Mark A Ivener, A Law Corporation

Labor Dept. Issues Proposed Rule on H-2A Temporary Agricultural Workers

The Department of Labor’s Wage and Hour Division proposes to amend its regulations governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. The proposed rule reexamines the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A status. The Department also proposes to provide for enforcement under the H-2A program so that workers are protected when employers fail to meet H-2A requirements.

The Department said it has concluded that the policy underpinnings of a 2008 H-2A streamlining rule do not provide an adequate level of protection for either U.S. or foreign workers. In addition, the Department noted, one of the goals of the 2008 final rule was to increase usage of the H-2A program and make it easier and more affordable for the average employer. Applications have decreased since implementation of that rule, however. Employers filed 3,176 applications in the first three and a half months of fiscal year 2009, before implementation of the 2008 final rule. In the six and a half months from January 17, 2009, to July 31, 2009, employers filed 4,214 applications. When compared to the previous year (fiscal year 2008), however, in which employers filed 8,360 applications, it is apparent that employers are not increasing their usage of the H-2A program. “While factors other than the regulatory changes may play a role in this decrease, without accomplishing the prior rule’s goal of increasing program usage, the Department can no longer justify the significant decrease in worker protections,” the Department said.

The Department also said it believes that there are insufficient worker protections in the attestation-based model in which employers merely confirm, but do not demonstrate to the satisfaction of a government observer, that they have performed an adequate test of the U.S. labor market. Even in the first year of the attestation model, the Department said, employers are attesting to compliance with program obligations with which they have not complied, “either from a lack of understanding or otherwise.” Specific situations the Department noted include employers “who have imposed obstacles in the way of U.S. workers seeking employment. Examples of this have included the requirement of interviewing in-person at remote interview sites that require payment to access; multiple interview processes for job opportunities requiring no skills or experience; test requirements that are not disclosed to the applicants; contact information that is disconnected, is located outside the U.S., or proves incorrect; farm labor contractors who attest to a valid license but have none; and contractors who have not obtained surety bonds.”

The Department also noted that the shift from the Adverse Effect Wage Rate (AEWR) as calculated under a 1987 rule to the recalibration of the prevailing wage as the AEWR under the 2008 final rule has resulted in a substantial reduction of farmworker wages in a number of labor categories.

For further information: The proposed rule, which includes a number of requirements and a proposed timetable under the proposed H-2A program, is available as PDF The Department made a technical correction to the proposed rule, 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.