grant budget form, a narrative including
supporting documentation to justify any proposed contracts and/or subcontracts
the SWA intends to execute to carry out these grant activities.
In addition to the above additional justifications (if needed) and submitting the
total grant amount request as specified in the 424 and 424a, please note the
application/budget must be based on projected State/territory needs for a period
of one year.
4. Other: List each item in sufficient detail for us to determine whether the costs
are reasonable or allowable. List any item, such as stipends or incentives, not
covered elsewhere here.
5. Indirect Costs: If you include indirect costs in the budget, then include either
(a) The approved indirect cost rate with a copy of the Negotiated Indirect Cost
Rate Agreement (NICRA), a description of the base used to calculate
indirect costs along with the amount of the base, and the total indirect costs
requested;
OR
(b) If you meet the requirements to use the 10% de minimis rate as described
in 2 CFR 200.414(f), then include a description of the modified total direct
costs base (see 2 CFR 200.68 for definition) used in the calculation along
with the amount of the base, and the total indirect costs requested based on
the 10% de minimis rate. See Section IV.B.4. and Section IV.E.1. for more
information. Additionally, the following link contains information
regarding the NICRA at DOL:
http://www.dol.gov/oasam/boc/dcd/index.htm
6. Full-year funding levels will not be confirmed until the annual plans have been
reviewed. Please use Attachment 4 to this TEGL as guidance for estimated
funding.
FY 2017 Annual Plan Table of Contents
‒ Foreign Labor Certification Workload (Attachment 2, Section A)
‒ H-2B Program Activities (Attachment 2, Section B)
‒ H-2A Program Activities (Attachment 2, Section C)
‒ Permanent Labor Certification Program (Attachment 2, Section D)
‒ Grantee Contact Information (Attachment 2, Section E)
‒ Annual Plan Certification (Attachment 3)
B. Grant Submission. A completed grant application package must be submitted by the
SWA to OFLC within 30 calendar days following the date of issuance of the planning
guidance. SWAs may find it helpful to review their prior grant application package
submissions and revisions for completion of the FY2017 grant application package.
To expedite review of your grant application package, the preferred method is for
SWAs to send a completed signed and scanned copy of the application package in
Adobe Portable Document Format (PDF) by e-mail to the dedicated e-mail address:
[email protected]. Please include “FY 2017 SWA Grant Plan” in the subject line of
the e-mail.
The completed signed application package may also be submitted by Next Day
Delivery/ Overnight mail using the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
200 Constitution Avenue, NW, Room 12-200
Washington, D.C. 20210
Attn: OFLC Grants/Finance Team
C. 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. ETA will
determine the amount of funding to be awarded based on several factors, including the
amount requested in the grant application, the amount received and obligated in
previous years, and any amount returned to ETA in previous years. Additionally, ETA
will attempt to ensure that funding remains relatively stable across years. The amount
distributed will depend on the amount of resources available to ETA. After
determining the amount to be awarded and verifying that the grant application package
meets the established criteria, the OFLC Administrator will recommend approval to the
ETA Grant Officer. After reviewing the approved grant application package from the
OFLC Administrator, the ETA Grant Officer will issue the grant, including the
approved grant application package and a Notice of Acceptance, to the SWA.
D. Grant Signatures. The SWA’s authorized representative must sign all signature pages
of the grant application. If that individual has changed from the prior year, you must
provide an official letter, on State letterhead, with the grant application package
identifying the new authorized representative.
E. Grant Modifications. The grantee and the ETA Grant Officer, at the recommendation
of the OFLC Administrator, may jointly modify the FY 2017 SWA Annual Plan
including negotiated changes in program activities (e.g., review of job orders, wage or
prevailing practice surveys, etc.) and funding levels during the grant period of
performance. Any grant plan modification request must include a transmittal letter,
written narrative of the proposed modification(s), revised annual budget, and quarterly
spending plan.
In the event that the Secretary is required by future legislation, regulatory action, or a
court order to carry out responsibilities related to the 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.
III. 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, policies, procedures, handbooks, manuals, and other directives,
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. OFLC 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 hence is not required to conduct Wagner-Peyser funded program activities.
Therefore, CNMI may use funding provided under its foreign labor certification program
grant to fund activities related to the foreign labor certification program, such as the review
of H-2A or H-2B job orders or conducting referrals of qualified U.S. workers that other
grantees are required to fund with Wagner-Peyser funds.
SWAs will report financial and program management information using the following
required reports:
A. 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
left in the fiscal year and must be submitted online through ETA’s Grantee Reporting
System at https://www.etareports.doleta.gov/CFDOCS/grantee_prod/reporting/index.cfm.
You can obtain a copy of the Form ETA-9130 at the following Web site:
http://www.doleta.gov/grants/pdf/ETA-9130-Basic.pdf.
Reporting Report
Fiscal Year 2017
Months Due Date*
1st Quarter October – December February 14, 2017
2nd Quarter January – March May 15, 2017
3rd Quarter April – June August 14, 2017
4th Quarter July – September November 14, 2017
* The reporting system is available 24 hours a day including weekends; however, technical support is
not available on weekends.
If the SWA experiences any technical issues submitting the report, please contact the
E-Grants Helpdesk via e-mail at [email protected] or phone at (202) 693-2682.
Important Notes on Allowable Costs:
Costs incurred under the grant may only be attributed to activities supporting the
direct administration of foreign labor certification programs; and
Costs may include staff resources, travel expenditures, other direct administrative
costs, and indirect/overhead support (where an approved indirect cost plan is in
place or based on the 10% de minimus rate, if applicable).
B. 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, Expiration 10/31/2018) on a quarterly basis providing
detailed information on H-2A and H-2B program activities.
The data required by the Form ETA-9127 are 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 2 weeks after the end of each quarter
during the fiscal year and may be submitted by e-mail directly to OFLC at
[email protected]. 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. You can obtain a copy of the Form
ETA-9127 and instructions at the following Web site:
Fillable Form:
https://www.foreignlaborcert.doleta.gov/pdf/9127Instructions_Final.pdf
Form Instructions:
https://www.foreignlaborcert.doleta.gov/pdf/Instructions_Form_9127.pdf
Reporting Report
Fiscal Year 2016
Months Due Date*
1st Quarter October – December January 15, 2017
2nd Quarter January – March April 15, 2017
3rd Quarter April – June July 15, 2017
4th Quarter July – September October 15, 2017
th
* If the 15 day falls on a weekend (Saturday or Sunday, or Federal holiday), then
the report is due the next business day.
SWAs experience any difficulties submitting the report, they may contact
the OFLC Grants/Finance Team at [email protected] or (202) 513-7350-3010.
C. Agricultural Prevailing Wage Survey Reports. A critical component of OFLC’s ability
to grant a labor certification under the H-2A temporary agricultural program is a
finding that the wages of similarly employed U.S. workers are not adversely impacted
by the admission of temporary foreign workers. To that end, an employer participating
in the program is generally required to offer and pay the highest of several wages,
namely: the Adverse Effect Wage Rate (AEWR), the prevailing hourly wage or piece
rate, the agreed-upon collective bargaining wage, or the Federal or State minimum
wage.
SWAs collect and provide vital information to OFLC with respect to whether a prevailing
hourly wage or piece rate exists for the occupation or crop in the area of intended
employment. These employer wage results are collected through survey instruments
designed by the SWA and transmitted to OFLC as soon as the wage results are
completed (based on the SWA’s wage survey plan) using the following standard forms:
ETA Form ETA-232, Domestic Agricultural In-Season Wage Report (OMB Control
No. 1205-0017, Expiration 1/31/2020)
https://www.foreignlaborcert.doleta.gov/pdf/in_season.pdf
ETA Form ETA-232A, Wage Survey Interview Record (OMB Control No. 1205-0017,
Expiration 01/31/2020)
https://www.foreignlaborcert.doleta.gov/pdf/ETA%20232A%20Form%20Final_fillable
2.pdf
ETA Forms 232 and 232A may be submitted electronically (recommended) at the
dedicated e-mail address: [email protected]
The forms may also be mailed to the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
200 Constitution Avenue, NW, Room PPII-12-200
Washington, D.C. 20210
Attn: H-2A Prevailing Wage Surveys
If the SWA experiences any technical issues conducting the prevailing wage survey or
submitting the results, please e-mail [email protected]. 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.
D. Agricultural Employment Practice Survey Reports. Department of Labor (Department)
regulations 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, Department regulations 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 for transmitting the survey results in summary form
to the Chicago National Processing Center (NPC) as soon as the employment practice
results are completed. Absent employment practice survey results, the SWA will be
required to conduct ad hoc surveys.
The prevailing, normal, or common practice survey results may be submitted
electronically directly to the Chicago NPC at [email protected]
(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 Chicago NPC by e-mail at
[email protected] 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.
Attachment (official PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2017/TEGL_25-16_Attachment_2.pdf)
Attachment 2 OMB Approval: 1225-0086
Expiration Date: XX/XX/2019
FISCAL YEAR (FY) 2017 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 2017 (October 1, 2016 through September 30,
2017) to support the administration of foreign labor certification (FLC) programs in accordance
with all applicable regulations, policies, procedures, handbooks, manuals, and other directives.
A. Foreign Labor Certification Workload
Total
Category of OFLC Program
FY 2016 FY 2017 FY 2017 Estimated
Services/Activities
FY 2017
Workload Workload Workload Workload(1)
Actual per ETA 9127 add previous 2
Completed Projected
Report columns
A. Number of H-2A agricultural
clearance job orders processed and
projected to be processed.
B. Number of H-2A prevailing wage
surveys conducted and projected to
be conducted.
C. Number of H-2A prevailing practice
surveys conducted and projected to
be conducted.
D. Number of H-2A housing
inspections conducted and projected
(2)
to be conducted.
E. Number of H-2A range housing
inspections conducted and projected
to be conducted, as required by 20
CFR 655.230 (if applicable).
F. Number of H-2B job orders
processed and projected to be
processed.
G. Number of Full Time Equivalent
(FTE) staff funded by this grant.
(1) Workload includes completed OFLC program services/activities provided and services/activities planned for
the period between October 1, 2016 and September 30, 2017. 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 at 20 CFR 655.200 (et. seq.)
B. H-2B Temporary Nonagricultural Program Activities
Section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), requires the Secretary of Homeland
Security to consult with “appropriate agencies of the government” before authorizing the
classification of aliens as H–2B workers. Under Department of Homeland Security (DHS)
regulations at 8 CFR 214.2(h)(6)(iii)(C), an H-2B petition for temporary employment must
be accompanied by an approved temporary labor certification from the Department of Labor
(DOL), which serves as DOL’s advice to DHS regarding whether a qualified U.S. worker is
available to 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 DOL regulations at 20 CFR Subpart A, the State Agency 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 State
Agency agrees to carry out the following state activities:
1. Stakeholder Education and Outreach: Make available in a conspicuous location on the
State Agency website information on how employers can participate in the H-2B
program, such as easy-to-understand instructions on how to prepare and submit a job
order; a copy of the State Agency job order form that is accessible and can be completed
electronically; and current contact information within the State Agency for employers to
request technical assistance.
No less frequently than once a year, the State Agency will electronically disseminate to
employers who routinely use the H-2B program helpful tips or best practices on
preparing high quality job orders, information on any state-specific requirements
impacting the material terms or conditions of employer job orders, and the most current
version of the State Agency’s job order form and instructions. Where requested and
funds permitting, the State Agency will participate in local or state employer roundtables,
conferences or other stakeholder forums to present and/or disseminate information related
to the H-2B program.
2. Placement of H-2B Job Orders: In accordance with funds appropriated under the
Wagner-Peyser Act (29 U.S.C. 49 et seq.), the State Agency already administers a public
labor exchange system that facilitates the placement of employer job orders and referral
of prospective U.S. applicants to current and future job opportunities.
The State Agency’s labor exchange system, which is referred to as [insert labor
exchange system name here], is accessible to employers required to place a job order in
connection with a concurrently filed H-2B Application for Temporary Employment
Certification with DOL, pursuant 20 CFR 655.16. The State Agency has a capability for
employers to place job orders for review in the following manner:
Please check all that apply:
Self-services by accessing the State Agency’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 State Agency contact information including email address
where employers can submit H-2B job orders]
Please check one of the following:
The State Agency’s job order form and/or system DOES contain an entry field or
option permitting employers to identify that the job order is being placed in
connection with a concurrently submitted Application for Temporary Employment
Certification for H-2B workers;
OR
The State Agency’s job order form and/or system DOES NOT contain an entry
field or option permitting employers to identify that the job order is being placed in
connection with a concurrently submitted Application for Temporary Employment
Certification for H-2B workers. Therefore, employers can provide the regulatory
required notification to the State Agency in the following manner:
[Insert a brief description of how and to whom employers can provide
the State Agency with the required notification]
Please check all that apply:
The State Agency has submitted with this grant plan a current electronic copy of the
form and general instructions employers are required to use to submit job orders.
The standard job order form and general instructions are easily accessible to
employers on a website maintained by the State Agency at:
[Insert State Agency website link here]
3. Processing of H-2B Job Orders: Upon receipt, the State Agency will review the job
order submitted by the employer for compliance with the regulatory criteria under 20
CFR 655.181, 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 State Agency
will make every effort to review the proposed or draft job order, upon request by the
DOL Certifying Officer.
a. Compliance Review of Job Orders
The State Agency will notify the DOL Certifying Officer (CO) of any deficiencies
within 6 business days of the date the employer’s job order was received;
For each deficiency identified, the State Agency will state the reason(s) why the
job order fails to meet the criteria under 20 CFR 655.18;
For each deficiency identified related to a state-specific requirement, the State
Agency will provide the applicable statutory or regulatory citation(s) and state the
modification(s) needed for the DOL CO to issue a Notice of Acceptance; and
In circumstances where a timely review of the job by the State Agency order
cannot be performed, the State Agency understands that the DOL CO has the
authority to issue a Notice of Deficiency (20 CFR 655.31) or Acceptance (20 CFR
655.33) within 7 business days of receipt.
b. Processing of Approved Job Orders
Upon receipt of a Notice of Acceptance under 20 CFR 655.33, the State Agency
will perform the following actions when instructed by the DOL CO:
‒ Promptly make, on behalf of the employer, any necessary modifications to the
job order under 20 CFR 655.32 or amendments granted by the DOL CO under
20 CFR 655.35;
1
The Department of Labor Appropriations Act, 2016, Division H, Title I of Public Law 114-113 (“2016
DOL Appropriations Act”), provided that the DOL may not use any funds to enforce the definition of
corresponding employment found in 20 CFR 655.5 or the three-fourths guarantee rule definition found in
20 CFR 655.20, or any reference thereto. This limitation is continued in FY2017 Further Continuing and
Security Assistance Act (2017 Continuing Resolution), Public Law 114-254. Therefore, in order to
comply with the 2017 Continuing Resolution, the State Agency will not use any funds provided under this
grant to implement these provisions in any manner. The State Agency understands that the 2016 DOL
Appropriations Act and 2017 Continuing Resolution did not vacate these regulatory provisions, and they
remain in effect, thus imposing a legal duty on H-2B employers, even though the DOL is currently
prohibited from using funds to enforce them.
‒ Promptly place on its active file the job order approved by the DOL CO, as
well as job orders received from other State Workforce Agencies (SWAs)
pursuant to 20 CFR 655.16(c), for intrastate clearance until the end of the
recruitment period, as specified by the DOL CO (i.e., 21 days before the start
date of work set forth in 20 CFR 655.40(c));
‒ Promptly transmit a copy of the approved job order to other 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;
‒ 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 office(s) of local union(s) representing
employees in the same or substantially equivalent job classification in the
area(s) in which work will be performed under the approved job order; and
‒ To the extent practicable, the State Agency agrees to maintain an up-to-date
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 State Agency’s public labor exchange services has the capability, whether
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 State Agency 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 FLC grants that are the subject of
this TEGL;
Upon request by the DOL CO, the State Agency will make available records of
U.S. workers referred against an approved job order to 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;
For complaints against an employer about a specific H-2B job order to which U.S.
workers were referred, the State Agency agrees to utilize the existing complaint
system for public labor exchange services established under 20 CFR 658, Subpart
E. Please note that these activities will be covered by existing Wagner-Peyser
formula grants and not by the FLC grants that are the subject of this Training and
Employment Guidance Letter.
4. Post-Determination Services: The State Agency agrees to provide support services to
the DOL CO after a final determination is issued under 20 CFR 655.50 in the following
manner:
In accordance with 20 CFR 655.57 and upon request by the DOL CO, the State
Agency agrees to promptly provide information concerning the availability of U.S.
workers to replace some or all of the qualified U.S. workers who were initially
deemed available in support of a partial certification or denial determination on the
employer’s Application for Temporary Employment Certification;
In accordance with 29 CFR 503.7, the State Agency agrees to refer to the appropriate
office of the Wage Hour Division any complaint or report of a 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
The State Agency agrees to cooperate and make available all appropriate records and
information upon request from any 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 Nonagricultural Program Activities
Section 218(a)(1) of the INA, 8 U.S.C. 1188, authorizes the Secretary of Homeland Security
to permit employers to import foreign workers to perform agricultural labor or services of a
temporary or seasonal nature where the DOL certifies that there are not sufficient qualified
U.S. workers available to fill the petitioning H–2A employer’s job opportunity and a foreign
worker’s employment in the job opportunity will not adversely affect the wages or working
conditions of similarly employed U.S. workers.
In accordance with DOL regulations at 20 CFR Subpart B, the State Agency agrees to carry
out all state activities to support DOL’s review and processing of job orders and applications
seeking temporary labor certification under the H-2A program. Specifically, the State
Agency agrees to carry out the following state activities:
1. Stakeholder Education and Outreach: Make available in a conspicuous location on the
State Agency website information on how employers can participate in the H-2A
program, such as easy-to-understand instructions on how to prepare and submit the Form
ETA-790 Agricultural and Food Processing Clearance Order, request a pre-occupancy
inspection of housing for farmworkers (if applicable), and current contact information
within the State Agency for employers to request technical assistance.
No less frequently than once a year, the State Agency will electronically disseminate to
employers who routinely use the H-2A program helpful tips or best practices on
preparing high quality job orders and, if applicable, information on any state-specific
requirements (e.g., current prevailing practices or normal and accepted requirements)
impacting the material terms or conditions of employer job orders. Where requested and
funds permitting, the State Agency will participate in local or state employer roundtables,
conferences or other stakeholder forums to present and/or disseminate information related
to the H-2A program.
2. Placement of H-2A Job Orders: In accordance with funds appropriated under the
Wagner-Peyser Act (29 U.S.C. 49 et seq.), the State Agency already administers a public
labor exchange system that facilitates the placement of employer job orders and referral
of prospective U.S. applicants to current and future job opportunities.
The State Agency’s labor exchange system is publicly accessible and possesses the
capability for employers to submit the Form ETA-790 and all supporting documentation
in connection with a future filed H-2A Application for Temporary Employment
Certification (Form ETA-9142A) with DOL, pursuant 20 CFR 655.121. More
specifically, the State Agency requires that employers submit the Form ETA-790 for
review in the following manner:
[Insert State Agency contact information including email address
where employers can submit H-2A job orders]
3. Processing of H-2A Job Orders: Upon receipt, the State Agency will review the job
order submitted by the employer for completeness, obvious errors or inaccuracies, and
compliance with the regulatory criteria under 20 CFR 655.122 and 20 CFR 653, subpart
F. In circumstances where a waiver of the required time period for filing an H-2A
Application is granted under 20 CFR 655.134 for emergency situations, the State Agency
will make every effort to review the proposed or draft job order, upon request by the
DOL Certifying Officer.
a. Compliance Review of Job Orders
The State Agency will notify the employer of any deficiencies within 7 calendar
days of the date the employer’s job order was received;
In circumstances where deficiencies are identified, the State Agency will provide
written notification to the employer stating the reason(s) why the job order fails to
meet the regulatory criteria and offering an opportunity to respond to the
deficiencies within 5 calendar days after receipt of the State Agency’s written
notification;
The State Agency agrees to respond within 3 calendar days after receipt of the
employer’s response; and
In circumstances where a timely review of the job order cannot be performed, the
State Agency understands that the employer is permitted to use the emergency
filing procedures for filing an H-2A application set forth in 20 CFR 655.134.
b. Processing of Approved Job Orders
Upon determining the job order meets the regulatory criteria, whether by the State
Agency or the DOL CO in the Notice of Acceptance (NOA) under 20 CFR
655.143, the State Agency will promptly (1) provide written notification
(preferably using email) to the employer and, if applicable, the employer’s
authorized representative and include the State Agency’s Job Order Number (if
available), and (2) place the approved job order in intrastate clearance and
commence recruitment of U.S. workers;
The State Agency agrees to keep the approved job order on its active file until the
end of the recruitment period (i.e., 50 percent of the period of employment), as set
forth in 20 CFR 655.135(d);
Where the approved job order includes worksites in an area of intended
employment that falls within the jurisdiction of more than one SWA, the State
Agency 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;
Upon receipt of a NOA under 20 CFR 655.143, the State Agency will perform the
following actions when instructed by the DOL CO:
‒ In the case of emergency situations, promptly place on its active file the job
order approved by the DOL CO, as well as job orders received from other
SWAs, for intrastate clearance until the end of the recruitment period, as set
forth in 20 CFR 655.135(d); and
‒ Promptly transmit a copy of the approved job order to other 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.
c. Referral of Qualified and Available U.S. Workers
The State Agency’s public labor exchange services has the capability to apprise
prospective U.S. workers of all the material terms and conditions of the
employer’s job opportunity prior to referral, as required by 20 CFR 655.155;
The State Agency will use its public labor exchange services (i.e., one-stop career
center system) to refer to the employer all qualified U.S. workers who apply for
the job opportunity or on whose behalf a job application is made. Please note that
these activities are covered by existing Wagner-Peyser formula grants and not by
the FLC grants that are the subject of this TEGL; and
Upon request by the DOL CO, the State Agency will make available records of
U.S. workers referred against an approved job order to assist the DOL CO in
making a final determination on the employer’s Application for Temporary
Employment Certification, as specified in 20 CFR 655.160.
4. Conducting Prevailing Wage Surveys: This section of the grant plan identifies the
schedule of the agricultural prevailing wage surveys (including logging activities) the
State Agency plans to conduct during the performance period of the grant, including
anticipated survey timeframes by area (e.g., statewide, regional), crops or other
agricultural activities/commodities, survey means (e.g., field survey, telephone survey)
and approximately when wage results are expected to be transmitted to the OFLC
National Office (via the Forms ETA-232) for review.
To the extent practicable, the State Agency has prioritized its limited resources on
conducting wage surveys in the major crops or other agricultural
activities/commodities where seasonal H-2A workers are regularly employed and,
where practicable, at a broader wage reporting area (e.g., statewide) that will yield
statistically valid wage findings from year to year, particularly those agricultural
activities paying workers on a piece rate basis;
In circumstances where substantial dissimilarities in crop or related conditions exists
in different parts of the state, the State Agency may use sub-state reporting areas for
conducting prevailing wage surveys;
The State Agency agrees to submit all completed and signed Form ETA-232/232A
prevailing wage survey findings to the DOL OFLC National Office in accordance
with instructions contained in this TEGL
[SWA schedule of wage surveys inserted here and, if necessary, include attachments]
Survey Survey Areas Crops/ Agricultural Survey Means Survey
Timeframes (e.g., Commodities (e.g., field Transmission
statewide, survey, Timeframe to
regional) telephone) OFLC
5. Conducting Prevailing Practice and Normal/Accepted Requirements Surveys: This
section of the grant plan identifies the schedule of the agricultural prevailing practice and
normal and accepted requirement surveys (including logging activities) the State Agency
plans to conduct during the performance period of the grant in accordance with ET
Handbook No. 398, including anticipated survey timeframes by area (e.g., statewide,
regional) and crops or other agricultural activities/commodities, and approximately when
employment practice results are expected to be transmitted to the OFLC Chicago
National Processing Center (NPC) for review.
The State Agency agrees to submit all completed prevailing practice and normal and
accepted requirement surveys promptly to the DOL OFLC Chicago NPC in accordance
with instructions contained in this TEGL.
[SWA schedule of employment practice surveys inserted here and, if necessary, include
attachments]
If this is the same as provided above, please indicate “Same survey schedule”, without
completing this table.
Survey Survey Areas Crops/ Agricultural Survey Means Survey
Timeframes (e.g., Commodities (e.g., field Transmission
statewide, survey, Timeframe to
regional) telephone) OFLC
6. Scheduling and Conducting Housing Inspections:
Employer-Provided Housing. In accordance with 20 CFR 655.122(d)(1)(i), the State
Agency agrees to schedule and conduct pre-occupancy inspections of housing to be
furnished to U.S. and H-2A workers who are not reasonably able to return to their
place of residence the same day. Employer-provided housing must meet the full set
of DOL Occupational Safety and Health Administration (OSHA) standards set forth
at 29 CFR 1910.142, or the full set of standards at 20 CFR 654.404 through 654.417,
whichever are applicable under 20 CFR 654.401. Requests by employers whose
housing does not meet the applicable standards for conditional access to the interstate
clearance system, will be processed under the procedures set forth at 20 CFR
654.402;
Rental and/or Public Accommodations.
The State Agency DOES NOT have jurisdiction to inspect rental and/or public
accommodation housing.
The State Agency DOES have jurisdiction under a state or local law/regulation to
perform an inspection of rental and/or public accommodation housing.
[Insert citation of state or local law/regulation and
the criteria under which the inspections of rental or public
accommodation housing will be performed]
Range Housing. If applicable, the State Agency agrees to schedule and conduct
inspections of range housing and certify that such housing used on the range is
sufficient to accommodate the number of certified workers and meets the
requirements under 20 CFR 655.230 and all applicable standards contained in 20
CFR 655.235;
The State Agency agrees to develop and maintain a plan to schedule housing
inspections prior to filing of job order for employers who regularly use the H-2A
program and, to the extent practicable, actively encourage employers to have housing
ready for inspection at time of filing job order or earlier;
The State Agency agrees to conduct housing inspections in accordance with
applicable local, state or federal standards and provide notification to the employer of
any deficiencies, request correction in 5 calendar days, and re-inspect to determine
compliance;
The State Agency agrees to provide a copy of the approved housing inspection or
other official certification document to the employer and, if applicable, to the
employer’s authorized representative;
Except in circumstances where the DOL has a special procedure, the State Agency
agrees to schedule and complete the required housing inspection and submit
notification (e.g., report, email) no later than 30 days before the start date of work to
the DOL Chicago NPC regarding whether housing is approved or not approved at
[email protected];
The State Agency agrees to promptly notify the DOL Chicago NPC of any changes in
employer provided housing and the results of any inspections conducted on substitute
housing.
To the extent the State Agency will use alternative methods for conducting pre-
occupancy housing inspections, such as through contracts, memoranda of
understanding, or other cooperative agreements with State or local organizations,
please include a short description of these arrangements.
[If applicable, SWA narrative inserted here for alternative housing inspection methods and,
if necessary, including state or local law or regulation governing the inspection of rental or
other public accommodation housing.]
5. Post-Determination Services: The State Agency agrees to provide support services to
the DOL CO after a final determination in the following circumstances:
In accordance with 20 CFR 655.166 and upon request by the DOL CO, the State
Agency agrees to promptly provide information concerning the availability of U.S.
workers to replace some or all of the qualified U.S. workers who were initially
deemed available in support of a partial certification or denial determination on the
employer’s H-2A Application;
The State Agency agrees to cooperate and make available all appropriate records and
information upon request from any Federal officials assigned to perform an
investigation, inspection, or law enforcement function pursuant to 8 U.S.C. 1188 and
the H-2A regulations as described in 29 CFR 501.7;
For complaints arising under the H-2A regulations, the State Agency agrees to utilize
the existing Job Service Complaint System, as described in 20 CFR part 658, subpart
E, and as required by 20 CFR 655.185. Please note that these activities will be
covered by existing Wagner-Peyser formula grants and not by the FLC grants that are
the subject of this TEGL;
For complaints involving allegation of fraud or misrepresentation, the State Agency
agrees to refer all such complaints to the DOL CO at [email protected] for
appropriate handling and resolution;
For complaints involving contracts with workers, the State Agency agrees to refer all
such complaints to the nearest local or regional office of the Wage Hour Division for
appropriate handling and resolution, as described in 29 CFR part 501; and
Complaints alleging that an employer discouraged an eligible U.S. worker from
applying, failed to hire, discharged, or otherwise discriminated against an eligible U.S.
worker, or discovered violations involving the same, the State Agency agrees to refer
all such complaints to the U.S. Department of Justice, Civil Rights Division, Office of
Special Counsel for Unfair Immigration Related Employment Practices (OSC), in
addition to any activity, investigation, and/or enforcement action taken by the State
Agency.
D. Permanent Labor Certification Program
The State Agency’s labor exchange system is accessible to employers who are required to
place a job order in connection with an Application for Permanent Employment
Certification, as set forth in 20 CFR part 656, and facilitates the referral of qualified and
available U.S. workers for consideration; and
The State Agency understands that these labor exchange services are already covered by
existing Wagner-Peyser formula grants; not by the FLC grants that are the subject of this
TEGL.
E. Grantee Contact Information
H-2A Program Point-of-Contact
Last name First name
Job title
Address
City State Postal code
Telephone number (including extension) Fax number
E-mail address
H-2B Program Point-of-Contact (if different than the contact listed above)
Last name First name
Job title
Address
City State Postal code
Telephone number (including extension) Fax number
E-mail address
Fiscal Grant Point-of-Contact (if different than the contact listed above)
Last name First name
Job title
Address
City State Postal code
Telephone number (including extension) Fax number
E-mail address
OMB Paperwork Reduction Act (OMB Control Number 1225-0086)
Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. Respondent’s reply
to these reporting requirements is required to obtain the benefits. Public reporting burden for this collection of information is estimated to
average 4 hour 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 Office of Foreign
Labor Certification ● U.S. Department of Labor ● Room 12-200 ● 200 Constitution Ave., NW, ● Washington, DC 20210.
Attachment (official PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2017/TEGL_25-16_Attachment_3.pdf)
Attachment 3
ANNUAL PLAN CERTIFICATION
____________ (Insert Official Name of SWA – not that of an individual)_________________
certifies that it will carry out all activities outlined in the fiscal year 2017 Annual Plan to support
the Secretary of Labor's responsibilities under the Immigration and Nationality Act as well as all
other standard certifications and assurances as a condition of receiving the Federal grant funds.
Per 2 CFR 200.333, file documentation of grant activities and accomplishments will be available
for examination by the Employment and Training Administration or other authorized Federal
representatives.
_______________________________________________ Date________________
Authorized Representative’s Signature
_______________________________________________
Authorized Representative’s Job Title
_______________________________________________
Authorized Representative’s Printed Name
Attachment (official PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2017/TEGL_25-16_Attachment_4.pdf)
Attachment 4
FY 2016 Funding Levels
*Last year’s funding levels are provided for reference and may not equate to FY 2017 allocations.
Alabama 91,208.00 Nevada 102,741.00
Alaska 76,145.00 New Hampshire 64,263.00
Arizona 192,444.00 New Jersey 615,000.00
Arkansas 87,591.00 New Mexico 87,591.00
California 1,295,937.00 New York 1,417,021.00
Colorado 241,500.00 North Carolina 463,800.00
Connecticut 250,191.00 North Dakota 169,631.00
Delaware 93,712.00 Northern Mariana
Islands 71,565.00
Florida 476,901.00
Ohio 256,193.00
Georgia 564,490.00
Oklahoma 83,012.00
Guam 79,954.00
Oregon 120,474.00
Hawaii 71,564.00
Pennsylvania 401,797.00
Idaho 350,000.00
Puerto Rico 71,564.00
Illinois 466,983.00
Rhode Island 76,145.00
Indiana 76,143.00
South Carolina 113,517.00
Iowa 114,908.00
South Dakota 97,460.00
Kansas 110,010.00
Tennessee 227,700.00
Kentucky 369,900.00
Texas 626,496.00
Louisiana 235,965.00
Utah 116,590.00
Maine 302,952.00
Vermont 121,048.00
Maryland 447,706.00
Virgin Islands 71,564.00
Massachusetts 889,045.00
Virginia 498,931.00
Michigan 307,306.00
Washington 179,907.00
Minnesota 126,652.00
Washington DC 10,000.00
Mississippi 99,043.00
West Virginia 78,433.00
Missouri 150,558.00
Wisconsin 136,580.00
Montana 278,811.00
Wyoming 78,437.00
Nebraska 76,921.00
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