Mark A Ivener, A Law Corporation

State Dept. Proposes Fee Changes for Consular Services

The Department of Labor’s (DOL) Employment and Training Administration and Wage and Hour Division have published a final rule (PDF) effective March 15, 2010, affecting various aspects of the temporary agricultural employment of H-2A workers.

In response to the proposed rule, the DOL received comments from a broad range of constituencies for the H-2A program, including individual farmers, farm workers, farm associations, farm worker advocate groups, agents, law firms, farm labor bureaus, State Workforce Agencies (SWAs), state government officials, members of Congress and committees, and various interested members of the public. Many of the comments challenged the DOL’s decision to engage in new rulemaking for the H-2A program. The DOL responded that it has inherent authority to change its regulations, and has justified doing so in the final rule.

Among other things, in the definition of corresponding employment, the DOL had proposed that all workers employed by H-2A employers doing work performed by H-2A workers be considered engaged in corresponding employment. The final rule adopts the language of the proposed rule. One change from the related 1987 rule is the addition of the phrase “or in any agricultural work performed by the H-2A workers.” The DOL said it added this language to address the adverse impact on U.S. workers when an H-2A employer engages H-2A workers in agricultural work outside the scope of work found in the approved job order, including work impermissibly performed outside the area of intended employment. The DOL explained that “[d]omestic workers should not be disadvantaged when an employer violates the terms and conditions of the H-2A job order.” The final rule does not require that every worker on a farm be paid the H-2A required wage. It does require, however, that workers employed by an H-2A employer who perform the same agricultural work as the employer’s H-2A workers be paid at least the H-2A required wage for that work.

Also, the rule adds one factor to the circumstances that may be considered in determining whether an employer is a successor in interest. The change, as noted in the proposed rule, clarifies that whether the former management or persons with an ownership interest in the prior firm retain a management interest in the successor firm may be considered in the successor determination.
The final rule also makes various adjustments to the definition of agricultural labor or services. For example, it removes a provision that permitted certain nonagricultural work when no H-2B workers were employed to perform the same work in the same location. Such nonagricultural work may include activities like handling, planting, drying, packing, processing, freezing, grading, storing, or delivering agricultural or horticultural commodities. A commenter had expressed disappointment about the removal of that provision, stating that it was a major change and would adversely affect packing houses that might not be able to obtain H-2B workers due to the annual cap, and noting that H-2B workers often work alongside H-2A workers and their jobs are clearly in the stream of agriculture. The DOL said the provision was problematic because it allowed a farmer to employ both H-2A and H-2B workers to perform identical work, so long as the H-2A workers and H-2B workers were employed in different locations. But Congress clearly intended to create two separate programs, the DOL noted: one for H-2A agricultural work and another for H-2B nonagricultural work.

The final rule further removes references to incidental work from the definition of agricultural labor or services, in an effort to tighten up what kinds of work may be performed. For example, the final rule deletes a provision providing a blanket 20 percent tolerance for work outside the scope of the application. The DOL explained that it does not intend to debar an employer whose H-2A workers perform an insubstantial amount of agricultural work not listed in the application. The DOL said that it may take into account unplanned and uncontrollable events (such as a freeze that prevents planting or heavy rains that prevent harvesting) when considering the employer’s explanation, so long as the activities are within the scope of H-2A agriculture, have been occasional or sporadic, and the total time spent is not substantial. Further, the DOL noted, the debarment regulations require that a violation be substantial, and that a number of factors must be considered in making that determination, including an employer’s previous history of violations; the number of workers affected; the gravity of the violation; the employer’s explanation, if any; its good faith; and its commitment to future compliance. Under these criteria, the DOL said, the good-faith assignment of a worker to work not listed in the application for a small amount of time would not result in debarment.

Downloads: A related fact sheet is available (HTML), and a news release is available (HTML).

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