Getting Started with FLC

OFLC Overview

Through a delegation from the Secretary of Labor, OFLC administers employment-based programs

• “Employment-based” means that an employer and not the foreign worker is filing an application

OFLC certifies to DHS-USCIS and DOS that:

• There are not sufficient U.S. workers who are able, willing, qualified, and available for the requested positions
• Employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers

OFLC receives and processes employer-filed applications through National Processing Centers

Types of programs

• H-1B, H-1B1, E-3 Skilled Occupations Visas
• H-2A Temporary Agricultural Visa
• H-2B Temporary Non-Agricultural Visa
• Permanent (PERM) Program “Green Card

H2A Program Process

Step 1: Petitioner submits temporary labor certification application to the U.S. Department of Labor (DOL).  Before requesting H-2A classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2A workers from DOL. For further information regarding the temporary labor certification requirements and process, see the Foreign Labor Certification, Department of Labor Web page.

Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2A employment from DOL, the petitioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit original temporary labor certification as initial evidence with Form I-129. (See the instructions to Form I-129 for additional filing requirements.)

Step 3: Prospective workers outside the United States apply for visa and/or admission. After USCIS approves Form I-129, prospective H-2A workers who are outside the United States must:

• Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
• Directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa in cases where an H-2A visa is not required.

How and When to Apply

Before filing a petition with the U.S. Citizenship and Immigration Services employers must complete the following four steps in the H-2A Temporary Labor Certification process through the FLAG online filing system.

Step 1: Filing a Job Order with the State Workforce Agency (SWA)

This involves preparing and submitting an agricultural job order (Form ETA-790/790A) to the SWA that serves the state where the work will be performed. The SWA will review the job order, work with you on any needed corrections, and initiate recruitment of U.S. workers.

When: 75 to 60 calendar days before the start date of work

Step 2: Filing an H-2A Application with the Chicago National Processing Center (NPC)

Submit an H-2A application to the Chicago NPC. The Chicago NPC will review your application, notify you of any deficiencies, and provide you with additional instructions for completing the temporary labor certification process.

When: No less than 45 calendar days before the start date of work

Step 3: Conducting Recruitment for U.S. Workers

The recruitment of U.S. workers will be conducted by the employer and includes where and when to advertise, what content the advertisements must contain, and how to prepare your recruitment report.

When: Recruitment beginning on the date you receive the Notice of Acceptance from the Chicago NPC until you complete the recruitment steps

Step 4: Completing the Temporary Labor Certification Process

The final step in this process identifies the additional documents you must submit to the Chicago NPC in order to receive a final determination; and, should labor certification be granted, moving on to the USCIS.

When: No less than 30 calendar days before the start date of work.

What to Submit to the Chicago NPC

• Agricultural and Food Processing Clearance Order (ETA Form 790/790A) and Addendums;
• Application for Temporary Employment Certification and Appendix A; (ETA Form 9142A); and
• Additional documentation for H-2A Labor Contractors.

When preparing your agricultural job order, remember to:

• Use the most current ETA Form 790 available on the OFLC website at: https://www.dol.gov/agencies/eta/foreign-labor/forms
• Describe in detail the agriculture work to be performed, including the use of any necessary equipment, and the specific crops or commodities to be planted,  cultivated, and/or harvested
• Ensure the job offers the same benefits, wages, and working conditions to U.S. and H‐2A workers
• Include a wage offer ece rate) for each crop or commodity
  When offering to pay an hourly rate, check the current Adverse Effect Wage
• Rate on the OFLC website at: https://flag.dol.gov/wage-data/adverse-effect-wage-rates
• When offering to pay a piece rate, check to see if the state where the work will be performed has issued a prevailing piece rate, which is available on the OFLC
  website at: https://www.foreignlaborcert.doleta.gov/aowl.cfm
• Use the current amounts for food payments to your workers when on travel, available on the OFLC website at: https://www.dol.gov/agencies/eta/foreign-labor/wages/meals-travel-subsistence
• If possible, include an e‐mail address on your application so that the SWA can more efficiently communicate with you