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Washington Labor & Employment Wire » DOL Lifts H-2A Suspension

DOL Lifts H-2A Suspension

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In response to a June 29, 2009 preliminary injunction from the U.S. District Court for the Middle District of North Carolina, the Department of Labor announced that it has lifted its suspension of the H-2A visa program final rule.

The final rule on the new H-2A labor certification regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations, as well as regulations regarding the enforcement of contractual obligations entered into by such workers. On May 28, 2009, DOL had announced a nine-month suspension of these new H-2A labor certification regulations, and notice of the suspension was published in the Federal Register the next day.  The June 29, 2009 order from the Middle District of North Carolina federal court concluded an injunction against the suspension was appropriate because the DOL would suffer relatively little harm from the injunction, and the plaintiff growers associations would suffer irreparable harm in the absence of an injunction. 

Under the newly reinstituted final rule, employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States for agricultural work on a temporary or seasonal basis. Under the new regulations, employers would have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps: (1) submit a job order to the SWA serving the area of intended employment; (2) run two print advertisements (one of which must be on a Sunday); (3) contact former U.S. employees who were employed within the last year; and (4) recruit in all states currently designated, based on an annual determination made by Secretary of Labor, as a state of traditional or expected labor supply with respect to each area of intended employment. Finally, employers are required to submit a job order to the applicable SWA.