Mark A Ivener, A Law Corporation

Labor Dept. Issues Round 4 FAQ on H-2A Final Rule

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has released Round 4 of frequently asked questions (FAQ, PDF) on the H-2A temporary agricultural foreign labor certification program, based on the 2010 final rule.

Topics include job offers, assurances, and obligations, including job qualifications and requirements, and the contract impossibility provision; and H-2A labor contractors and surety bonds.

Among other things, the FAQ notes that employers may not use the results of a background check or drug test to automatically reject a U.S. worker for agricultural work. Rather, the results of the background check or drug test may be used to reject a worker only if the employer provides a lawful job-related reason to do so. For example, while a sex offense conviction may be a lawful job-related reason to reject a worker who is applying to work at a “pick-your-own” fruit farm, a Driving Under the Influence (DUI) conviction is very unlikely to be, the FAQ states. An employer requiring a background check or drug test should be prepared to provide documentation, if requested by the State Workforce Agency or the OFLC Certifying Officer, establishing the nexus between the background check or drug test to be conducted and the nature of the job opportunity.

The FAQ further notes that if an employer chooses to disclose in the job order that it will be conducting a criminal background check, the employer’s job order must also identify the specific criminal issue(s) for which the employer could lawfully reject an applicant due to the nature of the job opportunity. “A general statement about conducting a criminal background check without any further explanation is unacceptable, as it fails to adequately apprise U.S. workers of the job opportunity and applicable conditions of employment,” the FAQ states.

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