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On January 18, the Department of Labor published the final rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States . The rule generally amends the Free Labor Certification (FLC) regulation for non-agricultural temporary labor certification by removing the requirement to report prevailing wage and apprenticeship information that employers or potential employers will utilize to determine whether or not to employ foreign workers, and limiting the reporting requirement to information that only ALJs (the adjudicators of the application under the existing FLC regulations) and State OSHA (or equivalent) have access to. The rule also adds additional requirements relating to the certification of placements in the position of internship that is comparable to the analogous requirements found in the Free Labor Certification rule for agricultural labor certification.
The Department of Labor issued a Federal Register notice proposing a 60-day delay of the effective date of the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States from March 15, 2021 until May 14, 2021. On January 20, 2021, Ronald A. Klain, Assistant to the President and Chief of Staff, issued a memorandum titled Regulatory Freeze Pending Review that directed federal agencies to consider postponing the effective date of any rules published in the Federal Register but not yet taken effect to allow the new administration to review any questions of fact, law, and policy raised by the rule. ETA seeks comment on the proposed delay, including the proposed delays impact on any legal, factual, or policy issues raised by the underlying rule and whether further review of those issues warrants such a delay. All other comments on the underlying rule will be considered to be outside the scope of this rulemaking. Written comments must be received by February 16, 2021. For more information, please see the link below.
the department published a 60-day notice in the federal register informing the public of proposed revisions to form eta-9141, application for prevailing wage determination. the objectives of the form eta-9141 revisions are to better align information collection requirements with the department’s current regulatory framework, streamline information collection across programs to reduce employer’s time and burden in preparing applications, and promote greater efficiency and transparency in the office of foreign labor certification’s (oflc) review and issuance of prevailing wage determinations. proposed changes to the form include addition of fields for the name and details of the attorney or agent filing the form on behalf of its employer client, formatted field for alternative requirements for the job opportunity instead of the current free-text field, and addition of an appendix to standardize the collection of requests for prevailing wage determinations for multiple worksites. any written comments must be submitted in accordance with the federal register notice instructions. copies of the 60 day notice, supporting statement, and the proposed forms and instructions are provided below:
the department has published two notices in the federal register announcing 60-day comment periods on its forms used in the h-2b program, which include the form eta-9142b, application for temporary employment certification, appendix b, and the new form eta-9165, employer-provided survey attestations to accompany h-2b prevailing wage determination request based on a non-oes survey. to read the notices, please click here for the eta-9142b and here for the eta-9165. to obtain a copy of the forms and the supporting documentation please submit your request to eta.oflc.formsdol.gov, subject line: form eta-9142b or form eta-9165. the forms were approved by the office of management and budget in conjunction with the h-2b rulemaking under the emergency procedures of the paperwork reduction act. the department now seeks to extend the forms for three years.
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