How to Navigate FLAG System Updated for New H-2A Farmworker Visa Rule and Court Order

The Department of Labor (DOL) announced its H-2A Transition Plan for updating its Foreign Labor Application Gateway (FLAG) system based on the preliminary injunction (known as the Kansas Order) issued by the U.S. District Court for the District of Southern Georgia. That order prevents the DOL from enforcing its new H-2A Farmworker Visa Rule against the plaintiffs in the case (two entities and 17 states) during the pendency of the litigation. The Transition Plan will be in effect as of Sept. 12, 2024.

All H-2A cases submitted on FLAG prior to 7:00 p.m. ET on Sept. 11, 2024, will be processed under the “old” regulations in effect on June 27, 2024. At 12:00 a.m. ET on Sept. 12, FLAG reopens for submissions. Cases not subject to the Kansas Order will be processed based on the new regulations in effect as of June 28, 2024. Cases subject to the Kansas Order will continue to be processed based on the old regulations. Cases initiated but not submitted by 7:00 p.m. on Sept. 11 will be deleted, but waivers of the regulatory time period will be granted for those cases.

How Will This Work?

• Beginning on Sept. 12, the FLAG system will require the employer or employer’s authorized attorney or agent to identify whether the work to be performed will be located in one or more of the states or entities subject to the Kansas Order. If the answer is “yes,” the applicant will be directed to the job order using Form ETA-790/790A in effect as of June 27, 2024. If the answer is “no,” the applicant will be directed to the form in effect as of June 28, 2024.
• To ensure compliance with the Kansas Order, employers should submit separate job orders and Applications for Temporary Employment Certification for work performed in states subject to the Order and work performed in states not subject to the Order.

Jackson Lewis attorneys are available to answer questions about the new process and to help prepare and file H-2A visa during the transition period.