Mark A Ivener, A Law Corporation

USCIS, Labor Dept. Issue Proposed Rules on H-2As

U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor both issued proposed rules in February 2008 affecting the H-2A nonimmigrant visa program, which allows U.S. employers to bring foreign nationals to the U.S. for temporary or seasonal agricultural work.

USCIS said its proposed rule is designed to “remove unnecessary limitations on H-2A employers while preventing fraud and abuse, and protecting the rights of temporary workers.” The rule proposes, among other things, to “relax the current limitations on the ability of U.S. employers to petition unnamed agricultural workers to come to the United States and include multiple beneficiaries who are outside the United States on one petition.”

Some of the key modifications include:

  • Extending from 10 to 30 days the time a temporary agricultural worker may remain in the U.S. following the expiration of the H-2A petition;
  • Reducing from six months to three months the time an H-2A worker must wait outside the U.S. before becoming eligible to re-obtain H-2A status;
  • Allowing H-2A workers who are changing from one H-2A employer to another to begin work with the new petitioning employer upon the filing of a new H-2A petition, provided the new employer participates in USCIS’s E-Verify program;
  • Requiring an employer attestation regarding the scope of the H-2A employment and the use of recruiters to locate H-2A workers;
  • Cracking down on employers and recruiters who impose fees on prospective H-2A workers;
    Requiring an approved temporary labor certification in connection with all H-2A petitions;
  • Prohibiting the approval of H-2A petitions for nationals of countries determined to be consistently refusing or unreasonably delaying repatriation of their nationals; and
  • Establishing a land-border exit system pilot program, which ensures that foreign workers admitted through a port of entry participating in the H-2A program must depart through a similar port that also participates in the program. U.S. Customs and Border Protection will publish a Notice in the Federal Register designating which temporary workers must participate in the program, which ports of entry are participating in the program, which biographical and/or biometric information would be required, and the format for submission.

Meanwhile, the Department of Labor issued a proposed rule on temporary labor certifications for H-2A workers. The proposed measures focus on an attestation-based application process after an employer conducts pre-filing recruitment and eliminating “duplicative activities” currently performed by State Workforce Agencies (SWAs). In concert with these changes, the Department proposes to amend the wage and hour regulations to provide for enhanced enforcement, including more rigorous penalties, under the H–2A program.

The Department noted that although increases in productivity have contributed to expanding agricultural productivity with a lower need for labor, a “sudden and dramatic decrease in the supply of workers cannot be entirely attributed to productivity, and poses severe economic consequences for growers, especially those of perishable crops.”

The agricultural industry has many more jobs than available legal workers. Among other things, the Department noted that authorized workers appear to be leaving farm jobs because of age or opportunities for more stable and higher paying employment outside of agriculture, and are being replaced almost exclusively by unauthorized foreign-born workers. In addition, the Department said, enhanced enforcement efforts appear to have contributed to a reduction in the availability of agricultural workers, which has sparked agricultural crises across a number of states over the past year: “Numerous reports of shrinking or nonexistent farm seasonal labor, with attendant crop loss for lack of harvest help, have been prominent in recent months and reflect Department survey data.” As a result, for example, Colorado has initiated the use of inmate labor on farms where migrant labor was previously used. In addition, an increasing number of farmers have been investigating alternatives such as raising crops in Mexico instead to secure needed workers that they cannot legally hire in the U.S. The Department said it expects that efficiencies in program administration resulting from the proposed rule “will significantly encourage increased program participation, resulting in an increased legal farm worker labor supply with the attendant legal rights and protections for workers.”

USCIS and the Department of Labor will accept public comments until March 31. The full text of USCIS’s notice of proposed rulemaking is available as a PDF. The Department of Labor’s proposed rule is available here.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.