Recent Changes to the H-1B Specialty Worker Program

Labor Condition Applications must be filed under the new DOL’S FLAG System

As part of the U.S. Department of Labor’s (“USDOL”) technology modernization initiative, the FLAG System (Foreign Labor Application Gateway) was developed to replace the legacy iCert system with the USDOL’s stated goal of improving customer service, and modernizing the administration of foreign labor certification programs.

On September 16, 2019, the FLAG Systems LCA Program Module was enabled and made operational on October 1, 2019. The ability to submit LCA applications using the iCert System was deactivated on October 1, 2019.

On October 4, 2019, the OFLC in collaboration with the Department’s Office of the Chief Information Officer, released enhancements in the FLAG system which includes a wage calculator tool to assist in auto-calculating prevailing wages on the Occupational Employment Statistics (“OES”) Wage Survey Program during the preparation of an ETA-9023 for LCAs.  Instructions on how to file an LCA in the new FLAG system as well as how to use its Prevailing Wage Determination tool are available on the OFLC webpage:

AILA and others ask DHS whether and when H-1B registration tool will be rolled-out and for extensive opportunity to test new tool

On January 31, 2019, the U.S. Department of Homeland Security (“DHS”) issued a final rule amending its H-1B regulations for specialty occupation workers.  The new rule requires employers wishing to file H-1B petitions on behalf of cap-subject H-1B workers to register electronically with the U.S. Citizenship and Immigration Services (“USCIS”) during a pre-determined registration period.  Only those petitioners whose registrations are chosen will be able to file H-1B cap-subject petitions.  The new registration rule took effect on April 1, 2019, however, USCIS suspended the electronic registration requirement for the FY2020 H-1B cap filing season in order to test the H-1B registration tool.

The American Immigration Lawyers Association (“AILA”) and industry groups are concerned that requiring use of an untested electronic system without significant input from users will cause technical glitches and operational problems, which could cause significant delays in meeting critical workforce needs. They are also concerned that there is now not enough time for meaningful testing of the registration tool.   The Group asked DHS to publicly confirm by September 15, 2019 whether and when the electronic registration system will be made available for the next H-1B visa season, FY 2021.  The Group wants the USCIS to permit maximum participation and feedback from stakeholders to ensure that the system is completely functional and thoroughly tested before USCIS mandates its use.

About the Author:

Elise S. Levasseur is a Member in Dickinson Wright’s Troy office where she practices in the area of immigration. She can be reached at 248-433-7520 or and you can visit her bio here.