[Federal Register Volume 85, Number 45 (Friday, March 6, 2020)]
[Notices]
[Pages 13176-13178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04667]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
[CIS No. 2646-20; DHS Docket No. USCIS-2020-0002]
Notice of DHS's Requirement of the Temporary Labor Certification
Final Determination Under the H-2A Temporary Worker Program
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.
ACTION: Notice.
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SUMMARY: The Department of Homeland Security, U.S. Citizenship and
Immigration Services is announcing, through this notice, that a printed
copy of the electronic final determination form granting temporary
labor certification under the H-2A program through the U.S. Department
of Labor's new Foreign Labor Application Gateway system must be
submitted with an H-2A petition as evidence of an original and valid
temporary labor certification.
DATES: This notice is applicable March 6, 2020.
FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department
[[Page 13177]]
of Homeland Security, 20 Massachusetts Ave. NW, Suite 1100, Washington,
DC 20529-2120, Telephone Number (202)-272-8377 (not a toll-free call).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION: The Immigration and Nationality Act (INA),
as amended, establishes the H-2A nonimmigrant classification for a
temporary worker ``having a residence in a foreign country which he has
no intention of abandoning who is coming temporarily to the United
States to perform agricultural labor or services . . . of a temporary
or seasonal nature.'' INA section 101(a)(15)(H)(ii)(a), 8 U.S.C.
1101(a)(15)(H)(ii)(a). Employers must petition the Department of
Homeland Security (DHS), United States Citizenship and Immigration
Services (USCIS), for classification of prospective temporary workers
as H-2A nonimmigrants. INA section 214(c)(1), 8 U.S.C. 1184(c)(1). DHS
must approve this petition before the beneficiary can be considered
eligible for an H-2A visa. Finally, the INA requires that ``[t]he
question of importing any alien as [an H-2A] nonimmigrant . . . in any
specific case or specific cases shall be determined by [DHS],\1\ after
consultation with appropriate agencies of the Government . . .
mean[ing] the U.S. Department of Labor and includ[ing] the U.S.
Department of Agriculture.'' INA section 214(c)(1), 8 U.S.C.
1184(c)(1).
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\1\ As of March 1, 2003, in accordance with section 1517 of
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a
provision of the Immigration and Nationality Act describing
functions which were transferred from the Attorney General or other
Department of Justice official to the Department of Homeland
Security by the HSA ``shall be deemed to refer to the Secretary'' of
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV,
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
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DHS regulations provide that an H-2A petition for temporary
employment in the United States must be accompanied by a single valid
temporary labor certification (TLC) from the U.S. Department of Labor
(DOL) issued in accordance with INA section 218, 8 U.S.C. 1188, and DOL
regulations established at 20 CFR part 655. 8 CFR 214.2(h)(5)(i)(A),
(D), (h)(5)(iv); see also INA sections 214(c)(1) and 218, 8 U.S.C.
1184(c)(1) and 1188.\2\ The TLC serves as DHS's consultation with DOL
regarding whether: (i) An able, willing, and qualified U.S. worker is
available to fill the petitioning H-2A employer's job opportunity, and
(ii) whether a foreign worker's employment in the job opportunity will
adversely affect the wages or working conditions of similarly employed
U.S. workers. See INA sections 214(c)(1) and 218, 8 U.S.C. 1184(c)(1)
and 1188; see also 8 CFR 214.2(h)(5)(ii); 20 CFR 655.100.
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\2\ Under certain emergent circumstances, petitions requesting a
continuation of employment with the same employer for 2 weeks or
less are exempt from the TLC requirement. See 8 CFR 214.2(h)(5)(x).
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Historically, when a TLC was granted, DOL sent an original
certified Form ETA-9142A, Application for Temporary Employment
Certification, and a Final Determination letter on paper to the
employer and a copy, if appropriate, to the employer's agent or
attorney. 20 CFR 655.162. The original paper TLC was sent by means
normally ensuring next day delivery, and the employer retained a signed
copy of the certified Form ETA-9142A and the original signed Appendix
A, as required by 20 CFR 655.167. Id. The employer or, if applicable,
its agent or attorney, then attached the original paper TLC, along with
all other supporting documentation and appropriate fees, to the Form I-
129, Petition for a Nonimmigrant Worker, and filed the Form I-129 with
USCIS. On December 10, 2012, DOL implemented electronic filing in the
H-2A labor certification program, but continued to issue original
certified ETA-9142A TLCs on paper.\3\
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\3\ Electronic Filing of H-2A and H-2B Labor Certification
Applications Through the iCERT Visa Portal System, 77 FR 59670,
69672 (September 28, 2012).
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On August 22, 2019, and in accordance with the Paperwork Reduction
Act (PRA), the Office of Management and Budget (OMB) approved revisions
to DOL's H-2A Foreign Labor Certification Program information
collection.\4\ OMB also approved Form ETA-9142A, Final Determination:
H-2A Temporary Labor Certification Approval, which allows DOL to issue
electronic TLCs to employers or, if applicable, the authorized
attorneys or agents. On August 27, 2019, DOL then announced on the
Office of Foreign Labor Certification (OFLC) website a transition
schedule for employers to submit the new H-2A application forms through
its new Foreign Labor Application Gateway (FLAG) system beginning
October 1, 2019.\5\ Employers who file the Form ETA-9142A, including
all applicable appendices and the new Form ETA-790/790A, H-2A
Agricultural Clearance Order, through the FLAG system and are granted a
TLC will receive the Form ETA-9142A, Final Determination: H-2A
Temporary Labor Certification Approval, and Final Determination letter
electronically.\6\ In circumstances where the employer or, if
applicable, its authorized attorney or agent, is not able to receive
the approved TLC documents electronically, DOL will send the Form ETA-
9142A, Form ETA-790/790A, and Final Determination letter on paper and
in a manner that ensures next day delivery.
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\4\ See OMB's Notice of Action issued on August 22, 2019, on
DOL's information collection control number 1205-0466 at https://www.reginfo.gov.
\5\ DOL announced that it would continue to accept original Form
ETA-9142A through its legacy iCERT system until October 16, 2019.
DOL also announced that, beginning October 1, 2019, employers
seeking to file an emergency application under 20 CFR 655.134 or an
application for workers in herding or production of livestock on the
range, as defined in 20 CFR 655.201, must file the new Form ETA-
9142A, Form ETA-790/790A, and appendices in the FLAG system. In
addition, employers with a start date of need on or after December
15, 2019 must file the new Form ETA-790/790A and any appendices in
the FLAG system. See https://www.foreignlaborcert.doleta.gov/.
\6\ Employers may obtain a copy of the final decisions from the
Historical table in the My Cases tab of their FLAG account. See
DOL's Frequently Asked Questions, under the question, ``How can I
find a copy of my issued application?'' at: https://flag.dol.gov/support/FAQ#cases.
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DHS regulations refer to a valid TLC by various terms including
``Department of Labor determination'' at 8 CFR 214.2(h)(2)(i)(E),
``approved labor certification'' at 8 CFR 214.2(h)(5)(x), and
``temporary agricultural labor certification'' at 8 CFR
214.2(h)(5)(i)(A), (h)(5)(iv)(B). Under the current instructions for
Form I-129, H-2A petitioners must submit a single valid temporary labor
certification from DOL with the H-2A petition.\7\ Since DOL, generally,
will now only provide the approved TLC to an employer electronically,
USCIS announced on its website on October 1, 2019, that employers whose
application for a TLC was processed in FLAG must include a printed copy
of the electronic one-page Form ETA-9142A, Final Determination: H-2A
Temporary Labor Certification Approval, with their Form I-129, and that
USCIS will consider this printed copy as an original and valid TLC.\8\
USCIS is formally announcing through this notice that a printed copy of
the Form ETA-9142A, Final Determination, completed and electronically
signed by DOL, must be submitted as initial evidence with an H-2A
petition, and that this printed copy of the one-page determination
satisfies the requirement that petitioners provide evidence of a
[[Page 13178]]
valid TLC that is required to accompany an H-2A petition.\9\ As
discussed above, this change in USCIS procedure aligns with DOL's
change in its procedures, as DOL has transitioned to a new electronic
filing and application processing environment through which, generally,
DOL no longer provides the employer and, if applicable, the employer's
authorized attorney or agent with an original paper TLC. This change in
process is also appropriate since, in most circumstances, USCIS will no
longer need to reference a paper copy of a certified Form ETA-9142A
(including the Form ETA-790/790A and all appendices) because USCIS and
DOL have in place an information sharing process that allows USCIS to
validate substantive elements of the valid TLC based on case
information supplied by DOL directly to USCIS.\10\
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\7\ See https://www.uscis.gov/i-129. Under certain emergent
circumstances, petitions requesting a continuation of employment
with the same employer for 2 weeks or less are exempt from the TLC
requirement. See 8 CFR 214.2(h)(5)(x).
\8\ See https://www.uscis.gov/news/alerts/h-2a-petitioners-must-include-temporary-labor-certification-final-determination-form-i-129.
\9\ See 8 CFR 103.2(b)(7)(ii).
\10\ DHS USCIS and DOL entered into a Memorandum of Agreement
regarding employment-based petition, labor certification, and labor
condition application data sharing in support of their respective
missions, effective January 12, 2017. See https://www.uscis.gov/sites/default/files/files/nativedocuments/Employment-Based_Petition_Labor_Certification_and_Labor_Condition_Application_Data.pdf. To view the Privacy Impact Assessment (PIA) for the
Validation Instrument for Business Enterprises (VIBE), see https://www.dhs.gov/publication/dhs-uscis-pia-044-validation-instrument-business-enterprises. Note, though USCIS and DOL have in place an
information sharing process, petitioners must provide a printed copy
of the one-page determination with the submission of the H-2A
petition.
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USCIS notes that there may be limited circumstances when an
employer (or its authorized attorney or agent, if applicable) has a
paper-based final determination from DOL because, among other reasons,
the employer is unable to receive the final determination
electronically.\11\ In these limited circumstances, USCIS may accept
and consider the paper-based certification documents as an original
approved TLC. Additionally, USCIS notes that the submission of a
printed copy of the electronic Form ETA-9142A, Final Determination does
not preclude USCIS from issuing a request for evidence or a notice of
intent to deny in certain warranted circumstances, including but not
limited to, when the electronic systems are unavailable for validation,
or the final determination document is substantively inconsistent with
the information provided by DOL regarding that labor certification
determination. In those instances, USCIS will request that an employer
(or its authorized attorney or agent, if applicable) submit, in
response to a request for evidence or a notice of intent to deny,
supporting documentation, including but not limited to a copy(ies) of
the complete certified Form ETA-9142A, Form ETA-790/790A, and its
appendices. DOL has agreed that such evidence will be made available to
employers (or authorized attorneys agents) in certain circumstances,
for example, in the event of a FLAG system outage or scheduled
maintenance.
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\11\ See 83 FR 53911, 53912 (October 25, 2018) (``In
circumstances where the employer or, if applicable, its authorized
attorney or agent, is not able to receive the temporary labor
certification documents electronically, ETA will send the
certification documents printed on standard paper in a manner that
ensures overnight delivery.'').
Joseph Edlow,
Deputy Director for Policy, U.S. Citizenship and Immigration Services.
[FR Doc. 2020-04667 Filed 3-5-20; 8:45 am]
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