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Washington Labor & Employment Wire » DOL Extends Comment Period for Proposed Revisions to H-2A Program

DOL Extends Comment Period for Proposed Revisions to H-2A Program


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On September 30, 2009, the Department of Labor’s Employment and Training Administration (ETA) filed an extension of the comment period for a proposed rule to amend the H-2A visa program. The H-2A program allows U.S. agricultural businesses to employ foreign workers in temporary or seasonal agricultural jobs. 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.

The proposed rule was published in the Federal Register by ETA on September 4. The comment period was originally scheduled to close on October 5; however, ETA has extended this period to October 20. Notice of the extension is scheduled to be published in the Federal Register on October 2.

The final rule on the current 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 and the enforcement of contractual obligations of the employers of such workers.

Under the December 2008 regulations, employers have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps, including: (1) submission of a job order to the State Workforce Agencies (SWAs) serving the area of intended employment; (2) running two print advertisements; (3) contacting former U.S. employees who were employed within the last year; and (4) recruiting in all states currently designated as a state of traditional or expected labor supply with respect to each area of intended employment.

Under the proposed revised rule, an employer must provide DOL with documentation that it has complied with the prerequisites for employing foreign workers under the H-2A program, rather than simply attesting to compliance. The proposed rule also reinstates the use of the Department of Agriculture’s quarterly farm labor survey as the basis for determining the adverse effect wage rate, rather than the Bureau of Labor Statistics’ occupational employment survey data used under the 2008 rule. The rule also proposes the use of a national registry to assist agricultural employers in finding workers across the nation.

The new rule also requires employers to provide copies of job orders submitted to DOL to its workers and post notices outlining employee rights. The rule also provides protections to U.S. workers employed by H-2A employers to ensure the U.S. workers in similar jobs do not receive less wages or benefits than their H-2A counterparts. Finally, the proposed rule strengthens penalties for companies who do not comply with the program requirements and increases DOL authority for conducting audits and monetary penalties.

In May 2008, DOL issued a nine-month suspension of the new regulations in order to afford the new administration an opportunity to review the rule. However, the Department lifted the suspension one month later in response to a preliminary injunction blocking the suspension issued from the U.S. District Court for the Middle District of North Carolina. After completing its review of the rule, DOL proposed the revised regulations on September 4 to ensure the U.S. agricultural economy employs U.S. workers to the fullest extent possible.