In Focus
DOL proposes nine-month suspension of H2-A rule
On March 13, 2009, the Department of Labor's (DOL) Employment and Training Administration (ETA) announced the proposed suspension for nine months of a final rule implementing changes to the federal government's little-used H-2A temporary agricultural worker program, which allows US agricultural businesses to employ foreign workers in temporary or seasonal agricultural jobs.
Notice of the proposed suspension appeared in the March 17 Federal Register. The final rule (http://edocket.access.gpo.gov/2008/pdf/E8-29309.pdf) appeared in the Federal Register on December 18, 2008, and took effect on January 17, 2009. The proposed action to suspend will be open for public comment for 10 days until March 27, 2009. A suspension would provide the DOL with an opportunity to review and reconsider the new requirements in light of issues that have arisen since the publication of the H-2A final rule, while minimizing the disruption to the Department, State Workforce Agencies (SWAs), employers and workers, said the agency.
Interested parties may submit comments (identified by Regulatory Information Number (RIN) 1205-AB55) by any one of the following methods:
- Federal e-Rulemaking Portal – http://www.regulations.gov
- Mail – Please submit all written comments (including disk and CD-ROM submissions) to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, US Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210
- Hand Delivery/Courier – please submit all comments to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW, Room N-5641, Washington, DC 20210.
The DOL's Office of Foreign Labor Certification will continue to accept and process H-2A applications during the proposed suspension period. To avoid the regulatory vacuum that would result from a suspension, the DOL proposes to reinstate on an interim basis the rules that were in place on January 16, 2009, the day before the revised rules became effective, by reprinting those previous regulations. Any final action on the proposed suspension will appear in a future Federal Register notice. The notice of proposed suspension can be found at: http://edocket.access.gpo.gov/2009/pdf/E9-5562.pdf.
"Because many stakeholders have raised concerns about the H-2A regulations, this proposed suspension is the prudent and responsible action to take," said Secretary of Labor Hilda L. Solis. "Suspending the rule would allow the department to review and reconsider the regulation, while minimizing disruption to state workforce agencies, employers and workers."
Background. The H-2A temporary agricultural visa program establishes a means for agricultural employers in the US who anticipate a shortage of domestic workers to bring nonimmigrant foreign nationals to the US to perform agricultural labor or services of a temporary or seasonal nature. The H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis. Employment of a seasonal nature is employment that is tied to a certain time of year by an event or pattern, such as a growing season, and requires labor levels far above those necessary for ongoing operations. Under the regulations being modified by the final rule, employment is of a temporary nature if the employer's need for the worker will, except in extraordinary circumstances, last no longer than a year.
Prospective employers of H-2A workers must first obtain certification from the DOL that:(1) there are not sufficient US workers who are able, willing, qualified, and available to do the work; and (2) the employment of H-2A aliens will not adversely affect the wages and working conditions of similarly employed US workers. H-2A workers can remain with an employer only for the period certified by DOL. Once the employer has obtained an approved temporary labor certification application from DOL, the employer may file a Form I-129, "Petition for a Nonimmigrant Worker," with US Citizenship and Immigration Services, DHS' service and benefits bureau. Once the petition is approved, a worker may apply for an H-2A visa at a US embassy or consulate abroad or, if the worker is already in lawful nonimmigrant status in the United States, apply for a change of nonimmigrant status to H-2A or an extension of H-2A nonimmigrant stay. Such workers may extend their H-2A stay through DOL-certified work with another employer, but in no event may an H-2A worker reside in the US for an uninterrupted period of more than three years in H-2A status. In 2008, the department granted North Carolina, Georgia and Florida the largest numbers of H-2A labor certifications.
The rule. The DOL's final rule modernizes the existing H-2A program by improving the application process and strengthening worker protections. In particular, the rule addresses a number of criticisms about the current program, including that it is so cumbersome and prone to delays that many agriculture employers refuse to use it.
Processing improvements. The final rule implements an attestation-based labor certification application. Employers will be required to attest, under threat of penalties, including fines, revocation of certification, and program debarment, that they have fully complied with all program requirements. Employers must recruit US workers for job openings and forward evidence of those recruitment efforts to the DOL, in addition to the attestations the employer submits with its application. In addition, attestation-based processing eliminates the duplication of activities currently performed by the State Workforce Agencies (SWAs) and the ETA.
Recruitment and housing. Under the final rule, employers must submit the job order to the SWA no more than 75 calendar days and no fewer than 60 calendar days before the date they need workers. Current requirement is to begin recruiting 45 days prior to date of need. If recruiting in more than one location, the job order can be submitted to any of the SWAs having jurisdiction over one of the work sites and that SWA will forward the job order to all states in which work will be performed. In addition, employers must contact former US workers and recruit US workers in any state designated by the Secretary as being a "labor supply" state. Employers must advertise the job opening in 2 newspaper ads, with one ad being placed on a Sunday. Previously, there was no Sunday requirement. Job orders must remain open 30 days past the date of need to ensure U.S. worker access to the job opportunities. This requirement replaces the current "50 percent" rule. The final rule increases the amount of time states have to conduct required housing inspections in response to delays often caused by SWAs overwhelmed by employer requests for pre-certification housing inspections.
Wage rates. The final rule revises the methodology for determining the Adverse Effect Wage Rate to more accurately measure market-based wages by occupation, skill level, and geographic location. Use of the BLS Occupational Employment Survey data on wages will make the H-2A program consistent with the wage calculation methodology successfully used in other temporary worker programs administered by the Department.
Fines and enforcement. Willful failure to meet a condition of the work contract that results in displacement of a US worker will increase from $1,000 to $10,000 under the final rule. In addition, violations of housing or transportation safety and health standards causing serious injury or death will result in a penalty up to $25,000 per worker; up to $50,000 for willful or repeat violations; and up to $100,000 if the employer was notified of the violation and failed to remedy it. The DOL will also begin random and targeted auditing of applications to ensure employer compliance with program requirements and revoke approved certifications for an employer's serious violation of program requirements. An administrative appeals process has also been added to ensure due process protections for anyone charged with violating the program. The final rule also clarifies and improves the ETA's authority to debar employers for program violations.
Lawsuit. The final rule has been challenged in court by the United Farm Workers. On January 15, 2009, US District Court Judge Ricardo M. Urbina of the District of Columbia denied the United Farm Workers' (UFW) motion for a temporary restraining order (TRO) and preliminary injunction to postpone the effective date of the rule ( United Farm Workers v. Chao, DDC., No. 09-00062). In his holding, Judge Urbina ruled that the United Farm Workers failed to make a showing of "likely imminent and irreparable harm." He wrote: "the plaintiffs have not presented sufficient evidence that any plaintiff is likely to suffer immediate decreased wages, increased transportation costs or loss of employment. Based on the speculative injuries alleged by the plaintiffs, the court cannot conclude that the plaintiffs have met the 'high standard for irreparable injury' sufficient to warrant the extraordinary relief of a TRO." The union since appealed their case to the DC Circuit Court of Appeals.
In response to the announcement of the notice of proposed suspension, Arturo S. Rodriguez, UFW President, said: "We thank Secretary of Labor Hilda Solis for the pending suspension of the Bush H-2A regulations. These regulations represented one of the most significant steps backwards for farm workers in the past several decades. We look forward to reviewing the final notice in the Federal Register and welcome the opportunity to work with the Obama administration to ensure the rights of both foreign guest workers and domestic workers in agriculture are respected."
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