Temporary Agricultural Employment of H-2A Nonimmigrants in the United States rule (2022)

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The Temporary Agricultural Employment of H-2A Nonimmigrants in the United States rule is a significant rule issued by the Employment and Training Administration and Wage and Hour Division, U.S. Department of Labor (DOL) effective November 14, 2022, that amended DOL's regulations around the certification for temporary foreign workers in H–2A nonimmigrant status (H–2A workers). The agency issued the rule pursuant its authority under the Immigration and Nationality Act (INA).[1]

HIGHLIGHTS
  • Name: Temporary Agricultural Employment of H-2A Nonimmigrants in the United States
  • Code of Federal Regulations: 20 CFR 653 and 655, 29 CFR 501
  • Agency: Employment and Training Administration and Wage and Hour Division, U.S. Department of Labor (DOL)
  • Action: Final rule
  • Type of significant rule: Economically significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    Background

    An H-2A visa classification is for people who come temporarily to America to do agricultural labor or services, intending to return to their country of residence. DOL published most of the current H-2A program regulations in 2010, with some 2015 updates. DOL stated in the rule that they maintain strong protections for workers and employers and issued this final rule to address labor shortages by decreasing the administrative burden for the H-2A certification process for both parties. The rule further stated that the change gave the Wage and Hour Division more enforcement capabilities that aimed to protect workers' rights, decrease program fraud, and make certain that employers don't face unfair competition.[1]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    “ The Department of Labor (Department or DOL) is amending its regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers in H–2A nonimmigrant status (H–2A workers) and enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. These regulations are consistent with the Secretary of Labor's (Secretary) statutory responsibility to certify that there are not sufficient able, willing, and qualified workers available to fill the petitioning employer's job opportunity, and that the employment of H–2A workers in that job opportunity will not adversely affect the wages and working conditions of workers in the United States similarly employed. Among the issues addressed in this final rule are improving the minimum standards and conditions of employment that employers must offer to workers; expanding the Department's authority to use enforcement tools, such as program debarment for substantial violations of program requirements; modernizing the process by which the Department receives and processes employers' job orders and applications for temporary agricultural labor certifications, including the recruitment of United States workers (U.S. workers); and revising the standards and procedures for determining the prevailing wage rate. This final rule will strengthen protections for workers, modernize and simplify the H–2A application and temporary labor certification process, and ease regulatory burdens on employers.[1][2] ”

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “

    Strengthening Worker Protections and Program Integrity

    • Revises the standards and procedures by which employers qualifying as H–2A Labor Contractors (H–2ALCs) obtain temporary labor certification by permitting the electronic submission of surety bonds, adjusting the required surety bond amounts based on changes to adverse effect wage rates (AEWR), adopting a common bond form that includes standardized bond language, and permitting debarment of H–2ALCs that fail to provide adequate surety bonds. These provisions are intended to reduce the likelihood of program abuse by ensuring H–2ALCs are better able to meet their payroll and other program obligations to workers, streamline the process for accepting surety bonds, and strengthen the Department's authority to address noncompliant bonds.

    • Clarifies the definitions of “employer” and “joint employment,” the use of these terms in the filing of Applications for Temporary Employment Certification, and the responsibilities of joint employers. Employers that file as joint employers are treated as such as a matter of law for purposes of compliance and enforcement. In addition, employers that do not file applications but nonetheless jointly employ workers under the common law of agency are responsible as joint employers. These provisions are intended to enhance worker protections by providing greater clarity regarding the responsibilities of joint employers, consistent with the statute and the Department's current policy and practice.

    • Provides that rental and/or public accommodations secured to house workers must meet applicable local, State, or Federal standards addressing certain health or safety concerns (e.g., minimum square footage per occupant, sanitary food preparation and storage areas, laundry and washing facilities), and requires employers to submit written documentation that such housing meets applicable standards and contains enough bed(s) and room(s) to accommodate all workers requested. These provisions are intended to better protect the health and safety of workers without imposing an undue burden on employers.

    • Enhances the Department's debarment authority by holding agents and attorneys, and their successors in interest, accountable for their own misconduct independent of the employer's violation(s), and clarifies that Applications for Temporary Employment Certification filed by debarred entities during the period of debarment will be denied without review. These provisions are intended to improve program integrity and promote greater compliance with program requirements.

    Modernizing the H–2A Application Process and Prevailing Wage Surveys

    • Establishes a single point of entry by requiring that employers, except in limited circumstances, electronically file Applications for Temporary Employment Certification, job orders, and all supporting documentation through a centralized electronic system maintained by the Department, and permits the use of electronic signatures meeting valid signature standards. These provisions are intended to reduce costs and burdens for most employers, improve the quality of applications, reduce the frequency of delays associated with deficient applications, and better facilitate interagency data-sharing.

    • Codifies the use of electronic methods for the OFLC Certifying Officer (CO) to send notices and requests to employers, circulate approved job orders to appropriate SWAs for interstate clearance and recruitment of U.S. workers, and issue temporary labor certification decisions directly to the Department of Homeland Security (DHS). These provisions are intended to modernize OFLC's processing of applications to minimize delays, reduce administrative costs for the employer and the Department, and expedite the delivery of temporary agricultural labor certifications to DHS, while maintaining program integrity.

    Replaces outdated prevailing wage survey guidelines from the Department's ETA Handbook 385 (Handbook 385) with modernized standards that are more effective in producing prevailing wages for distinct crop or agricultural activities, and expands the universe of State entities that may conduct prevailing wage surveys, including SWAs, other State agencies, State colleges, or State universities. These provisions are intended to refine the minimum standards for prevailing wage surveys, including providing SWAs with the flexibility to leverage other State survey resources to expand the number and scope of surveys conducted based on information that is as reliable and representative as possible. In addition, while the minimum standards may not ensure statistically valid estimates for larger categories of workers, they are designed to provide more options for SWAs to make decisions about prioritizing precision, accuracy, granularity, or other quality factors in the data they use to inform prevailing wages.

    Expanding Employer Access and Flexibilities To Use the H–2A Program

    • Establishes new standards that permit individual employers possessing the same need for agricultural services or labor to file a single Application for Temporary Employment Certification and job order to jointly employ workers in full-time employment, consistent with the statute and the Department's longstanding practice. This provision is intended to provide small employers who cannot offer full-time work for their H–2A employees with an opportunity to participate in the H–2A program and ensure each employer will be held jointly liable for compliance with all program requirements.

    • Codifies a unique set of standards and procedures, with some revisions, for employers that employ workers engaged in animal shearing, commercial beekeeping, and custom combining according to a planned itinerary across multiple areas of intended employment (AIE) in one or more contiguous States. These provisions are intended to provide appropriate flexibilities for employers engaged in these unique agricultural activities that are substantially similar to the processes formerly set out in administrative guidance letters, and greater certainty in the handling of these applications by the Department under 20 CFR part 655, subpart B.[2]
    		 ”

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the Temporary Agricultural Employment of H-2A Nonimmigrants in the United States rule states that OMB deemed this rule economically significant under E.O. 12866:

    “ This rulemaking has been designated a significant regulatory action under section (sec.) 3(f)(1) of E.O. 12866. Accordingly, it has been reviewed by the Office of Management and Budget (OMB).[2] ”

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Federal Register, "Temporary Agricultural Employment of H-2A Nonimmigrants in the United States," December 20, 2023.
    2. ↑ 2.0 2.1 2.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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