Temporary Employment of H-2A Aliens in the United States, 25972-26015 [E9-12436]
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access the telephone number above via
TTY by calling the toll-free Federal
Information Relay Service at 1–800–
877–8339.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Parts 501, 780, and 788
RIN 1205–AB55
Temporary Employment of H–2A
Aliens in the United States
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AGENCY: Employment and Training
Administration and Wage and Hour
Division, Employment Standards
Administration, Labor.
ACTION: Final rule; suspension of rule.
SUMMARY: The Department of Labor
(DOL or the Department) is suspending
the H–2A Final Rule published on
December 18, 2008 and in effect as of
January 17, 2009. That Final Rule
amended the regulations governing the
certification for temporary employment
of nonimmigrant workers in agricultural
occupations on a temporary or seasonal
basis, and the enforcement of
contractual obligations applicable to
employers of such nonimmigrant
workers. To ensure continued
functioning of the H–2A program, the
Department is republishing and
reinstating the regulations in place on
January 16, 2009 for a period of 9
months, after which the Department
will either have engaged in further
rulemaking or lift the suspension.
DATES: Effective June 29, 2009.
FOR FURTHER INFORMATION CONTACT: For
further information regarding 20 CFR
part 655, contact William L. Carlson,
Ph.D., Administrator, Office of Foreign
Labor Certification, Employment and
Training Administration (ETA), U.S.
Department of Labor, 200 Constitution
Avenue, NW., Room C–4312,
Washington, DC 20210; Telephone (202)
693–3010 (this is not a toll-free
number). Individuals with hearing or
speech impairments may access the
telephone number above via TTY by
calling the toll-free Federal Information
Relay Service at 1–800–877–8339. For
further information regarding 29 CFR
parts 501, 780 and 788, contact James
Kessler, Branch Chief, Farm Labor
Enforcement, Wage and Hour Division,
Employment Standards Administration,
U.S. Department of Labor, 200
Constitution Avenue, NW., Room S–
3510, Washington, DC 20210;
Telephone (202) 693–0070 (this is not a
toll-free number). Individuals with
hearing or speech impairments may
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I. Background and Overview
The H–2A visa program provides a
means for U.S. agricultural employers to
employ foreign workers on a temporary
basis to perform agricultural labor or
services when U.S. labor is in short
supply. Section 101(a)(15)(H)(ii)(a) of
the Immigration and Nationality Act
(INA or the Act) (8 U.S.C.
1101(a)(15)(H)(ii)(a)) defines an H–2A
worker as a nonimmigrant admitted to
the U.S. on a temporary or seasonal
basis to perform agricultural labor or
services. Section 214(c)(1) of the INA (8
U.S.C. 1184(c)(1)) mandates that the
Secretary of the Department of
Homeland Security (DHS) consult with
the Secretary of the Department of Labor
(the Secretary) with respect to the
adjudication of H–2A petitions, and, by
cross-referencing Section 218 of the INA
(8 U.S.C. 1188), with respect to
determining the availability of U.S.
workers and the effect on wages and
working conditions. Section 218 also
provides further details of the H–2A
application process and the
requirements to be met by the
agricultural employer.
The Department’s regulations at 20
CFR part 655, subpart B—‘‘Labor
Certification Process for Temporary
Agricultural Employment Occupations
in the United States (H–2A Workers),’’
govern the H–2A labor certification
process. The Department’s regulations at
29 CFR part 501 implement its
enforcement responsibilities under the
H–2A program. The Department’s
regulations on Fair Labor Standards Act
(FLSA) exemptions applicable to
agriculture, processing of agricultural
commodities, and related subjects under
the FLSA at 29 CFR part 780, and the
Department’s regulations on FLSA
exemptions applicable to forestry and
logging operations at 29 CFR part 788,
set forth the Department’s interpretation
of the FLSA provisions relating to
agriculture, forestry, and logging.
On December 18, 2008, the
Department published a Final Rule
revising title 20 of the Code of Federal
Regulations (20 CFR) part 655 and title
29 of the Code of Federal Regulations
(29 CFR) parts 501, 780, and 788 (the
December 2008 Rule or Final Rule). See
73 FR 77110, Dec. 18, 2008. The
December 2008 Rule replaced the
previous versions of 20 CFR part 655
(2008) and 29 CFR part 501 (2008) that,
for the most part, were first published
at 52 FR 20507, Jun. 1, 1987. With
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respect to the provisions under 29 CFR
parts 780 and 788 that were amended by
the December 2008 Rule, the previous
versions of 29 CFR 780.115, 780.201,
780.205, and 780.208 were published at
37 FR 12084, Jun. 17, 1972, and the
previous version of 29 CFR 788.10 was
published at 34 FR 15784, Oct. 14, 1969.
Following the issuance of the
December 2008 Rule, United Farm
Workers and others filed a lawsuit in
the U.S. District Court for the District of
Columbia on January 12, 2009
challenging the December 2008 Rule.
United Farm Workers, et al. v. Chao, et
al., Civil No. 09–00062 RMU (D.D.C.).
The plaintiffs asserted that in
promulgating the December 2008 Rule,
the Department violated section 218 of
the Immigration and Nationality Act as
well as the Administrative Procedure
Act. The plaintiffs requested a
temporary restraining order and
preliminary injunction, along with a
permanent injunction that would
prohibit DOL from implementing the
December 2008 Rule. On January 15,
2009, Judge Ricardo M. Urbina denied
the plaintiffs’ request for a temporary
restraining order and preliminary
injunction on the basis that the
plaintiffs failed to show ‘‘likely,
imminent and irreparable harm;’’ the
court did not address the merits of the
case or whether the plaintiffs
demonstrated the substantial likelihood
of success on the merits. Accordingly,
the December 2008 Rule went into effect
as scheduled on January 17, 2009.
As the Department began
implementing the December 2008 Rule,
it immediately encountered a number of
operational challenges which continue
to prevent the full, effective and
efficient implementation of the
December 2008 regulation. The
Department also has realized that the
implementation of the December 2008
Rule without further consideration of
the relevant legal and economic
concerns that have arisen since its
publication was proving to be disruptive
and confusing not only to the
Department’s administration of the H–
2A program but also to State Workforce
Agencies (SWAs), agricultural
employers, and domestic and foreign
workers, especially in light of the severe
economic conditions facing the country.
Furthermore, the development of the
December 2008 Rule was based in part
on the policy positions of the prior
Administration with which the current
Administration may differ and wish to
reconsider, especially in light of
changed economic conditions. This is
particularly true with respect to the
changes to wages paid to H–2A workers
wrought by the shift of the Adverse
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Effect Wage Rate (AEWR) from the wage
rates based on data compiled by the U.S.
Department of Agriculture (USDA) to
those calculated on data from the
Bureau of Labor Statistics in its
Occupational Employment Statistical
Survey (OES). This reconsideration may
result in new rulemaking to seek
additional comment from affected users
and other interested parties. In light of
the potential for new rulemaking, the
Department believes it would not be an
efficient use of limited agency
resources, appropriated from taxpayer
funds, to continue to attempt to
operationalize the December 2008 Rule,
and that it would be disruptive and
confusing for program users and the
Department to engage in the steps
necessary to make the current rule fully
operational.
For these reasons, on March 17, 2009
the Department published a Notice of
Proposed Suspension of Rule (the
Notice), which proposed to suspend the
December 2008 Rule for 9 months and
reinstate on an interim basis the prior
H–2A regulation in effect on January 16,
2009 (the Prior Rule). 74 F.R. 11408
(March 17, 2009). The suspension of the
December 2008 Rule and temporary
reinstatement of the Prior Rule will
allow the Department to review the
December 2008 Rule to ensure that it
effectively carries out the statutory
objectives and requirements of the
program in a manner that minimizes
disruption to the Department, SWAs,
employers, and workers by temporarily
reinstating prior regulations which had
been in effect for over 20 years and with
which the agricultural community
already is familiar.
II. Comments on the Proposal and the
Department’s Responses and Decision
The Department received over 800
comments in response to the
publication of the Notice of Proposed
Suspension of Rule (the Notice). The
majority of the comments were based on
form letters raising similar issues and
concerns. Commenters included
individual farmers and associations of
farmers, farm bureaus, law firms,
farmworker advocates, State agencies
(including SWAs), Members of
Congress, and individual members of
the public. The Department has
reviewed the comments and taken them
into consideration in drafting this Final
Suspension Rule (Final Rule, or Final
Suspension).
The Department received several
comments through means beyond those
listed in the Notice or after the comment
period closed. In fairness to all parties,
these comments were not reviewed in
the consideration of the Final Rule. In
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addition, in the Notice, the Department
requested that parties limit their
comments to the issue of whether the
Department should suspend the
December 2008 Rule for further review
and consideration of the issues that
have arisen since the December 2008
Rule’s publication. Though all
comments have been reviewed, only
those comments responding to issues on
which the Department sought comment
were considered in this Final Rule.
A. Comments Regarding the Stated
Policy Rationale for Suspension
1. The Department’s Problems in
Implementing the December 2008 Rule
Have Resulted in Confusion, Processing
Delays and Program Disruption
a. Lack of Resources
The Department received a number of
comments, both supporting and
opposing a suspension, responding to
the suggestion that both the Department
and the SWAs lack resources to fully
implement and administer the current
regulations. Some commenters
indicated support for the Department’s
position that the December 2008 rule
should be suspended due to the
shortage in resources available for fully
implementing and administering that
rule past the transition period.
Conversely, a substantial number of
comments called into question the
substance of the rationale, arguing that
the Department failed to present
concrete evidence of a lack of resources
to fully implement the December 2008
rule. The majority of comments that
discussed the lack of resources to
operationalize the program as written in
the December 2008 Rule argued that the
Department presented insufficient
evidence and only relatively vague
statements with no clear supporting
evidence. Other commenters asserted
that the new program is in fact already
operational and has been for more than
two months and is working just as the
DOL said it would in the December
2008 Rule. One commenter pointed to
some evidence believed to contradict
the Department’s claims of insufficient
resources, citing the DOL’s discretionary
budget for the Fiscal Year 2009 being
more than $17.5 billion, constituting a
nearly 50% increase over Fiscal Year
2008 levels, and indicating that the
growing trend is likely to continue with
the President’s budget for Fiscal Year
(FY) 2010 which includes further
increases for the Department.
The Department’s FY 2009 budget is
irrelevant to the Department’s ability to
implement the December 2008 Rule
when it was promulgated. The
December 2008 rulemaking was
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commenced and conducted without
regard to resources required by the
Employment and Training
Administration (ETA) generally or for
Office of Foreign Labor Certification
(OFLC) specifically to implement the
changed processes and the potential
increased use of the program. The
Department has determined that the
agency’s mandate is advanced by
evaluating the December 2008 Rule, as
opposed to bringing a potentially flawed
program into full operation. The
suspension will allow the Department to
focus its resources in a more efficient
manner, and will result in a more
thorough determination regarding the
best direction for the H–2A program.
A few commenters asserted that the
Department’s claims of resource
shortfalls are suspect in light of having
engaged in the perceived costly exercise
of suspending the December 2008 Rule
and reinstating the old regulations that
will presumably require more work on
the part of the Department and the
SWAs. Other commenters asserted that
complaints of funding shortfalls have
been prevalent in the State and local
DOL offices long before the current
regulations were implemented. A
handful of commenters argued that the
attestation process under the current
regulations and related SWA relief from
certain housing inspection obligations
lessened demand on DOL resources,
thus undermining the Department’s
argument of budgetary shortfalls. One
commenter indicated that DOL failed to
provide evidence about the new role of
the SWAs under the current regulations,
arguing that SWAs have less to do under
the current regulations than before and
therefore should require the same or
lesser amount of resources.
The Department’s statutory
obligations, especially many of those it
delegates to the SWAs, have not
changed regardless of the set of
regulations under which they operate.
The process of filing an application for
H–2A workers under either set of
regulations still begins with the
placement of an agricultural order into
clearance with the SWA having
jurisdiction over the work, and
continues through the State-assisted
referral process and the mandatory
housing inspection.1 SWAs retain many
1 The commenters’ suggestion that SWAs are no
longer required to perform housing inspections
under the December 2008 Rule is simply inaccurate;
the fact that, in some exigent circumstances, the
Department will not withhold a certification for
lack of an inspection does not relieve the SWA of
its responsibility to perform the statutorily required
inspection. The December 2008 Rule is clear that
the SWAs are still expected to perform
preoccupancy housing inspections.
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of the same responsibilities under the
December 2008 Rule as they did under
the prior rule.
b. Inability To Implement Sequence of
Operational Events
In the Notice of Proposed Suspension,
the Department cited as crucial to the
proposed suspension its inability to
implement the sequence of operational
events required to avoid confusion and
processing delays, including
implementing an automated review
system, and training program users and
SWA staff. One commenter supporting
this rationale for the suspension
indicated that the December 2008
regulations compound the application
processing problem with guaranteed
delays in temporary programs—mainly
H–2A and H–2B—by creating an
additional burden in increased
supervised recruitment, as well as
increased demands from the PERM
program. Since its effective date, the
Department has seen a steady increase
in the numbers of delayed applications,
where compliance with the statutory
processing times has not been met. (See
below section II.A.1.c. Processing
Delays.) Delayed applications can
translate into delayed petitions for
nonimmigrant workers, delayed entries
by needed workers, and—for lack of
workers—delayed activities by farms
and farming operations. The Department
is concerned with the correlation
between this increasing delay in the
Department’s meeting of its statutory
mandate. The suspension is intended to
allow the Department to work with a
system with which it is familiar while
it determines whether to retain the new
system or engage in new rulemaking.
Using a system with which the
Department is familiar and which it has
the infrastructure to implement will
hopefully reduce processing times and
enable the Department to more closely
meet its statutory processing
obligations.
Some commenters argued that all new
rules require staff training, new
materials and programs, but that issues
arising during the implementation
period may not be permanent and
should not derail a lawfully
promulgated rule. The Department
readily recognizes that new regulations
undergo necessary implementation
phases and that alone is not a reason to
suspend a rule, even where (as here) the
office is promulgating significant
changes for the first time in over 20
years that create considerable need for
re-training staff and establishing of new
guidelines for adjudication, new policy
interpretations, etc. However, here the
extremely narrow window between the
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publication and the effective date of the
current regulations, especially since it
occurred during the Presidential
transition period, simply provided too
little time for the Department to
adequately train both staff and users in
the basics of the program, much less the
many nuances in program
administration. Thus, absent a
suspension, an untenable situation has
developed in which the newly
promulgated H–2A program has not
been effectively implemented, putting
users and adjudicators alike at a
substantive disadvantage.
A number of comments focused on
the Department’s statement of need for
an automated processing system and
asserted that the December 2008 H–2A
program is less resource intensive than
the old program which had no
automated system, and is therefore less
in need of such a system. Other
commenters pointed out that the prior
H–2A program never had an automated
processing system due to its complexity.
Another commenter said that the
Department never promised an
automated system nor was the regulated
community expecting one, and that in
its experience, the processing times
have been faster under the new
program. Still other commenters
pointed out that reverting to the old
program, with its duplicative filing and
requirements for manual processing,
will not result in shorter processing
times.
In the December 2008 Rule, the
Department noted that an automated
system was contemplated at some future
time for the public. However, the
Department’s inability to create an
internal automated system for tracking
and processing of applications, not an
external one, is the most substantial
factor with which the Department is
currently concerned. In a time in which
the Department receives thousands of
H–2A applications, an automated
system geared to the relevant format and
information collection is a necessity for
the 21st century. Core program
processing requirements—such as the
calculation of statutory processing dates
from date of receipt—require some
electronic ability for collection and
calculation. The current system,
designed to a now-obsolete information
collection of two pages (compared to the
current 10 page collection), is simply
inadequate to track the increased
information required under the
December 2008 regulations—
information that, under an attestationbased collection, is critical for analysis
to determine compliance with program
requirements. Use of the current system
to administer the December 2008 Rule
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will adversely impact program integrity.
The Department notes, for example, that
an inability to systematically track
information that would enable it to
conduct audits of certified applications
and undertake actions resulting from
audits means that the Department
cannot effectively implement that part
of the new system. This lack of
functionality creates a significant
inability to adequately address the
procedures and systems necessary to
implement an attestation-based system.2
Furthermore, the ability to capture
particular data elements from
employers’ applications as a basis for
determining how to allocate audit
resources was fundamental to the design
of the December 2008 Rule. As
discussed in the preamble to the
December 2008 Rule, the Department
envisioned a robust audit system that
monitored filings under the reengineered attestation-based process to
ensure that the employment of H–2A
workers does not adversely affect the
wages and working conditions of
similarly employed U.S. workers.
Without such a system, the potential for
fraud is increased, program integrity is
in jeopardy, and U.S. workers are at risk
of adverse affect.
In response to the Department’s
statements about its inability to provide
sufficient training for SWAs and
stakeholders on the December 2008
regulations, a number of commenters
indicated that trainings were conducted
in Denver and Atlanta in advance of the
effective date of the regulations. In
addition, several commenters asserted
that DOL conducted more than one
training for both SWA staff and
employers prior to the effective date of
the regulations and noted that this was
the first time DOL presented training on
the December 2008 Rule to the user
community.3 Another commenter
indicated that extensive training was
conducted and materials were provided
at no charge to stakeholders and had
been available in PDF on DOL’s Web
site.
The Department made attempts to
educate both stakeholders and SWAs as
well as its own staff, holding not only
2 In addition, the Department has not yet created
a fillable form, compelling employers to print the
form and type or hand-write the information being
collected.
3 This is in fact incorrect, even if relevant; even
in recent years the Department has engaged in
significant outreach to its user communities in
foreign labor programs. See, e.g., Announcement of
Public briefings on the H–2B Temporary Nonagricultural Worker Labor Certification Program, 72
FR 17940 (Apr. 10, 2007); Announcement of Public
Briefings on Using Redesigned Labor Certification
Forms and Stakeholder Meeting, 74 FR 2634 (Jan.
15, 2009).
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briefing sessions for the public (in
which some SWA staff participated) but
also for SWAs, limiting the latter to the
transition procedures. However, the
December 2008 Rule, published during
the middle of a Presidential transition
period, became effective only 30 days
after the publication, as noted above.
This gave both internal and external
users little time to understand,
implement, and adapt to the changes
contained in the December 2008 Rule.
Most significantly, the Department had
little opportunity, prior to the effective
date of the rule, to provide adequate
assistance to the affected communities
on both sides of the application process.
c. Processing Delays
In its March 17, 2009 Notice of
Proposed Suspension, the Department
pointed to delays and corresponding
disruption to the program in the middle
of the growing season as a core reason
for temporarily suspending the current
regulations pending additional review.
Most comments received in response
to this statement disagreed with the
Department’s assertion that it had
experienced processing delays. Many
commenters complained that the
Department failed to offer specific,
detailed and concrete evidence
demonstrating the nature and extent of
the processing delays. Large growers
associations cited contrary experience,
indicating either fewer delays under the
current regulations than in the past, or
timely processing of applications.
However, several commenters along
with a substantial number of other
program users expressed a great deal of
frustration with the Department for
failing to meet their need for extensive
technical assistance, as well as a general
lack of comprehension of the December
2008 Rule.
One commenter stated that DOL staff
has done a good job implementing the
current regulations on the operational
level, despite complaints of inadequate
staff, improper infrastructure and
archaic computer support. Others
commenters noted that employers have
experienced fewer delays under the new
regulations despite the fact that the H–
2A program has always been
understaffed.
Despite the anecdotal experiences of
individual commenters, the ability of
the Chicago National Processing Center
(CNPC) to issue timely case decisions
under the new H–2A regulations has
decreased. Timely case decisions (in
which an acceptance/modification letter
is issued no later than 7 days of receipt
of the H–2A application and/or a final
determination no later than 30 days
before the employer’s date of need) have
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decreased as a percentage of H–2A
applications adjudicated in any given
week. While the percentage of delayed
cases—cases outside the statutory
timeframes for adjudication—has varied
since the effective date of the current
rule, it has not fallen below 27% of all
cases in process at that time, and has
been as high as 58%. The median days
processing time for 2009 has also
exceeded the times in 2008; in February
2009, the median number of days to
process a case was 27 days (compared
to 23 days for the same time period in
2008). In March 2009, the median
number of days to process a case was
25, compared to 23 days in March 2008.
In summary, the number of days from
case receipt to adjudication has
increased, as has the Department’s
percentage of delayed cases. Therefore,
despite the December 2008 rule’s
intended purpose, that rule is at least
one factor in the increases in the time
in which applications have been
handled, which has led to increased
delays in application processing.
While the increased processing times
may seem modest, they are cause for
concern to the Department. In a
statutory processing timeframe in which
applications are filed only 45 days prior
to the date of need and must be
adjudicated no later than 30 days prior
to date of need, delays of even a few
days signal a significant failure by the
Department to meet its statutory
timeframes. One of the Department’s
goals in seeking to streamline the
processing of H–2A applications was to
ensure timely processing of
applications—which was already a
concern for the Department. Not only
has that goal not been achieved, the new
processing model has, at least so far,
pushed that goal farther away. The
processing delays also highlight the
Department’s ever-increasing inability
to adequately perform its functions
under the December 2008 Rule. This is
particularly worrisome considering that
the Department has seen its number of
H–2A applications actually decrease
compared to the same time span last
year, with the Department receiving
only 706 H–2A applications in February
2009, compared to 930 applications it
received during the same month last
year. Due to this demonstrated trend,
the Department foresees increased
difficulties in meeting its statutory
processing times if the H–2A program
experiences its anticipated increase in
future participation. Delays in the
Department’s processing times mean
that DHS and the Department of State
have less time to process visa petitions,
grant visas and admit workers before the
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employer’s date of need. While there is
no evidence that the current delays have
caused harm, if the delays continue to
increase, as it appears likely that they
will, at some point the harm will
become very real.
Though most commenters did not
address the effect of additional demands
on the Department to process incoming
applications, one large growers’
association opposed to the suspension
noted that the existing DOL-reported
delays will be increased by a
suspension, resulting in unacceptable
delays and gridlock for H–2A and H–2B
employers for the majority of
applications scheduled to be filed in
April through June 2009.
The Department disagrees that a
suspension will exacerbate the current
delays in processing program
applications. The process for filing and
handling applications during the
suspension will be the filing procedures
of the former rule with which CNPC and
SWA staff and all previous program
users are familiar. The burden of review
during a suspension will be shared by
SWAs and the CNPC. As a consequence,
processing times should decrease with
the reinstatement of the former rule.
d. Confusion and Disruption Under the
Procedures of the December 2008 Rule
The Department said in its March 17,
2009 Notice of Proposed Suspension
that there is increasing evidence that
continuing to implement the December
2008 regulations in light of existing
experience and before additional
examination is disruptive and confusing
to the Department’s administration of
H–2A program, SWAs, agricultural
employers and domestic and foreign
workers.
The Department received several
comments supporting the suspension
because of this confusion and ensuing
disruption. One commenter noted that
the regulations should be suspended
because they have caused confusion
among employers, State Workforce
Agency staff and workers. Another
commenter cited anecdotal evidence of
policy confusion and contradictions on
the local level requiring a certain group
of employers to pay overtime wages
contrary to the current regulations,
although this commenter generally
opposed suspension of the 2008 rule on
this basis. Another commenter, writing
on behalf of a State Workforce Agency,
indicated that confusion is already
manifest in the processing of job orders
during the transition period. Yet another
commenter provided examples of
confusion prevalent in communications
between the SWA and the CNPC on
such issues as the timing of receipt of
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job orders from the CNPC, the use of
master applications, and the timely
identification of traditional labor supply
States.
Another commenter indicated that
SWAs are currently receiving
insufficient support from the CNPC for
dealing with pre-filing issues, such as
rejection of qualified U.S. workers.
Confusion also exists about the timing
of housing inspections which are being
conducted under two sets of differing
regulations. The same commenter
provided additional evidence of
confusion and disruption, including the
presence of anomalies in wage rates,
which have caused the issuance of wage
rate determinations that are occasionally
lower than the State minimum wage
rate; and also, instances where an SWA
was instructed to make referrals to nonprovider and non-traditional labor
supply states, which in turn reduced the
chances of getting U.S. workers to fill
the positions.
The Department received other
comments which challenged its
assertions about the confusion and
disruption caused by the current
regulations. The most common
objection from the commenters
challenged the very existence of
confusion and disruption under the
December 2008 regulations, and noted
that DOL did not specify in the Notice
of Proposed Suspension the types of
confusion and disruption experienced
in administering the program or present
examples. In addition, a large number of
commenters argued that employers and
the larger regulated community were
not experiencing confusion. At least one
commenter added that DOL would
create confusion and disruption by
suspending the regulations. One large
grower association identified DOL as the
source of confusion and disruption and
accused the Department of limiting
access to guidance, training and
informational resources, and neglecting
to fulfill its obligations in advising the
regulated community on the current
regulations.
The majority of commenters opposed
to the suspension posited that there is
no disruption among users resulting
from the relevant legal and economic
concerns associated with the December
2008 Rule. One commenter indicated
that the current H–2A program is
different from the prior regulatory
regime in form and substance but the
changes do not constitute such a
fundamental shift in the Department’s
obligations, given the long lead time
before the rule’s promulgation to
warrant a precipitous change in
direction. One association noted that the
largest users of the current H–2A
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program reported that the December
2008 regulations have made for a more
logical, predictable, reliable and less
disruptive approach to securing legal
labor than the old regulations.
While each commenter’s experience
may be different, the Department
disagrees with those commenters that
there has been no disruption or
confusion resulting from the new
regulations. That the Department did
not spell out in detail the specifics of
the confusion experienced by program
users, but only summarized the level of
confusion and suggested it was
sufficient to propose suspending the
rule, does not negate the existence or
lessen the impact of such confusion.
Indeed, the Department received over
200 e-mail inquiries seeking
clarification of the December 2008
regulations during the 3 months that a
special mailbox was open to the public.
Moreover, the inquiries that the
Department has received show the
general lack of understanding and
knowledge among employers with the
process implemented by the December
2008 Rule. As noted above, the
Department did conduct two briefing
sessions for the public in December
2008 just before the publication of the
December 2008 Rule, which fewer than
200 H–2A employers, agents, attorneys,
farmworker advocates, State Workforce
Agency employees, and others were able
to attend. The attendees were provided
an advance (draft) copy of the rule text
at the meeting, and were provided a
brief overview of the new regulations to
be issued by DOL, (by both ETA and
ESA). The Department of Homeland
Security, which issued its own H–2A
regulations at the same time, also
participated in both briefings. These two
briefings, however, did not even begin
to respond to the questions and
concerns arising from the new rule.
Moreover, because of the resource
constraints discussed earlier and the
change in administrations and
priorities, the Department has not been
able to individually address the
subsequent comments and questions nor
provide adequate general program
guidance.
After that briefing, the Department
has received, between late December
and early March, at least 250 written
inquiries from program users on the
basic program requirements. Some of
these questions, both simple and
complex, have come from some of the
same commenters who now say they
have seen no difficulties with the new
rule. While a few questions
demonstrated an understanding of the
new rule, many others demonstrated
complete confusion with the new
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regulatory requirements, the forms, or
the process in general. The following are
some of the questions received by the
Department as recently as March 2009
which show a fundamental lack of
understanding of the new rule:
‘‘Do I advertise before I send in the
application and do I send copies of this
advertising?’’
‘‘To confirm, does form 9142 take the place
of both form 750 and 790 in the new H–2A
certification processing?’’
‘‘Does employer have to place a job order
with SWA before filing the application with
DOL? Is there any wait time?’’
These questions evidence confusion
about the basic program requirements
and employers’ obligations under the
December 2008 regulations.
In addition, many more questions
were directed to the individual SWAs,
which at times over the past few months
have provided contradictory or
misinformed guidance (as noted by
some commenters), in large part due to
the SWA staff’s own lack of
understanding of the December 2008
rule. The Department has become
aware, for example, that at least one
SWA, a full month into the program,
was erroneously giving out incorrect
wage rates, which were directly contrary
to the requirements of the new
regulations. Another SWA asked the
Department, as recently as April 2009,
whether, on an application filed under
the December 2008 Rule, it was required
to refer, and the employer required to
accept, referrals through 50 percent of
the contract period (the ‘‘50 percent
rule’’ of the former regulations), not the
30 days post-date of need as required
under the December 2008 Rule.
SWAs still have a significant role
under the December 2008 regulation, so
their fundamental misunderstanding of
the essential elements of the new
regulation threatens program integrity
and contributes to the public’s
continued confusion about the H–2A
application process and corresponding
employer obligations.
The most telling evidence of
confusion among the farming employer
community, however, lies in the
number of applications the Department
has received that require modifications
in order to be made acceptable for
processing. In the first three months of
the program, January, February and
March 2009, the Department found that
50%, 56%, and 46% of the applications
processed in those months, respectively,
required modifications to the
applications. For the same timeframe
last year, the percentages of applications
requiring modifications were 10%, 16%,
and 26%, respectively. This severe
disparity of modifications of everything
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from minimum requirements to contract
issues demonstrates how little
knowledge of the new regulations even
seasoned users of the program have
been able to glean.
Based on the volume and nature of
the inquiries that the Department has
received in the early days of the
December 2008 Rule, as well as the
number of applications that require
further investigation, the Department
disagrees that there is no confusion. The
significant lack of understanding of the
new rule is evident from the questions
the Department continues to receive
daily from even seasoned program
users, and is of deep concern to the
Department. Even if some members of
the regulated community understand
the current implementation of the new
rule sufficiently for compliance
purposes, there remains the fact that the
December 2008 rule is not yet fully
implemented, as the Department is still
operating the program within the
transition procedures prior to full Final
Rule implementation.
2. Avoiding the Disruption of Fully
Implementing a Complex Regulatory
Scheme When Further Review of Policy
and Economic Concerns Are Warranted
In the March 17 Notice, the
Department identified as a factor in
considering whether to suspend the
current regulations the disruptive effect
of implementing a complex regulatory
scheme without further consideration of
the legal and economic concerns that
have arisen during the current economic
downturn, such as the rising
unemployment among U.S. workers and
the impact that may have on the
Department’s H–2A statutory obligation
to ensure no adverse effect on the U.S.
worker population from the
introduction of the foreign workforce.
Although the Department received
many comments opposing this basis for
suspending the regulations, the
Department also received several
comments strongly supporting the
proposed action.
One commenter asserted that the
current regulations should be
suspended because of the change in
economic circumstances which has
taken place since the promulgation of
the December 2008 Rule, including the
increased unemployment that is having
an effect on the availability of U.S.
workers. Another commenter on the
State level noted that unemployment
has increased nationally and in its State
in a way not anticipated during the
rulemaking process for the December
2008 Rule. The commenter urged that
the Department must have an
opportunity to reconsider policy
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17:45 May 28, 2009
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implications of the H–2A program
overall, particularly those program
components that are likely to have an
adverse impact on the U.S. workforce in
the changed economic circumstances.
Another commenter indicated that
DOL did not provide supporting
evidence showing that the delay in
implementation of the December 2008
regulations will cause disruption in the
agricultural sales, production and
market conditions, even in this unstable
economic environment. This commenter
went on to assert that DOL’s proposed
suspension will drive up costs and force
users out of the program and negatively
impact supporting jobs in the greater
economy, thus itself generating a
disruptive economic impact. Another
commenter noted that DOL’s mandate is
not to abate the effects of increased
unemployment but to protect workers,
which it is adequately doing under the
current regulations.
The commenter’s objection to the
proposed suspension based on the
purported increase in employers’
expenses due to an increase in required
wage rates is a critical reason the
Department needs to examine and reevaluate the wage regime instituted
under the December 2008 Rule. One of
the Department’s most important
functions in its administration of the H–
2A program is to ensure that admission
of H–2A workers does not adversely
affect the wages of U.S. workers. At all
times, but particularly in the midst of a
severe economic downturn, the
Department is required to ensure that its
regulations do not create or compound
an adverse effect on U.S. workers. This
is particularly the case where, as in the
H–2A program, the Department has a
statutory obligation to ensure protection
of U.S. agricultural workers, one of the
most vulnerable sectors of the
workforce.4 The many commenters who
cite increased wages as a central reason
for not suspending the December 2008
Rule are doing so on the grounds that
wage costs for their foreign workforce
under the former regulations will be
higher than under the December 2008
Rule. One of the primary reasons that
the new Administration wants to review
the December 2008 Rule is precisely to
determine whether the generally
reduced wage rates under that rule are
having a depressive effect on
farmworker wages.
4 There is little dispute among commenters with
the Department’s position that farm hires are
disadvantaged in the labor market relative to most
other U.S. wage and salary workers. U.S.
Department of Agriculture, ‘‘Profile of Hired
Farmworkers, A 2008 Update,’’ Economic Research
Report, No. 60, July 2008, page iii.
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25977
The Department stated in its Notice of
Proposed Suspension that the December
2008 Rule, and the policy positions
from which the rule was promulgated,
may need to be reconsidered given the
efforts being made by the current
Administration to stabilize the
economy. A majority of commenters
criticized the Department for
considering a change in the regulations
on policy grounds. Some of these
commenters asserted that even if the
current Administration does not agree
with the policies represented by the
December 2008 Rule, the December
2008 Rule was carefully considered,
planned and prepared over a long
period of time and underwent a
significant amount of review. Others
noted that the December 2008 Rule was
legally promulgated and should not be
‘‘scrapped’’ without the Department first
undertaking a similarly painstaking new
rulemaking process.
The Department also received
comments supporting its desire to
revisit the policies of the previous
Administration reflected in the
December 2008 Rule in light of the goals
and objectives of the current
Administration. One such commenter
argued that it would be an inefficient
use of limited agency resources, as well
as confusing and disruptive to the
program users, to engage in the full
implementation of the December 2008
Rule if the Department is likely to issue
a different rule soon. This commenter
felt the suspension would be less
disruptive and confusing than
continuation of the December 2008 rule.
The Department agrees that it is not
appropriate to fully implement a rule
that is under reexamination by the
current Administration. The
Administration has, through the
suspension, taken the first step to begin
a review of the regulatory policies of the
previous Administration reflected in the
December 2008 Rule in light of its own
policies.
The Department also agrees with
those commenters who feel that less
disruption will follow from a
suspension than from a continuation of
the December 2008 Rule. The
Administration is not at this time
eliminating the rulemaking of the
previous Administration; rather, it is
temporarily putting that rulemaking on
hold in order to review the policies in
that rulemaking and, if warranted,
reopen the issues contained in the H–2A
program for further notice and
comment. The suspension is of limited
duration in both effect and time; by
providing notice and an end date, the
Department is limiting the impact of the
suspension as much as is feasible while
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still enabling the review the
Administration believes is necessary.
The December 2008 Rule is not now
being ‘‘scrapped’’ but is being
temporarily suspended in order for the
Administration to undertake what it
considers to be an essential review.
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B. Impetus for the Timing of Suspension
The March 17 Notice of Proposed
Suspension stresses the importance of
moving swiftly with the suspension in
order to avoid confusion and disruption
of the H–2A program in the midst of the
growing season.
One group of farmworker advocate
organizations offered support for the
immediate implementation of a
suspension, arguing that the regulations
must be suspended before the end of the
transition period of the current
regulations to avoid compounded
confusion and disruptions in
application processing due to the
Department’s inability to fully and
properly implement the complex new
regulatory program. Other comments
supported this position, noting that if
there is a likelihood that a new program
will be designed and the December 2008
Rule changed, the December 2008 Rule
should be suspended immediately in
order to prevent confusion and
disruption.
Most commenters, however, criticized
the Department’s timing of the
suspension, indicating that it would be
disruptive during the critical time for
crop production. The commenters
argued that the suspension overlapping
with the growing season will hurt the
employers who have already planned
and calculated their costs on the basis
of the current regulations.
As discussed further below, however,
the Department has clearly indicated its
intent to apply the current regulations to
all applications filed prior to the
effective date of this Final Rule. Since
most applications for this growing
season have been filed or will have been
filed before this Final Rule becomes
effective, the Department does not
believe that the concerns about
disruption for this season are a major
concern. For additional discussion, see
Section III. infra.
C. The Department’s Authority To
Suspend the December 2008 Rule
A number of commenters objected to
the proposed suspension of the
December 2008 Rule because the
Department’s rulemaking process for the
proposed suspension was not in
compliance with the Administrative
Procedure Act (APA). There appeared to
be differing views among the
commenters on the conformity of the
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17:45 May 28, 2009
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Notice of Proposed Suspension with the
rulemaking requirements under the
APA. Accordingly, the Department
reiterates the key facts relating to the
rulemaking process undertaken thus far.
On March 17, 2009, the Department
published its Notice of Proposed
Suspension in the Federal Register. The
Notice proposed to suspend the
December 2008 Rule for nine months
and to reinstate the Prior Rule. The
Notice requested comments relating
solely to the proposed suspension itself
(i.e., not the substance or merits of
either rule) from the public through
March 27, 2009. The publication of the
Notice of Proposed Suspension did not
in any way result in the immediate
suspension of the December 2008 Rule.
Rather, the Department accepted
comments from the public during the
ten-day period between March 17, 2009
and March 27, 2009. Once the comment
period closed, the Department reviewed
and considered the comments that it
received from the public and, through
this Final Rule, is suspending the
December 2008 Rule and reinstating the
Prior Rule for 9 months. The suspension
of the December 2008 Rule and
reinstatement of the Prior Rule will not
take effect until 30 days after the date
of this Final Rule’s publication.
These facts are significant with
respect to various comments that the
Department’s actions during this
rulemaking process are a violation of the
APA. Because different actions are cited
by the commenters as bases of the
asserted APA violation, we address each
action separately.
1. 10-Day Comment Period
A number of commenters argued that
the 10-day comment period provided in
the Notice of Proposed Suspension was
unreasonable and violated the APA.
Commenters claimed that many farmers
were in the midst of their growing
season, and 10 days was too short of a
period to provide a sufficient response
to the notice. Rather, these commenters
stated that an adequate comment period
required at least 30 days. Additionally,
some commenters cited the apparent
discrepancy between the 10-day
comment period for the proposed
suspension and the 60-day comment
period for the Department’s rulemaking
process for the December 2008 Rule.
Accordingly, there were many requests
to extend the comment period up to 60–
90 days.
Section 553 of the APA plainly states:
(b) General notice of proposed rule making
shall be published in the Federal Register,
unless persons subject thereto are named and
either personally served or otherwise have
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actual notice thereof in accordance with law.
The notice shall include:
a statement of time, place, and nature of
public rule making proceedings;
reference to the legal authority under
which the rule is proposed; and
either the terms or substance of the
proposed rule or a description of the subjects
and issues involved.
*
*
*
*
*
(c) After notice required by this section,
* * * the agency shall give interested
persons an opportunity to participate in the
rule making through submission of written
data, views, or arguments with or without
opportunity for oral presentation. After
consideration of the relevant matter
presented, the agency shall incorporate in the
rules adopted a concise general statement of
their basis or purpose.
An agency is only required to provide
a ‘‘meaningful opportunity’’ for
comments on a proposed rule, which
means that an agency’s mind must be
open to considering them. See Grand
Canyon Air Tour Coalition v. FAA, 154
F.3d 455 (D.C. Cir. 1998). Nowhere does
the APA set forth a minimum time
period for accepting rulemaking
comments. In fact, courts have upheld
comment periods as short as seven days.
See Northwest Airlines, Inc. v.
Goldschmidt, 645 F.2d 1309 (8th Cir.
1981). Additionally, comment periods
shorter than 30 days have been upheld
where there was no evidence of any
harm to the petitioners by the short
comment period, as demonstrated by
the volume and substance of comments
received by the agency and the
measurable effect such comments had
on the final rule. See Florida Power &
Light Company v. U.S., 846 F.2d 765,
772 (D.C. Cir. 1988) (upholding 15-day
comment period where 61 comments
were received, ‘‘some of them lengthy’’)
and Omnipoint Corporation v. FCC, 78
F.3d 620, 630 (D.C. Cir. 1996)
(upholding 15-day comment period
where 45 comments and 42 letters were
received).
Here, the Department received over
800 comments, many of which
contained detailed analyses of the
impact suspension would have on the
participants in the H–2A program and
which the Final Rule has addressed and
taken into account. Given the absence of
a required minimum comment period
under the APA, the sheer volume and
substance of the comments and the
Department’s detailed discussion and
consideration of the comments in this
Final Rule, the Department believes that
the 10-day comment period for this
rulemaking is reasonable. Furthermore,
while the Department did provide a
longer comment period during the 2008
H–2A rulemaking process, a shorter
timeframe is warranted here given the
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need for expediency as discussed earlier
in this preamble and the much more
limited scope of this suspension
rulemaking.
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2. Limitation of Scope of Comments to
Suspension
An agricultural association objected to
the Department’s limitation of the scope
of comments to the suspension itself, as
opposed to comments on the merits or
substance of either the current H–2A
rule or its predecessor rule. The
association stated that it has numerous
comments it would like to offer on both
the current regulations, as well as the
prior regulations, and on this basis the
association objected to the Department’s
reinstatement of the old regulations
during the suspension period.
As the Notice of Proposed Suspension
makes clear, the current Administration
intends to review and evaluate the
social and economic implications of the
December 2008 Rule. The Department
stated that if it were to decide to
suspend the December 2008 Rule, the
Department will either ‘‘engage in
further rulemaking or the suspension
will be lifted after 9 months.’’ Thus,
comments on the merits of the existing
and previous program would be
appropriate when the merits of the
program are actually at issue in that
rulemaking. The suspension of the
December 2008 Rule and reinstatement
of the Prior Rule is strictly a temporary
measure arising from the Department’s
need to review in an expeditious
manner the December 2008 Rule to
ensure that the Department effectively
carries out the statutory objectives and
requirements of the H–2A program. The
December 2008 Rule has not been
repealed; it will only be held in
abeyance for nine months. Unless the
Department engages in further
rulemaking, about which comments on
the substance and merits of the
proposed regulation will be solicited,
the December 2008 Rule will continue
to remain in effect once the suspension
expires after nine months.
3. Effective Date of Suspension
As mentioned earlier, there was some
confusion among the commenters as to
when the suspension would take effect.
Some commenters believed that the
suspension took effect upon publication
of the Notice of Proposed Suspension or
would take effect immediately at the
close of the comment period. Another
commenter believed that the suspension
would take effect before April 1, 2009.
Accordingly, a few commenters stated
that the Department was required to
show good cause in order for the
suspension of the current H–2A rule to
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17:45 May 28, 2009
Jkt 217001
take effect immediately. However, the
Department never stated in the Notice of
Proposed Suspension, nor does it intend
in this Final Rule, that the suspension
would take effect immediately.
As explained earlier, neither the
publication of the Notice of Proposed
Suspension, nor the close of the
comment period resulted in the
immediate suspension of the December
2008 Rule. The Department never
intended to issue, and in fact is not
issuing, a Final Rule suspending the
December 2008 Rule without having
undertaken a substantive review and
consideration of the comments that
were submitted during the comment
period. Part of this misunderstanding
may be attributed to the Department’s
reference in its Notice of Proposed
Suspension that ‘‘if the suspension
continues on April 1, 2009, the previous
regulations that were in effect on April
1, 2008 would appear in the next
published version of the CFR as 20 CFR
655.1 and 20 CFR part 655.’’ The
Department merely intended to track the
publication schedule of the CFR, in
which title 20 is updated annually as of
April 1st. However, the Department
acknowledges that the statement may
have been thought to erroneously imply
that the suspension would have been in
effect before April 1, 2009, which was
not the Department’s intention. The
Department would like to clarify that
because the suspension did not take
effect before April 1, 2009, this year’s
published version of the CFR as 20 CFR
655.1 and 20 CFR part 655 will contain
the December 2008 Rule in effect as of
April 1, 2009.
A farmworker advocacy organization
expressed support for the suspension to
take effect immediately upon
publication of the Final Rule of
suspension. However, while the
circumstances described in this
preamble warrant suspending the
December 2008 Rule, the Department
recognizes the need to have some period
of adjustment to the Prior Rule, in light
of the challenges associated with
changing regulatory programs, as noted
by many commenters. Accordingly, the
Department has determined not to
waive the 30-day delayed effective date
requirement in Section 553(d) of the
APA.
D. Impact of Suspension
The Department received many
comments expressing concern about the
impact of the suspension. The
Department first would like to explain
and clarify how the suspension of the
current rule and reinstatement of the
Prior Rule will take effect before
addressing the particular concerns
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25979
raised by commenters. The suspension
will become effective 30 days after the
date of publication of this Final Rule.
The Department stated in its Notice of
Proposed Suspension that ‘‘[i]f a final
decision is reached to suspend the H–
2A Final Rule, any H–2A application for
which pre-filing positive recruitment
was initiated in accordance with the H–
2A Final Rule prior to the date of
suspension will continue to be governed
by the H–2A Final Rule.’’ This
statement must be understood in the
context of the Department’s subsequent
extension of the transition procedures.
On April 16, 2009, after the issuance
of the Notice of Proposed Suspension,
the Department published an Interim
Final Rule (IFR) which extended the
transition period under 20 CFR
655.102(b)(2) to cover all applications
with a date of need on or before January
1, 2010. See 74 FR 17597. During the
transition period employers do not
engage in pre-filing recruitment in
traditional or expected labor supply
States in which there are a significant
number of qualified domestic workers.
Under the transition procedures,
employers are provided information on
expected labor supply States as part of
their post-filing recruitment
instructions. Given that all applications
filed before the effective date of the
suspension will still be subject to the
transition provision at 20 CFR
655.102(b)(2), which provides for postfiling recruitment, no employers will be
required to engage in pre-filing positive
recruitment before the effective date of
the suspension. Nevertheless, in
keeping with the intent expressed in the
Notice of Proposed Suspension, any H–
2A application which is filed while the
December 2008 Rule is still in effect will
continue to be governed by the
December 2008 Rule, while applications
filed on or after the effective date of the
suspension and the reinstatement of the
Prior Rule will be governed by the Prior
Rule.
Despite a recommendation from a
farmworker advocacy organization to
apply the Prior Rule to all pending and
approved job orders, the Department
does not believe there is a legal basis to
do so, and therefore will not apply the
Prior Rule to applications filed under
the December 2008 Rule. Following the
farmworker advocacy organization’s
suggestion would undermine
employers’ expectations and reliance on
the current rule prior to its suspension.
Moreover, implementing this suggestion
may violate the prohibition on
retroactive rulemaking. See Nat’l Mining
Ass’n v. Dep’t of Labor, 292 F.3d 849,
860 (D.C. Cir. 2002).
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The reinstatement of the Prior Rule
will be accompanied by the
reinstatement of Form ETA–750 in the
H–2A program. Form ETA–9142 for H–
2A applications5 may be filed up to the
day before the effective date of the
suspension. However, as of the effective
date of this Final Rule, employers will
be expected to use Form ETA–750, and
any H–2A applications filed using the
Form ETA–9142 will not be accepted.
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1. Uncertainty of Applicable
Regulations; Impact on Planning and
Operations
A number of commenters expressed
concerns about the confusion and
disruption that would result from the
suspension of the December 2008 Rule.
In particular, a State agricultural agency
questioned: (1) Whether farmers would
be allowed to abandon applications
when they learn that they are going to
be subject to the Prior Rule; (2) whether
it would be possible for farmers to end
up with some workers being subject to
the December 2008 Rule and some to
the Prior Rule; (3) whether farmers will
find that their applications filed under
the December 2008 Rule are rejected
once the Prior Rule is in place. Such
concerns were echoed by a number of
farmers and agricultural associations,
particularly as to how the suspension
would affect applications filed but not
yet approved.
Employers always have had the
ability to abandon or withdraw pending
applications without penalty, regardless
of which regulations apply. However, as
explained above, the Department has
clearly identified the time frame for
determining whether an application
falls under the December 2008 Rule or
the Prior Rule. Applications filed before
the effective date of this Final Rule will
be governed by the December 2008 Rule.
Applications filed on or after the
effective date of this Final Rule will be
governed by the Prior Rule. Thus,
applications filed before the effective
date of this Final Rule will not be
governed by the Prior Rule and
therefore, could not be rejected, nor will
the employer be penalized, because the
application is not in compliance with
the Prior Rule.
The Department understands that one
of the results of this suspension is that
a farmer may have workers subject to
two different sets of rules, depending on
the date on which the applications
covering the H–2A workers were filed.
However, as discussed in greater detail
5 Note that the discontinuation of Form ETA–
9142 in the H–2A program in no way affects the
requirement to use the Form ETA–9142 in the H–
2B program.
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in Section II(C)(3) of this preamble, such
situations already occur and have not
detrimentally affected the H–2A
enforcement process.
A number of growers also raised
concerns about having invested much
time and effort in learning the December
2008 Rule, and that their reliance on the
December 2008 Rule in planning for
their 2009 growing season will cause
them to incur additional administrative,
operations, and financial burdens if the
December 2008 Rule is suspended. In
particular, one agricultural association
stated that their members planned for
their 2009 crop activities using the
December 2008 Rule to budget for
operating costs, secure financing, plan
personnel needs, finalize contracts, and
schedule product deliveries. They
claimed that such changes mid-season
would not only disrupt their operations,
but could potentially put them out of
business based on differences in
compliance costs, particularly with
respect to wages and transportation.
One State department of agriculture
claimed that the suspension would
cause disruptions in the harvest due to
an insufficient labor supply and create
shortages of products in the marketplace
which would raise food prices. Other
commenters were concerned that the
suspension would create a disincentive
for employers to participate in the H–2A
program and result in greater use of
illegal labor and the outsourcing of food
production.
The Department acknowledges that
the suspension of the December 2008
Rule is a change that will inevitably
result in some disruption from the
status quo created by the December
2008 Rule. However, the Department
does not believe that the disruption will
rise to the damaging levels claimed by
the commenters. First of all, the Prior
Rule that will be reinstated through this
Final Rule and which was replaced by
the December 2008 Rule only 3 months
ago had been in effect for over 20 years.
Clearly, the agricultural industry did not
grind to a halt during that period, and
most of the current users under the H–
2A program have a sufficient degree of
familiarity and experience with the
Prior Rule. Even though one agricultural
association claimed that there was a
wide consensus regarding the problems
with the Prior Rule and that reverting
back to it would be more disruptive
than staying with the December 2008
Rule which has only a few perceived
minor problems, the rulemaking record
of the December 2008 Rule contradicts
these points. The Department received
over 11,000 comments in response to
the NPRM for the December 2008 Rule,
which addressed a diversity of issues in
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the H–2A program and evidenced a lack
of consensus regarding the purported
advantages of the December 2008 Rule.
Additionally, as discussed earlier,
applications which have been filed
under the December 2008 Rule, and
which represent most of the
applications that will be filed for this
growing season, will continue to be
governed by the December 2008 Rule.
This Final Rule also suspends the
December 2008 revisions to 29 CFR part
501, implementing the Department’s
enforcement of the H–2A program, as
that regulation is so integrally
intertwined into 20 CFR part 655,
Subpart B that a suspension of the
December 2008 rule must apply equally
to both revised regulations.
2. Elimination of Certain Categories of
Activities From the H–2A Program
A number of commenters expressed
concern about the impact that the
proposed suspension would have on
certain categories of activities which
were classified as ‘‘agricultural’’ under
the December 2008 Rule, but which
were not part of the H–2A program
under the Prior Rule. While the
Department acknowledges and
understands that the suspension may
affect growers conducting such
activities more so than others, the
Department has determined that for
purposes of administrative efficiency
and advancing consistency in
application, the suspension will apply
to the December 2008 Rule in its
entirety. The particular concerns of the
commenters are addressed in greater
detail below.
a. Logging
The Department received a number of
comments from logging contractors,
employers related to the logging
industry (e.g., sawmills, land
companies), and associations
representing the logging industry. All of
these commenters opposed the
proposed suspension arguing that the
suspension removes the only alternative
source of labor for this industry for this
year. The temporary suspension of the
December 2008 Rule will remove
logging from the definition of
agricultural labor or services, and thus,
employers seeking to hire temporary
foreign labor will have to file
applications under the non-agricultural
H–2B program. The H–2B program is
limited to 66,000 visas per year, with
33,000 being made available during
each 6 month period of a fiscal year.
The United States Citizenship and
Immigration Service (USCIS) announced
that the cap for the second half of Fiscal
Year 2009 was reached on January 7,
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2009.6 Therefore, petitions for new H–
2B workers seeking employment start
dates prior to October 1, 2009 would be
rejected by USCIS. The commenters
stated that the suspension would
devastate the logging industry and harm
the related forest products industries.
Several of these commenters identified
June 1, 2009 as the approximate
beginning date of the upcoming summer
harvest season.
The Department recognizes that the
suspension will remove the ability of
the logging industry to obtain workers
via the H–2A program for the 9-month
period the suspension is in effect.
However, as stated earlier, any H–2A
application which was filed under the
December 2008 Rule prior to the
effective date of the suspension will
continue to be governed by the
December 2008 Rule. The Department’s
experience in administering the labor
certification processes for the temporary
worker programs is that the most of the
applications for job opportunities in the
logging industry are received and
processed during late winter or early
spring. Therefore, the Department
believes that the majority of
applications for temporary employment
in the logging industry will be
processed prior to the effective date of
this Final Rule and will be subject to the
December 2008 Rule, as they will have
been filed before its suspension takes
effect. Even taking the industry’s date of
June 1, 2009 as the start of the logging
season and thus as the beginning date of
need, all applications for loggers (of
which there are only annual
applications for approximately 600
workers) are expected to be filed and
processed prior to the effective date of
this Final Rule.
b. Incidental Activity and Packing
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Two U.S. Senators expressed concern
that reinstating the Prior Rule would
eliminate the expanded definition of
agriculture under the December 2008
Rule which included: (1) Work typically
performed on a farm and incidental to
the agricultural labor or services for
which the H–2A worker is sought, but
not specifically listed on the
Application for Temporary Employment
Certification; and (2) packing shed
operations that were not part of a
farming operation, where fresh fruits
6 6 USCIS Press Release, USCIS Reaches H–2B
Cap for Second Half of Fiscal Year 2009. Available
at: https://www.uscis.gov/portal/site/uscis/
menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=b2b547
dfb32be110VgnVCM1000004718190aRCRD&vgnext
channel=3381c0ed71f85110VgnVCM100000
4718190aRCRD.
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and vegetables are packaged for sale
after harvest.
Even though the definition of
‘‘agricultural or labor services’’ under
the Prior Rule differs from that provided
in the December 2008 Rule, the
definition of ‘‘agricultural or labor
services’’ under the Prior Rule still
encompasses incidental work and
packing shed operations. The Prior
Rule, like the December 2008 Rule,
incorporates the definitions of
‘‘agricultural labor’’ from Section
3121(g) of the Internal Revenue Code
and ‘‘agriculture’’ from Section 3(f) of
the Fair Labor Standards Act (FLSA) in
the definition of ‘‘agricultural or labor
services.’’
The definition of ‘‘agriculture’’ from
Section 3(f) of the FLSA includes
incidental work:
(f) * * * farming in all its branches and
among other things includes the cultivation
and tillage of the soil, dairying, the
production, cultivation, growing, and
harvesting of any agricultural or horticultural
commodities (including commodities as
defined as agricultural commodities in
section 1141j(g) of Title 12), the raising of
livestock, bees, fur-bearing animals, or
poultry, and any practices (including any
forestry or lumbering operations) performed
by a farmer or on a farm as an incident to
or in conjunction with such farming
operations, including preparation for market,
delivery to storage or to market or to carriers
for transportation to market.
(emphasis added).
The definition of agriculture in the
December 2008 Rule, however, also
included in the definition of
‘‘agricultural labor or services of a
temporary or seasonal nature’’ the
following provision that specifically
addressed incidental work beyond the
definition of agriculture provided under
Section 3(f) of the FLSA:
Other work typically performed on a farm
that is not specifically listed on the
Application for Temporary Labor
Certification and is minor (i.e., less than 20
percent of the total time worked on the job
duties and activities that are listed on the
Application for Temporary Employment
Certification) and incidental to the
agricultural labor or services for which the
H–2A worker was sought.
20 CFR 655.100(d)(1)(vi).
Although reinstatement of the Prior
Rule would eliminate this provision, the
definition of agriculture under Section
3(f) of the FLSA is broad enough to
encompass the work described in 20
CFR 655.100(d)(1)(vi). The definition of
‘‘agricultural labor’’ from section
3121(g) of the Internal Revenue Code
includes packing shed operations by
including all service performed:
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25981
(4)(A) In the employ of the operator of a
farm in handling, planting, drying, packing,
packaging, processing, freezing, grading,
storing, or delivering to storage or to market
or to a carrier for transportation to market, in
its unmanufactured state, any agricultural or
horticultural commodity; but only if such
operator produced more than one-half of the
commodity with respect to which such
service is performed.
The definition of agriculture under
the December 2008 Rule, however, also
included in the definition of
‘‘agricultural labor or services of a
temporary or seasonal nature’’ a
provision that specifically addressed
packing that goes beyond the definition
of agricultural labor in Section 3121(g)
of the Internal Revenue Code:
Handling, planting, drying, packing,
packaging, processing, freezing, grading,
storing, or delivering to storage, to market or
to a carrier for transportation to market, in its
unmanufactured state, any agricultural or
horticultural commodity while in the employ
of the operator of a farm where no H–2B
workers are employed to perform the same
work at the same establishment.
20 CFR 655.100(d)(1)(v).
Although packing shed operations
which were not part of the farming
operation would no longer be included
in the definition of agriculture once the
Prior Rule is reinstated, the Department
does not believe that the removal of
such activities would unduly harm
growers; in fact, the Department
received no comments from any growers
objecting to the suspension on that
ground. Accordingly, while the
Department recognizes the concerns
raised by the commenters about the
changes in definition of agricultural
labor or services of a temporary or
seasonal nature, the Department does
not believe that such changes are so
critical that they outweigh the benefits
of suspending the December 2008 Rule.
3. Enforcement; Wage Discrimination
Many commenters expressed concern
that suspending the December 2008
Rule and replacing it with the Prior Rule
would subject workers performing the
same work to different certifications,
different regulatory requirements and
different wages.
Such disparities already exist. Under
the December 2008 Rule, for example,
U.S. workers hired during the period of
time set forth in the labor certification
are entitled to H–2A wages as they are
engaged in corresponding employment,
while U.S. workers who were already in
the employer’s employ are not.
Similarly, a grower may pay its own
U.S. workers one wage and hire a labor
contractor employing H–2A workers
paid at a different wage, though both
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sets of workers will be employed in the
same fields performing the same work.
Suspending the December 2008 Rule
will allow for the reconsideration of the
questions arising from these disparities.
4. Flaws in the Text of the Prior
Regulation
An agricultural association noted that
the reinstatement of the Prior Rule
verbatim would include the
reinstatement of certain errors in the
regulation, such as a pre-McConnell
Amendment reference to the granting of
certifications no later than 20 days
before the date of need. The Department
acknowledges that the Prior Rule
contains that error, but this error, along
with other outdated references in the
regulatory text, did not and will not
prevent the Department from complying
with its statutory requirements under
the Immigration and Nationality Act
and other laws.
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E. Suspension of 29 CFR Part 501
As discussed above, 29 CFR part 501
implements the Department’s
enforcement responsibilities under the
H–2A program. These regulations
complement the ETA regulations at 20
CFR Part 655 Subpart B and are so
integrated with the ETA regulations that
the suspension of 20 CFR part 655
necessitates the suspension of 29 CFR
part 501. This is evident in that in the
comments received, commenters did not
differentiate between the ETA and the
WHD regulations.
F. Suspension of Pertinent Sections of
29 CFR Parts 780 and 788
As part of the H–2A rulemaking, the
Fair Labor Standards Act (FLSA)
regulations, 29 CFR 780.115, 780.201,
780.205, and 780.208, were amended to
include the production of Christmas
trees within the scope of ‘‘agriculture’’
under the FLSA and to remove specific
reference to Christmas trees as part of
forestry activities in 29 CFR 788.10.
This classification of Christmas tree
production impacts workers’
entitlement to minimum wages and
overtime pay, as well as the application
of child labor protections under the
FLSA.
As explained in the preamble to the
December 2008 Rule, this provision was
based on the decision in U.S.
Department of Labor v. North Carolina
Growers Association, 377 F.3d 345 (4th
Cir. 2004), which held that production
of Christmas trees was within the scope
of the FLSA definition of agriculture at
29 U.S.C. 203(f), thus allowing
application of exemptions pertaining to
agriculture. 29 U.S.C. 213(a)(6)(A) and
29 U.S.C. 213(b)(12). That decision was
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contrary to regulations dating from the
1950s which included Christmas trees
among ‘‘other forestry products’’ that
were not included within the scope of
FLSA agriculture. See 16 FR 481–482,
Jan 28, 1950; 21 FR 2933, May 3, 1956.
Comments from growers and
representatives of this industry opposed
suspension of these FLSA revisions,
pointing out that the treatment of
Christmas tree production under the
FLSA is unrelated to the changes made
to the H–2A program, and that the
Christmas tree regulation is not
impacted by the programmatic concerns
affecting the H–2A regulations.
The Department acknowledges that
this change in FLSA regulations is
unrelated to the H–2A program and was
not necessary to accomplish the
revisions to the H–2A program.
Nevertheless, the Department believes
that suspending these FLSA regulatory
changes will provide an opportunity for
additional review with an explicit focus
on the ramifications of the rule on the
implementation of the FLSA. For
example, neither the NPRM nor the
preamble to the December 2008 Rule
mentioned the impact of the regulatory
change on child labor protections in this
industry. Accordingly, no comments
were received, and no information was
obtained, concerning the impact of this
change on child labor protections. DOL
is especially sensitive to potential
adverse impacts that the December 2008
Rule’s FLSA regulatory changes might
have on our Nation’s most vulnerable
workers, including low-wage workers
and youth.
Given the longstanding nature of the
Department’s prior position on this
issue, and the removal of FLSA wage
and child labor protections that the
December 2008 Rule triggered, it is the
Department’s view that a suspension of
the December 2008 Rule in its entirety
is appropriate to provide an opportunity
for a more complete review of this
important regulatory issue.
III. Administrative Information
A. Executive Order 12866—Regulatory
Planning and Review
Under Executive Order (E.O.) 12866,
the Department must determine whether
a regulatory action is ‘‘significant’’ and
therefore subject to the requirements of
the E.O. and subject to review by the
Office of Management and Budget
(OMB). Section 3(f) of the E.O. defines
a ‘‘significant regulatory action’’ as an
action that is likely to result in a rule
(1) having an annual effect on the
economy of $100 million or more, or
adversely and materially affecting a
sector of the economy, productivity,
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competition, jobs, the environment,
public health or safety, or State, local or
tribal governments or communities (also
referred to as ‘‘economically
significant’’); (2) creating serious
inconsistency or otherwise interfering
with an action taken or planned by
another agency; (3) materially altering
the budgetary impacts of entitlement
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raising novel legal or
policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the E.O.
The Department has determined that
this Final Rule is not an ‘‘economically
significant regulatory action’’ under
Section 3(f)(1) of E.O.12866. The
procedures for filing an Application for
Temporary Employment Certification
under the H–2A visa category on behalf
of nonimmigrant temporary agricultural
workers, under this regulation, will not
have an economic impact of $100
million or more. The regulation will not
adversely affect the economy or any
sector thereof, productivity,
competition, jobs, the environment, or
public health or safety in a material
way. In fact, this Final Rule is intended
to provide to growers clear and
consistent guidance on the requirements
for participation in the H–2A temporary
worker program, and to eliminate the
potential for disruption, confusion, and
processing delays resulting from the
Department’s and SWAs’ lack of
resources for efficient implementation
of the December 2008 Rule. The
Department, however, has determined
that this Final Rule is a ‘‘significant
regulatory action’’ under Section 3(f)(4)
of the E.O. and accordingly OMB has
reviewed this Final Rule.
Summary of Impacts
The changes in this Final Rule are
expected to have little net direct cost
impact on employers, above and beyond
the baseline of the current costs
required by the program as it is
currently implemented. While the effect
of the December 2008 Rule was to
require employers to engage in
recruitment of U.S. workers in advance
of filing their applications for foreign
labor certification, the Department
included a transition period to enable it
to implement the new rule and to enable
employers to become accustomed to the
filing procedures and new recruitment
regime under the new regulations.
During the transition period, employers
initiate recruitment after filing the
temporary labor certification
application. The transition period
contained in the December 2008 Rule
applied to employers with a date of
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need before July 1, 2009. On April 16,
2009, the Department published an
Interim Final Rule extending the
transition period to include all
employers with a date of need on or
before January 1, 2010. See 74 FR 17597.
Therefore, employers will experience no
change from the current application
filing and recruitment procedures.
During the 9-month suspension
period, employer costs for newspaper
advertising will decrease slightly, as this
Final Rule suspends the requirement
that one of the two required
advertisements be run on a Sunday.
This Final Rule temporarily reinstates
the requirement on employers to engage
in post-filing recruitment efforts as
determined by the OFLC Administrator.
It is the Department’s view that the
protections and opportunities for
employment for U.S. workers provided
by this requirement more than outweigh
the marginal uncertainty in recruitment
costs for employers.
During the 9-month suspension
period, civil money penalties are
returned to the level established in 1987
(maximum of $1,000 per violation). The
Department recognizes the deterrent
effect of civil money penalties on
fostering greater program compliance
under the Final Rule, and will use, as
appropriate, all of the tools available to
ensure compliance with H–2A program
requirements.
In the December 2008 Rule, the
Department estimated the biggest cost to
employers of that rule to be the
increased cost of foreign recruitment,
since employers can no longer allow
foreign recruiters with whom they were
in privity of contract to charge foreign
workers fees for recruitment. Despite the
temporary suspension, the Department
does not anticipate any increase in
employer costs because regulations
issued by the Department of Homeland
Security, USCIS on December 18, 2008
prohibit the payment of certain jobplacement related fees by prospective
H–2A workers. See 73 FR 76891
(codified at 8 CFR 214.2(h)(5)(xi)).
Employers are encouraged to review
their obligations under the USCIS rule
with respect to payments made by
foreign workers to foreign recruiters.
The Department also estimated that
employers’ recordkeeping costs under
the December 2008 Rule would increase
minimally; with the return to the
previous H–2A Final Rule, the costs
associated with recordkeeping
requirements will minimally decrease.
The Department identified no other
specific cost changes as a result of the
December 2008 Rule and therefore, can
identify no other specific cost changes
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17:45 May 28, 2009
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that would result from the temporary
suspension of that rule.
Based on historical program use, the
Department estimates that
approximately 83% of applications will
have been processed by the effective
date of this Final Rule, therefore few
applications will be subject to the
previous H–2A program rules during the
9-month suspension. The Department
recognizes that for the employers
submitting applications under the
reinstated regulations, particularly
employers who have already received
certifications based on the December
2008 Rule, there will be some confusion
and perhaps a change in labor costs for
applications filed after the effective date
of the suspension due to the different
adverse effect wage rate (AEWR)
methodology. However, in analyzing
those potential costs it is unclear that
such costs will be significant based on
the number of users who will have
already initiated the application process
prior to the suspension.
B. Regulatory Flexibility Analysis
When an agency issues a rulemaking
proposal, the Regulatory Flexibility Act
(RFA) requires that a regulatory
flexibility analysis be prepared and
made available for public comment. The
RFA must describe the impact of the
rule on small entities. See 5 U.S.C.
603(a). Section 605 of the RFA allows an
agency to certify a rule, in lieu of
preparing an analysis, if the rulemaking
is not expected to have significant
economic impact on a substantial
number of small entities. The Secretary
has notified the Chief Counsel for
Advocacy, Small Business
Administration (SBA), and certifies
under the RFA at 5 U.S.C. 605(b), that
this rule will not have a significant
economic impact on a substantial
number of small entities. The rule does
not substantively change existing
obligations for employers who choose to
participate in the H–2A temporary
agricultural worker program.
As a factual basis for such a
certification, although this rule can and
does affect small entities, there are not
a substantial number of small entities
that will be affected, nor is there a
significant economic impact upon those
small entities that are affected. Of the
total 2,089,790 farms in the United
States, 98 percent have sales of less than
$750,000 per year and fall within SBA’s
definition of small entities. In FY 2007,
however, only 7,725 employers filed
requests for only 80,294 workers. That
represents fewer than 1 percent of all
farms in the United States. Even if all of
the 7,725 employers who filed
applications under H–2A in FY2007
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25983
were small entities, that is still a
relatively small number of employers
affected. However, the universe of filers
expected to file applications under this
Final Rule is far fewer than the 7,725
employers who filed in FY2007. The
Department estimates approximately
1,313 employers to file during the 9month period this Final Rule is in place,
not all of which would be small entities.
Even more important than the number
of small entities affected, the
Department believes, for the reasons
stated above, that the costs incurred by
employers under this Final Rule will
not be substantially different from those
incurred under the current application
filing process. Employers seeking to hire
foreign workers on a temporary basis
under the H–2A program must continue
to establish to the Secretary of Labor’s
satisfaction that their recruitment
attempts have not yielded enough
qualified and available U.S. workers and
that their hiring of foreign workers will
not adversely affect the wages and
working conditions of similarly
employed U.S. workers. Similar to the
current process, employers under this
process will file a standardized
application for temporary labor
certification and will retain recruitment
documentation, a recruitment report,
and any supporting evidence or
documentation justifying the temporary
need for the services or labor to be
performed. Therefore, the Department
believes that this Final Rule is expected
to have little net direct cost impact on
employers, above and beyond the
baseline of the current costs required by
the program as it is currently
implemented.
C. Unfunded Mandates Reform Act of
1995
Section 202 of the Unfunded
Mandates Reform Act (UMRA) of 1995
(2 U.S.C. 1501 et seq.) directs agencies
to assess the effects of a Federal
regulatory action on State, local, and
tribal governments, and the private
sector to determine whether the
regulatory action imposes a Federal
mandate which may result in
expenditures by such governments or
the private sector of $100,000,000 or
more. A Federal mandate is defined in
the Act at 2 U.S.C. 658(5)–(7) to include
any provision in a regulation that
imposes an enforceable duty upon State,
local, or tribal governments, or imposes
a duty upon the private sector which is
not voluntary. Further, each agency is
required to provide a process where
State, local, and tribal governments may
comment on the regulation as it
develops, which further promotes
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coordination between the Federal and
the State, local, and tribal governments.
This Final Rule imposes a minimal
duty upon State, local or tribal
governments. However, as discussed
above, this Final Rule will not result in
expenditures of $100,000,000 by
governments or private entities.
D. Executive Order 13132—Federalism
Executive Order 13132 addresses the
Federalism impact of an agency’s
regulations on the States’ authority.
Under E.O. 13132, Federal agencies are
required to consult with States prior to
and during the implementation of
national policies that have a direct effect
on the States, the relationship between
the Federal government and the States,
or on the distribution of power and
responsibilities among the various
levels of government. Further, an agency
is permitted to limit a State’s discretion
when it has statutory authority and the
regulation is a national activity that
addresses a problem of national
significance. This Final Rule has no
direct effect on the States, the
relationship between the Federal
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.
E. Executive Order 13175—Indian
Tribal Governments
Executive Order 13175 requires
Federal agencies to develop policies in
consultation with tribal officials when
those policies have tribal implications.
This final rule regulates the H–2A visa
program and does not have tribal
implications. Therefore, the Department
has determined that this E.O. does not
apply to this rulemaking.
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F. Assessment of Federal Regulations
and Policies on Families
17:45 May 28, 2009
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implementation of the temporarily
suspended rule.
Executive Order 12630, Governmental
Actions and the Interference with
Constitutionally Protected Property
Rights, prevents the Federal government
from taking private property for public
use without compensation. It further
institutes an affirmative obligation that
agencies evaluate all policies and
regulations to ensure there is no impact
on constitutionally protected property
rights. Such policies include rules and
regulations that propose or implement
licensing, permitting, or other condition
requirements or limitations on private
property use, or that require dedications
or exactions from owners of private
property. The Department has
determined that this Final Rule has no
effect on constitutionally protected
property rights.
J. Executive Order 13211—Energy
Supply
This final rule is not subject to E.O.
13211, which assesses whether a
regulation is likely to have a significant
adverse effect on the supply,
distribution, or use of energy.
Accordingly, the Department has
determined that this rule does not
represent a significant energy action and
does not warrant a Statement of Energy
Effects.
H. Executive Order 12988—Civil Justice
Reform
Section 3 of E.O. 12988, Civil Justice
Reform, requires Federal agencies to
draft regulations in a manner that will
reduce needless litigation and will not
unduly burden the Federal court
system. Therefore, agencies are required
to review regulations for drafting errors
and ambiguity; to minimize litigation;
ensure that it provides a clear legal
standard for affected conduct rather
than a general standard; and promote
simplification and burden reduction.
The rule has been drafted in language
that states as clearly as possible the
bases for the decision to suspend the
December 2008 Rule and reinstate the
Prior Rule. Therefore, the Department
has determined that the regulation
meets the applicable standards set forth
in Section 3 of E.O. 12988. The
Department received no comments
about this section.
I. Plain Language
Section 654 of the Treasury and
General Government Appropriations
Act of 1999 (5 U.S.C. 601 note) requires
agencies to assess the impact of Federal
regulations and policies on families.
The assessment must address whether
the regulation strengthens or erodes the
stability, integrity, autonomy, or safety
of the family.
The final rule does not have an
impact on the autonomy or integrity of
the family as an institution, as it is
described under this provision. The
Department has determined that
although there may be some costs
associated with the final rule, they are
not of a magnitude to adversely affect
family well-being.
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G. Executive Order 12630—Protected
Property Rights
Every Federal agency is required to
draft regulations that are written in
plain language to better inform the
public about policies. The Department
has assessed this Final Rule under the
plain language requirements and
determined that it follows the
Government’s standards requiring
documents to be accessible and
understandable to the public. The
purpose of this Final Rule is to provide
to growers clear and consistent guidance
on the requirements for participation in
the H–2A temporary worker program,
and to eliminate the potential for
disruption, confusion, and processing
delays resulting from the Department’s
and SWAs’ lack of resources for efficient
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K. Paperwork Reduction Act
The paperwork requirements of this
rule have been previously complied
with in accordance with the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501
et seq.). Specifically, under the Prior
Regulation, the information collection
instrument used by the employer to file
an application was the Form ETA–750.
This is a currently approved collection
under OMB control number 1205–0015,
which expires 10/31/2011. Because the
request for OMB to approve the
extension of this collection was filed in
2008, prior to the effective date of the
rule being now suspended, the burden
information reported to OMB in that
extension request took into account the
H–2A program’s time and monetary
burden on the public. Therefore, no
adjustments are necessary at this time.
List of Subjects
20 CFR Part 655
Administrative practice and
procedure, Foreign workers,
Employment, Employment and training,
Enforcement, Forest and forest products,
Fraud, Health professions, Immigration,
Labor, Passports and visas, Penalties,
Reporting and recordkeeping
requirements, Unemployment, Wages,
Working conditions.
29 CFR Part 501
Administrative practice and
procedure, Agriculture, Aliens,
Employment, Housing, Housing
standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
29 CFR Part 780
Agricultural commodities,
Agriculture, Employment, Forests and
forest products, Labor, Minimum wages,
Nursery stock, Overtime pay, Wages.
29 CFR Part 788
Employment, Forests and forest
products, Labor, Overtime pay, Wages.
■ Accordingly, the Department of Labor
amends 20 CFR part 655 and 29 CFR
parts 501, 780, and 788 as follows:
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Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations
Title 20—Employees’ Benefits
Subpart B [Redesignated as Subpart N
and Suspended]
PART 655—TEMPORARY
EMPLOYMENT OF ALIENS IN THE
UNITED STATES
1. The authority citation for part 655
is revised to read as follows:
■
Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m), (n),
and (t), 1184, 1188, and 1288(c) and (d); 29
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101–
238, 103 Stat. 2099, 2102 (8 U.S.C. 1182
note); sec. 221(a), Pub. L. 101–649, 104 Stat.
4978, 5027 (8 U.S.C. 1184 note); sec. 323,
Pub. L. 103–206, 107 Stat. 2149; Title IV,
Pub. L. 105–277, 112 Stat. 2681; Pub. L. 106–
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and
8 CFR 213.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C.
1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C.
49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subparts A and C issued under 8 U.S.C.
1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et
seq.; and 8 CFR 214.2(h)(4)(i).
Subpart B issued under 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29
U.S.C. 49 et seq.
Subparts D and E issued under 8 U.S.C.
1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29
U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L.
101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182
note).
Subparts F and G issued under 8 U.S.C.
1184 and 1288(c); and 29 U.S.C. 49 et seq.
Subparts H and I issued under 8 U.S.C.
1101(a)(15)(H)(i)(b) and (b1), 1182(n), 1182(t),
and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8),
Pub. L. 102–232, 105 Stat. 1733, 1748 (8
U.S.C. 1182 note); and Title IV, Pub. L. 105–
277, 112 Stat. 2681.
Subparts J and K issued under 29 U.S.C. 49
et seq.; and sec. 221(a), Pub. L. 101–649, 104
Stat. 4978, 5027 (8 U.S.C. 1184 note).
Subparts L and M issued under 8 U.S.C.
1101(a)(15)(H)(i)(c), 1182(m), and 1184; and
29 U.S.C. 49 et seq.
§ 655.5 [Redesignated as § 655.81 and
Suspended]
§ 655.90
3a. Redesignate § 655.5 as § 655.81
and suspend it.
■
§ 655.1 [Redesignated as § 655.5 and
Suspended]
3b. Redesignate § 655.1 as § 655.5 and
suspend it.
■
4. Add § 655.1 to read as follows:
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§ 655.1
Scope and purpose of subpart A.
This subpart sets forth the procedures
governing the labor certification process
for the temporary employment of
nonimmigrant aliens in the United
States in occupations other than
agriculture, logging, or registered
nursing.
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Subpart B—Labor Certification Process for
Temporary Agricultural Employment in the
United States (H–2A Workers)
Sec.
655.90 Scope and purpose of subpart B.
655.92 Authority of the Office of Foreign
Labor Certification (OFLC)
Administrator.
655.93 Special circumstances.
655.100 Overview of this subpart and
definition of terms.
655.101 Temporary alien agricultural labor
certification applications.
655.102 Contents of job offers.
655.103 Assurances.
655.104 Determinations based on
acceptability of H–2A applications.
655.105 Recruitment period.
655.106 Referral of U.S. workers;
determinations based on U.S. worker
availability and adverse effect; activities
after receipt of the temporary alien
agricultural labor certification.
655.107 Adverse effect wage rates (AEWRs).
655.108 H–2A applications involving fraud
or willful misrepresentation.
655.110 Employer penalties for
noncompliance with terms and
conditions of temporary alien
agricultural labor certifications.
655.111 Petition for higher meal charges.
655.112 Administrative review and de novo
hearing before an administrative law
judge.
655.113 Job Service Complaint System;
enforcement of work contracts.
Subpart B—Labor Certification
Process for Temporary Agricultural
Employment in the United States (H–
2A Workers)
2. Revise the heading to part 655 to
read as set forth above.
■
■
5. Redesignate subpart B, consisting of
§§ 655.90, 655.92, 655.93, and 655.100
through 655.119, as subpart N,
consisting of §§ 655.1290, 655.1292,
655.1293, and 655.1300 through
655.1319, and suspend newly
designated subpart N.
■ 6. Add subpart B to read as follows:
■
Scope and purpose of subpart B.
(a) General. This subpart sets out the
procedures established by the Secretary
of Labor to acquire information
sufficient to make factual
determinations of: (1) Whether there are
sufficient able, willing, and qualified
U.S. workers available to perform the
temporary and seasonal agricultural
employment for which an employer
desires to import nonimmigrant foreign
workers (H–2A workers); and (2)
whether the employment of H–2A
workers will adversely effect the wages
and working conditions of workers in
the U.S. similarly employed. Under the
authority of the INA, the Secretary of
Labor has promulgated the regulations
in this subpart. This subpart sets forth
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the requirements and procedures
applicable to requests for certification
by employers seeking the services of
temporary foreign workers in
agriculture. This subpart provides the
Secretary’s methodology for the twofold determination of availability of
domestic workers and of any adverse
effect which would be occasioned by
the use of foreign workers, for particular
temporary and seasonal agricultural jobs
in the United States.
(b) The statutory standard. (1) A
petitioner for H–2A workers must apply
to the Secretary of Labor for a
certification that, as stated in the INA:
(A) There are not sufficient workers who
are able, willing, and qualified, and who will
be available at the time and place needed, to
perform the labor or services involved in the
petition, and
(B) The employment of the alien in such
labor or services will not adversely affect the
wages and working conditions of workers in
the United States similarly employed.
(2) Section 216(b) of the INA further
requires that the Secretary may not issue
a certification if the conditions
regarding U.S. worker availability and
adverse effect are not met, and may not
issue a certification if, as stated in the
INA:
(1) There is a strike or lockout in the course
of a labor dispute which, under the
regulations, precludes such certification.
(2)(A) The employer during the previous
two-year period employed H–2A workers and
the Secretary has determined, after notice
and opportunity for a hearing, that the
employer at any time during that period
substantially violated a material term or
condition of the labor certification with
respect to the employment of domestic or
non-immigrant workers.
(B) No employer may be denied
certification under subparagraph (A) for more
than three years for any violation described
in such subparagraph.
(3) The employer has not provided the
Secretary with satisfactory assurances that if
the employment for which the certification is
sought is not covered by State workers’
compensation law, the employer will
provide, at no cost to the worker, insurance
covering injury and disease arising out of and
in the course of the worker’s employment
which will provide benefits at least equal to
those provided under the State workers’
compensation law for comparable
employment.
(4) The Secretary determines that the
employer has not made positive recruitment
efforts within a multistate region of
traditional or expected labor supply where
the Secretary finds that there are a significant
number of qualified United States workers
who, if recruited, would be willing to make
themselves available for work at the time and
place needed. Positive recruitment under this
paragraph is in addition to, and shall be
conducted within the same time period as,
the circulation through the interstate
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employment service system of the employer’s
job offer. The obligation to engage in positive
recruitment * * * shall terminate on the date
the H–2A workers depart for the employer’s
place of employment.
(3) Regarding the labor certification
determination itself, section 216(c)(3) of
the INA, as quoted in the following,
specifically directs the Secretary to
make the certification if:
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(i) The employer has complied with the
criteria for certification (including criteria for
the recruitment of eligible individuals as
prescribed by the Secretary), and
(ii) The employer does not actually have,
or has not been provided with referrals of,
qualified individuals who have indicated
their availability to perform such labor or
services on the terms and conditions of a job
offer which meets the requirements of the
Secretary.
(c) The Secretary’s determinations.
Before any factual determination can be
made concerning the availability of U.S.
workers to perform particular job
opportunities, two steps must be taken.
First, the minimum level of wages,
terms, benefits, and conditions for the
particular job opportunities below
which similarly employed U.S. workers
would be adversely affected must be
established. (The regulations in this
subpart establish such minimum levels
for wages, terms, benefits, and
conditions of employment.) Second, the
wages, terms, benefits, and conditions
offered and afforded to the aliens must
be compared to the established
minimum levels. If it is concluded that
adverse effect would result, the ultimate
determination of availability within the
meaning of the INA cannot be made
since U.S. workers cannot be expected
to accept employment under conditions
below the established minimum levels.
Florida Sugar Cane League, Inc. v.
Usery, 531 F. 2d 299 (5th Cir. 1976).
Once a determination of no adverse
effect has been made, the availability of
U.S. workers can be tested only if U.S.
workers are actively recruited through
the offer of wages, terms, benefits, and
conditions at least at the minimum level
or the level offered to the aliens,
whichever is higher. The regulations in
this subpart set forth requirements for
recruiting U.S. workers in accordance
with this principle.
(d) Construction. This subpart shall be
construed to effectuate the purpose of
the INA that U.S. workers rather than
aliens be employed wherever possible.
Elton Orchards, Inc. v. Brennan, 508 F.
2d 493, 500 (1st Cir. 1974); Flecha v.
Quiros, 567 F. 2d 1154, 1156 (1st Cir.
1977). Where temporary alien workers
are admitted, the terms and conditions
of their employment must not result in
a lowering of the wages, terms, and
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conditions of domestic workers
similarly employed. Williams v. Usery,
531 F. 2d 305, 306 (5th Cir. 1976), cert.
denied, 429 U.S. 1000, and the job
benefits extended to any U.S. workers
shall be at least those extended to the
alien workers.
§ 655.92 Authority of the Office of Foreign
Labor Certification (OFLC) Administrator.
Under this subpart, the accepting for
consideration and the making of
temporary alien agricultural labor
certification determinations are
ordinarily performed by the Office of
Foreign Labor Certification (OFLC)
Administrator (OFLC Administrator),
who, in turn, may delegate this
responsibility to a designated staff
member. The OFLC Administrator will
informally advise the employer or agent
of the name of the official who will
make determinations with respect to the
application.
§ 655.93
Special circumstances.
(a) Systematic process. The
regulations under this subpart are
designed to provide a systematic
process for handling applications from
the kinds of employers who have
historically utilized nonimmigrant alien
workers in agriculture, usually in
relation to the production or harvesting
of a particular agricultural crop for
market, and which normally share such
characteristics as:
(1) A fixed-site farm, ranch, or similar
establishment;
(2) A need for workers to come to
their establishment from other areas to
perform services or labor in and around
their establishment;
(3) Labor needs which will normally
be controlled by environmental
conditions, particularly weather and
sunshine; and
(4) A reasonably regular workday or
workweek.
(b) Establishment of special
procedures. In order to provide for a
limited degree of flexibility in carrying
out the Secretary’s responsibilities
under the INA, while not deviating from
the statutory requirements to determine
U.S. worker availability and make a
determination as to adverse effect, the
OFLC Administrator has the authority to
establish special procedures for
processing H–2A applications when
employers can demonstrate upon
written application to and consultation
with the OFLC Administrator that
special procedures are necessary. In a
like manner, for work in occupations
characterized by other than a reasonably
regular workday or workweek, such as
the range production of sheep or other
livestock, the OFLC Administrator has
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the authority to establish monthly,
weekly, or bi-weekly adverse effect
wage rates for those occupations, for a
Statewide or other geographical area,
other than the rates established
pursuant to § 655.107 of this part,
provided that the OFLC Administrator
uses a methodology to establish such
adverse effect wage rates which is
consistent with the methodology in
§ 655.107(a). Prior to making
determinations under this paragraph (b),
the OFLC Administrator may consult
with employer representatives and
worker representatives.
(c) Construction. This subpart shall be
construed to permit the OFLC
Administrator to continue and, where
the OFLC Administrator deems
appropriate, to revise the special
procedures previously in effect for the
handling of applications for
sheepherders in the Western States (and
to adapt such procedures to occupations
in the range production of other
livestock) and for custom combine
crews.
§ 655.100 Overview of this subpart and
definition of terms.
(a) Overview—(1) Filing applications.
This subpart provides guidance to an
employer who desires to apply for
temporary alien agricultural labor
certification for the employment of H–
2A workers to perform agricultural
employment of a temporary or seasonal
nature. The regulations in this subpart
provide that such employer shall file an
H–2A application, including a job offer,
on forms prescribed by the Employment
and Training Administration (ETA),
which describes the material terms and
conditions of employment to be offered
and afforded to U.S. workers and H–2A
workers, with the OFLC Administrator.
The entire application shall be filed
with the OFLC Administrator no less
than 45 calendar days before the first
date of need for workers, and a copy of
the job offer shall be submitted at the
same time to the local office of the State
employment service agency which
serves the area of intended employment.
Under the regulations, the OFLC
Administrator will promptly review the
application and notify the applicant in
writing if there are deficiencies which
render the application not acceptable for
consideration, and afford the applicant
a five-calendar-day period for
resubmittal of an amended application
or an appeal of the OFLC
Administrator’s refusal to approve the
application as acceptable for
consideration. Employers are
encouraged to file their applications in
advance of the 45-calendar-day period
mentioned above in this paragraph
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(a)(1). Sufficient time should be allowed
for delays that might arise due to the
need for amendments in order to make
the application acceptable for
consideration.
(2) Amendment of applications. This
subpart provides for the amendment of
applications, at any time prior to the
OFLC Administrator’s certification
determination, to increase the number
of workers requested in the initial
application; without requiring, under
certain circumstances, an additional
recruitment period for U.S. workers.
(3) Untimely applications. If an H–2A
application does not satisfy the
specified time requirements, this
subpart provides for the OFLC
Administrator’s advice to the employer
in writing that the certification cannot
be granted because there is not
sufficient time to test the availability of
U.S. workers; and provides for the
employer’s right to an administrative
review or a de novo hearing before an
administrative law judge. Emergency
situations are provided for, wherein the
OFLC Administrator may waive the
specified time periods.
(4) Recruitment of U.S. workers;
determinations—(i) Recruitment. This
subpart provides that, where the
application is accepted for
consideration and meets the regulatory
standards, the State agency and the
employer begin to recruit U.S. workers.
If the employer has complied with the
criteria for certification, including
recruitment of U.S. workers, by 20
calendar days before the date of need
specified in the application (except as
provided in certain cases), the OFLC
Administrator makes a determination to
grant or deny, in whole or in part, the
application for certification.
(ii) Granted applications. This subpart
provides that the application for
temporary alien agricultural labor
certification is granted if the OFLC
Administrator finds that the employer
has not offered foreign workers higher
wages or better working conditions (or
has imposed less restrictions on foreign
workers) than those offered and afforded
to U.S. workers; that sufficient U.S.
workers who are able, willing, and
qualified will not be available at the
time and place needed to perform the
work for which H–2A workers are being
requested; and that the employment of
such aliens will not adversely affect the
wages and working conditions of
similarly employed U.S. workers.
(iii) Fees—(A) Amount. This subpart
provides that each employer (except
joint employer associations) of H–2A
workers shall pay to the OFLC
Administrator fees for each temporary
alien agricultural labor certification
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received. The fee for each employer
receiving a temporary alien agricultural
labor certification is $100 plus $10 for
each job opportunity for H–2A workers
certified, provided that the fee to an
employer for each temporary alien
agricultural labor certification received
shall be no greater than $1,000. In the
case of a joint employer association
receiving a temporary alien agricultural
labor certification, each employermember receiving a temporary alien
agricultural labor certification shall pay
a fee of $100 plus $10 for each job
opportunity for H–2A workers certified,
provided that the fee to an employer for
each temporary alien agricultural labor
certification received shall be no greater
than $1,000. The joint employer
association will not be charged a
separate fee.
(B) Timeliness of payment. The fee
must be received by the OFLC
Administrator no later than 30 calendar
days after the granting of each
temporary alien agricultural labor
certification. Fees received any later are
untimely. Failure to pay fees in a timely
manner is a substantial violation which
may result in the denial of future
temporary alien agricultural labor
certifications.
(iv) Denied applications. This subpart
provides that if the application for
temporary alien agricultural labor
certification is denied, in whole or in
part, the employer may seek review of
the denial, or a de novo hearing, by an
administrative law judge as provided in
this subpart.
(b) Definitions of terms used in this
subpart. For the purposes of this
subpart:
Accept for consideration means, with
respect to an application for temporary
alien agricultural labor certification, the
action by the OFLC Administrator to
notify the employer that a filed
temporary alien agricultural labor
certification application meets the
adverse effect criteria necessary for
processing. An application accepted for
consideration ultimately will be
approved or denied in a temporary alien
agricultural labor certification
determination.
Administrative law judge means a
person within the Department of Labor
Office of Administrative Law Judges
appointed pursuant to 5 U.S.C. 3105; or
a panel of such persons designated by
the Chief Administrative Law Judge
from the Board of Alien Labor
Certification Appeals established by
part 656 of this chapter, but which shall
hear and decide appeals as set forth in
§ 655.112 of this part. ‘‘Chief
Administrative Law Judge’’ means the
chief official of the Department of Labor
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Office of Administrative Law Judges or
the Chief Administrative Law Judge’s
designee.
Administrator, Office of Foreign Labor
Certification (OFLC) means the primary
official of the Office of Foreign Labor
Certification (OFLC Administrator), or
the OFLC Administrator’s designee.
Adverse effect wage rate (AEWR)
means the wage rate which the OFLC
Administrator has determined must be
offered and paid, as a minimum, to
every H–2A worker and every U.S.
worker for a particular occupation and/
or area in which an employer employs
or seeks to employ an H–2A worker so
that the wages of similarly employed
U.S. workers will not be adversely
affected.
Agent means a legal entity or person,
such as an association of agricultural
employers, or an attorney for an
association, which (1) is authorized to
act on behalf of the employer for
temporary alien agricultural labor
certification purposes, and (2) is not
itself an employer, or a joint employer,
as defined in this paragraph (b).
Department of Homeland Security
(DHS) through the United States
Citizenship and Immigration Services
(USCIS) makes the determination under
the INA on whether or not to grant visa
petitions to employers seeking H–2A
workers to perform temporary
agricultural work in the United States.
DOL means the United States
Department of Labor.
Eligible worker means a U.S. worker,
as defined in this section.
Employer means a person, firm,
corporation or other association or
organization which suffers or permits a
person to work and (1) which has a
location within the United States to
which U.S. workers may be referred for
employment, and which proposes to
employ workers at a place within the
United States and (2) which has an
employer relationship with respect to
employees under this subpart as
indicated by the fact that it may hire,
pay, fire, supervise or otherwise control
the work of any such employee. An
association of employers shall be
considered the sole employer if it has
the indicia of an employer set forth in
this definition. Such an association,
however, shall be considered as a joint
employer with an employer member if
it shares with the employer member one
or more of the definitional indicia.
Employment Service (ES), in this
subpart, refers to the system of Federal
and State entities responsible for
administration of the labor certification
process for temporary and seasonal
agricultural employment of
nonimmigrant foreign workers. This
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includes the State Workforce Agencies
(SWAs), the National Processing Centers
(NPCs) and the Office of Foreign Labor
Certification (OFLC).
Employment Standards
Administration means the agency
within the Department of Labor (DOL),
which includes the Wage and Hour
Division, and which is charged with the
carrying out of certain functions of the
Secretary under the INA.
Employment and Training
Administration (ETA) means the agency
within the Department of Labor (DOL)
which includes the Office of Foreign
Labor (OFLC).
Federal holiday means a legal public
holiday as defined at 5 U.S.C. 6103.
H–2A worker means any
nonimmigrant alien admitted to the
United States for agricultural labor or
services of a temporary or seasonal
nature under section 101(a)(15)(H)(ii)(a)
of the INA (8 U.S.C. 1101(a)(15)(H)
(ii)(a)).
INA means the Immigration and
Nationality Act, as amended (8 U.S.C.
1101 et seq.).
Job offer means the offer made by an
employer or potential employer of H–2A
workers to both U.S. and H–2A workers
describing all the material terms and
conditions of employment, including
those relating to wages, working
conditions, and other benefits.
Job opportunity means a job opening
for temporary, full-time employment at
a place in the United States to which
U.S. workers can be referred.
Office of Foreign Labor Certification
(OFLC) means the organizational
component within the ETA that
provides national leadership and policy
guidance and develops regulations and
procedures to carry out the
responsibilities of the Secretary of Labor
under the INA concerning alien workers
seeking admission to the United States
in order to work under the Immigration
and Nationality Act, as amended.
Positive recruitment means the active
participation of an employer or its
authorized hiring agent in locating and
interviewing applicants in other
potential labor supply areas and in the
area where the employer’s
establishment is located in an effort to
fill specific job openings with U.S.
workers.
Prevailing means, with respect to
certain benefits other than wages
provided by employers and certain
practices engaged in by employers, that:
(i) Fifty percent or more of employers
in an area and for an occupation engage
in the practice or offer the benefit; and
(ii) This 50 percent or more of
employers also employs 50 percent or
more of U.S. workers in the occupation
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17:45 May 28, 2009
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and area (including H–2A and non-H–
2A employers for purposes of
determinations concerning the
provision of family housing, frequency
of wage payments, and workers
supplying their own bedding, but nonH–2A employers only for
determinations concerning the
provision of advance transportation and
the utilization of farm labor contractors).
Secretary means the Secretary of
Labor or the Secretary’s designee.
Solicitor of Labor means the Solicitor,
United States Department of Labor, and
includes employees of the Office of the
Solicitor of Labor designated by the
Solicitor to perform functions of the
Solicitor under this subpart.
State Workforce Agency (SWA) means
the State employment service agency
designated under § 4 of the WagnerPeyser Act to cooperate with OFLC in
the operation of the ES System.
Temporary alien agricultural labor
certification means the certification
made by the Secretary of Labor with
respect to an employer seeking to file
with DHS a visa petition to import an
alien as an H–2A worker, pursuant to
sections 101(a)(15)(H)(ii)(a), 214(a) and
(c), and 216 of the INA that (1) there are
not sufficient workers who are able,
willing, and qualified, and who will be
available at the time and place needed,
to perform the agricultural labor or
services involved in the petition, and (2)
the employment of the alien in such
agricultural labor or services will not
adversely affect the wages and working
conditions of workers in the United
States similarly employed (8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184 (a) and (c),
and 1186).
Temporary alien agricultural labor
certification determination means the
written determination made by the
OFLC Administrator to approve or deny,
in whole or in part, an application for
temporary alien agricultural labor
certification.
United States (U.S.) worker means any
worker who, whether a U.S. national, a
U.S. citizen, or an alien, is legally
permitted to work in the job opportunity
within the United States (as defined at
§ 101(a)(38) of the INA (8 U.S.C.
1101(a)(38)).
Wages means all forms of cash
remuneration to a worker by an
employer in payment for personal
services.
(c) Definition of agricultural labor or
services of a temporary or seasonal
nature. For the purposes of this subpart,
‘‘agricultural labor or services of a
temporary or seasonal nature’’ means
the following:
(1) ‘‘Agricultural labor or services’’.
Pursuant to section 101(a)(15)(H)(ii)(a)
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of the INA (8 U.S.C. 1101(a)(15)(H)
(ii)(a)), ‘‘agricultural labor or services’’ is
defined for the purposes of this subpart
as either ‘‘agricultural labor’’ as defined
and applied in section 3121(g) of the
Internal Revenue Code of 1954 (26
U.S.C. 3121(g)) or ‘‘agriculture’’ as
defined and applied in section 3(f) of
the Fair Labor Standards Act of 1938 (29
U.S.C. 203(f)). An occupation included
in either statutory definition shall be
‘‘agricultural labor or services’’,
notwithstanding the exclusion of that
occupation from the other statutory
definition. For informational purposes,
the statutory provisions are quoted
below:
(i) ‘‘Agricultural labor’’. Section
3121(g) of the Internal Revenue Code of
1954 (26 U.S.C. 3121(g)), quoted as
follows, defines the term ‘‘agricultural
labor’’ to include all service performed:
(1) On a farm, in the employ of any person,
in connection with cultivating the soil, or in
connection with raising or harvesting any
agricultural or horticultural commodity,
including the raising, shearing, feeding,
caring for, training, and management of
livestock, bees, poultry, and furbearing
animals and wildlife;
(2) Services performed in the employ of the
owner or tenant or other operator of a farm,
in connection with the operation, or
maintenance of such farm and its tools and
equipment, or in salvaging timber or clearing
land of brush and other debris left by a
hurricane, if the major part of such service
is performed on a farm;
(3) In connection with the production or
harvesting of any commodity defined as an
agricultural commodity in section 15(g) of
the Agricultural Marketing Act, as amended
(12 U.S.C. 1141j), or in connection with the
ginning of cotton, or in connection with the
operation or maintenance of ditches, canals,
reservoirs, or waterways, not owned or
operated for profit, used exclusively for
supplying and storing water for farming
purposes;
(4)(A) In the employ of the operator of a
farm in handling, planting, drying, packing,
packaging, processing, freezing, grading,
storing, or delivering to storage or to market
or to a carrier for transportation to market, in
its unmanufactured state, any agricultural or
horticultural commodity; but only if such
operator produced more than one-half of the
commodity with respect to which such
service is performed;
(B) In the employ of a group of operators
of farms (other than a cooperative
organization) in the performance of service
described in subparagraph (A), but only if
such operators produced all of the
commodity with respect to which such
service is performed. For purposes of this
subparagraph, any unincorporated group of
operators shall be deemed a cooperative
organization if the number of operators
comprising such group is more than 20 at any
time during the calendar quarter in which
such service is performed;
(C) The provisions of subparagraphs (A)
and (B) shall not be deemed to be applicable
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with respect to service performed in
connection with commercial canning or
commercial freezing or in connection with
any agricultural or horticultural commodity
after its delivery to a terminal market for
distribution for consumption; or
(5) On a farm operated for profit if such
service is not in the course of the employer’s
trade or business or is domestic service in a
private home of the employer.
As used in this subsection, the term ‘‘farm’’
includes stock, dairy, poultry, fruit, furbearing animal, and truck farms, plantations,
ranches, nurseries, ranges, greenhouses or
other similar structures used primarily for
the raising of agricultural or horticultural
commodities, and orchards.
(ii) ‘‘Agriculture’’. Section 203(f) of
title 29, United States Code, (section 3(f)
of the Fair Labor Standards Act of 1938,
as codified), quoted as follows, defines
‘‘agriculture’’ to include:
(f) * * * farming in all its branches and
among other things includes the cultivation
and tillage of the soil, dairying, the
production, cultivation, growing, and
harvesting of any agricultural or horticultural
commodities (including commodities as
defined as agricultural commodities in
section 1141j(g) of Title 12), the raising of
livestock, bees, fur-bearing animals, or
poultry, and any practices (including any
forestry or lumbering operations) performed
by a farmer or on a farm as an incident to
or in conjunction with such farming
operations, including preparation for market,
delivery to storage or to market or to carriers
for transportation to market.
(iii) ‘‘Agricultural commodity’’.
Section 1141j(g) of title 12, United
States Code, (section 15(g) of the
Agricultural Marketing Act, as
amended), quoted as follows, defines
‘‘agricultural commodity’’ to include:
(g) * * * in addition to other agricultural
commodities, crude gum (oleoresin) from a
living tree, and the following products as
processed by the original producer of the
crude gum (oleoresin) from which derived:
Gum spirits of turpentine, and gum rosin, as
defined in section 92 of Title 7.
(iv) ‘‘Gum rosin’’. Section 92 of title
7, United States Code, quoted as
follows, defines ‘‘gum spirits of
turpentine’’ and ‘‘gum rosin’’ as—
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(c) ‘‘Gum spirits of turpentine’’ means
spirits of turpentine made from gum
(oleoresin) from a living tree.
(h) ‘‘Gum rosin’’ means rosin remaining
after the distillation of gum spirits of
turpentine.
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Jkt 217001
‘‘On a seasonal or other temporary basis’’
means:
Labor is performed on a seasonal basis,
where, ordinarily, the employment pertains
to or is of the kind exclusively performed at
certain seasons or periods of the year and
which, from its nature, may not be
continuous or carried on throughout the year.
A worker who moves from one seasonal
activity to another, while employed in
agriculture or performing agricultural labor,
is employed on a seasonal basis even though
he may continue to be employed during a
major portion of the year.
A worker is employed on ‘‘other temporary
basis’’ where he is employed for a limited
time only or his performance is contemplated
for a particular piece of work, usually of
short duration. Generally, employment,
which is contemplated to continue
indefinitely, is not temporary.
‘‘On a seasonal or other temporary basis’’
does not include the employment of any
foreman or other supervisory employee who
is employed by a specific agricultural
employer or agricultural association
essentially on a year round basis.
‘‘On a seasonal or other temporary basis’’
does not include the employment of any
worker who is living at his permanent place
of residence, when that worker is employed
by a specific agricultural employer or
agricultural association on essentially a year
round basis to perform a variety of tasks for
his employer and is not primarily employed
to do field work.
(iii) ‘‘Temporary’’. For the purposes of
this subpart, the definition of
‘‘temporary’’ in paragraph (c)(2)(ii) of
this section refers to any job opportunity
covered by this subpart where the
employer needs a worker for a position,
either temporary or permanent, for a
limited period of time, which shall be
for less than one year, unless the
original temporary alien agricultural
labor certification is extended based on
unforeseen circumstances, pursuant to
§ 655.106(c)(3) of this part.
§ 655.101 Temporary alien agricultural
labor certification applications.
(2) ‘‘Of a temporary or seasonal
nature’’—(i) ‘‘On a seasonal or other
temporary basis’’. For the purposes of
this subpart, ‘‘of a temporary or seasonal
nature’’ means ‘‘on a seasonal or other
temporary basis’’, as defined in the
Employment Standards
Administration’s Wage and Hour
Division’s regulation at 29 CFR 500.20
VerDate Nov<24>2008
under the Migrant and Seasonal
Agricultural Worker Protection Act
(MSPA).
(ii) MSPA definition. For
informational purposes, the definition
of ‘‘on a seasonal or other temporary
basis’’, as set forth at 29 CFR 500.20, is
provided below:
(a) General—(1) Filing of application.
An employer who anticipates a shortage
of U.S. workers needed to perform
agricultural labor or services of a
temporary or seasonal nature may apply
to the OFLC Administrator, for a
temporary alien agricultural labor
certification for temporary foreign
workers (H–2A workers). A signed
application for temporary alien
agricultural worker certification shall be
filed by the employer, or by an agent of
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25989
the employer, with the OFLC
Administrator. At the same time, a
duplicate application shall be submitted
to the SWA serving the area of intended
employment.
(2) Applications filed by agents. If the
temporary alien agricultural labor
certification application is filed by an
agent on behalf of an employer, the
agent may sign the application if the
application is accompanied by a signed
statement from the employer which
authorizes the agent to act on the
employer’s behalf. The employer may
authorize the agent to accept for
interview workers being referred to the
job and to make hiring commitments on
behalf of the employer. The statement
shall specify that the employer assumes
full responsibility for the accuracy of
the application, for all representations
made by the agent on the employer’s
behalf, and for compliance with all
regulatory and other legal requirements.
(3) Applications filed by associations.
If an association of agricultural
producers which uses agricultural labor
or services files the application, the
association shall identify whether it is:
(i) The sole employer; (ii) a joint
employer with its employer-member
employers; or (iii) the agent of its
employer-members. The association
shall submit documentation sufficient to
enable the OFLC Administrator to verify
the employer or agency status of the
association; and shall identify by name
and address each member which will be
an employer of H–2A workers.
(b) Application form. Each H–2A
application shall be on a form or forms
prescribed by ETA. The application
shall state the total number of workers
the employer anticipates employing in
the agricultural labor or service activity
during the covered period of
employment. The application shall
include:
(1) A copy of the job offer which will
be used by each employer for the
recruitment of U.S. and H–2A workers.
The job offer shall state the number of
workers needed by the employer, based
upon the employer’s anticipation of a
shortage of U.S. workers needed to
perform the agricultural labor or
services, and the specific estimated date
on which the workers are needed. The
job offer shall comply with the
requirements of §§ 655.102 and 653.501
of this chapter, and shall be signed by
the employer or the employer’s agent on
behalf of the employer; and
(2) An agreement to abide by the
assurances required by § 655.103 of this
part.
(c) Timeliness. Applications for
temporary alien agricultural labor
certification are not required to be filed
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more than 45 calendar days before the
first day of need. The employer shall be
notified by the OFLC Administrator in
writing within seven calendar days of
filing the application if the application
is not approved as acceptable for
consideration. The OFLC
Administrator’s temporary alien
agricultural labor certification
determination on the approved
application shall be made no later than
20 calendar days before the date of need
if the employer has complied with the
criteria for certification. To allow for the
availability of U.S. workers to be tested,
the following process applies:
(1) Application filing date. The entire
H–2A application, including the job
offer, shall be filed with the OFLC
Administrator, in duplicate, no less than
45 calendar days before the first date on
which the employer estimates that the
workers are needed. Applications may
be filed in person; may be mailed to the
OFLC Administrator (Attention: H–2A
Certifying Officer) by certified mail,
return receipt requested; or delivered by
guaranteed commercial delivery which
will ensure delivery to the OFLC
Administrator and provide the employer
with a documented acknowledgment of
receipt of the application by the OFLC
Administrator. Any application received
45 calendar days before the date of need
will have met the minimum timeliness
of filing requirement as long as the
application is eventually approved by
the OFLC Administrator as being
acceptable for processing.
(2) Review of application; recruitment;
certification determination period.
Section 655.104 of this part requires the
OFLC Administrator to promptly review
the application, and to notify the
applicant in writing within seven
calendar days of any deficiencies which
render the application not acceptable for
consideration and to afford an
opportunity for resubmittal of an
amended application. The employer
shall have five calendar days in which
to file an amended application. Section
655.106 of this part requires the OFLC
Administrator to grant or deny the
temporary alien agricultural labor
certification application no later than 20
calendar days before the date on which
the workers are needed, provided that
the employer has complied with the
criteria for certification, including
recruitment of eligible individuals. Such
recruitment, for the employer, the State
agencies, and DOL to attempt to locate
U.S. workers locally and through the
circulation of intrastate and interstate
agricultural clearance job orders
acceptable under § 653.501 of this
chapter and under this subpart, shall
begin on the date that an acceptable
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17:45 May 28, 2009
Jkt 217001
application is filed, except that the SWA
shall begin to recruit workers locally
beginning on the date it first receives
the application. The time needed to
obtain an application acceptable for
consideration (including the job offer)
after the five-calendar-day period
allowed for an amended application
will postpone day-for-day the
certification determination beyond the
20 calendar days before the date of
need, provided that the OFLC
Administrator notifies the applicant of
any deficiencies within seven calendar
days after receipt of the application.
Delays in obtaining an application
acceptable for consideration which are
directly attributable to the OFLC
Administrator will not postpone the
certification determination beyond the
20 calendar days before the date of
need. When an employer resubmits to
the OFLC Administrator (with a copy to
the SWA) an application with
modifications required by the OFLC
Administrator, and the OFLC
Administrator approves the modified
application as meeting necessary
adverse effect standards, the modified
application will not be rejected solely
because it now does not meet the 45calendar-day filing requirement. If an
application is approved as being
acceptable for processing without need
for any amendment within the sevencalendar-day review period after initial
filing, recruitment of U.S. workers will
be considered to have begun on the date
the application was received by the
OFLC Administrator; and the OFLC
Administrator shall make the temporary
alien agricultural labor certification
determination required by § 655.106 of
this part no later than 20 calendar days
before the date of need provided that
other regulatory conditions are met.
(3) Early filing. Employers are
encouraged, but not required, to file
their applications in advance of the 45calendar-day minimum period specified
in paragraph (c)(1) of this section, to
afford more time for review and
discussion of the applications and to
consider amendments, should they be
necessary. This is particularly true for
employers submitting H–2A
applications for the first time who may
not be familiar with the Secretary’s
requirements for an acceptable
application or U.S. worker recruitment.
Such employers particularly are
encouraged to consult with DOL and
SWA staff for guidance and assistance
well in advance of the minimum 45calendar-day filing period.
(4) Local recruitment; preparation of
clearance orders. At the same time the
employer files the H–2A application
with the OFLC Administrator, a copy of
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the application shall be submitted to the
SWA which will use the job offer
portion of the application to prepare a
local job order and begin to recruit U.S.
workers in the area of intended
employment. The SWA also shall begin
preparing an agricultural clearance
order, but such order will not be used
to recruit workers in other geographical
areas until the employer’s H–2A
application is accepted for
consideration and the clearance order is
approved by the OFLC Administrator
and the SWA is so notified by the OFLC
Administrator.
(5) [Reserved]
(d) Amendments to application to
increase number of workers.
Applications may be amended at any
time, prior to an OFLC Administrator
certification determination, to increase
the number of workers requested in the
initial application by not more than 20
percent (50 percent for employers of less
than ten workers) without requiring an
additional recruitment period for U.S.
workers. Requests for increases above
the percent prescribed, without
additional recruitment, may be
approved only when the need for
additional workers could not have been
foreseen, and that crops or commodities
will be in jeopardy prior to the
expiration of an additional recruitment
period.
(e) Minor amendments to
applications. Minor technical
amendments may be requested by the
employer and made to the application
and job offer prior to the certification
determination if the OFLC
Administrator determines they are
justified and will have no significant
effect upon the OFLC Administrator’s
ability to make the labor certification
determination required by § 655.106 of
this part. Amendments described at
paragraph (d) of this section are not
‘‘minor technical amendments’’.
(f) Untimely applications—(1) Notices
of denial. If an H–2A application, or any
part thereof, does not satisfy the time
requirements specified in paragraph (c)
of this section, and if the exception in
paragraph (d) of this section does not
apply, the OFLC Administrator may
then advise the employer in writing that
the certification cannot be granted
because, pursuant to paragraph (c) of
this section, there is not sufficient time
to test the availability of U.S. workers.
The notice of denial shall inform the
employer of its right to an
administrative review or de novo
hearing before an administrative law
judge.
(2) Emergency situations.
Notwithstanding paragraph (f)(1) of this
section, in emergency situations the
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OFLC Administrator may waive the
time period specified in this section on
behalf of employers who have not made
use of temporary alien agricultural
workers (H–2 or H–2A) for the prior
year’s agricultural season or for any
employer which has other good and
substantial cause (which may include
unforeseen changes in market
conditions), provided that the OFLC
Administrator has an opportunity to
obtain sufficient labor market
information on an expedited basis to
make the labor certification
determination required by § 216 of the
INA (8 U.S.C. 1186). In making this
determination, the OFLC Administrator
will accept information offered by and
may consult with representatives of the
U.S. Department of Agriculture.
(g) Length of job opportunity. The
employer shall set forth on the
application sufficient information
concerning the job opportunity to
demonstrate to the OFLC Administrator
that the need for the worker is ‘‘of a
temporary or seasonal nature’’, as
defined at § 655.100(c)(2) of this part.
Job opportunities of 12 months or more
are presumed to be permanent in nature.
Therefore, the OFLC Administrator shall
not grant a temporary alien agricultural
labor certification where the job
opportunity has been or would be filled
by an H–2A worker for a cumulative
period, including temporary alien
agricultural labor certifications and
extensions, of 12 months or more,
except in extraordinary circumstances.
mstockstill on PROD1PC66 with RULES2
§ 655.102
Contents of job offers.
(a) Preferential treatment of aliens
prohibited. The employer’s job offer to
U.S. workers shall offer the U.S. workers
no less than the same benefits, wages,
and working conditions which the
employer is offering, intends to offer, or
will provide to H–2A workers.
Conversely, no job offer may impose on
U.S. workers any restrictions or
obligations which will not be imposed
on the employer’s H–2A workers. This
does not relieve the employer from
providing to H–2A workers at least the
same level of minimum benefits, wages,
and working conditions which must be
offered to U.S. workers consistent with
this section.
(b) Minimum benefits, wages, and
working conditions. Except when higher
benefits, wages or working conditions
are required by the provisions of
paragraph (a) of this section, DOL has
determined that in order to protect
similarly employed U.S. workers from
adverse effect with respect to benefits,
wages, and working conditions, every
job offer which must accompany an H–
2A application always shall include
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17:45 May 28, 2009
Jkt 217001
each of the following minimum benefit,
wage, and working condition
provisions:
(1) Housing. The employer shall
provide to those workers who are not
reasonably able to return to their
residence within the same day housing,
without charge to the worker, which
may be, at the employer’s option, rental
or public accommodation type housing.
(i) Standards for employer-provided
housing. Housing provided by the
employer shall meet the full set of DOL
Occupational Safety and Health
Administration standards set forth at 29
CFR 1910.142, or the full set of
standards at §§ 654.404–654.417 of this
chapter, whichever are applicable,
except as provided for under paragraph
(b)(1)(iii) of this section. Requests by
employers, whose housing does not
meet the applicable standards, for
conditional access to the intrastate or
interstate clearance system, shall be
processed under the procedures set
forth at § 654.403 of this chapter.
(ii) Standards for range housing.
Housing for workers principally
engaged in the range production of
livestock shall meet standards of the
DOL Occupational Safety and Health
Administration for such housing. In the
absence of such standards, range
housing for sheepherders and other
workers engaged in the range
production of livestock shall meet
guidelines issued by ETA.
(iii) Standards for other habitation.
Rental, public accommodation, or other
substantially similar class of habitation
must meet local standards for such
housing. In the absence of applicable
local standards, State standards shall
apply. In the absence of applicable local
or State standards, Occupational Safety
and Health Administration standards at
29 CFR 1910.142 shall apply. Any
charges for rental housing shall be paid
directly by the employer to the owner or
operator of the housing. When such
housing is to be supplied by an
employer, the employer shall document
to the satisfaction of the OFLC
Administrator that the housing complies
with the local, State, or Federal housing
standards applicable under this
paragraph (b)(1)(iii).
(iv) Charges for public housing. If
public housing provided for migrant
agricultural workers under the auspices
of a local, county, or State government
is secured by an employer, and use of
the public housing unit normally
requires charges from migrant workers,
such charges shall be paid by the
employer directly to the appropriate
individual or entity affiliated with the
housing’s management.
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25991
(v) Deposit charges. Charges in the
form of deposits for bedding or other
similar incidentals related to housing
shall not be levied upon workers by
employers who provide housing for
their workers. However, employers may
require workers to reimburse them for
damage caused to housing by the
individual workers found to have been
responsible for damage which is not the
result of normal wear and tear related to
habitation.
(vi) Family housing. When it is the
prevailing practice in the area of
intended employment and the
occupation to provide family housing,
family housing shall be provided to
workers with families who request it.
(2) Workers’ compensation. The
employer shall provide, at no cost to the
worker, insurance, under a State
workers’ compensation law or
otherwise, covering injury and disease
arising out of and in the course of the
worker’s employment which will
provide benefits at least equal to those
provided under the State workers’
compensation law, if any, for
comparable employment. The employer
shall furnish the name of the insurance
carrier and the insurance policy
number, or, if appropriate, proof of State
law coverage, to the OFLC
Administrator prior to the issuance of a
labor certification.
(3) Employer-provided items. Except
as provided below, the employer shall
provide, without charge including
deposit charge, to the worker all tools,
supplies, and equipment required to
perform the duties assigned; the
employer may charge the worker for
reasonable costs related to the worker’s
refusal or negligent failure to return any
property furnished by the employer or
due to such worker’s willful damage or
destruction of such property. Where it is
a common practice in the particular
area, crop activity and occupation for
workers to provide tools and equipment,
with or without the employer
reimbursing the workers for the cost of
providing them, such an arrangement is
permissible if approved in advance by
the OFLC Administrator.
(4) Meals. Where the employer has
centralized cooking and eating facilities
designed to feed workers, the employer
shall provide each worker with three
meals a day. When such facilities are
not available, the employer either shall
provide each worker with three meals a
day or shall furnish free and convenient
cooking and kitchen facilities to the
workers which will enable the workers
to prepare their own meals. Where the
employer provides the meals, the job
offer shall state the charge, if any, to the
worker for such meals. Until a new
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amount is set pursuant to this paragraph
(b)(4), the charge shall not be more than
$5.26 per day unless the OFLC
Administrator has approved a higher
charge pursuant to § 655.111 of this
part. Each year the charge allowed by
this paragraph (b)(4) will be changed by
the same percentage as the 12-month
percent change in the Consumer Price
Index for All Urban Consumers for Food
between December of the year just
concluded and December of the year
prior to that. The annual adjustments
shall be effective on the date of their
publication by the OFLC Administrator
as a notice in the Federal Register.
(5) Transportation; daily
subsistence—(i) Transportation to place
of employment. The employer shall
advance transportation and subsistence
costs (or otherwise provide them) to
workers when it is the prevailing
practice of non-H–2A agricultural
employers in the occupation in the area
to do so, or when such benefits are
extended to H–2A workers. The amount
of the transportation payment shall be
no less (and shall not be required to be
more) than the most economical and
reasonable similar common carrier
transportation charges for the distances
involved. If the employer has not
previously advanced such
transportation and subsistence costs to
the worker or otherwise provided such
transportation or subsistence directly to
the worker by other means and if the
worker completes 50 percent of the
work contract period, the employer
shall pay the worker for costs incurred
by the worker for transportation and
daily subsistence from the place from
which the worker has come to work for
the employer to the place of
employment. The amount of the daily
subsistence payment shall be at least as
much as the employer will charge the
worker for providing the worker with
three meals a day during employment.
If no charges will be made for meals and
free and convenient cooking and
kitchen facilities will be provided, the
amount of the subsistence payment
shall be no less than the amount
permitted under paragraph (b)(4) of this
section.
(ii) Transportation from place of
employment. If the worker completes
the work contract period, the employer
shall provide or pay for the worker’s
transportation and daily subsistence
from the place of employment to the
place from which the worker,
disregarding intervening employment,
came to work for the employer, or, if the
worker has contracted with a
subsequent employer who has not
agreed in that contract to provide or pay
for the worker’s transportation and daily
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subsistence expenses from the
employer’s worksite to such subsequent
employer’s worksite, the employer shall
provide or pay for such expenses;
except that, if the worker has contracted
for employment with a subsequent
employer who, in that contract, has
agreed to pay for the worker’s
transportation and daily subsistence
expenses from the employer’s worksite
to such subsequent employer’s worksite,
the employer is not required to provide
or pay for such expenses.
(iii) Transportation between living
quarters and worksite. The employer
shall provide transportation between the
worker’s living quarters (i.e., housing
provided by the employer pursuant to
paragraph (b)(1) of this section) and the
employer’s worksite without cost to the
worker, and such transportation will be
in accordance with applicable laws and
regulations. This paragraph (b)(5)(iii) is
applicable to the transportation of
workers eligible for housing, pursuant to
paragraph (b)(1) of this section.
(6) Three-fourths guarantee—(i) Offer
to worker. The employer shall guarantee
to offer the worker employment for at
least three-fourths of the workdays of
the total periods during which the work
contract and all extensions thereof are
in effect, beginning with the first
workday after the arrival of the worker
at the place of employment and ending
on the expiration date specified in the
work contract or in its extensions, if
any. If the employer affords the U.S. or
H–2A worker during the total work
contract period less employment than
that required under this paragraph
(b)(6), the employer shall pay such
worker the amount which the worker
would have earned had the worker, in
fact, worked for the guaranteed number
of days. For purposes of this paragraph
(b)(6), a workday shall mean the number
of hours in a workday as stated in the
job order and shall exclude the worker’s
Sabbath and Federal holidays. An
employer shall not be considered to
have met the work guarantee if the
employer has merely offered work on
three-fourths of the workdays if each
workday did not consist of a full
number of hours of work time specified
in the job order. The work shall be
offered for at least three-fourths of the
workdays (that is, 3⁄4 × (number of days)
× (specified hours)). Therefore, if, for
example, the contract contains 20 eighthour workdays, the worker shall be
offered employment for 120 hours
during the 20 workdays. A worker may
be offered more than the specified hours
of work on a single workday. For
purposes of meeting the guarantee,
however, the worker shall not be
required to work for more than the
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number hours specified in the job order
for a workday, or on the worker’s
Sabbath or Federal holidays.
(ii) Guarantee for piece-rate-paid
worker. If the worker will be paid on a
piece rate basis, the employer shall use
the worker’s average hourly piece rate
earnings or the AEWR, whichever is
higher, to calculate the amount due
under the guarantee.
(iii) Failure to work. Any hours which
the worker fails to work, up to a
maximum of the number of hours
specified in the job order for a workday,
when the worker has been offered an
opportunity to do so pursuant to
paragraph (b)(6)(i) of this section and all
hours of work actually performed
(including voluntary work over 8 hours
in a workday or on the worker’s Sabbath
or Federal holidays) may be counted by
the employer in calculating whether the
period of guaranteed employment has
been met.
(iv) Displaced H–2A worker. The
employer shall not be liable for payment
under this paragraph (b)(6) with respect
to an H–2A worker whom the OFLC
Administrator certifies is displaced
because of the employer’s compliance
with § 655.103(e) of this part.
(7) Records. (i) The employer shall
keep accurate and adequate records
with respect to the workers’ earnings
including field tally records, supporting
summary payroll records and records
showing the nature and amount of the
work performed; the number of hours of
work offered each day by the employer
(broken out by hours offered both in
accordance with and over and above the
three-fourths guarantee at paragraph
(b)(6) of this section); the hours actually
worked each day by the worker; the
time the worker began and ended each
workday; the rate of pay (both piece rate
and hourly, if applicable); the worker’s
earnings per pay period; the worker’s
home address; and the amount of and
reasons for any and all deductions made
from the worker’s wages;
(ii) If the number of hours worked by
the worker is less than the number
offered in accordance with the threefourths guarantee at paragraph (b)(6) of
this section, the records shall state the
reason or reasons therefore.
(iii) Upon reasonable notice, the
employer shall make available the
records, including field tally records
and supporting summary payroll
records for inspection and copying by
representatives of the Secretary of
Labor, and by the worker and
representatives designated by the
worker; and
(iv) The employer shall retain the
records for not less than three years after
the completion of the work contract.
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(8) Hours and earnings statements.
The employer shall furnish to the
worker on or before each payday in one
or more written statements the
following information:
(i) The worker’s total earnings for the
pay period;
(ii) The worker’s hourly rate and/or
piece rate of pay;
(iii) The hours of employment which
have been offered to the worker (broken
out by offers in accordance with and
over and above the guarantee);
(iv) The hours actually worked by the
worker;
(v) An itemization of all deductions
made from the worker’s wages; and
(vi) If piece rates are used, the units
produced daily.
(9) Rates of pay. (i) If the worker will
be paid by the hour, the employer shall
pay the worker at least the adverse effect
wage rate in effect at the time the work
is performed, the prevailing hourly
wage rate, or the legal Federal or State
minimum wage rate, whichever is
highest, for every hour or portion
thereof worked during a pay period; or
(ii)(A) If the worker will be paid on a
piece rate basis and the piece rate does
not result at the end of the pay period
in average hourly piece rate earnings
during the pay period at least equal to
the amount the worker would have
earned had the worker been paid at the
appropriate hourly rate, the worker’s
pay shall be supplemented at that time
so that the worker’s earnings are at least
as much as the worker would have
earned during the pay period if the
worker had been paid at the appropriate
hourly wage rate for each hour worked;
and the piece rate shall be no less than
the piece rate prevailing for the activity
in the area of intended employment;
and
(B) If the employer who pays by the
piece rate requires one or more
minimum productivity standards of
workers as a condition of job retention,
(1) Such standards shall be specified
in the job offer and be no more than
those required by the employer in 1977,
unless the OFLC Administrator
approves a higher minimum; or
(2) If the employer first applied for H–
2 agricultural or H–2A temporary alien
agricultural labor certification after
1977, such standards shall be no more
than those normally required (at the
time of the first application) by other
employers for the activity in the area of
intended employment, unless the OFLC
Administrator approves a higher
minimum.
(10) Frequency of pay. The employer
shall state the frequency with which the
worker will be paid (in accordance with
the prevailing practice in the area of
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intended employment, or at least twice
monthly whichever is more frequent).
(11) Abandonment of employment; or
termination for cause. If the worker
voluntarily abandons employment
before the end of the contract period, or
is terminated for cause, and the
employer notifies the SWA of such
abandonment or termination, the
employer will not be responsible for
providing or paying for the subsequent
transportation and subsistence expenses
of any worker for whom the employer
would have otherwise been required to
pay such expenses under paragraph
(b)(5)(ii) of this section, and that worker
is not entitled to the ‘‘three-fourths
guarantee’’ (see paragraph (b)(6) of this
section).
(12) Contract impossibility. If, before
the expiration date specified in the work
contract, the services of the worker are
no longer required for reasons beyond
the control of the employer due to fire,
hurricane, or other Act of God which
makes the fulfillment of the contract
impossible the employer may terminate
the work contract. In the event of such
termination of a contract, the employer
shall fulfill the three-fourths guarantee
at paragraph (b)(6) of this section for the
time that has elapsed from the start of
the work contract to its termination. In
such cases the employer will make
efforts to transfer the worker to other
comparable employment acceptable to
the worker. If such transfer is not
effected, the employer shall:
(i) Offer to return the worker, at the
employer’s expense, to the place from
which the worker disregarding
intervening employment came to work
for the employer,
(ii) Reimburse the worker the full
amount of any deductions made from
the worker’s pay by the employer for
transportation and subsistence expenses
to the place of employment, and
(iii) Notwithstanding whether the
employment has been terminated prior
to completion of 50 percent of the work
contract period originally offered by the
employer, pay the worker for costs
incurred by the worker for
transportation and daily subsistence
from the place from which the worker,
without intervening employment, has
come to work for the employer to the
place of employment. Daily subsistence
shall be computed as set forth in
paragraph (b)(5)(i) of this section. The
amount of the transportation payment
shall be no less (and shall not be
required to be more) than the most
economical and reasonable similar
common carrier transportation charges
for the distances involved.
(13) Deductions. The employer shall
make those deductions from the
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25993
worker’s paycheck which are required
by law. The job offer shall specify all
deductions not required by law which
the employer will make from the
worker’s paycheck. All deductions shall
be reasonable. The employer may
deduct the cost of the worker’s
transportation and daily subsistence
expenses to the place of employment
which were borne directly by the
employer. In such cases, the job offer
shall state that the worker will be
reimbursed the full amount of such
deductions upon the worker’s
completion of 50 percent of the worker’s
contract period. However, an employer
subject to the Fair Labor Standards Act
(FLSA) may not make deductions which
will result in payments to workers of
less than the Federal minimum wage
permitted by the FLSA as determined by
the Secretary at 29 CFR part 531.
(14) Copy of work contract. The
employer shall provide to the worker,
no later than on the day the work
commences, a copy of the work contract
between the employer and the worker.
The work contract shall contain all of
the provisions required by paragraphs
(a) and (b) of this section. In the absence
of a separate, written work contract
entered into between the employer and
the worker, the required terms of the job
order and application for temporary
alien agricultural labor certification
shall be the work contract.
(c) Appropriateness of required
qualifications. Bona fide occupational
qualifications specified by an employer
in a job offer shall be consistent with the
normal and accepted qualifications
required by non-H–2A employers in the
same or comparable occupations and
crops, and shall be reviewed by the
OFLC Administrator for their
appropriateness. The OFLC
Administrator may require the employer
to submit documentation to substantiate
the appropriateness of the qualification
specified in the job offer; and shall
consider information offered by and
may consult with representatives of the
U.S. Department of Agriculture.
(d) Positive recruitment plan. The
employer shall submit in writing, as a
part of the application, the employer’s
plan for conducting independent,
positive recruitment of U.S. workers as
required by §§ 655.103 and 655.105(a) of
this part. Such a plan shall include a
description of recruitment efforts (if
any) made prior to the actual submittal
of the application. The plan shall
describe how the employer will engage
in positive recruitment of U.S. workers
to an extent (with respect to both effort
and location(s)) no less than that of nonH–2A agricultural employers of
comparable or smaller size in the area
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of employment. When it is the
prevailing practice in the area of
employment and for the occupation for
non-H–2A agricultural employers to
secure U.S. workers through farm labor
contractors and to compensate farm
labor contractors with an override for
their services, the employer shall
describe how it will make the same
level of effort as non-H–2A agricultural
employers and provide an override
which is no less than that being
provided by non-H–2A agricultural
employers.
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§ 655.103
Assurances.
As part of the temporary alien
agricultural labor certification
application, the employer shall include
in the job offer a statement agreeing to
abide by the conditions of this subpart.
By so doing, the employer makes each
of the following assurances:
(a) Labor disputes. The specific job
opportunity for which the employer is
requesting H–2A certification is not
vacant because the former occupant is
on strike or being locked out in the
course of a labor dispute.
(b) Employment-related laws. During
the period for which the temporary
alien agricultural labor certification is
granted, the employer shall comply with
applicable Federal, State, and local
employment-related laws and
regulations, including employmentrelated health and safety laws.
(c) Rejections and terminations of
U.S. workers. No U.S. worker will be
rejected for or terminated from
employment for other than a lawful jobrelated reason, and notification of all
rejections or terminations shall be made
to the SWA.
(d) Recruitment of U.S. workers. The
employer shall independently engage in
positive recruitment until the foreign
workers have departed for the
employer’s place of employment and
shall cooperate with the ES System in
the active recruitment of U.S. workers
by:
(1) Assisting the ES System to prepare
local, intrastate, and interstate job
orders using the information supplied
on the employer’s job offer;
(2) Placing advertisements (in a
language other than English, where the
OFLC Administrator determines
appropriate) for the job opportunities in
newspapers of general circulation and/
or on the radio, as required by the OFLC
Administrator:
(i) Each such advertisement shall
describe the nature and anticipated
duration of the job opportunity; offer at
least the adverse effect wage rate; give
the 3⁄4 guarantee; state that work tools,
supplies and equipment will be
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provided by the employer; state that
housing will also be provided, and that
transportation and subsistence expenses
to the worksite will be provided or paid
by the employer upon completion of
50% of the work contract, or earlier, if
appropriate; and
(ii) Each such advertisement shall
direct interested workers to apply for
the job opportunity at the appropriate
office of the State Workforce Agency in
their area;
(3) Cooperating with the ES System
and independently contacting farm
labor contractors, migrant workers and
other potential workers in other areas of
the State and/or Nation by letter and/or
telephone; and
(4) Cooperating with the ES System in
contacting schools, business and labor
organizations, fraternal and veterans’
organizations, and nonprofit
organizations and public agencies such
as sponsors of programs under the Job
Training Partnership Act throughout the
area of intended employment and in
other potential labor supply areas in
order to enlist them in helping to find
U.S. workers.
(e) Fifty-percent rule. From the time
the foreign workers depart for the
employer’s place of employment, the
employer, except as provided for by
§ 655.106(e)(1) of this part, shall provide
employment to any qualified, eligible
U.S. worker who applies to the
employer until 50% of the period of the
work contract, under which the foreign
worker who is in the job was hired, has
elapsed. In addition, the employer shall
offer to provide housing and the other
benefits, wages, and working conditions
required by § 655.102 of this part to any
such U.S. worker and shall not treat less
favorably than H–2A workers any U.S.
worker referred or transferred pursuant
to this assurance.
(f) Other recruitment. The employer
shall perform the other specific
recruitment and reporting activities
specified in the notice from the OFLC
Administrator required by § 655.105(a)
of this part, and shall engage in positive
recruitment of U.S. workers to an extent
(with respect to both effort and location)
no less than that of non-H–2A
agricultural employers of comparable or
smaller size in the area of employment.
When it is the prevailing practice in the
area of employment and for the
occupation for non-H–2A agricultural
employers to secure U.S. workers
through farm labor contractors and to
compensate farm labor contractors with
an override for their services, the
employer shall make the same level of
effort as non-H–2A agricultural
employers and shall provide an override
which is no less than that being
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provided by non-H–2A agricultural
employers. Where the employer has
centralized cooking and eating facilities
designed to feed workers, the employer
shall not be required to provide meals
through an override. The employer shall
not be required to provide for housing
through an override.
(g) Retaliation prohibited. The
employer shall not intimidate, threaten,
restrain, coerce, blacklist, discharge, or
in any manner discriminate against, and
shall not cause any person to intimidate,
threaten, restrain, coerce, blacklist,
discharge, or in any manner
discriminate against, any person who
has with just cause:
(1) Filed a complaint under or related
to § 216 of the INA (8 U.S.C. 1186), or
this subpart or any other DOL regulation
promulgated pursuant to § 216 of the
INA;
(2) Instituted or caused to be
instituted any proceeding under or
related to § 216 of the INA, or this
subpart or any other DOL regulation
promulgated pursuant to § 216 of the
INA (8 U.S.C. 1186);
(3) Testified or is about to testify in
any proceeding under or related to § 216
of the INA (8 U.S.C. 1186), or this
subpart or any other DOL regulation
promulgated pursuant to § 216 of the
INA;
(4) Consulted with an employee of a
legal assistance program or an attorney
on matters related to § 216 of the INA
(8 U.S.C. 1186), or this subpart or any
other DOL regulation promulgated
pursuant to § 216 of the INA; or
(5) Exercised or asserted on behalf of
himself/herself or others any right or
protection afforded by § 216 of the INA
(8 U.S.C. 1186), or this subpart or any
other DOL regulation promulgated
pursuant to § 216 of the INA.
(h) Fees. The application shall
include the assurance that fees will be
paid in a timely manner, as follows:
(1) Amount. The fee for each
employer receiving a temporary alien
agricultural labor certification is $100
plus $10 for each job opportunity for H–
2A workers certified, provided that the
fee for an employer for each temporary
alien agricultural labor certification
received shall be no greater than $1,000.
In the case of a joint employer
association receiving a temporary alien
agricultural labor certification, the fee
for each employer-member receiving a
temporary alien agricultural labor
certification shall be $100 plus $10 for
each job opportunity for H–2A workers
certified, provided that the fee for an
employer for each temporary alien
agricultural labor certification received
shall be no greater than $1,000. The
joint employer association will not be
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charged a separate fee. Fees shall be
paid by a check or money order made
payable to ‘‘Department of Labor’’, and
are nonrefundable. In the case of
employers of H–2A workers which are
members of a joint employer association
applying on their behalf, the aggregate
fees for all employers of H–2A workers
under the application may be paid by
one check or money order.
(2) Timeliness. Fees received by the
OFLC Administrator within 30 calendar
days after the date of the temporary
alien agricultural labor certification
determination are timely.
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§ 655.104 Determinations based on
acceptability of H–2A applications.
(a) State Workforce Agency activities.
The State Workforce Agency (SWA),
using the job offer portion of the H–2A
application, shall promptly prepare a
local job order and shall begin to recruit
U.S. workers in the area of intended
employment. The OFLC Administrator
should notify the SWA by telephone no
later than seven calendar days after the
application was received by the OFLC
Administrator if the application has
been accepted for consideration. Upon
receiving such notice or seven calendar
days after the application is received by
the SWA, whichever is earlier, the SWA
shall promptly prepare an agricultural
clearance order which will permit the
recruitment of U.S. workers by the
Employment Service System on an
intrastate and interstate basis.
(b) National Processing Center
activities. The OFLC Administrator,
upon receipt of the H–2A application,
shall promptly review the application to
determine whether it is acceptable for
consideration under the timeliness and
adverse effect criteria of §§ 655.101–
655.103 of this part. If the OFLC
Administrator determines that the
application does not meet the
requirements of §§ 655.101–655.103, the
OFLC Administrator shall not accept the
application for consideration on the
grounds that the availability of U.S.
workers cannot be adequately tested
because the benefits, wages and working
conditions do not meet the adverse
effect criteria; however, if the OFLC
Administrator determines that the
application is not timely in accordance
with § 655.101 of this part and that
neither the first-year employer
provisions of § 655.101(c)(5) nor the
emergency provisions of § 655.101(f)
apply, the OFLC Administrator may
determine not to accept the application
for consideration because there is not
sufficient time to test the availability of
U.S. workers.
(c) Rejected applications. If the
application is not accepted for
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consideration, the OFLC Administrator
shall notify the applicant in writing (by
means normally assuring next-day
delivery) within seven calendar days of
the date the application was received by
the OFLC Administrator with a copy to
the SWA. The notice shall:
(1) State all the reasons the
application is not accepted for
consideration, citing the relevant
regulatory standards;
(2) Offer the applicant an opportunity
for the resubmission within five
calendar days of a modified application,
stating the modifications needed in
order for the OFLC Administrator to
accept the application for consideration;
(3) Offer the applicant an opportunity
to request an expedited administrative
review of or a de novo administrative
hearing before an administrative law
judge of the nonacceptance; the notice
shall state that in order to obtain such
a review or hearing, the employer,
within seven calendar days of the date
of the notice, shall file by facsimile
(fax), telegram, or other means normally
assuring next-day delivery a written
request to the Chief Administrative Law
Judge of the Department of Labor (giving
the address) and simultaneously serve a
copy on the OFLC Administrator; the
notice shall also state that the employer
may submit any legal arguments which
the employer believes will rebut the
basis of the OFLC Administrator’s
action; and
(4) State that if the employer does not
request an expedited administrativejudicial review or a de novo hearing
before an administrative law judge
within the seven calendar days no
further consideration of the employer’s
application for temporary alien
agricultural labor certification will be
made by any DOL official.
(d) Appeal procedures. If the
employer timely requests an expedited
administrative review or de novo
hearing before an administrative law
judge pursuant to paragraph (c)(3) of
this section, the procedures at § 655.112
of this part shall be followed.
(e) Required modifications. If the
application is not accepted for
consideration by the OFLC
Administrator, but the OFLC
Administrator’s written notification to
the applicant is not timely as required
by § 655.101 of this part, the
certification determination will not be
extended beyond 20 calendar days
before the date of need. The notice will
specify that the OFLC Administrator’s
temporary alien agricultural labor
certification determination will be made
no later than 20 calendar days before the
date of need, provided that the
applicant submits the modifications to
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25995
the application which are required by
the OFLC Administrator within five
calendar days and in a manner specified
by the OFLC Administrator which will
enable the test of U.S. worker
availability to be made as required by
§ 655.101 of this part within the time
available for such purposes.
§ 655.105
Recruitment period.
(a) Notice of acceptance of
application for consideration; required
recruitment. If the OFLC Administrator
determines that the H–2A application
meets the requirements of §§ 655.101–
655.103 of this part, the OFLC
Administrator shall promptly notify the
employer (by means normally assuring
next-day delivery) in writing with
copies to the State agency. The notice
shall inform the employer and the State
agency of the specific efforts which will
be expected from them during the
following weeks to carry out the
assurances contained in § 655.103 with
respect to the recruitment of U.S.
workers. The notice shall require that
the job order be laced into intrastate
clearance and into interstate clearance
to such States as the OFLC
Administrator shall determine to be
potential sources of U.S. workers. The
notice may require the employer to
engage in positive recruitment efforts
within a multi-State region of traditional
or expected labor supply where the
OFLC Administrator finds, based on
current information provided by a State
agency and such information as may be
offered and provided by other sources,
that there are a significant number of
able and qualified U.S. workers who, if
recruited, would likely be willing to
make themselves available for work at
the time and place needed. In making
such a finding, the OFLC Administrator
shall take into account other recent
recruiting efforts in those areas and will
attempt to avoid requiring employers to
futilely recruit in areas where there are
a significant number of local employers
recruiting for U.S. workers for the same
types of occupations. Positive
recruitment is in addition to, and shall
be conducted within the same time
period as, the circulation through the
interstate clearance system of an
agricultural clearance order. The
obligation to engage in such positive
recruitment shall terminate on the date
H–2A workers depart for the employer’s
place of work. In determining what
positive recruitment shall be required,
the OFLC Administrator will ascertain
the normal recruitment practices of nonH–2A agricultural employers in the area
and the kind and degree of recruitment
efforts which the potential H–2A
employer made to obtain H–2A workers.
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The OFLC Administrator shall ensure
that the effort, including the location(s)
of the positive recruitment required of
the potential H–2A employer, during
the period after filing the application
and before the date the H–2A workers
depart their prior location to come to
the place of employment, shall be no
less than: (1) The recruitment efforts of
non-H–2A agricultural employers of
comparable or smaller size in the area
of employment; and (2) the kind and
degree of recruitment efforts which the
potential H–2A employer made to
obtain H–2A workers.
(b) Recruitment of U.S. workers. After
an application for temporary alien
agricultural labor certification is
accepted for processing pursuant to
paragraph (a) of this section, the OFLC
Administrator shall provide overall
direction to the employer and the SWA
with respect to the recruitment of U.S.
workers.
(c) Modifications. At any time during
the recruitment effort, the OFLC
Administrator may require
modifications to a job offer when the
OFLC Administrator determines that the
job offer does not contain all the
provisions relating to minimum
benefits, wages, and working
conditions, required by § 655.102(b) of
this part. If any such modifications are
required after an application has been
accepted for consideration by the OFLC
Administrator, the modifications must
be made; however, the certification
determination shall not be delayed
beyond the 20 calendar days prior to the
date of need as a result of such
modification.
(d) Final determination. By 20
calendar days before the date of need
specified in the application, except as
provided for under §§ 655.101(c)(2) and
655.104(e) of this part for untimely
modified applications, the OFLC
Administrator, when making a
determination of the availability of U.S.
workers, shall also make a
determination as to whether the
employer has satisfied the recruitment
assurances in § 655.103 of this part. If
the OFLC Administrator concludes that
the employer has not satisfied the
requirements for recruitment of U.S.
workers, the OFLC Administrator shall
deny the temporary alien agricultural
labor certification, and shall
immediately notify the employer in
writing with a copy to the SWA. The
notice shall contain the statements
specified in § 655.104(d) of this part.
(e) Appeal procedure. With respect to
determinations by the OFLC
Administrator pursuant to this section,
if the employer timely requests an
expedited administrative review or a de
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novo hearing before an administrative
law judge, the procedures in § 655.112
of this part shall be followed.
§ 655.106 Referral of U.S. workers;
determinations based on U.S. worker
availability and adverse effect; activities
after receipt of the temporary alien
agricultural labor certification.
(a) Referral of able, willing, and
qualified eligible U.S. workers. With
respect to the referral of U.S. workers to
job openings listed on a job order
accompanying an application for
temporary alien agricultural labor
certification, no U.S. worker-applicant
shall be referred unless such U.S.
worker has been made aware of the
terms and conditions of and
qualifications for the job, and has
indicated, by accepting referral to the
job, that she or he meets the
qualifications required and is able,
willing, and eligible to take such a job.
(b)(1) Determinations. If the OFLC
Administrator, in accordance with
§ 655.105 of this part, has determined
that the employer has complied with the
recruitment assurances and the adverse
effect criteria of § 655.102 of this part,
by the date specified pursuant to
§ 655.101(c)(2) of this part for untimely
modified applications or 20 calendar
days before the date of need specified in
the application, whichever is
applicable, the OFLC Administrator
shall grant the temporary alien
agricultural labor certification request
for enough H–2A workers to fill the
employer’s job opportunities for which
U.S. workers are not available. In
making the temporary alien agricultural
labor certification determination, the
OFLC Administrator shall consider as
available any U.S. worker who has made
a firm commitment to work for the
employer, including those workers
committed by other authorized persons
such as farm labor contractors and
family heads. Such a firm commitment
shall be considered to have been made
not only by workers who have signed
work contracts with the employer, but
also by those whom the OFLC
Administrator determines are likely to
sign a work contract. The OFLC
Administrator shall count as available
any U.S. worker who has applied to the
employer (or on whose behalf an
application has been made), but who
was rejected by the employer for other
than lawful job-related reasons or who
has not been provided with a lawful jobrelated reason for rejection by the
employer, as determined by the OFLC
Administrator. The OFLC Administrator
shall not grant a temporary alien
agricultural labor certification request
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for any H–2A workers if the OFLC
Administrator determines that:
(i) Enough able, willing, and qualified
U.S. workers have been identified as
being available to fill all the employer’s
job opportunities;
(ii) The employer, since the time the
application was accepted for
consideration under § 655.104 of this
part, has adversely affected U.S. workers
by offering to, or agreeing to provide to,
H–2A workers better wages, working
conditions or benefits (or by offering to,
or agreeing to impose on alien workers
less obligations and restrictions) than
those offered to U.S. workers;
(iii) The employer during the previous
two-year period employed H–2A
workers and the OFLC Administrator
has determined, after notice and
opportunity for a hearing, that the
employer at any time during that period
substantially violated a material term or
condition of a temporary alien
agricultural labor certification with
respect to the employment of U.S. or H–
2A workers;
(iv) The employer has not complied
with the workers’ compensation
requirements at § 655.102(b)(2) of this
part; or
(v) The employer has not satisfactorily
complied with the positive recruitment
requirements specified by this subpart.
Further, the OFLC Administrator, in
making the temporary alien agricultural
labor certification determination, will
subtract from any temporary alien
agricultural labor certification the
specific verified number of job
opportunities involved which are vacant
because of a strike or other labor dispute
involving a work stoppage, or a lockout,
in the occupation at the place of
employment (and for which H–2A
workers have been requested). Upon
receipt by the OFLC Administrator of
such labor dispute information from any
source, the OFLC Administrator shall
verify the existence of the strike, labor
dispute, or lockout and any resulting
vacancies prior to making such a
determination.
(2) Fees. A temporary alien
agricultural labor certification
determination granting an application
shall include a bill for the required fees.
Each employer (except joint employer
associations) of H–2A workers under the
application for temporary alien
agricultural labor certification shall pay
in a timely manner a nonrefundable fee
upon issuance of the temporary alien
agricultural labor certification granting
the application (in whole or in part), as
follows:
(i) Amount. The fee for each employer
receiving a temporary alien agricultural
labor certification is $100 plus $10 for
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each job opportunity for H–2A workers
certified, provided that the fee to an
employer for each temporary alien
agricultural labor certification received
shall be no greater than $1,000. In the
case of a joint employer association
receiving a temporary alien agricultural
labor certification, each employermember receiving a temporary alien
agricultural labor certification shall pay
a fee of $100 plus $10 for each job
opportunity for H–2A workers certified,
provided that the fee to an employer for
each temporary alien agricultural labor
certification received shall be no greater
than $1,000. The joint employer
association will not be charged a
separate fee. The fees shall be paid by
check or money order made payable to
‘‘Department of Labor’’. In the case of
employers of H–2A workers which are
members of a joint employer association
applying on their behalf, the aggregate
fees for all employers of H–2A workers
under the application may be paid by
one check or money order.
(ii) Timeliness. Fees received by the
OFLC Administrator no more than 30
calendar days after the date of the
temporary alien agricultural labor
certification determination are timely.
(c) Changes to temporary alien
agricultural labor certifications;
temporary alien agricultural labor
certifications involving employer
associations—(1) Changes. Temporary
alien agricultural labor certifications are
subject to the conditions and assurances
made during the application process.
Any changes in the level of benefits,
wages, and working conditions an
employer may wish to make at any time
during the work contract period must be
approved by the OFLC Administrator
after written application by the
employer, even if such changes have
been agreed to by an employee.
Temporary alien agricultural labor
certifications shall be for the specific
period of time specified in the
employer’s job offer, which shall be less
than twelve months; shall be limited to
the employer’s specific job
opportunities; and may not be
transferred from one employer to
another, except as provided for by
paragraph (c)(2) of this section.
(2) Associations—(i) Applications. If
an association is requesting a temporary
alien agricultural labor certification as a
joint employer, the temporary alien
agricultural labor certification granted
under this section shall be made jointly
to the association and to its employer
members. Except as provided in
paragraph (c)(2)(iii) of this section, such
workers may be transferred among its
producer members to perform work for
which the temporary alien agricultural
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labor certification was granted, provided
the association controls the assignment
of such workers and maintains a record
of such assignments. All temporary
alien agricultural labor certifications to
associations may be used for the
certified job opportunities of any of its
members. If an association is requesting
a temporary alien agricultural labor
certification as a sole employer, the
temporary alien agricultural labor
certification granted pursuant to this
section shall be made to the association
only.
(ii) Referrals and transfers. For the
purposes of complying with the ‘‘fiftypercent rule’’ at § 655.103(e) of this part,
any association shall be allowed to refer
or transfer workers among its members
(except as provided in paragraph
(c)(2)(iii) of this section), and an
association acting as an agent for its
members shall not be considered a joint
employer merely because of such
referral or transfer.
(iii) Ineligible employer-members.
Workers shall not be transferred or
referred to an association’s member, if
that member is ineligible to obtain any
or any additional workers, pursuant to
§ 655.110 of this part.
(3) Extension of temporary alien
agricultural labor certification—(i)
Short-term extension. An employer who
seeks an extension of two weeks or less
of the temporary alien agricultural labor
certification shall apply for such
extension to DHS. If DHS grants such an
extension, the temporary alien
agricultural labor certification shall be
deemed extended for such period as is
approved by DHS. No extension granted
under this paragraph (c)(3)(i) shall be for
a period longer than the original work
contract period of the temporary alien
agricultural labor certification.
(ii) Long-term extension. For
extensions beyond the period which
may be granted by DHS pursuant to
paragraph (c)(3)(i) of this section, an
employer, after 50 percent of the work
contract period has elapsed, may apply
to the OFLC Administrator for an
extension of the period of the temporary
alien agricultural labor certification, for
reasons related to weather conditions or
other external factors beyond the control
of the employer (which may include
unforeseen changes in market
conditions), provided that the
employer’s need for an extension is
supported in writing by the employer,
with documentation showing that the
extension is needed and could not have
been reasonably foreseen by the
employer. The OFLC Administrator
shall grant or deny the request for
extension of the temporary alien
agricultural labor certification based on
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25997
available information, and shall notify
the employer of the decision on the
request in writing. The OFLC
Administrator shall not grant an
extension where the total work contract
period, including past temporary alien
labor certifications for the job
opportunity and extensions, would be
12 months or more, except in
extraordinary circumstances. The OFLC
Administrator shall not grant an
extension where the temporary alien
agricultural labor certification has
already been extended by DHS pursuant
to paragraph (c)(3)(i) of this section.
(d) Denials of applications. If the
OFLC Administrator does not grant the
temporary alien agricultural labor
certification (in whole or in part) the
OFLC Administrator shall notify the
employer by means reasonably
calculated to assure next-day delivery.
The notification shall contain all the
statements required in § 655.104(c) of
this part. If a timely request is made for
an administrative-judicial review or a de
novo hearing by an administrative law
judge, the procedures of § 655.112 of
this part shall be followed.
(e) Approvals of applications—(1)
Continued recruitment of U.S. workers.
After a temporary agricultural labor
certification has been granted, the
employer shall continue its efforts to
recruit U.S. workers until the actual
date the H–2A workers depart for the
employer’s place of employment.
(i) Unless the SWA is informed in
writing of a different date, the SWA
shall deem the third day immediately
preceding the employer’s first date of
need to be the date the H–2A workers
depart for the employer’s place of
employment. The employer may notify
the SWA in writing if the workers
depart prior to that date.
(ii)(A) If the H–2A workers do not
depart for the place of employment on
or before the first date of need (or by the
stated date of departure, if the SWA has
been advised of a different date), the
employer shall notify the SWA in
writing (or orally, confirmed in writing)
as soon as the employer knows that the
workers will not depart by the first date
of need, and in no event later than such
date of need. At the same time, the
employer shall notify the SWA of the
workers’ expected departure date, if
known. No further notice is necessary if
the workers depart by the stated date of
departure.
(B) If the employer did not notify the
SWA of the expected departure date
pursuant to paragraph (e)(1)(ii)(A) of
this section, or if the H–2A workers do
not leave for the place of employment
on or before the stated date of departure,
the employer shall notify the SWA in
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writing (or orally, confirmed in writing)
as soon as the employer becomes aware
of the expected departure date, or that
the workers did not depart by the stated
date and the new expected departure
date, as appropriate.
(2) Requirement for Active Job Order.
The employer shall keep an active job
order on file until the ‘‘50-percent rule’’
assurance at § 655.103(e) of this part is
met, except as provided by paragraph (f)
of this section.
(3) Referrals by ES System. The ES
system shall continue to refer to the
employer U.S. workers who apply as
long as there is an active job order on
file.
(f) Exceptions—(1) ‘‘Fifty-percent
rule’’ inapplicable to small employers.
The assurance requirement at
§ 655.103(e) of this part does not apply
to any employer who:
(i) Did not, during any calendar
quarter during the preceding calendar
year, use more than 500 ‘‘man-days’’ of
agricultural labor, as defined in section
3(u) of the Fair Labor Standards Act of
1938 (29 U.S.C. 203(u)), and so certifies
to the OFLC Administrator in the H–2A
application; and
(ii) Is not a member of an association
which has applied for a temporary alien
agricultural labor certification under
this subpart for its members; and
(iii) Has not otherwise ‘‘associated’’
with other employers who are applying
for H–2A workers under this subpart,
and so certifies to the OFLC
Administrator.
(2) Displaced H–2A workers. An
employer shall not be liable for payment
under § 655.102(b)(6) of this part with
respect to an H–2A worker whom the
OFLC Administrator certifies is
displaced due to compliance with
§ 655.103(e) of this part.
(g) Withholding of U.S. workers
prohibited—(1) Complaints. Any
employer who has reason to believe that
a person or entity has willfully and
knowingly withheld U.S. workers prior
to the arrival at the job site of H–2A
workers in order to force the hiring of
U.S. workers under § 655.103(e) of this
part may submit a written complaint to
the SWA. The complaint shall clearly
identify the person or entity whom the
employer believes has withheld the U.S.
workers, and shall specify sufficient
facts to support the allegation (e.g.,
dates, places, numbers and names of
U.S. workers) which will permit an
investigation to be conducted by the
SWA.
(2) Investigations. The SWA shall
inform the OFLC Administrator by
telephone that a complaint under the
provisions of paragraph (g) of this
section has been filed and shall
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immediately investigate the complaint.
Such investigation shall include
interviews with the employer who has
submitted the complaint, the person or
entity named as responsible for
withholding the U.S. workers, and the
individual U.S. workers whose
availability has purportedly been
withheld. In the event the SWA fails to
conduct such interviews, the OFLC
Administrator shall do so.
(3) Reports of findings. Within five
working days after receipt of the
complaint, the SWA shall prepare a
report of its findings, and shall submit
such report (including
recommendations) and the original copy
of the employer’s complaint to the
OFLC Administrator.
(4) Written findings. The OFLC
Administrator shall immediately review
the employer’s complaint and the report
of findings submitted by the local office,
and shall conduct any additional
investigation the OFLC Administrator
deems appropriate. No later than 36
working hours after receipt of the
employer’s complaint and the local
office’s report, the OFLC Administrator
shall issue written findings to the local
office and the employer. Where the
OFLC Administrator determines that the
employer’s complaint is valid and
justified, the OFLC Administrator shall
immediately suspend the application of
§ 655.103(e) of this part to the employer.
Such suspension of § 655.103(e) of this
part under these circumstances shall not
take place, however, until the
interviews required by paragraph (g)(2)
of this section have been conducted.
The OFLC Administrator’s
determination under the provisions of
this paragraph (g)(4) shall be the final
decision of the Secretary, and no further
review by any DOL official shall be
given to it.
(h) Requests for new temporary alien
agricultural labor certification
determinations based on nonavailability
of able, willing, and qualified U.S.
workers—(1) Standards for requests. If a
temporary alien agricultural labor
certification application has been
denied (in whole or in part) based on
the OFLC Administrator’s determination
of the availability of able, willing, and
qualified U.S. workers, and, on or after
20 calendar days before the date of need
specified in the temporary alien
agricultural labor certification
determination, such U.S. workers
identified as being able, willing,
qualified, and available are, in fact, not
able, willing, qualified, or available at
the time and place needed, the
employer may request a new temporary
alien agricultural labor certification
determination from the OFLC
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Administrator. The OFLC Administrator
shall expeditiously, but in no case later
than 72 hours after the time a request is
received, make a determination on the
request.
(2) Filing requests. The employer’s
request for a new determination shall be
made directly to the OFLC
Administrator. The request may be
made to the OFLC Administrator by
telephone, but shall be confirmed by the
employer in writing as required by
paragraphs (h)(2)(i) or (ii) of this section.
(i) Workers not able, willing, qualified,
or eligible. If the employer asserts that
any worker who has been referred by
the ES System or by any other person
or entity is not an eligible worker or is
not able, willing, or qualified for the job
opportunity for which the employer has
requested H–2A workers, the burden of
proof is on the employer to establish
that the individual referred is not able,
willing, qualified, or eligible because of
lawful job-related reasons. The
employer’s burden of proof shall be met
by the employer’s submission to the
OFLC Administrator, within 72 hours of
the OFLC Administrator’s receipt of the
request for a new determination, of a
signed statement of the employer’s
assertions, which shall identify each
rejected worker by name and shall state
each lawful job-related reason for
rejecting that worker.
(ii) U.S. workers not available. If the
employer telephonically requests the
new determination, asserting solely that
U.S. workers are not available, the
employer shall submit to the OFLC
Administrator a signed statement
confirming such assertion. If such
signed statement is not received by the
OFLC Administrator within 72 hours of
the OFLC Administrator’s receipt of the
telephonic request for a new
determination, the OFLC Administrator
may make the determination based
solely on the information provided
telephonically and the information (if
any) from the SWA.
(3) National Processing Center
review—(i) Expeditious review. The
OFLC Administrator expeditiously shall
review the request for a new
determination. The OFLC Administrator
may request a signed statement from the
SWA in support of the employer’s
assertion of U.S. worker nonavailability
or referred U.S. workers not being able,
willing, or qualified because of lawful
job-related reasons.
(ii) New determination. If the OFLC
Administrator determines that the
employer’s assertion of nonavailability
is accurate and that no able, willing, or
qualified U.S. worker has been refused
or is being refused employment for
other than lawful job-related reasons,
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the OFLC Administrator shall, within 72
hours after receipt of the employer’s
request, render a new determination.
Prior to making a new determination,
the OFLC Administrator promptly shall
ascertain (which may be through the ES
System or other sources of information
on U.S. worker availability) whether
able, willing, and qualified replacement
U.S. workers are available or can be
reasonably expected to be present at the
employer’s establishment within 72
hours from the date the employer’s
request was received.
(iii) Notification of new
determination. If the OFLC
Administrator cannot identify sufficient
able, willing, and qualified U.S. workers
who are or who are likely to be
available, the OFLC Administrator shall
grant the employer’s new determination
request (in whole or in part) based on
available information as to replacement
U.S. worker availability. The OFLC
Administrator’s notification to the
employer on the new determination
shall be in writing (by means normally
assuring next-day delivery), and the
OFLC Administrator’s determination
under the provisions of this paragraph
(h)(3) shall be the final decision of the
Secretary, and no further review shall be
given to an employer’s request for a new
H–2A determination by any DOL
official. However, this does not preclude
an employer from submitting
subsequent requests for new
determinations, if warranted, based on
subsequent facts concerning purported
nonavailability of U.S. workers or
referred workers not being eligible
workers or not able, willing, or qualified
because of lawful job-related reasons.
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§ 655.107 Adverse effect wage rates
(AEWRs).
(a) Computation and publication of
AEWRs. Except as otherwise provided
in this section, the AEWRs for all
agricultural employment (except for
those occupations deemed
inappropriate under the special
circumstances provisions of § 655.93 of
this part) for which temporary alien
agricultural labor certification is being
sought shall be equal to the annual
weighted average hourly wage rate for
field and livestock workers (combined)
for the region as published annually by
the U.S. Department of Agriculture
(USDA) based on the USDA quarterly
wage survey. The OFLC Administrator
shall publish, at least once in each
calendar year, on a date or dates to be
determined by the OFLC Administrator,
AEWRs for each State (for which USDA
publishes regional data), calculated
pursuant to this paragraph (a) as a
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notice or notices in the Federal
Register.
(b) Higher prevailing wage rates. If, as
the result of a State agency prevailing
wage survey determination, the
prevailing wage rate in an area and
agricultural activity (as determined by
the State agency survey and verified by
the OFLC Administrator) is found to be
higher that the AEWR computed
pursuant to paragraph (a) of this section,
the higher prevailing wage rate shall be
offered and paid to all workers by
employers seeking temporary alien
agricultural labor certification for that
agricultural activity and area.
(c) Federal minimum wage rate. In no
event shall an AEWR computed
pursuant to this section be lower than
the hourly wage rate published in 29
U.S.C. 206(a)(1) and currently in effect.
§ 655.108 H–2A applications involving
fraud or willful misrepresentation.
(a) Referral for investigation. If
possible fraud or willful
misrepresentation involving a
temporary alien agricultural labor
certification application is discovered
prior to a final temporary alien
agricultural labor certification
determination or if it is learned that the
employer or agent (with respect to an
application) is the subject of a criminal
indictment or information filed in a
court, the OFLC Administrator shall
refer the matter to the DHS and DOL
Office of the Inspector General for
investigation. The OFLC Administrator
shall continue to process the application
and may issue a temporary alien
agricultural labor certification.
(b) Continued processing. If a court
finds an employer or agent not guilty of
fraud or willful misrepresentation, or if
the Department of Justice decides not to
prosecute an employer or agent, the
OFLC Administrator shall not deny the
temporary alien agricultural labor
certification application on the grounds
of fraud or willful misrepresentation.
The application, of course, may be
denied for other reasons pursuant to this
subpart.
(c) Terminated processing. If a court
or the DHS determines that there was
fraud or willful misrepresentation
involving a temporary alien agricultural
labor certification application, the
application is thereafter invalid,
consideration of the application shall be
terminated and the OFLC Administrator
shall return the application to the
employer or agent with the reasons
therefor stated in writing.
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§ 655.110 Employer penalties for
noncompliance with terms and conditions
of temporary alien agricultural labor
certifications.
(a) Investigation of violations. If,
during the period of two years after a
temporary alien agricultural labor
certification has been granted (in whole
or in part), the OFLC Administrator has
reason to believe that an employer
violated a material term or condition of
the temporary alien agricultural labor
certification, the OFLC Administrator
shall, except as provided in paragraph
(b) of this section, investigate the matter.
If, after the investigation, the OFLC
Administrator determines that a
substantial violation has occurred, the
OFLC Administrator, shall notify the
employer that a temporary alien
agricultural certification request will not
be granted for the next period of time in
a calendar year during which the
employer would normally be expected
to request a temporary alien agricultural
labor certification, and any application
subsequently submitted by the employer
for that time period will not be accepted
by the OFLC Administrator. If multiple
or repeated substantial violations are
involved, the OFLC Administrator’s
notice to the employer shall specify that
the prospective denial of the temporary
alien agricultural labor certification will
apply not only to the next anticipated
period for which a temporary alien
agricultural labor certification would
normally be requested, but also to any
periods within the coming two or three
years; two years for two violations, or
repetitions of the same violations, and
three years for three or more violations,
or repetitions thereof. The OFLC
Administrator’s notice shall be in
writing, shall state the reasons for the
determinations, and shall offer the
employer an opportunity to request an
expedited administrative review or a de
novo hearing before an administrative
law judge of the determination within
seven calendar days of the date of the
notice. If the employer requests an
expedited administrative review or a de
novo hearing before an administrative
law judge, the procedures in § 655.112
of this part shall be followed.
(b) Employment Standards
Administration investigations. The
OFLC Administrator may make the
determination described in paragraph
(a) of this section based on information
and recommendations provided by the
Employment Standards Administration,
after an Employment Standards
Administration investigation has been
conducted in accordance with the
Employment Standards Administration
procedures, that an employer has not
complied with the terms and conditions
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of employment prescribed as a
condition for a temporary alien
agricultural labor certification. In such
instances, the OFLC Administrator need
not conduct any investigation of his/her
own, and the subsequent notification to
the employer and other procedures
contained in paragraph (a) of this
section will apply. Penalties invoked by
the Employment Standards
Administration for violations of
temporary alien agricultural labor
certification terms and conditions shall
be treated and handled separately from
sanctions available to the OFLC
Administrator, and an employer’s
obligations for compliance with the
Employment Standards
Administration’s enforcement penalties
shall not absolve an employer from
sanctions applied by ETA under this
section (except as noted in paragraph (a)
of this section).
(c) Less than substantial violations—
(1) Requirement of special procedures.
If, after investigation as provided for
under paragraph (a) of this section, or an
Employment Standards Administration
notification as provided under
paragraph (b) of this section, the OFLC
Administrator determines that a less
than substantial violation has occurred,
but the OFLC Administrator has reason
to believe that past actions on the part
of the employer may have had and may
continue to have a chilling or otherwise
negative effect on the recruitment,
employment, and retention of U.S.
workers, the OFLC Administrator may
require the employer to conform to
special procedures before and after the
temporary alien labor certification
determination (including special on-site
positive recruitment and streamlined
interviewing and referral techniques)
designed to enhance U.S. worker
recruitment and retention in the next
year as a condition for receiving a
temporary alien agricultural labor
certification. Such requirements shall be
reasonable, and shall not require the
employer to offer better wages, working
conditions and benefits than those
specified in § 655.102 of this part, and
shall be no more than deemed necessary
to assure employer compliance with the
test of U.S. worker availability and
adverse effect criteria of this subpart.
The OFLC Administrator shall notify
the employer in writing of the special
procedures which will be required in
the coming year. The notification shall
state the reasons for the imposition of
the requirements, state that the
employer’s agreement to accept the
conditions will constitute inclusion of
them as bona fide conditions and terms
of a temporary alien agricultural labor
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certification, and shall offer the
employer an opportunity to request an
administrative review or a de novo
hearing before an administrative law
judge. If an administrative review or de
novo hearing is requested, the
procedures prescribed in § 655.112 of
this part shall apply.
(2) Failure to comply with special
procedures. If the OFLC Administrator
determines that the employer has failed
to comply with special procedures
required pursuant to paragraph (c)(1) of
this section, the OFLC Administrator
shall send a written notice to the
employer, stating that the employer’s
otherwise affirmative temporary alien
agricultural labor certification
determination will be reduced by
twenty-five percent of the total number
of H–2A aliens requested (which cannot
be more than those requested in the
previous year) for a period of one year.
Notice of such a reduction in the
number of workers requested shall be
conveyed to the employer by the OFLC
Administrator in the OFLC
Administrator’s written temporary alien
agricultural labor certification
determination required by § 655.101 of
this part. The notice shall offer the
employer an opportunity to request an
administrative review or a de novo
hearing before an administrative law
judge. If an administrative review or de
novo hearing is requested, the
procedures prescribed in § 655.112 of
this part shall apply, provided that if the
administrative law judge affirms the
OFLC Administrator’s determination
that the employer has failed to comply
with special procedures required by
paragraph (c)(1) of this section, the
reduction in the number of workers
requested shall be twenty-five percent of
the total number of H–2A aliens
requested (which cannot be more than
those requested in the previous year) for
a period of one year.
(d) Penalties involving members of
associations. If, after investigation as
provided for under paragraph (a) of this
section, or notification from the
Employment Standards Administration
under paragraph (b) of this section, the
OFLC Administrator determines that a
substantial violation has occurred, and
if an individual producer member of a
joint employer association is
determined to have committed the
violation, the denial of temporary alien
agricultural labor certification penalty
prescribed in paragraph (a) shall apply
only to that member of the association
unless the OFLC Administrator
determines that the association or other
association member participated in, had
knowledge of, or had reason to know of
the violation, in which case the penalty
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shall be invoked against the association
or other association member as well.
(e) Penalties involving associations
acting as joint employers. If, after
investigation as provided for under
paragraph (a) of this section, or
notification from the Employment
Standards Administration under
paragraph (b) of this section, the OFLC
Administrator determines that a
substantial violation has occurred, and
if an association acting as a joint
employer with its members is
determined to have committed the
violation, the denial of temporary alien
agricultural labor certification penalty
prescribed in paragraph (a) of this
section shall apply only to the
association, and shall not be applied to
any individual producer member of the
association unless the OFLC
Administrator determines that the
member participated in, had knowledge
of, or reason to know of the violation,
in which case the penalty shall be
invoked against the association member
as well.
(f) Penalties involving associations
acting as sole employers. If, after
investigation as provided for under
paragraph (a) of this section, or
notification from the Employment
Standards Administration under
paragraph (b) of this section, the OFLC
Administrator determines that a
substantial violation has occurred, and
if an association acting as a sole
employer is determined to have
committed the violation, no individual
producer member of the association
shall be permitted to employ certified
H–2A workers in the crop and
occupation for which the H–2A workers
had been previously certified for the
sole employer association unless the
producer member applies for temporary
alien agricultural labor certification
under the provisions of this subpart in
the capacity of an individual employer/
applicant or as a member of a joint
employer association, and is granted
temporary alien agricultural labor
certification by the OFLC Administrator.
(g) Types of violations—(1)
Substantial violation. For the purposes
of this subpart, a substantial violation is
one or more actions of commission or
omission on the part of the employer or
the employer’s agent, with respect to
which the OFLC Administrator
determines:
(i)(A) That the action(s) is/are
significantly injurious to the wages,
benefits, or working conditions of 10
percent or more of an employer’s U.S.
and/or H–2A workforce; and that:
(1) With respect to the action(s), the
employer has failed to comply with one
or more penalties imposed by the
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Employment Standards Administration
for violation(s) of contractual
obligations found by that agency (if
applicable), or with one or more
decisions or orders of the Secretary or
a court pursuant to § 216 of the INA (8
U.S.C. 1186), this subpart, or 29 CFR
part 501 (Employment Standards
Administration enforcement of
contractual obligations); or
(2) The employer has engaged in a
pattern or practice of actions which are
significantly injurious to the wages,
benefits, or working conditions of 10
percent or more of an employer’s U.S.
and/or H–2A workforce;
(B) That the action(s) involve(s)
impeding an investigation of an
employer pursuant to § 216 of the INA
(8 U.S.C. 1186), this subpart, or 29 CFR
part 501 (Employment Standards
Administration enforcement of
contractual obligations);
(C) That the employer has not paid
the necessary fee in a timely manner;
(D) That the employer is not currently
eligible to apply for a temporary alien
agricultural labor certification pursuant
to § 655.210 of this part (failure of an
employer to comply with the terms of a
temporary alien agricultural labor
certification in which the application
was filed under subpart C of this part
prior to June 1, 1987); or
(E) That there was fraud involving the
application for temporary alien
agricultural labor certification or that
the employer made a material
misrepresentation of fact during the
application process; and
(ii) That there are no extenuating
circumstances involved with the
action(s) described in paragraph (g)(1)(i)
of this section (as determined by the
OFLC Administrator).
(2) Less than substantial violation. For
the purposes of this subpart, a less than
substantial violation is an action of
commission or omission on the part of
the employer or the employer’s agent
which violates a requirement of this
subpart, but is not a substantial
violation.
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§ 655.111
Petition for higher meal charges.
(a) Filing petitions. Until a new
amount is set pursuant to this paragraph
(a), the OFLC Administrator may permit
an employer to charge workers up to
$6.58 for providing them with three
meals per day, if the employer justifies
the charge and submits to the OFLC
Administrator the documentation
required by paragraph (b) of this section.
In the event the employer’s petition for
a higher meal charge is denied in whole
or in part, the employer may appeal
such denial. Such appeals shall be filed
with the Chief Administrative Law
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Judge. Administrative law judges shall
hear such appeals according to the
procedures in 29 CFR part 18, except
that the appeal shall not be considered
as a complaint to which an answer is
required. The decision of the
administrative law judge shall be the
final decision of the Secretary. Each
year the maximum charge allowed by
this paragraph (a) will be changed by
the same percentage as the twelvemonth percent change for the Consumer
Price Index for all Urban Consumers for
Food between December of the year just
concluded and December of the year
prior to that. The annual adjustments
shall be effective on the date of their
publication by the OFLC Administrator
as a notice in the Federal Register.
However, an employer may not impose
such a charge on a worker prior to the
effective date contained in the OFLC
Administrator’s written confirmation of
the amount to be charged.
(b) Required documentation.
Documentation submitted shall include
the cost of goods and services directly
related to the preparation and serving of
meals, the number of workers fed, the
number of meals served and the number
of days meals were provided. The cost
of the following items may be included:
Food; kitchen supplies other than food,
such as lunch bags and soap; labor costs
which have a direct relation to food
service operations, such as wages of
cooks and restaurant supervisors; fuel,
water, electricity, and other utilities
used for the food service operation; and
other costs directly related to the food
service operation. Charges for
transportation, depreciation, overhead
and similar charges may not be
included. Receipts and other cost
records for a representative pay period
shall be available for inspection by the
OFLC Administrator for a period of one
year.
§ 655.112 Administrative review and de
novo hearing before an administrative law
judge.
(a) Administrative review—(1)
Consideration. Whenever an employer
has requested an administrative review
before an administrative law judge of a
decision not to accept for consideration
a temporary alien agricultural labor
certification application, of the denial of
a temporary alien agricultural labor
certification, or of a penalty under
§ 655.110 of this part, the OFLC
Administrator shall send a certified
copy of the ETA case file to the Chief
Administrative Law Judge by means
normally assuring next-day delivery.
The Chief Administrative Law Judge
shall immediately assign an
administrative law judge (which may be
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a panel of such persons designated by
the Chief Administrative Law Judge
from the Board of Alien Labor
Certification Appeals established by
part 656 of this chapter, but which shall
hear and decide the appeal as set forth
in this section) to review the record for
legal sufficiency. The administrative
law judge shall not remand the case and
shall not receive additional evidence.
(2) Decision. Within five working days
after receipt of the case file the
administrative law judge shall, on the
basis of the written record and after due
consideration of any written
submissions submitted from the parties
involved or amici curiae, either affirm,
reverse, or modify the OFLC
Administrator’s denial by written
decision. The decision of the
administrative law judge shall specify
the reasons for the action taken and
shall be immediately provided to the
employer, OFLC Administrator, and
DHS by means normally assuring nextday delivery. The administrative law
judge’s decision shall be the final
decision of the Secretary and no further
review shall be given to the temporary
alien agricultural labor certification
application or the temporary alien
agricultural labor certification
determination by any DOL official.
(b) De novo hearing—(1) Request for
hearing; conduct of hearing. Whenever
an employer has requested a de novo
hearing before an administrative law
judge of a decision not to accept for
consideration a temporary alien
agricultural labor certification
application, of the denial of a temporary
alien agricultural labor certification, or
of a penalty under § 655.110 of this part,
the OFLC Administrator shall send a
certified copy of the case file to the
Chief Administrative Law Judge by
means normally assuring next-day
delivery. The Chief Administrative Law
Judge shall immediately assign an
administrative law judge (which may be
a panel of such persons designated by
the Chief Administrative Law Judge
from the Board of Alien Labor
Certification Appeals established by
part 656 of this chapter, but which shall
hear and decide the appeal as set forth
in this section) to conduct the de novo
hearing. The procedures contained in 29
CFR part 18 shall apply to such
hearings, except that:
(i) The appeal shall not be considered
to be a complaint to which an answer
is required,
(ii) The administrative law judge shall
ensure that, at the request of the
employer, the hearing is scheduled to
take place within five working days
after the administrative law judge’s
receipt of the case file, and
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(iii) The administrative law judge’s
decision shall be rendered within ten
working days after the hearing.
(2) Decision. After a de novo hearing,
the administrative law judge shall either
affirm, reverse, or modify the OFLC
Administrator’s determination, and the
administrative law judge’s decision
shall be provided immediately to the
employer, OFLC Administrator, and
DHS by means normally assuring nextday delivery. The administrative law
judge’s decision shall be the final
decision of the Secretary, and no further
review shall be given to the temporary
alien agricultural labor certification
application or the temporary alien
agricultural labor certification
determination by any DOL official.
§ 655.113 Job Service Complaint System;
enforcement of work contracts.
Complaints arising under this subpart
may be filed through the Job Service
Complaint System, as described in 20
CFR part 658, subpart E. Complaints
which involve worker contracts shall be
referred by the local office to the
Employment Standards Administration
for appropriate handling and resolution.
See 29 CFR part 501. As part of this
process, the Employment Standards
Administration may report the results of
its investigation to ETA for
consideration of employer penalties
under § 655.110 of this part or such
other action as may be appropriate.
■
7. Add subpart C to read as follows:
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Subpart C—Labor Certification Process for
Logging Employment and Non-H–2A
Agricultural Employment
Sec.
655.200 General description of this subpart
and definition of terms.
655.201 Temporary labor certification
applications.
655.202 Contents of job offers.
655.203 Assurances.
655.204 Determinations based on temporary
labor certification applications.
655.205 Recruitment period.
655.206 Determinations of U.S. worker
availability and adverse effect on U.S.
workers.
655.207 Adverse effect rates.
655.208 Temporary labor certification
applications involving fraud or willful
misrepresentation.
655.209 Invalidation of temporary labor
certifications.
655.210 Failure of employers to comply
with the terms of a temporary labor
certification.
655.211 Petition for higher meal charges.
655.212 Administrative-judicial reviews.
655.215 Territory of Guam.
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Subpart C—Labor Certification
Process for Logging Employment and
Non-H–2A Agricultural Employment
§ 655.200 General description of this
subpart and definition of terms.
(a) This subpart applies to
applications for temporary alien
agricultural labor certification filed
before June 1, 1987, and to applications
for temporary alien labor certification
for logging employment.
(b) An employer who desires to use
foreign workers for temporary
employment must file a temporary labor
certification application including a job
offer for U.S. workers with an
appropriate State Workforce Agency.
The employer should file an application
a minimum of 80 days before the
estimated date of need for the workers.
If filed 80 days before need, sufficient
time is allowed for the 60-day
recruitment period required by the
regulations and a determination by the
OFLC Administrator as to the
availability of U.S. workers 20 days
before the date of need. Shortly after the
application has been filed, the OFLC
Administrator makes a determination as
to whether or not the application has
been filed in enough time to recruit U.S.
workers and whether or not the job offer
for U.S. workers offers wages and
working conditions which will not
adversely affect the wages and working
conditions of similarly employed U.S.
workers, as prescribed in the regulations
in this subpart. If the application does
not meet the regulatory wage and
working condition standards, the OFLC
Administrator shall deny the temporary
labor certification application and offer
the employer an administrative-judicial
review of the denial by an
Administrative Law Judge. If the
application is not timely, the OFLC
Administrator has discretion, as set
forth in these regulations, to either deny
the application or permit the process to
proceed reasonably with the employer
recruiting U.S. workers upon such terms
as will accomplish the purposes of the
INA and the DHS regulations. Where the
application is timely and meets the
regulatory standards, the State
Workforce Agency, the employer, and
the Department of Labor recruit U.S.
workers for 60 days. At the end of the
60 days, the OFLC Administrator grants
the temporary labor certification if the
OFLC Administrator finds that (1) the
employer has not offered foreign
workers higher wages or better working
conditions (or less restrictions) than that
offered to U.S. workers, and (2) U.S.
workers are not available for the
employer’s job opportunities. If the
temporary labor certification is denied,
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the employer may seek an
administrative-judicial review of the
denial by an Administrative Law Judge
as provided in these regulations. The
Department of Labor thereafter advises
the United States Citizenship and
Immigration Services of the Department
of Homeland Security (DHS) of
approvals and denials of temporary
labor certifications. The DHS may
accept or reject this advice. 8 CFR
214.2(h)(3). The DHS makes the final
decision as to whether or not to grant
visas to the foreign workers. 8 U.S.C.
1184(a).
(c) Definitions for terms used in this
subpart.
Administrative Law Judge means an
official who is authorized to conduct
administrative hearings.
Administrator, Office of Foreign Labor
Certification (OFLC Administrator)
means the primary official of the Office
of Foreign Labor Certification or the
OFLC Administrator’s designee.
Adverse effect rate means the wage
rate which the OFLC Administrator has
determined must be offered and paid to
foreign and U.S. workers for a particular
occupation and/or area so that the
wages of similarly employed U.S.
workers will not be adversely affected.
The OFLC Administrator may determine
that the prevailing wage rate in the area
and/or occupation is the adverse effect
rate, if the use (or non-use) of aliens has
not depressed the wages of similarly
employed U.S. workers. The OFLC
Administrator may determine that a
wage rate higher than the prevailing
wage rate is the adverse effect rate if the
OFLC Administrator determines that the
use of aliens has depressed the wages of
similarly employed U.S. workers.
Agent means a legal person, such as
an association of employers, which (1)
is authorized to act as an agent of the
employer for temporary labor
certification purposes, and (2) which is
not itself an employer, or a joint
employer, as defined in this section.
Area of intended employment means
the area within normal commuting
distance of the place (address) of
intended employment. If the place of
intended employment is within a
Standard Metropolitan Statistical Area
(SMSA), any place within the SMSA is
deemed to be within normal commuting
distance of the place of intended
employment.
Department of Homeland Security
(DHS) through the United States
Citizenship and Immigration Services
(USCIS) makes the determination under
the INA on whether or not to grant visa
petitions to an alien seeking to perform
temporary agricultural or logging work
in the United States.
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Employer means a person, firm,
corporation or other association or
organization (1) which currently has a
location within the United States to
which U.S. workers may be referred for
employment, and which proposes to
employ a worker at a place within the
United States and (2) which has an
employer relationship with respect to
employees under this subpart as
indicated by the fact that it hires, pays,
fires, supervises and otherwise controls
the work of such employees. An
association of employers shall be
considered an employer if it has all of
the indicia of an employer set forth in
this definition. Such an association,
however, shall be considered as a joint
employer with the employer member if
it shares with the employer member one
or more of the definitional indicia.
Employment and Training
Administration (ETA) means the agency
within the Department of Labor (DOL)
which includes the Office of Foreign
Labor (OFLC).
Job opportunity means a job opening
for temporary, full-time employment at
a place in the United States to which
U.S. workers can be referred.
Office of Foreign Labor Certification
(OFLC) means the organizational
component within the ETA that
provides national leadership and policy
guidance and develops regulations and
procedures to carry out the
responsibilities of the Secretary of Labor
under the INA concerning alien workers
seeking admission to the United States
in order to work under the Immigration
and Nationality Act, as amended.
Secretary means the Secretary of
Labor or the Secretary’s designee.
State Workforce Agency (SWA) means
the State employment service agency.
Temporary labor certification means
the advice given by the Secretary of
Labor to the United States Citizenship
and Immigration Services (USCIS) of the
Department of Homeland Security
(DHS), pursuant to the regulations of
that agency at 8 CFR 214.2(h)(3)(i), that
(1) there are not sufficient U.S. workers
who are qualified and available to
perform the work and (2) the
employment of the alien will not
adversely affect the wages and working
conditions of similarly employed U.S.
workers.
United States workers means any
worker who, whether U.S. national,
citizen or alien, is legally permitted to
work permanently within the United
States.
§ 655.201 Temporary labor certification
applications.
(a)(1) An employer who anticipates a
labor shortage of workers for
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agricultural or logging employment may
request a temporary labor certification
for temporary foreign workers by filing,
or by having an agent file, in duplicate,
a temporary labor certification
application, signed by the employer,
with a SWA in the area of intended
employment.
(2) If the temporary labor certification
application is filed by an agent,
however, the agent may sign the
application if the application is
accompanied by a letter from each
employer the agent represents, signed
by the employer, which authorizes the
agent to act on the employer’s behalf
and which states that the employer
assumes full responsibility for the
accuracy of the application, for all
representations made by the agent on
the employer’s behalf, and for the
fulfillment of all legal requirements
arising under this subpart.
(3) If an association of employers files
the application, the association shall
identify and submit documents to verify
whether, in accordance with the
definitions at § 655.200, it is: (i) The
employer, (ii) a joint employer with its
member employers, or (iii) the agent of
its employer members.
(b) Every temporary labor certification
application shall include:
(1) A copy of the job offer which will
be used by the employer (or each
employer) for the recruitment of both
U.S. and foreign workers. The job offer
for each employer shall state the
number of workers needed by the
employer, and shall be signed by the
employer. The job offer shall comply
with the requirements of §§ 655.202 and
653.108 of this chapter;
(2) The assurances required by
§ 655.203; and
(3) The specific estimated date of
need of workers.
(c) The entire temporary labor
certification application shall be filed
with the SWA in duplicate and in
sufficient time to allow the State agency
to attempt to recruit U.S. workers
locally and through the Employment
Service intrastate and interstate
clearance system for 60 calendar days
prior to the estimated date of need.
Section 655.206 requires the OFLC
Administrator to grant or deny the
temporary labor certification application
by the end of the 60 calendar days, or
20 days from the estimated date of need,
whichever is later. That section also
requires the OFLC Administrator to
offer employers an expedited
administrative-judicial review in cases
of denials of the temporary labor
certification applications. Following an
administrative-judicial review, the
employer has a right to contest any
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denial before the DHS pursuant to 8
CFR 214.2(h)(3)(i). Finally, employers
need time, after the temporary labor
certification determination, to complete
the process for bringing foreign workers
into the United States, or to bring an
appeal of a denial of an application for
the labor certification. Therefore,
employers should file their temporary
labor certification applications at least
80 days before the estimated date of
need specified in the application.
(d) Applications may be amended at
any time prior to OFLC Administrator
determination to increase the number of
workers requested in the original
application for labor certification by not
more than 15 percent without requiring
an additional recruitment period for
U.S. workers. Requests for increases
beyond 15 percent may be approved
only when it is determined that, based
on past experience, the need for
additional workers could not be
foreseen and that a critical need for the
workers would exist prior to the
expiration of an additional recruitment
period.
(e) If a temporary labor certification
application, or any part thereof, does
not satisfy the time requirements
specified in paragraph (c) of this
section, and if the exception in
paragraph (d) of this section does not
apply, the SWA shall immediately send
both copies directly to the appropriate
OFLC Administrator. The OFLC
Administrator may then advise the
employer and the DHS in writing that
the temporary labor certification cannot
be granted because, pursuant to the
regulations at paragraph (c) of this
section, there is not sufficient time to
test the availability of U.S. workers. The
notice of denial to the employer shall
inform the employer of the right to
administrative-judicial review and to
ultimately petition DHS for the
admission of the aliens. In emergency
situations, however, the OFLC
Administrator may waive the time
period specified in this section on
behalf of employers who have not made
use of temporary alien workers for the
prior year’s harvest or for other good
and substantial cause, provided the
OFLC Administrator has sufficient labor
market information to make the labor
certification determinations required by
8 CFR 214.2(h)(3)(i).
(Approved by the Office of
Management and Budget under control
number 1205–0015)
§ 655.202
Contents of job offers.
(a) So that the employment of aliens
will not adversely affect the wages and
working conditions of similarly
employed U.S. workers, each
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employer’s job offer to U.S. workers
must offer U.S. workers at least the same
benefits which the employer is offering,
intends to offer, or will afford, to
temporary foreign workers. Conversely,
no job offer may impose on U.S. workers
any restrictions or obligations which
will not be imposed on the employer’s
foreign workers. For example, if the
employer intends to advance
transportation costs to foreign workers
either directly or indirectly (by having
them paid by the foreign government
involved), the employer must offer to
advance the transportation costs of U.S.
workers.
(b) Except when higher benefits,
wages or working conditions are
required by the provisions of paragraph
(a) of this section, the OFLC
Administrator has determined that, in
order to protect similarly employed U.S.
workers from adverse effect with respect
to wages and working conditions, every
job offer for U.S. workers must always
include the following minimal benefit,
wage, and working condition
provisions:
(1) The employer will provide the
worker with housing without charge to
the worker. The housing will meet the
full set of standards set forth at 29 CFR
1910.142 or the full set of standards set
forth at part 654, subpart E of this
chapter, whichever is applicable under
the criteria of 20 CFR 654.401; except
that, for mobile range housing for
sheepherders, the housing shall meet
existing Departmental guidelines. When
it is the prevailing practice in the area
of intended employment to provide
family housing, the employer will
provide such housing to such workers.
(2)(i) If the job opportunity is covered
by the State workers’ compensation law,
the worker will be eligible for workers’
compensation for injury and disease
arising out of and in the course of
worker’s employment; or
(ii) If the job opportunity is not
covered by the State workers’
compensation law, the employer will
provide at no cost to the worker,
insurance covering injury and disease
arising out of and in the course of the
worker’s employment which will
provide benefits at least equal to those
provided under the State workers’
compensation law for comparable
employment;
(3) The employer will provide
without cost to the worker all tools,
supplies and equipment required to
perform the duties assigned and, if any
of these items are provided by the
worker, the employer will reimburse the
worker for the cost of those so provided;
(4) The employer will provide the
worker with three meals a day, except
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that where under prevailing practice or
longstanding arrangement at the
establishment workers prepare their
meals, employers need furnish only free
and convenient cooking and kitchen
facilities. Where the employer provides
the meals, the job offer shall state the
cost to the worker for such meals. Until
a new amount is set pursuant to this
paragraph (b)(4), the cost shall not be
more than $4.94 per day unless the
OFLC Administrator has approved a
higher cost pursuant to § 655.211 of this
part. Each year the charge allowed by
this paragraph (b)(4) will be changed by
the 12-month percent change for the
Consumer Price Index for All Urban
Consumers for Food between December
of the year just concluded and
December of the year prior to that. The
annual adjustments shall be effective on
their publication by the OFLC
Administrator in the Federal Register.
(5)(i) The employer will provide or
pay for the worker’s transportation and
daily subsistence from the place, from
which the worker, without intervening
employment, will come to work for the
employer, to the place of employment,
subject to the deductions allowed by
paragraph (b)(13) of this section. The
amount of the daily subsistence
payment shall be at least as much as the
amount the employer will charge the
worker for providing the worker with
three meals a day during employment;
(ii) If the worker completes the work
contract period, the employer will
provide or pay for the worker’s
transportation and daily subsistence
from the place of employment to the
place, from which the worker, without
intervening employment, came to work
for the employer, unless the worker has
contracted for employment with a
subsequent employer who, in that
contract, has agreed to pay for the
worker’s transportation and daily
subsistence expenses from the
employer’s worksite to such subsequent
employer’s worksite; and
(iii) The employer will provide
transportation between the worker’s
living quarters and the employer’s
worksite without cost to the worker, and
such transportation will be in
accordance with applicable laws and
regulations;
(6)(i) The employer guarantees to offer
the worker employment for at least
three-fourths of the workdays of the
total period during which the work
contract and all extensions thereof are
in effect, beginning with the first
workday after the arrival of the worker
at the place of employment and ending
on the termination date specified in the
work contract, or in its extensions if
any. For purposes of this paragraph, a
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workday shall mean any period
consisting of 8 hours of work time. An
employer shall not be considered to
have met the work guarantee if the
employer has merely offered work on
three-fourths of the workdays. The work
must be offered for at least three-fourths
of the 8 hour workdays. (That is, 3⁄4 ×
(number of days × 8 hours.)) Therefore,
if, for example, the contract contains 20
workdays, the worker must be offered
employment for 120 hours during the 20
workdays. A worker may be offered
more than 8 hours of work on a single
workday. For purposes of meeting the
guarantee, however, the worker may not
be required to work for more than 8
hours per workday, or on the worker’s
Sabbath or Federal holidays;
(ii) If the worker will be paid on a
piece rate basis, the employer will use
the worker’s average hourly earnings to
calculate the amount due under the
guarantee; and
(iii) Any hours which the worker fails
to work when the worker has been
offered an opportunity to do so pursuant
to paragraph (b)(6)(i) of this section, and
all hours of work actually performed
(including voluntary work over 8 hours
in a workday, or on the worker’s
Sabbath or Federal holidays) may be
counted by the employer in calculating
whether the period of guaranteed
employment has been met;
(7)(i) The employer will keep accurate
and adequate records with respect to the
workers’ earnings, including field tally
records, supporting summary payroll
records, and records showing: The
nature and amount of the work
performed; the number of hours of work
offered each day by the employer
(broken out by hours offered both in
accordance with, and over and above,
the guarantee); the hours actually
worked each day by the worker; the
time the worker began and ended each
workday; the rate of pay; the worker’s
earnings per pay period; and the amount
of and reasons for any and all
deductions made from the worker’s
wages;
(ii) If the number of hours worked by
the worker is less than the number
offered in accordance with the
guarantee, the records will state the
reason or reasons therefor;
(iii) The records, including field tally
records and supporting summary
payroll records, will be made available
for inspection and copying by
representatives of the Secretary of
Labor, and by the worker and the
worker’s representatives; and
(iv) The employer will retain the
records for not less than three years after
the completion of the contract;
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(8) The employer will furnish to the
worker at or before each payday, in one
or more written statements:
(i) The worker’s total earnings for the
pay period;
(ii) The worker’s hourly rate or piece
rate of pay;
(iii) The hours of employment which
have been offered to the worker (broken
out by offers in accordance with, and
over and above, the guarantee);
(iv) The hours actually worked by the
worker;
(v) An itemization of all deductions
made from the worker’s wages; and
(vi) If piece rates are used, the units
produced daily;
(9)(i) If the worker will be paid by the
hour, the employer will pay the worker
at least the adverse effect rate; or
(ii)(A) If the worker will be paid on a
piece rate basis, and the piece rate does
not result at the end of the pay period
in average hourly earnings during the
pay period at least equal to the amount
the worker would have earned had the
worker been paid at the adverse effect
rate, the worker’s pay will be
supplemented at that time so that the
worker’s earnings are at least as much
as the worker would have earned during
the pay period if the worker had been
paid at the adverse effect rate.
(B) If the employer who pays on a
piece rate basis requires one or more
minimum productivity standards of
workers as a condition of job retention,
(1) Such standards shall be no more
than those applied by the employer in
1977, unless the OFLC Administrator
approves a higher minimum; or
(2) If the employer first applied for
temporary labor certification after 1977,
such standards shall be no more than
those normally required (at the time of
that first application) by other
employers for the activity in the area of
intended employment, unless the OFLC
Administrator approves a higher
minimum.
(10) The frequency with which the
worker will be paid (in accordance with
the prevailing practice in the area of
intended employment, or at least
biweekly whichever is more frequent);
(11) If the worker voluntarily
abandons employment before the end of
the contract period, or is terminated for
cause, the employer will not be
responsible for providing or paying for
the subsequent transportation and
subsistence expenses of any worker for
whom the employer would have
otherwise been required to pay such
expenses under paragraph (b)(5)(ii) of
this section;
(12) If, before the expiration date
specified in the work contract, the
services of the worker are no longer
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required for reasons beyond the control
of the employer due to fire or other Act
of God which makes the fulfillment of
the contract impossible, and the OFLC
Administrator so certifies, the employer
may terminate the work contract. In
such cases the employer will make
efforts to transfer the worker to other
comparable employment acceptable to
the worker. If such transfer is not
effected, the worker
(i) Will be returned to the place from
which the worker, without intervening
employment, came to work for the
employer at the employer’s expense;
and
(ii) Will be reimbursed the full
amount of any deductions made from
the worker’s pay by the employer for
transportation and subsistence expenses
to the place of employment borne
directly or indirectly by the employer;
(13) The employer will make those
deductions from the worker’s paycheck
which are required by law. The job offer
shall specify all deductions, not
required by law, which the employer
will make from the worker’s paycheck.
All deductions shall be reasonable. The
employer may deduct the cost of the
worker’s transportation and daily
subsistence expenses to the place of
employment which were borne directly
by the employer; in such cases,
however, the job offer shall state that the
worker will be reimbursed the full
amount of such deductions upon the
worker’s completion of 50 percent of the
worker’s contract period; and
(14) The employer will provide the
worker a copy of the work contract
between the employer and the worker.
The work contract shall contain all of
the provisions required by paragraphs
(a) and (b) of this section.
§ 655.203
Assurances.
As part of the temporary labor
certification application, the employer
shall include assurances, signed by the
employer, that:
(a) The job opportunity is not:
(1) Vacant because the former
occupant is on strike or being locked out
in the course of a labor dispute; or
(2) At issue in a labor dispute
involving a work stoppage;
(b) During the period for which the
temporary labor certification is granted,
the employer will comply with
applicable Federal, State and local
employment-related laws, including
employment related health and safety
laws;
(c) The job opportunity is open to all
qualified U.S. workers without regard to
race, color, national origin, sex, or
religion, and is open to U.S. workers
with handicaps who are qualified to
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26005
perform the work. No U.S. worker will
be rejected for employment for other
than a lawful job related reason;
(d) The employer will cooperate with
the employment service system in the
active recruitment of U.S. workers until
the foreign workers have departed for
the employer’s place of employment by;
(1) Allowing the employment service
system to prepare local, intrastate and
interstate job orders using the
information supplied on the employer’s
job offer;
(2) Placing at least two advertisements
for the job opportunities in local
newspapers of general circulation.
(i) Each such advertisement shall
describe the nature and anticipated
duration of the job opportunity; offer at
least the adverse effect wage rate; give
the 3⁄4 guarantee; state that work tools,
supplies and equipment will be
provided by the employer; state that
housing will also be provided, and that
transportation and subsistence expenses
to the worksite will be provided or paid
for by the employer;
(ii) Each advertisement shall direct
interested workers to apply for the job
opportunity at the appropriate office of
the State Workforce Agency in their
area;
(3) Cooperating with the employment
service system in contacting farm labor
contractors, migrant workers and other
potential workers in other areas of the
State and/or Nation by letter and/or
telephone;
(4) Cooperating with the employment
service system in contacting schools,
business and labor organizations,
fraternal and veterans organizations,
and non-profit organizations and public
agencies such as sponsors of programs
under the Comprehensive Employment
and Training Act, throughout the area of
intended employment, in order to enlist
them in helping to find U.S. workers;
and
(5) If the employer, or an association
of employers of which the employer is
a member, intends to negotiate and/or
contract with the Government of a
foreign nation or any foreign
association, corporation or organization
in order to secure foreign workers,
making the same kind and degree of
efforts to secure U.S. workers;
(e) From the time the foreign workers
depart for the employer’s place of
employment, the employer will provide
employment to any qualified U.S.
worker who applies to the employer
until fifty percent of the period of the
work contract, under which the foreign
worker who is in the job was hired, has
elapsed. In addition, the employer will
offer to provide housing, and the other
benefits, wages, and working conditions
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required by § 655.202, to any such U.S.
worker; and
(f) Performing the other specific
recruitment activities specified in the
notice from the OFLC Administrator
required by § 655.205(a).
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§ 655.204 Determinations based on
temporary labor certification applications.
(a) Within two working days after the
temporary labor certification application
has been filed with it, the SWA shall
mail the duplicate application directly
to the appropriate OFLC Administrator.
(b) The SWA, using the job offer
portion of its copy of the temporary
labor certification application, shall
promptly prepare a local job order and
shall begin to recruit U.S. workers in the
area of intended employment.
(c) The OFLC Administrator, upon
receipt of the duplicate temporary labor
certification application, shall promptly
review the application to determine
whether it meets the requirements of
§§ 655.201–655.203 in order to
determine whether the employer’s
application is (1) timely, and (2)
contains offers of wages, benefits, and
working conditions required to ensure
that similarly employed U.S. workers
will not be adversely affected. If the
OFLC Administrator determines that the
temporary labor certification application
is not timely in accordance with
§ 655.201 of this subpart, the OFLC
Administrator may promptly deny the
temporary labor certification on the
grounds that, in accordance with that
regulation, there is not sufficient time to
adequately test the availability of U.S.
workers. If the OFLC Administrator
determines that the application does not
meet the requirements of §§ 655.202–
655.203 because the wages, working
conditions, benefits, assurances, job
offer, etc. are not as required, the OFLC
Administrator shall deny the
certification on the grounds that the
availability of U.S. workers cannot be
adequately tested because the wages or
benefits, etc. do not meet the adverse
effect criteria.
(d) If the certification is denied, the
OFLC Administrator shall notify the
employer in writing of the
determination, with a copy to the SWA.
The notice shall:
(1) State the reasons for the denial,
citing the relevant regulations; and
(2) Offer the employer an opportunity
to request an expedited administrativejudicial review of the denial by an
Administrative Law Judge. The notice
shall state that in order to obtain such
a review, the employer must, within five
calendar days of the date of the notice,
file by facsimile (fax), telegram, or other
means normally assuring next day
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delivery a written request for such a
review to the Chief Administrative Law
Judge of the Department of Labor (giving
the address) and simultaneously serve a
copy on the OFLC Administrator. The
notice shall also state that the
employer’s request for review should
contain any legal arguments which the
employer believes will rebut the basis of
the OFLC Administrator’s denial of
certification; and
(3) State that, if the employer does not
request an expedited administrativejudicial review before an Administrative
Law Judge within the five days:
(i) The OFLC Administrator will
advise the DHS that the certification
cannot be granted, giving the reasons
therefor, and that an administrativejudicial review of the denial was offered
to the employer but not accepted, and
enclosing, for DHS review, the entire
temporary labor certification application
file; and
(ii) The employer has the opportunity
to submit evidence to the DHS to rebut
the bases of the OFLC Administrator’s
determination in accordance with the
DHS regulation at 8 CFR 214.2(h)(3)(i)
but that no further review of the
employer’s application for temporary
labor certification may be made by any
Department of Labor official.
(e) If the employer timely requests an
expedited administrative-judicial
review pursuant to paragraph (d)(2) of
this section, the procedures of § 655.212
shall be followed.
§ 655.205
Recruitment period.
(a) If the OFLC Administrator
determines that the temporary labor
certification application meets the
requirements of §§ 655.201 through
655.203, the OFLC Administrator shall
promptly notify the employer in
writing, with copies to the SWA. The
notice shall inform the employer and
the SWA of the specific efforts which
will be expected from them during the
following weeks to carry out the
assurances contained in § 655.203 with
respect to the recruitment of U.S.
workers. The notice shall require that
the job order be placed both into
intrastate clearance and into interstate
clearance to such States as the OFLC
Administrator shall determine to be
potential sources of U.S. workers.
(b) Thereafter, OFLC Administrator,
shall provide overall direction to the
employer and the SWA with respect to
the recruitment of U.S. workers.
(c) By the 60th day of the recruitment
period, or 20 days before the date of
need specified in the application,
whichever is later, the OFLC
Administrator, when making a
determination of the availability of U.S.
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workers, shall also make a
determination as to whether the
employer has satisfied the recruitment
assurances in § 655.203. If the OFLC
Administrator concludes that the
employer has not satisfied the
requirement for recruitment of U.S.
workers, the OFLC Administrator shall
deny the temporary labor certification,
and shall immediately notify the
employer in writing with a copy to the
State agency. The notice shall contain
the statements specified in § 655.204(d).
(d) If the employer timely requests an
expedited administrative-judicial
review before an Administrative Law
Judge, the procedures in § 655.212 shall
be followed.
§ 655.206 Determinations of U.S. worker
availability and adverse effect on U.S.
workers.
(a) If the OFLC Administrator, in
accordance with § 655.205 has
determined that the employer has
complied with the recruitment
assurances, the OFLC Administrator, by
60th day of the recruitment period, or
20 days before the date of need specified
in the application, whichever is later,
shall grant the temporary labor
certification for enough aliens to fill the
employer’s job opportunities for which
U.S. workers are not available. In
making this determination the OFLC
Administrator shall consider as
available for a job opportunity any U.S.
worker who has made a firm
commitment to work for the employer,
including those workers committed by
other authorized persons such as farm
labor contractors and family heads; such
a firm commitment shall be considered
to have been made not only by workers
who have signed work contracts with
the employer, but also by those whom
the OFLC Administrator determines are
very likely to sign such a work contract.
The OFLC Administrator shall also
count as available any U.S. worker who
has applied to the employer (or on
whose behalf an application has been
made), but who was rejected by the
employer for other than lawful jobrelated related reasons unless the OFLC
Administrator determines that:
(1) Enough qualified U.S. workers
have been found to fill all the
employer’s job opportunities; or
(2) The employer, since the time of
the initial determination under
§ 655.204, has adversely affected U.S.
workers by offering to, or agreeing to
provide to, alien workers better wages,
working conditions, or benefits (or by
offering or agreeing to impose on alien
workers less obligations and
restrictions) than that offered to U.S.
workers.
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(b)(1) Temporary labor certifications
shall be considered subject to the
conditions and assurances made during
the application process. Temporary
labor certifications shall be for a limited
duration such as for ‘‘the 1978 apple
harvest season’’ or ‘‘until November 1,
1978’’, and they shall never be for more
than eleven months. They shall be
limited to the employer’s specific job
opportunities; therefore, they may not
be transferred from one employer to
another.
(2) If an association of employers is
itself the employer, as defined in
§ 655.200, certifications shall be made to
the association and may be used for any
of the job opportunities of its employer
members and workers may be
transferred among employer members.
(3) If an association of employers is a
joint employer with its employer
members, as defined in § 655.200, the
certification shall be made jointly to the
association and the employer members.
In such cases workers may be
transferred among the employer
members provided the employer
members and the association agree in
writing to be jointly and severally liable
for compliance with the temporary labor
certification obligations set forth in this
subpart.
(c) If the OFLC Administrator denies
the temporary labor certification in
whole or part, the OFLC Administrator
shall notify the employer in writing by
means normally assuring next-day
delivery. The notice shall contain all of
the statements required in § 655.204(d).
If a timely request is made for an
administrative-judicial review by an
Administrative Law Judge, the
procedures of § 655.212 shall be
followed.
(d)(1) After a temporary labor
certification has been granted, the
employer shall continue its efforts to
actively recruit U.S. workers until the
foreign workers have departed for the
employer’s place of employment. The
employer, however, must keep an active
job order on file until the assurance at
§ 655.203(e) is met.
(2) The State Workforce Agency
(SWA) system shall continue to actively
recruit and refer U.S. workers as long as
there is an active job order on file.
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§ 655.207
Adverse effect rates.
(a) Except as otherwise provided in
this section, the adverse effect rates for
all agricultural and logging employment
shall be the prevailing wage rates in the
area of intended employment.
(b)(1) For agricultural employment
(except sheepherding) in the States
listed in paragraph (b)(2) of this section,
and for Florida sugarcane work, the
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adverse effect rate for each year shall be
computed by adjusting the prior year’s
adverse effect rate by the percentage
change (from the second year previous
to the prior year) in the U.S. Department
of Agriculture’s (USDA’s) average
hourly wage rates for field and livestock
workers (combined) based on the USDA
Quarterly Wage Survey. The OFLC
Administrator shall publish, at least
once in each calendar year, on a date or
dates he shall determine, adverse effect
rates calculated pursuant to this
paragraph (b) as a notice or notices in
the Federal Register.
(2) List of States. Arizona, Colorado,
Connecticut, Florida (other than sugar
cane work), Maine, Maryland,
Massachusetts, New Hamsphire, New
York, Rhode Island, Texas, Vermont,
Virginia, and West Virginia. Other
States may be added as appropriate.
(3) Transition. Notwithstanding
paragraphs (b)(1) and (2) of this section,
the 1986 adverse effect rate for
agricultural employment (except
sheepherding) in the following States,
and for Florida sugarcane work, shall be
computed by adjusting the 1981 adverse
effect rate (computed pursuant to 20
CFR 655.207(b)(1), 43 FR 10317; March
10, 1978) by the percentage change
between 1980 and 1985 in the U.S.
Department of Agriculture annual
average hourly wage rates for field and
livestock workers (combined) based on
the USDA Quarterly survey: The States
listed at 20 CFR 655.207(b)(2) (1985).
(c) In no event shall an adverse effect
rate for any year be lower than the
hourly wage rate published in 29 U.S.C.
206(a)(1) and currently in effect.
§ 655.208 Temporary labor certification
applications involving fraud or willful
misrepresentation.
(a) If possible fraud or willful
misrepresentation involving a
temporary labor certification application
is discovered prior to a final temporary
labor certification determination, or if it
is learned that the employer or agent
(with respect to an application) is the
subject of a criminal indictment or
information filed in a court, the OFLC
Administrator shall refer the matter to
the DHS for investigation and shall
notify the employer or agent in writing
of this referral. The OFLC Administrator
shall continue to process the application
and may issue a qualified temporary
labor certification.
(b) If a court finds an employer or
agent innocent of fraud or willful
misrepresentation, or if the Department
of Justice decides not to prosecute an
employer or agent, the OFLC
Administrator shall not deny the
temporary labor certification application
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26007
on the grounds of fraud or willful
misrepresentation. The application, of
course, may be denied for other reasons
pursuant to this subpart.
(c) If a court or the DHS determines
that there was fraud or willful
misrepresentation involving a
temporary labor certification
application, the application shall be
deemed invalidated, processing shall be
terminated, and the application shall be
returned to the employer or agent with
the reasons therefor stated in writing.
§ 655.209 Invalidation of temporary labor
certifications.
After issuance, temporary labor
certifications are subject to invalidation
by the DHS upon a determination, made
in accordance with that agency’s
procedures or by a Court, of fraud or
willful misrepresentation of a material
fact involving the temporary labor
certification application. If evidence of
such fraud or willful misrepresentation
becomes known to the OFLC
Administrator, the OFLC Administrator
shall notify the DHS in writing.
§ 655.210 Failure of employers to comply
with the terms of a temporary labor
certification.
(a) If, after the granting of a temporary
labor certification, the OFLC
Administrator has probable cause to
believe that an employer has not lived
up to the terms of the temporary labor
certification, the OFLC Administrator
shall investigate the matter. If the OFLC
Administrator concludes that the
employer has not complied with the
terms of the labor certification, the
OFLC Administrator may notify the
employer that it will not be eligible to
apply for a temporary labor certification
in the coming year. The notice shall be
in writing, shall state the reasons for the
determination, and shall offer the
employer an opportunity to request a
hearing within 30 days of the date of the
notice. If the employer requests a
hearing within the 30-day period, the
OFLC Administrator shall follow the
procedures set forth at § 658.421(i)(1),
(2) and (3) of this chapter. The
procedures contained in §§ 658.421(j),
658.422 and 658.423 of this chapter
shall apply to such hearings.
(b) No other penalty shall be imposed
by the employment service on such an
employer other than as set forth in
paragraph (a) of this section.
§ 655.211
Petition for higher meal charges.
(a) Until a new amount is set pursuant
to this paragraph (a), the OFLC
Administrator may permit an employer
to charge workers up to $6.17 for
providing them with three meals per
day, if the employer justifies the charge
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and submits to the OFLC Administrator
the documentary evidence required by
paragraph (b) of this section. A denial in
whole or in part shall be reviewable as
provided in § 655.212 of this part. Each
year the maximum charge allowed by
this paragraph (a) will be changed by
the 12-month percent change for the
Consumer Price Index for All Urban
Consumers for Food between December
of the year just concluded and
December of the year prior to that. The
annual adjustments shall be effective on
their publication by the OFLC
Administrator in the Federal Register.
(b) Evidence submitted shall include
the cost of goods and services directly
related to the preparation and serving of
meals, the number of workers fed, the
number of meals served and the number
of days meals were provided. The cost
of the following items may be included:
Food; kitchen supplies other than food,
such as lunch bags and soap; labor costs
which have a direct relation to food
service operations, such as wages of
cooks and restaurant supervisors; fuel,
water, electricity, and other utilities
used for the food service operations;
other costs directly related to the food
service operation. Charges for
transportation, depreciation, overhead,
and similar charges may not be
included. Receipts and other cost
records for a representative pay period
shall be available for inspection by the
Secretary’s representatives for a period
of one year.
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§ 655.212
Administrative-judicial reviews.
(a) Whenever an employer has
requested an administrative-judicial
review of a denial of an application or
a petition in accordance with
§§ 655.204(d), 655.205(d), 655.206(c), or
655.211, the Chief Administrative Law
Judge shall immediately assign an
Administrative Law Judge to review the
record for legal sufficiency, and the
OFLC Administrator shall send a
certified copy of the case file to the
Chief Administrative Law Judge by
means normally assuring next day
delivery. The Administrative Law Judge
shall not have authority to remand the
case and shall not receive additional
evidence. Any countervailing evidence
advanced after decision by the OFLC
Administrator shall be subject to
provisions of 8 CFR 214.2(h)(3)(i).
(b) The Administrative Law Judge,
within five working days after receipt of
the case file shall, on the basis of the
written record and due consideration of
any written memorandums of law
submitted, either affirm, reverse or
modify the OFLC Administrator’s denial
by written decision. The decision of the
Administrative Law Judge shall specify
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the reasons for the action taken and
shall be immediately provided to the
employer, OFLC Administrator, and
DHS by means normally assuring nextday delivery. The Administrative Law
Judge’s decision shall be the final
decision of the Department of Labor and
no further review shall be given to the
temporary labor certification
determination by any Department of
Labor official.
§ 655.215
Territory of Guam.
Subpart C of this part does not apply
to temporary employment in the
Territory of Guam, and the Department
of Labor does not certify to the United
States Citizenship and Immigration
Services of the Department of Homeland
Security (DHS) the temporary
employment of nonimmigrant aliens
under H–2B visas in the Territory of
Guam. Pursuant to DHS regulations, that
function is performed by the Governor
of Guam, or the Governor’s designated
representative within the Territorial
Government.
Title 29—Labor
8. Redesignate part 501 as part 502
and suspend newly designated Part 502.
■
■
9. Add part 501 to read as follows:
PART 501—ENFORCEMENT OF
CONTRACTUAL OBLIGATIONS FOR
TEMPORARY ALIEN AGRICULTURAL
WORKERS ADMITTED UNDER
SECTION 216 OF THE IMMIGRATION
AND NATIONALITY ACT
Subpart A—General Provisions
Sec.
501.0 Introduction.
501.1 Purpose and scope.
501.2 Coordination of intake between DOL
agencies.
501.3 Discrimination prohibited.
501.4 Waiver of rights prohibited.
501.5 Investigation authority of Secretary.
501.6 Prohibition on interference with
Department of Labor officials.
501.7 Accuracy of information, statements,
data.
501.10 Definitions.
Subpart B—Enforcement of Work Contracts
501.15 Enforcement.
501.16 General.
501.17 Concurrent actions.
501.18 Representation of the Secretary.
501.19 Civil money penalty assessment.
501.20 Enforcement of Wage and Hour
investigative authority.
501.21 Referral of findings to ETA.
501.22 Civil money penalties—payment
and collection.
Subpart C—Administrative Proceedings
501.30 Applicability of procedures and
rules.
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Procedures Relating to Hearing
501.31 Written notice of determination
required.
501.32 Contents of notice.
501.33 Request for hearing.
Rules of Practice
501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.
Referral for Hearing
501.37 Referral to Administrative Law
Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the
Department of Labor—number of copies.
Procedures Before Administrative Law Judge
501.40 Consent findings and order.
Post-Hearing Procedures
501.41 Decision and order of
Administrative Law Judge.
Review of Administrative Law Judge’s
Decision
501.42 Procedures for initiating and
undertaking review.
501.43 Responsibility of the Office of
Administrative Law Judges.
501.44 Additional information, if required.
501.45 Final decision of the Secretary.
Record
501.46 Retention of official record.
501.47 Certification.
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a),
1184(c), and 1188.
Subpart A—General Provisions
§ 501.0
Introduction.
These regulations cover the
enforcement of all contractual
obligations provisions applicable to the
employment of H–2A workers under
section 216 of the Immigration and
Nationality Act (INA), as amended by
the Immigration Reform and Control Act
of 1986 (IRCA). These regulations are
also applicable to the employment of
other workers hired by employers of H–
2A workers in the occupations and for
the period of time set forth in the job
order approved by ETA as a condition
for granting H–2A certification,
including any extension thereof. Such
other workers hired by H–2A employers
are hereafter referred to as engaged in
corresponding employment.
§ 501.1
Purpose and scope.
(a) Statutory standard. Section 216(a)
of the INA provides that—
(1) A petition to import an alien as an H–
2A worker (as defined in subsection (i)(2)
may not be approved by the Attorney General
unless the petitioner has applied to the
Secretary of Labor for a certification that—
(A) There are not sufficient workers who
are able, willing, and qualified, and who will
be available at the time and place needed, to
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perform the labor or services involved in the
petition, and
(B) The employment of the alien in such
labor or services will not adversely affect the
wages and working conditions of workers in
the United States similarly employed.
(b) Role of the ETA, USES. The
issuance and denial of labor
certification under section 216 of the
INA has been delegated by the Secretary
of Labor to the Employment and
Training Administration (ETA). In
general, matters concerning the
obligations of an employer of H–2A
workers related to the labor certification
process are administered and enforced
by ETA. Included within ETA’s
jurisdiction are such issues as whether
U.S. workers were available, whether
positive recruitment was conducted,
whether there was a strike or lockout,
the methodology for establishing
adverse effect wage rates, whether
workers’ compensation insurance was
provided, whether employment was
offered to U.S. workers for up to 50
percent of the contract period and other
similar matters. The regulations
pertaining to the issuance and denial of
labor certification for temporary alien
workers by the Employment and
Training Administration are found in
title 20 CFR part 655.
(c) Role of ESA, Wage and Hour
Division. Section 216(g)(2) of the INA
provides that—
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[T]he Secretary of Labor is authorized to
take such actions including imposing
appropriate penalties and seeking
appropriate injunctive relief and specific
performance of contractual obligations, as
may be necessary to assure employer
compliance with terms and conditions of
employment under this section.
Certain investigation, inspection and
law enforcement functions to carry out
the provisions of section 216 of the INA
have been delegated by the Secretary of
Labor to the Employment Standards
Administration (ESA), Wage and Hour
Division. In general, matters concerning
the obligations of the work contract
between an employer of H–2A workers
and the H–2A workers and other
workers in corresponding employment
hired by H–2A employers are enforced
by ESA. Included within the
enforcement responsibility of ESA,
Wage and Hour Division are such
matters as the payment of required
wages, transportation, meals and
housing provided during the
employment. The Wage and Hour
Division has the responsibility to carry
out investigations, inspections and law
enforcement functions and in
appropriate instances impose penalties,
seek injunctive relief and specific
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performance of contractual obligations,
including recovery of unpaid wages.
(d) Effect of regulations. The
amendments to the INA made by title III
of the IRCA apply to petitions and
applications filed on and after June 1,
1987. Accordingly, the enforcement
functions carried out by the Wage and
Hour Division under the INA and these
regulations apply to the employment of
any H–2A worker and any other workers
hired by H–2A employers in
corresponding employment as the result
of any petition or application filed with
the Department on and after June 1,
1987.
§ 501.2 Coordination of intake between
DOL agencies.
Complaints received by ETA, or any
State Employment Service Agency
regarding contractual H–2A labor
standards between the employer and the
employee will be immediately
forwarded to the appropriate Wage and
Hour office for appropriate action under
these regulations.
§ 501.3
Discrimination prohibited.
No person shall intimidate, threaten,
restrain, coerce, blacklist, discharge, or
in any manner discriminate against any
person who has:
(a) Filed a complaint under or related
to section 216 of the INA or these
regulations;
(b) Instituted or caused to be
instituted any proceedings related to
section 216 of the INA or these
regulations;
(c) Testified or is about to testify in
any proceeding under or related to
section 216 of the INA or these
regulations;
(d) Exercised or asserted on behalf of
himself or others any right or protection
afforded by section 216 of the INA or
these regulations.
(e) Consulted with an employee of a
legal assistance program or an attorney
on matters related to section 216 of the
INA (8 U.S.C. 1186), or to this subpart
or any other DOL regulation
promulgated pursuant to section 216 of
the INA.
Allegations of discrimination in
employment against any person will be
investigated by Wage and Hour. Where
Wage and Hour has determined through
investigation that such allegations have
been substantiated appropriate remedies
may be sought. Wage and Hour may
assess civil money penalties, seek
injunctive relief, and/or seek additional
remedies necessary to make the
employee whole as a result of the
discrimination, as appropriate, and may
recommend to ETA that labor
certification of any violator be denied in
the future.
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§ 501.4
26009
Waiver of rights prohibited.
No person shall seek to have an H–2A
worker, or other worker employed in
corresponding employment by an H–2A
employer, waive rights conferred under
section 216 of the INA or under these
regulations. Such waiver is against
public policy. Any agreement by an
employee purporting to waive or modify
any rights inuring to said person under
the Act or these regulations shall be
void as contrary to public policy, except
that a waiver or modification of rights
or obligations hereunder in favor of the
Secretary shall be valid for purposes of
enforcement of the provisions of the Act
or these regulations. This does not
prevent agreements to settle private
litigation.
§ 501.5 Investigation authority of
Secretary.
(a) General. The Secretary, either
pursuant to a complaint or otherwise,
shall, as may be appropriate, investigate
and, in connection therewith, enter and
inspect such places and vehicles
(including housing) and such records
(and make transcriptions thereof),
question such persons and gather such
information as deemed necessary by the
Secretary to determine compliance with
contractual obligations under section
216 of the INA or these regulations.
(b) Failure to permit investigation.
Where any person using the services of
an H–2A worker does not permit an
investigation concerning the
employment of his or her workers the
Wage and Hour Division shall report
such occurrence to ETA and may
recommend denial of future labor
certifications to such person. In
addition, Wage and Hour may take such
action as may be appropriate, including
the seeking of an injunction or assessing
civil money penalties, against any
person who has failed to permit Wage
and Hour to make an investigation.
(c) Confidential investigation. The
Secretary shall conduct investigations in
a manner which protects the
confidentiality of any complainant or
other person who provides information
to the Secretary in good faith.
(d) Report of violations. Any person
may report a violation of the work
contract obligations of section 216 of the
INA or these regulations to the Secretary
by advising any local office of the
Employment Service of the various
States, any office of ETA, any office of
the Wage and Hour Division, ESA, U.S.
Department of Labor, or any other
authorized representative of the
Secretary. The office or person receiving
such a report shall refer it to the
appropriate office of the Wage and Hour
Division, ESA, for the area in which the
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reported violation is alleged to have
occurred.
§ 501.6 Prohibition on interference with
Department of Labor officials.
No person shall interfere with any
official of the Department of Labor
assigned to perform an investigation,
inspection or law enforcement function
pursuant to the INA and these
regulations during the performance of
such duties. Wage and Hour will seek
such action as it deems appropriate,
including an injunction to bar any such
interference with an investigation and/
or assess a civil money penalty therefor.
In addition Wage and Hour may refer a
report of the matter to ETA with a
recommendation that the person’s labor
certification be denied in the future.
(Federal statutes which prohibit persons
from interfering with a Federal officer in
the course of official duties are found at
18 U.S.C. 111 and 18 U.S.C. 1114.)
§ 501.7 Accuracy of information,
statements, data.
Information, statements and data
submitted in compliance with
provisions of the Act or these
regulations are subject to title 18,
section 1001, of the U.S. Code, which
provides:
Section 1001. Statements or entries
generally.
Whoever, in any matter within the
jurisdiction of any department or agency of
the United States knowingly and willfully
falsifies, conceals or covers up by any trick,
scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements
or representations, or makes or uses any false
writing or document knowing the same to
contain any false, fictitious or fraudulent
statement or entry, shall be fined not more
than $10,000 or imprisoned not more than
five years, or both.
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§ 501.10
Definitions.
The definitions in paragraphs (a)
through (d) are set forth for purposes of
this part. In addition, the definitions in
paragraphs (e) through (v) are
promulgated at 20 CFR 655.100(b), are
utilized herein, and are incorporated
and set forth for information purposes.
(a) Act and INA mean the Immigration
and Nationality Act, as amended (8
U.S.C. 1101 et seq.), with reference
particularly to section 216.
(b) Administrative Law Judge (ALJ)
means a person within the Department
of Labor Office of Administrative Law
Judges appointed pursuant to 5 U.S.C.
3105.
(c) Administrator means the
Administrator of the Wage and Hour
Division, Employment Standards
Administration, U.S. Department of
Labor, and such authorized
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representatives as may be designated to
perform any of the functions of the
Administrator under this part.
(d) Work contract means all the
material terms and conditions of
employment relating to wages, hours,
working conditions, and other benefits,
including those terms and conditions
required by the applicable regulations in
subpart B of 20 CFR part 655, Labor
Certification Process for Temporary
Agricultural Employment in the United
States, and those contained in the
Application for Alien Employment
Certification and job offer under that
subpart, which contract between the
employer and the worker may be in the
form of a separate written document. In
the absence of a separate written work
contract incorporating the required
terms and conditions of employment,
entered into between the employer and
the worker, the work contract at a
minimum shall be the terms of the job
order included in the application for
temporary labor certification, and shall
be enforced in accordance with these
regulations.
(e) Adverse effect wage rate (AEWR)
means the wage rate which the Director
has determined must be offered and
paid, as a minimum, to every H–2A
worker and every U.S. worker for a
particular occupation and/or area in
which an employer employs or seeks to
employ an H–2A worker so that the
wages of similarly employed U.S.
workers will not be adversely affected.
(f) Agricultural labor or services.
Pursuant to section 101(a)(15)(ii)(a) of
the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)),
‘‘agricultural labor or services’’ is
defined for the purposes of this subpart
as either ‘‘agricultural labor’’ as defined
and applied in section 3121(g) of the
Internal Revenue Code of 1954 (26
U.S.C. 3121(g)) or ‘‘agriculture’’ as
defined and applied in section 3(f) of
the Fair Labor Standards Act of 1938 (29
U.S.C. 203(f)). An occupation included
in either statutory definition shall be
‘‘agricultural labor or services’’,
notwithstanding the exclusion of that
occupation from the other statutory
definition. For informational purposes,
the statutory provisions are quoted
below.
(1) Agricultural labor. Section 3121(g)
of the Internal Revenue Code of 1954
(26 U.S.C. 3121(g)) quoted as follows,
defines the term ‘‘agricultural labor’’ to
include all service performed:
(1) On a farm, in the employ of any person,
in connection with cultivating the soil, or in
connection with raising or harvesting any
agricultural or horticultural commodity,
including the raising, shearing, feeding,
caring for, training, and management of
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livestock, bees, poultry, and furbearing
animals and wildlife;
(2) Services performed in the employ of the
owner or tenant or other operator of a farm,
in connection with the operation, or
maintenance of such farm and its tools and
equipment, or in salvaging timber or clearing
land of brush and other debris left by a
hurricane, if the major part of such service
is performed on a farm;
(3) In connection with the production or
harvesting of any commodity defined as an
agricultural commodity in section 15(g) of
the Agricultural Marketing Act, as amended
(12 U.S.C. 1141j), or in connection with the
ginning of cotton, or in connection with the
operation or maintenance of ditches, canals,
reservoirs, or waterways, not owned or
operated for profit, used exclusively for
supplying and storing water for farming
purposes;
(4)(A) In the employ of the operator of a
farm in handling, planting, drying, packing,
packaging, processing, freezing, grading,
storing, or delivering to storage or to market
or to a carrier for transportation to market, in
its unmanufactured state, any agricultural or
horticultural commodity; but only if such
operator produced more than one-half of the
commodity with respect to which such
service is performed;
(B) In the employ of a group of operators
of farms (other than a cooperative
organization) in the performance of service
described in subparagraph (A), but only if
such operators produced all of the
commodity with respect to which such
service is performed. For purposes of this
subparagraph, any unincorporated group of
operators shall be deemed a cooperative
organization if the number of operators
comprising such group is more than 20 at any
time during the calendar quarter in which
such service is performed;
(C) The provisions of subparagraphs (A)
and (B) shall not be deemed to be applicable
with respect to service performed in
connection with commercial canning or
commercial freezing or in connection with
any agricultural or horticultural commodity
after its delivery to a terminal market for
distribution for consumption; or
(5) On a farm operated for profit if such
service is not in the course of the employer’s
trade or business or is domestic service in a
private home of the employer.
As used in this subsection, the term farm
includes stock, dairy, poultry, fruit, furbearing animal, and truck farms, plantations,
ranches, nurseries, ranges, greenhouses or
other similar structures used primarily for
the raising of agricultural or horticultural
commodities, and orchards.
(2) Agriculture. Section 203(f) of title
29, United States Code, (section 3(f) of
the Fair Labor Standards Act of 1938),
quoted as follows, defines agriculture to
include:
(f) * * * farming in all its branches and
among other things includes the cultivation
and tillage of the soil, dairying, the
production, cultivation, growing, and
harvesting of any agricultural or horticultural
commodities (including commodities defined
as agricultural commodities in section 15(g)
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of the Agricultural Marketing Act, as
amended), the raising of livestock, bees, fur
bearing animals, or poultry, and any
practices (including any forestry or
lumbering operations) performed by a farmer
or on a farm as an incident to or in
conjunction with such farming operations,
including preparation for market, delivery to
storage or to market or to carriers for
transportation to market.
(3) Agricultural commodity. Section
1141j(g) of title 12, United States Code,
(section 15(g) of the Agricultural
Marketing Act, as amended) quoted as
follows, defines agricultural commodity
to include:
(g) * * * in addition to other agricultural
commodities, crude gum (oleoresin) from a
living tree, and the following products as
processed by the original producer of the
crude gum (oleoresin) from which derived:
Gum spirits of turpentine, and gum rosin, as
defined in section 92 of title 7.
(iv) Gum rosin. Section 92 of title 7,
United States Code, quoted as follows,
defines gum spirits of turpentine and
gum rosin as—
(c) Gum spirits of turpentine means spirits
of turpentine made from gum (oleoresin)
from a living tree.
(g) Gum rosin means rosin remaining after
the distillation of gum spirits of turpentine.
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(g) Of a temporary or seasonal
nature—(1) On a seasonal or other
temporary basis. For the purposes of
this subpart of a temporary or seasonal
nature means on a seasonal or other
temporary basis, as defined in the
Employment Standards
Administration’s Wage and Hour
Division’s regulation at 29 CFR 500.20
under the Migrant and Seasonal
Agricultural Worker Protection Act
(MSPA). For informational purposes
§ 500.20 as it pertains to seasonal or
temporary basis is quoted below.
(2) MSPA definition. For information
purposes, the definition of on a seasonal
or other temporary basis, as set forth at
§ 500.20 of this title, is provided below:
On a seasonal or other temporary basis
means:
Labor is performed on a seasonal basis,
where, ordinarily, the employment pertains
to or is of the kind exclusively performed at
certain seasons or periods of the year and
which, from its nature, may not be
continuous or carried on throughout the year.
A worker who moves from one seasonal
activity to another, while employed in
agriculture or performing agricultural labor,
is employed on a seasonal basis even though
he may continue to be employed during a
major portion of the year.
A worker is employed on other temporary
basis where he is employed for a limited time
only or the performance is contemplated for
a particular piece of work, usually of short
duration. Generally, employment, which is
contemplated to continue indefinitely, is not
temporary.
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On a seasonal or other temporary basis
does not include the employment of any
foreman or other supervisory employee who
is employed by a specific agricultural
employer or agricultural association
essentially on a year round basis.
On a seasonal or other temporary basis
does not include the employment of any
worker who is living at his permanent place
of residence, when that worker is employed
by a specific agricultural employer or
agricultural association on essentially a year
round basis to perform a variety of tasks for
his employer and is not primarily employed
to do field work.
(3) Temporary. For the purpose of this
subpart, the definition of ‘‘temporary’’
in paragraph (c)(2)(ii) of this section
refers to any job opportunity covered by
this subpart where the employer needs
a worker for a position, either temporary
or permanent, for a limited period of
time, which shall be for less than one
year, unless the original temporary alien
agricultural labor certification is
extended based on unforeseen
circumstances, pursuant to
§ 655.106(c)(3) of this title.
(h) DOL means the U.S. Department of
Labor.
(i) Employer means a person, firm,
corporation or other association or
organization which suffers or permits a
person to work and (1) which has a
location within the United States to
which U.S. workers may be referred for
employment, and which proposes to
employ workers at a place within the
United States and (2) which has an
employer relationship with respect to
employees under this subpart as
indicated by the fact that it may hire,
pay, fire, supervise or otherwise control
the work of any such employee. An
association of employers shall be
considered the sole employer if it alone
has the indicia of an employer set forth
in this definition. Such an association,
however, shall be considered as a joint
employer with an employer member if
it shares with the employer member one
or more of the definitional indicia.
(j) Employment Service (ES) and
Employment Service (ES) System mean,
collectively, the USES, the State
agencies, the local offices, and the ETA
regional offices.
(k) Employment Standards
Administration means the agency
within the Department of Labor (DOL),
which includes the Wage and Hour
Division, and which is charged with the
carrying out certain functions of the
Secretary under the INA.
(l) Employment and Training
Administration (ETA) means the agency
within the Department of Labor (DOL)
which includes the U.S. Employment
Service (USES).
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Frm 00041
Fmt 4701
Sfmt 4700
26011
(m) H–2A worker means any
nonimmigrant alien admitted to the
United States for agricultural labor or
services of a temporary or seasonal
nature under section 101(a)(15)(H)(ii)(a)
of the INA (8 U.S.C.
1101(a)(15)(H)(ii)(a)).
(n) Immigration and Naturalization
Service (INS) means the component of
the U.S. Department of Justice which
makes the determination under the INA
on whether or not to grant visa petitions
to employers seeking H–2A workers to
perform temporary agricultural work in
the United States.
(o) Job offer means the offer made by
an employer or potential employer of
H–2A workers to both U.S. and H–2A
workers describing all the material
terms and conditions of employment,
including those relating to wages,
working conditions, and other benefits.
(p) Secretary means the Secretary of
Labor or the Secretary’s designee.
(q) State agency means the State
employment service agency designated
under section 4 of the Wagner-Peyser
Act to cooperate with the USES in the
operation of the ES System.
(r) Solicitor of Labor means the
Solicitor, U.S. Department of Labor, and
includes employees of the Office of the
Solicitor of Labor designated by the
Solicitor to perform functions of the
Solicitor under this subpart.
(s) Temporary alien agricultural labor
certification means the certification
made by the Secretary of Labor with
respect to an employer seeking to file
with INS a visa petition to import an
alien as an H–2A worker, pursuant to
sections 101(a)(15)(H)(ii)(a), 214 (a) and
(c), and 216 of the INA that (1) there are
not sufficient workers who are able,
willing, and qualified, and who will be
available at the time and place needed,
to perform the agricultural labor or
services involved in the petition, and (2)
the employment of the alien in such
agricultural labor or services will not
adversely affect the wages and working
conditions of workers in the United
States similarly employed (8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184 (a) and (c),
and 1186).
(t) United States Employment Service
(USES) means the agency of the U.S.
Department of Labor, established under
the Wagner-Peyser Act, which is
charged with administering the national
system of public employment offices
and carrying out certain functions of the
Secretary under the INA.
(u) United States (U.S.) worker means
any worker who, whether a U.S.
national, a U.S. citizen, or an alien, is
legally permitted to work in the job
opportunity within the United States (as
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defined at section 101(a)(38) of the INA
(8 U.S.C. 1101(a)(38)).
(v) Wages means all forms of cash
remuneration to a worker by an
employer in payment for personal
services.
Subpart B—Enforcement of Work
Contracts
§ 501.15
Enforcement.
The investigations, inspections and
law enforcement functions to carry out
the provisions of section 216 of the INA,
as provided in these regulations for
enforcement by the Wage and Hour
Division, pertain to the employment of
any H–2A worker and any other worker
employed in corresponding
employment by an H–2A employer.
Such enforcement includes those work
contract provisions as defined in
§ 501.10(d). The work contract enforced
includes the employment benefits
which must be stated in the job offer, as
prescribed in 20 CFR 655.102.
mstockstill on PROD1PC66 with RULES2
§ 501.16
General.
Whenever the Secretary believes that
the H–2A provisions of the INA or these
regulations have been violated such
action shall be taken and such
proceedings instituted as deemed
appropriate, including (but not limited
to) the following:
(a) Impose denial of labor certification
against any person for a violation of the
H–2A obligations of the INA or the
regulations. ETA shall make all
determinations regarding the issuance
or denial of labor certification. ESA
shall make all determinations regarding
the enforcement functions listed in
paragraphs (b) through (d) of this
section.
(b) Institute appropriate
administrative proceedings, including
the recovery of unpaid wages, the
enforcement of any other contractual
obligations and the assessment of a civil
money penalty against any person for a
violation of the H–2A work contract
obligations of the Act or these
regulations.
(c) Petition any appropriate District
Court of the United States for temporary
or permanent injunctive relief,
including the withholding of unpaid
wages, to restrain violation of the H–2A
provisions of the Act or these
regulations by any person.
(d) Petition any appropriate District
Court of the United States for specific
performance of contractual obligations.
§ 501.17
Concurrent actions.
The taking of any one of the actions
referred to above shall not be a bar to
the concurrent taking of any other
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action authorized by the H–2A
provisions of the Act and these
regulations, or the regulations of 20 CFR
part 655.
§ 501.18
Representation of the Secretary.
(a) Except as provided in section
518(a) of title 28, United States Code,
relating to litigation before the Supreme
Court, the Solicitor of Labor may appear
for and represent the Secretary in any
civil litigation brought under the Act.
(b) The Solicitor of Labor, through the
authorized representatives shall
represent the Administrator and the
Secretary in all administrative hearings
under the H–2A provisions of the Act
and these regulations.
§ 501.19
Civil money penalty assessment.
(a) A civil money penalty may be
assessed by the Administrator for each
violation of the work contract or these
regulations.
(b) In determining the amount of
penalty to be assessed for any violation
of the work contract as provided in the
H–2A provisions of the Act or these
regulations the Administrator shall
consider the type of violation
committed and other relevant factors.
The matters which may be considered
include, but are not limited to, the
following:
(1) Previous history of violation, or
violations of the H–2A provisions of the
Act and these regulations;
(2) The number of workers affected by
the violation or violations;
(3) The gravity of the violation or
violations;
(4) Efforts made in good faith to
comply with the H–2A provisions of the
Act and these regulations;
(5) Explanation of person charged
with the violation or violations;
(6) Commitment to future compliance,
taking into account the public health,
interest or safety, and whether the
person has previously violated the H–
2A provisions of the Act;
(7) The extent to which the violator
achieved a financial gain due to the
violation, or the potential financial loss
or potential injury to the workers.
(c) A civil money penalty for violation
of the work contract will not exceed
$1,000 for each violation committed
against each worker. A civil money
penalty for discrimination or
interference with Wage and Hour
investigative authority will not exceed
$1,000 for each such act of
discrimination or interference.
§ 501.20 Enforcement of Wage and Hour
investigative authority.
Sections 501.5 through 501.7 of this
part prescribe the investigation
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Fmt 4701
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authority conferred upon the Wage and
Hour Division for the purpose of
enforcing the contractual obligations.
These sections indicate the actions
which may be taken upon failure to
permit or interference with an
investigation. No person shall interfere
with any employee of the Secretary who
is exercising or attempting to exercise
this investigative or enforcement
authority. As stated in §§ 501.5, 501.6
and in 501.19 of this part, a civil money
penalty may be assessed for each failure
to permit an investigation or
interference therewith, and other
appropriate relief may be sought. In
addition Wage and Hour shall report
each such occurrence to ETA and may
recommend to ETA denial of future
labor certifications. The taking of any
one action shall not bar the taking of
any additional action.
§ 501.21
Referral of findings to ETA.
Where Wage and Hour finds
violations Wage and Hour shall so
notify the appropriate representative of
ETA and shall forward appropriate
information, including investigative
information to such representative for
review and consideration.
§ 501.22 Civil money penalties—payment
and collection.
Where the assessment is directed in a
final order by the Administrator, by an
Administrative Law Judge, or by the
Secretary, the amount of the penalty is
immediately due and payable to the
U.S. Department of Labor. The person
assessed such penalty shall remit
promptly the amount thereof as finally
determined, to the Administrator by
certified check or by money order, made
payable to the order of ‘‘Wage and Hour
Division, Labor.’’ The remittance shall
be delivered or mailed to the Wage and
Hour Division Regional Office for the
area in which the violations occurred.
Subpart C—Administrative
Proceedings
§ 501.30
rules.
Applicability of procedures and
The procedures and rules contained
herein prescribe the administrative
process which will be applied with
respect to a determination to impose an
assessment of civil money penalties and
which may be applied to the
enforcement of contractual obligations,
including the collection of unpaid
wages due as a result of any violation of
the H–2A provisions of the Act or of
these regulations. Except with respect to
the imposition of civil money penalties,
the Secretary may, in his discretion,
seek enforcement action in Federal
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For the affected person’s protection, if
the request is by mail, it should be by
certified mail.
court without resort to any
administrative proceedings.
Procedures Relating to Hearing
Rules of Practice
§ 501.31 Written notice of determination
required.
§ 501.34
Whenever the Administrator
determines to assess a civil money
penalty or to proceed administratively
to enforce contractual obligations,
including the recovery of unpaid wages,
the person against whom such action is
taken shall be notified in writing of such
determination.
Except as specifically provided in
these regulations, the ‘‘Rules of Practice
and Procedure for Administrative
Hearings Before the Office of
Administrative Law Judges’’ established
by the Secretary at 29 CFR part 18 shall
apply to administrative proceedings
described in this part.
§ 501.32
§ 501.35
Contents of notice.
The notice required by § 501.31 shall:
(a) Set forth the determination of the
Administrator including the amount of
any unpaid wages due or contractual
obligations required and the amount of
any civil money penalty assessment and
the reason or reasons therefor.
(b) Set forth the right to request a
hearing on such determination.
(c) Inform any affected person or
persons that in the absence of a timely
request for a hearing, the determination
of the Administrator shall become final
and unappealable.
(d) Set forth the time and method for
requesting a hearing, and the procedures
relating thereto, as set forth in § 501.33.
mstockstill on PROD1PC66 with RULES2
§ 501.33
Request for hearing.
(a) Any person desiring to request an
administrative hearing on a
determination referred to in § 501.32
shall make such request in writing to
the official who issued the
determination, at the Wage and Hour
Division address appearing on the
determination notice, no later than
thirty (30) days after issuance of the
notice referred to in § 501.32.
(b) No particular form is prescribed
for any request for hearing permitted by
this part. However, any such request
shall:
(1) Be typewritten or legibly written;
(2) Specify the issue or issues stated
in the notice of determination giving
rise to such request;
(3) State the specific reason or reasons
why the person requesting the hearing
believes such determination is in error;
(4) Be signed by the person making
the request or by an authorized
representative of such person; and
(5) Include the address at which such
person or authorized representative
desires to receive further
communications relating thereto.
(c) The request for such hearing must
be received by the official who issued
the determination, at the Wage and
Hour Division address appearing on the
determination notice, within the time
set forth in paragraph (a) of this section.
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Commencement of proceeding.
Each administrative proceeding
permitted under the Act and these
regulations shall be commenced upon
receipt of a timely request for hearing
filed in accordance with § 501.33.
§ 501.36
Caption of proceeding.
(a) Each administrative proceeding
instituted under the Act and these
regulations shall be captioned in the
name of the person requesting such
hearing, and shall be styled as follows:
In the Matter of l, Respondent.
(b) For the purposes of such
administrative proceedings the
Administrator shall be identified as
plaintiff and the person requesting such
hearing shall be named as respondent.
Referral for Hearing
§ 501.37
Judge.
Frm 00043
Fmt 4701
Sfmt 4700
Notice of docketing.
Upon receipt of an Order of
Reference, the Chief Administrative Law
Judge shall appoint an Administrative
Law Judge to hear the case. The
Administrative Law Judge shall
promptly notify all interested parties of
the docketing of the matter and shall set
the time and place of the hearing. The
date of the hearing shall be not more
than 60 days from the date on which the
Order of Reference was filed.
§ 501.39 Service upon attorneys for the
Department of Labor—number of copies.
Two copies of all pleadings and other
documents required for any
administrative proceeding provided
herein shall be served on the attorneys
for the Department of Labor. One copy
shall be served on the Associate
Solicitor, Division of Fair Labor
Standards, Office of the Solicitor, U.S.
Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210,
and one copy on the Attorney
representing the Department in the
proceeding.
Procedures Before Administrative Law
Judge
§ 501.40
Referral to Administrative Law
(a) Upon receipt of a timely request
for a hearing filed pursuant to and in
accordance with § 501.33 the
Administrator, by the Associate
Solicitor for the Division of Fair Labor
Standards or by the Regional Solicitor
for the Region in which the action arose,
shall, by Order of Reference, promptly
refer a copy of the notice of
administrative determination
complained of, and the original or a
duplicate copy of the request for hearing
signed by the person requesting such
hearing or by the authorized
representative of such person, to the
Chief Administrative Law Judge, for a
determination in an administrative
proceeding as provided herein. The
notice of administrative determination
and request for hearing shall be filed of
record in the Office of the Chief
Administrative Law Judge and shall,
respectively, be given the effect of a
complaint and answer thereto for
purposes of the administrative
proceeding, subject to any amendment
that may be permitted under these
regulations or 29 CFR part 18.
(b) A copy of the Order of Reference,
together with a copy of these
PO 00000
regulations, shall be served by counsel
for the Administrator upon the person
requesting the hearing, in the manner
provided in 29 CFR 18.3.
§ 501.38
General.
26013
Consent findings and order.
(a) General. At any time after the
commencement of a proceeding under
this part, but prior to the reception of
evidence in any such proceeding, a
party may move to defer the receipt of
any evidence for a reasonable time to
permit negotiation of an agreement
containing consent findings and an
order disposing of the whole or any part
of the proceeding. The allowance of
such deferment and the duration thereof
shall be at the discretion of the
Administrative Law Judge, after
consideration of the nature of the
proceeding, the requirements of the
public interest, the representations of
the parties, and the probability of an
agreement being reached which will
result in a just disposition of the issues
involved.
(b) Content. Any agreement
containing consent findings and an
order disposing of a proceeding or any
part thereof shall also provide:
(1) That the order shall have the same
force and effect as an order made after
full hearing;
(2) That the entire record on which
any order may be based shall consist
solely of the notice of administrative
determination (or amended notice, if
one is filed), and the agreement;
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(3) A waiver of any further procedural
steps before the Administrative Law
Judge; and
(4) A waiver of any right to challenge
or contest the validity of the findings
and order entered into in accordance
with the agreement.
(c) Submission. On or before the
expiration of the time granted for
negotiations, the parties or their
authorized representatives or their
counsel may:
(1) Submit the proposed agreement for
consideration by the Administrative
Law Judge; or
(2) Inform the Administrative Law
Judge that agreement cannot be reached.
(d) Disposition. In the event an
agreement containing consent findings
and an order is submitted within the
time allowed therefor, the
Administrative Law Judge, within thirty
(30) days thereafter, shall, if satisfied
with its form and substance, accept such
agreement by issuing a decision based
upon the agreed findings.
Administrative Law Judge. If the
Secretary does not issue a notice
accepting a petition for review within
30 days after receipt of a timely filing of
the petition, or within 30 days of the
date of the decision if no petition has
been received, the decision of the
Administrative Law Judge shall be
deemed the final agency action.
(b) Whenever the Secretary either on
the Secretary’s own motion or by
acceptance of a party’s petition,
determines to review the decision of an
Administrative Law Judge, a notice of
the same shall be served upon the
Administrative Law Judge and upon all
parties to the proceeding in person or by
certified mail.
§ 501.43 Responsibility of the Office of
Administrative Law Judges.
Post-Hearing Procedures
Upon receipt of the Secretary’s Notice
pursuant to § 501.42 of these
regulations, the Office of Administrative
Law Judges shall, promptly forward a
copy of the complete hearing record to
the Secretary.
§ 501.41 Decision and order of
Administrative Law Judge.
§ 501.44 Additional information, if
required.
(a) The Administrative Law Judge
shall prepare, within 60 days after
completion of the hearing and closing of
the record, a decision on the issues
referred by the Administrator.
(b) The decision of the Administrative
Law Judge shall include a statement of
findings and conclusions, with reasons
and basis therefor, upon each material
issue presented on the record. The
decision shall also include an
appropriate order which may affirm,
deny, reverse, or modify, in whole or in
part, the determination of the
Administrator. The reason or reasons for
such order shall be stated in the
decision.
(c) The decision shall be served on all
parties and the Secretary in person or by
certified mail. The decision when
served by the Administrative Law Judge
shall constitute the final order of the
Administrator unless the Secretary, as
provided for in § 501.42 below
determines to review the decision.
Where the Secretary has determined
to review such decision and order, the
Secretary shall notify each party of:
(a) The issue or issues raised;
(b) The form in which submission
shall be made (i.e., briefs, oral argument,
etc.); and the time within which such
presentation shall be submitted.
Review of Administrative Law Judge’s
Decision
§ 501.47
mstockstill on PROD1PC66 with RULES2
§ 501.42 Procedures for initiating and
undertaking review.
(a) A respondent, the Administrator or
any other party wishing review of the
decision of an Administrative Law
Judge shall, within 30 days of the
decision of the Administrative Law
Judge, petition the Secretary to review
the decision. Copies of the petition shall
be served on all parties and on the
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17:45 May 28, 2009
Jkt 217001
§ 501.45
Final decision of the Secretary.
The Secretary’s final decision shall be
issued within 90 days from the notice
granting the petition and served upon
all parties and the administrative law
judge, in person or by certified mail.
Retention of official record.
The official record of every completed
administrative hearing provided by
these regulations shall be maintained
and filed under the custody and control
of the Chief Administrative Law Judge.
Certification.
Upon receipt of a complaint seeking
review of a decision issued pursuant to
this part filed in a U.S. District Court,
after the administrative remedies have
been exhausted, the Chief
Administrative Law Judge shall
promptly index, certify and file with the
appropriate U.S. District Court, a full,
true, and correct copy of the entire
record, including the transcript of
proceedings.
PO 00000
10. The authority citation for part 780
is revised to read as follows:
■
Authority: Secs. 1–19, 52 Stat. 1060, as
amended; 75 Stat. 65; 29 U.S.C. 201–219.
§ 780.115 [Redesignated as § 780.159 and
Suspended]
11. Redesignate § 780.115 as § 780.159
and suspend newly designated
§ 780.159.
■ 12. Add § 780.115 to read as follows:
■
§ 780.115
Forest products.
Trees grown in forests and the lumber
derived therefrom are not ‘‘agricultural
or horticultural commodities.’’
Christmas trees, whether wild or
planted, are also not so considered. It
follows that employment in the
production, cultivation, growing, and
harvesting of such trees or timber
products is not sufficient to bring an
employee within section 3(f) unless the
operation is performed by a farmer or on
a farm as an incident to or in
conjunction with his or its farming
operations. On the latter point, see
§§ 780.160 through 780.164 which
discuss the question of when forestry or
lumbering operations are incident to or
in conjunction with farming operations
so as to constitute ‘‘agriculture.’’ For a
discussion of the exemption in section
13(a)(13) of the Act for certain forestry
and logging operations in which not
more than eight employees are
employed, see part 788 of this chapter.
§ 780.201 [Redesignated as § 780.215 and
Suspended]
13. Redesignate § 780.201 as § 780.215
and suspend newly designated
§ 780.215.
■ 14. Add § 780.201 to read as follows:
■
Record
§ 501.46
PART 780—EXEMPTIONS
APPLICABLE TO AGRICULTURE,
PROCESSING OF AGRICULTURAL
COMMODITIES, AND RELATED
SUBJECTS UNDER THE FAIR LABOR
STANDARDS ACT
Frm 00044
Fmt 4701
Sfmt 4700
§ 780.201 Meaning of ‘‘forestry or
lumbering operations.’’
The term ‘‘forestry or lumbering
operations’’ refers to the cultivation and
management of forests, the felling and
trimming of timber, the cutting, hauling,
and transportation of timber, logs,
pulpwood, cordwood, lumber, and like
products, the sawing of logs into lumber
or the conversion of logs into ties, posts,
and similar products, and similar
operations. It also includes the piling,
stacking, and storing of all such
products. The gathering of wild plants
and of wild or planted Christmas trees
are included. (See the related discussion
in §§ 780.205 through 780.209 and in
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part 788 of this chapter which considers
the section 13(a)(13) exemption for
forestry or logging operations in which
not more than eight employees are
employed.) ‘‘Wood working’’ as such is
not included in ‘‘forestry’’ or
‘‘lumbering’’ operations. The
manufacture of charcoal under modern
methods is neither a ‘‘forestry’’ nor
‘‘lumbering’’ operation and cannot be
regarded as ‘‘agriculture.’’
§ 780.205 [Redesignated as § 780.216 and
Suspended]
15. Redesignate § 780.205 as § 780.216
and suspend newly designated
§ 780.216.
■
■
16. Add § 780.205 to read as follows:
§ 780.205
Nursery activities generally.
mstockstill on PROD1PC66 with RULES2
The employees of a nursery who are
engaged in the following activities are
employed in ‘‘agriculture’’:
(a) Sowing seeds and otherwise
propagating fruit, nut, shade, vegetable,
and ornamental plants or trees (but not
Christmas trees), and shrubs, vines, and
flowers;
(b) Handling such plants from
propagating frames to the field;
(c) Planting, cultivating, watering,
spraying, fertilizing, pruning, bracing,
and feeding the growing crop.
VerDate Nov<24>2008
17:45 May 28, 2009
Jkt 217001
§ 780.208 [Redesignated as § 780.217 and
Suspended]
17. Redesignate § 780.208 as § 780.217
and suspend newly designated
§ 780.217.
■ 18a. Add § 780.208 to read as follows:
■
§ 780.208 Forest and Christmas tree
activities.
Operations in a forest tree nursery
such as seeding new beds and growing
and transplanting forest seedlings are
not farming operations. The planting,
tending, and cutting of Christmas trees
do not constitute farming operations. If
such operations on forest products are
within section 3(f), they must qualify
under the second part of the definition
dealing with incidental practices. (See
§ 780.201.)
PART 788—FORESTRY OR LOGGING
OPERATIONS IN WHICH NOT MORE
THAN EIGHT EMPLOYEES ARE
EMPLOYED
18b. The authority citation for part
788 continues to read as follows:
■
Authority: Secs. 1–19, 52 Stat. 1060, as
amended; 29 U.S.C. 201–219.
§ 788.10 [Redesignated as § 788.18 and
Suspended]
19. Redesignate § 788.10 as § 788.18
and suspend newly designated § 788.18.
■
PO 00000
Frm 00045
Fmt 4701
Sfmt 4700
■
26015
20. Add § 788.10 to read as follows:
§ 788.10 ‘‘Preparing * * * other forestry
products.’’
As used in the exemption, ‘‘other
forestry products’’ mean plants of the
forest and the natural properties or
substances of such plants and trees.
Included among these are decorative
greens such as holly, ferns and
Christmas trees, roots, stems, leaves,
Spanish moss, wild fruit, and brush.
Gathering and preparing such forestry
products as well as transporting them to
the mill, processing plant, railroad, or
other transportation terminal are among
the described operations. Preparing
such forestry products does not include
operations which change the natural
physical or chemical condition of the
products or which amount to extracting
as distinguished from gathering, such as
shelling nuts, or mashing berries to
obtain juices.
Signed in Washington, DC, this 20th day of
May, 2009.
Douglas F. Small,
Deputy Assistant Secretary, Employment and
Training Administration.
Shelby Hallmark,
Acting Assistant Secretary, Employment
Standards Administration.
[FR Doc. E9–12436 Filed 5–28–09; 8:45 am]
BILLING CODE 4510–FP–P
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Agencies
[Federal Register Volume 74, Number 102 (Friday, May 29, 2009)]
[Rules and Regulations]
[Pages 25972-26015]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-12436]
[[Page 25971]]
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Part III
Department of Labor
-----------------------------------------------------------------------
Employment and Training Administration
20 CFR Part 655
-----------------------------------------------------------------------
Wage and Hour Division
29 CFR Parts 501, 780, and 788
-----------------------------------------------------------------------
Temporary Employment of H-2A Aliens in the United States; Final Rule;
Labor Certification Process for the Temporary Employment of Aliens in
Agriculture and Logging in the United States: 2009 Adverse Effect Wage
Rates, Allowable Charges for Agricultural and Logging Workers' Meals,
and Maximum Travel Subsistence Reimbursement; Notice
Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules
and Regulations
[[Page 25972]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Parts 501, 780, and 788
RIN 1205-AB55
Temporary Employment of H-2A Aliens in the United States
AGENCY: Employment and Training Administration and Wage and Hour
Division, Employment Standards Administration, Labor.
ACTION: Final rule; suspension of rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor (DOL or the Department) is suspending
the H-2A Final Rule published on December 18, 2008 and in effect as of
January 17, 2009. That Final Rule amended the regulations governing the
certification for temporary employment of nonimmigrant workers in
agricultural occupations on a temporary or seasonal basis, and the
enforcement of contractual obligations applicable to employers of such
nonimmigrant workers. To ensure continued functioning of the H-2A
program, the Department is republishing and reinstating the regulations
in place on January 16, 2009 for a period of 9 months, after which the
Department will either have engaged in further rulemaking or lift the
suspension.
DATES: Effective June 29, 2009.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR part 655, contact William L. Carlson, Ph.D., Administrator, Office
of Foreign Labor Certification, Employment and Training Administration
(ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-
4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a
toll-free number). Individuals with hearing or speech impairments may
access the telephone number above via TTY by calling the toll-free
Federal Information Relay Service at 1-800-877-8339. For further
information regarding 29 CFR parts 501, 780 and 788, contact James
Kessler, Branch Chief, Farm Labor Enforcement, Wage and Hour Division,
Employment Standards Administration, U.S. Department of Labor, 200
Constitution Avenue, NW., Room S-3510, Washington, DC 20210; Telephone
(202) 693-0070 (this is not a toll-free number). Individuals with
hearing or speech impairments may access the telephone number above via
TTY by calling the toll-free Federal Information Relay Service at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background and Overview
The H-2A visa program provides a means for U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
agricultural labor or services when U.S. labor is in short supply.
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(INA or the Act) (8 U.S.C. 1101(a)(15)(H)(ii)(a)) defines an H-2A
worker as a nonimmigrant admitted to the U.S. on a temporary or
seasonal basis to perform agricultural labor or services. Section
214(c)(1) of the INA (8 U.S.C. 1184(c)(1)) mandates that the Secretary
of the Department of Homeland Security (DHS) consult with the Secretary
of the Department of Labor (the Secretary) with respect to the
adjudication of H-2A petitions, and, by cross-referencing Section 218
of the INA (8 U.S.C. 1188), with respect to determining the
availability of U.S. workers and the effect on wages and working
conditions. Section 218 also provides further details of the H-2A
application process and the requirements to be met by the agricultural
employer.
The Department's regulations at 20 CFR part 655, subpart B--``Labor
Certification Process for Temporary Agricultural Employment Occupations
in the United States (H-2A Workers),'' govern the H-2A labor
certification process. The Department's regulations at 29 CFR part 501
implement its enforcement responsibilities under the H-2A program. The
Department's regulations on Fair Labor Standards Act (FLSA) exemptions
applicable to agriculture, processing of agricultural commodities, and
related subjects under the FLSA at 29 CFR part 780, and the
Department's regulations on FLSA exemptions applicable to forestry and
logging operations at 29 CFR part 788, set forth the Department's
interpretation of the FLSA provisions relating to agriculture,
forestry, and logging.
On December 18, 2008, the Department published a Final Rule
revising title 20 of the Code of Federal Regulations (20 CFR) part 655
and title 29 of the Code of Federal Regulations (29 CFR) parts 501,
780, and 788 (the December 2008 Rule or Final Rule). See 73 FR 77110,
Dec. 18, 2008. The December 2008 Rule replaced the previous versions of
20 CFR part 655 (2008) and 29 CFR part 501 (2008) that, for the most
part, were first published at 52 FR 20507, Jun. 1, 1987. With respect
to the provisions under 29 CFR parts 780 and 788 that were amended by
the December 2008 Rule, the previous versions of 29 CFR 780.115,
780.201, 780.205, and 780.208 were published at 37 FR 12084, Jun. 17,
1972, and the previous version of 29 CFR 788.10 was published at 34 FR
15784, Oct. 14, 1969.
Following the issuance of the December 2008 Rule, United Farm
Workers and others filed a lawsuit in the U.S. District Court for the
District of Columbia on January 12, 2009 challenging the December 2008
Rule. United Farm Workers, et al. v. Chao, et al., Civil No. 09-00062
RMU (D.D.C.). The plaintiffs asserted that in promulgating the December
2008 Rule, the Department violated section 218 of the Immigration and
Nationality Act as well as the Administrative Procedure Act. The
plaintiffs requested a temporary restraining order and preliminary
injunction, along with a permanent injunction that would prohibit DOL
from implementing the December 2008 Rule. On January 15, 2009, Judge
Ricardo M. Urbina denied the plaintiffs' request for a temporary
restraining order and preliminary injunction on the basis that the
plaintiffs failed to show ``likely, imminent and irreparable harm;''
the court did not address the merits of the case or whether the
plaintiffs demonstrated the substantial likelihood of success on the
merits. Accordingly, the December 2008 Rule went into effect as
scheduled on January 17, 2009.
As the Department began implementing the December 2008 Rule, it
immediately encountered a number of operational challenges which
continue to prevent the full, effective and efficient implementation of
the December 2008 regulation. The Department also has realized that the
implementation of the December 2008 Rule without further consideration
of the relevant legal and economic concerns that have arisen since its
publication was proving to be disruptive and confusing not only to the
Department's administration of the H-2A program but also to State
Workforce Agencies (SWAs), agricultural employers, and domestic and
foreign workers, especially in light of the severe economic conditions
facing the country. Furthermore, the development of the December 2008
Rule was based in part on the policy positions of the prior
Administration with which the current Administration may differ and
wish to reconsider, especially in light of changed economic conditions.
This is particularly true with respect to the changes to wages paid to
H-2A workers wrought by the shift of the Adverse
[[Page 25973]]
Effect Wage Rate (AEWR) from the wage rates based on data compiled by
the U.S. Department of Agriculture (USDA) to those calculated on data
from the Bureau of Labor Statistics in its Occupational Employment
Statistical Survey (OES). This reconsideration may result in new
rulemaking to seek additional comment from affected users and other
interested parties. In light of the potential for new rulemaking, the
Department believes it would not be an efficient use of limited agency
resources, appropriated from taxpayer funds, to continue to attempt to
operationalize the December 2008 Rule, and that it would be disruptive
and confusing for program users and the Department to engage in the
steps necessary to make the current rule fully operational.
For these reasons, on March 17, 2009 the Department published a
Notice of Proposed Suspension of Rule (the Notice), which proposed to
suspend the December 2008 Rule for 9 months and reinstate on an interim
basis the prior H-2A regulation in effect on January 16, 2009 (the
Prior Rule). 74 F.R. 11408 (March 17, 2009). The suspension of the
December 2008 Rule and temporary reinstatement of the Prior Rule will
allow the Department to review the December 2008 Rule to ensure that it
effectively carries out the statutory objectives and requirements of
the program in a manner that minimizes disruption to the Department,
SWAs, employers, and workers by temporarily reinstating prior
regulations which had been in effect for over 20 years and with which
the agricultural community already is familiar.
II. Comments on the Proposal and the Department's Responses and
Decision
The Department received over 800 comments in response to the
publication of the Notice of Proposed Suspension of Rule (the Notice).
The majority of the comments were based on form letters raising similar
issues and concerns. Commenters included individual farmers and
associations of farmers, farm bureaus, law firms, farmworker advocates,
State agencies (including SWAs), Members of Congress, and individual
members of the public. The Department has reviewed the comments and
taken them into consideration in drafting this Final Suspension Rule
(Final Rule, or Final Suspension).
The Department received several comments through means beyond those
listed in the Notice or after the comment period closed. In fairness to
all parties, these comments were not reviewed in the consideration of
the Final Rule. In addition, in the Notice, the Department requested
that parties limit their comments to the issue of whether the
Department should suspend the December 2008 Rule for further review and
consideration of the issues that have arisen since the December 2008
Rule's publication. Though all comments have been reviewed, only those
comments responding to issues on which the Department sought comment
were considered in this Final Rule.
A. Comments Regarding the Stated Policy Rationale for Suspension
1. The Department's Problems in Implementing the December 2008 Rule
Have Resulted in Confusion, Processing Delays and Program Disruption
a. Lack of Resources
The Department received a number of comments, both supporting and
opposing a suspension, responding to the suggestion that both the
Department and the SWAs lack resources to fully implement and
administer the current regulations. Some commenters indicated support
for the Department's position that the December 2008 rule should be
suspended due to the shortage in resources available for fully
implementing and administering that rule past the transition period.
Conversely, a substantial number of comments called into question the
substance of the rationale, arguing that the Department failed to
present concrete evidence of a lack of resources to fully implement the
December 2008 rule. The majority of comments that discussed the lack of
resources to operationalize the program as written in the December 2008
Rule argued that the Department presented insufficient evidence and
only relatively vague statements with no clear supporting evidence.
Other commenters asserted that the new program is in fact already
operational and has been for more than two months and is working just
as the DOL said it would in the December 2008 Rule. One commenter
pointed to some evidence believed to contradict the Department's claims
of insufficient resources, citing the DOL's discretionary budget for
the Fiscal Year 2009 being more than $17.5 billion, constituting a
nearly 50% increase over Fiscal Year 2008 levels, and indicating that
the growing trend is likely to continue with the President's budget for
Fiscal Year (FY) 2010 which includes further increases for the
Department.
The Department's FY 2009 budget is irrelevant to the Department's
ability to implement the December 2008 Rule when it was promulgated.
The December 2008 rulemaking was commenced and conducted without regard
to resources required by the Employment and Training Administration
(ETA) generally or for Office of Foreign Labor Certification (OFLC)
specifically to implement the changed processes and the potential
increased use of the program. The Department has determined that the
agency's mandate is advanced by evaluating the December 2008 Rule, as
opposed to bringing a potentially flawed program into full operation.
The suspension will allow the Department to focus its resources in a
more efficient manner, and will result in a more thorough determination
regarding the best direction for the H-2A program.
A few commenters asserted that the Department's claims of resource
shortfalls are suspect in light of having engaged in the perceived
costly exercise of suspending the December 2008 Rule and reinstating
the old regulations that will presumably require more work on the part
of the Department and the SWAs. Other commenters asserted that
complaints of funding shortfalls have been prevalent in the State and
local DOL offices long before the current regulations were implemented.
A handful of commenters argued that the attestation process under the
current regulations and related SWA relief from certain housing
inspection obligations lessened demand on DOL resources, thus
undermining the Department's argument of budgetary shortfalls. One
commenter indicated that DOL failed to provide evidence about the new
role of the SWAs under the current regulations, arguing that SWAs have
less to do under the current regulations than before and therefore
should require the same or lesser amount of resources.
The Department's statutory obligations, especially many of those it
delegates to the SWAs, have not changed regardless of the set of
regulations under which they operate. The process of filing an
application for H-2A workers under either set of regulations still
begins with the placement of an agricultural order into clearance with
the SWA having jurisdiction over the work, and continues through the
State-assisted referral process and the mandatory housing
inspection.\1\ SWAs retain many
[[Page 25974]]
of the same responsibilities under the December 2008 Rule as they did
under the prior rule.
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\1\ The commenters' suggestion that SWAs are no longer required
to perform housing inspections under the December 2008 Rule is
simply inaccurate; the fact that, in some exigent circumstances, the
Department will not withhold a certification for lack of an
inspection does not relieve the SWA of its responsibility to perform
the statutorily required inspection. The December 2008 Rule is clear
that the SWAs are still expected to perform preoccupancy housing
inspections.
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b. Inability To Implement Sequence of Operational Events
In the Notice of Proposed Suspension, the Department cited as
crucial to the proposed suspension its inability to implement the
sequence of operational events required to avoid confusion and
processing delays, including implementing an automated review system,
and training program users and SWA staff. One commenter supporting this
rationale for the suspension indicated that the December 2008
regulations compound the application processing problem with guaranteed
delays in temporary programs--mainly H-2A and H-2B--by creating an
additional burden in increased supervised recruitment, as well as
increased demands from the PERM program. Since its effective date, the
Department has seen a steady increase in the numbers of delayed
applications, where compliance with the statutory processing times has
not been met. (See below section II.A.1.c. Processing Delays.) Delayed
applications can translate into delayed petitions for nonimmigrant
workers, delayed entries by needed workers, and--for lack of workers--
delayed activities by farms and farming operations. The Department is
concerned with the correlation between this increasing delay in the
Department's meeting of its statutory mandate. The suspension is
intended to allow the Department to work with a system with which it is
familiar while it determines whether to retain the new system or engage
in new rulemaking. Using a system with which the Department is familiar
and which it has the infrastructure to implement will hopefully reduce
processing times and enable the Department to more closely meet its
statutory processing obligations.
Some commenters argued that all new rules require staff training,
new materials and programs, but that issues arising during the
implementation period may not be permanent and should not derail a
lawfully promulgated rule. The Department readily recognizes that new
regulations undergo necessary implementation phases and that alone is
not a reason to suspend a rule, even where (as here) the office is
promulgating significant changes for the first time in over 20 years
that create considerable need for re-training staff and establishing of
new guidelines for adjudication, new policy interpretations, etc.
However, here the extremely narrow window between the publication and
the effective date of the current regulations, especially since it
occurred during the Presidential transition period, simply provided too
little time for the Department to adequately train both staff and users
in the basics of the program, much less the many nuances in program
administration. Thus, absent a suspension, an untenable situation has
developed in which the newly promulgated H-2A program has not been
effectively implemented, putting users and adjudicators alike at a
substantive disadvantage.
A number of comments focused on the Department's statement of need
for an automated processing system and asserted that the December 2008
H-2A program is less resource intensive than the old program which had
no automated system, and is therefore less in need of such a system.
Other commenters pointed out that the prior H-2A program never had an
automated processing system due to its complexity. Another commenter
said that the Department never promised an automated system nor was the
regulated community expecting one, and that in its experience, the
processing times have been faster under the new program. Still other
commenters pointed out that reverting to the old program, with its
duplicative filing and requirements for manual processing, will not
result in shorter processing times.
In the December 2008 Rule, the Department noted that an automated
system was contemplated at some future time for the public. However,
the Department's inability to create an internal automated system for
tracking and processing of applications, not an external one, is the
most substantial factor with which the Department is currently
concerned. In a time in which the Department receives thousands of H-2A
applications, an automated system geared to the relevant format and
information collection is a necessity for the 21st century. Core
program processing requirements--such as the calculation of statutory
processing dates from date of receipt--require some electronic ability
for collection and calculation. The current system, designed to a now-
obsolete information collection of two pages (compared to the current
10 page collection), is simply inadequate to track the increased
information required under the December 2008 regulations--information
that, under an attestation-based collection, is critical for analysis
to determine compliance with program requirements. Use of the current
system to administer the December 2008 Rule will adversely impact
program integrity. The Department notes, for example, that an inability
to systematically track information that would enable it to conduct
audits of certified applications and undertake actions resulting from
audits means that the Department cannot effectively implement that part
of the new system. This lack of functionality creates a significant
inability to adequately address the procedures and systems necessary to
implement an attestation-based system.\2\ Furthermore, the ability to
capture particular data elements from employers' applications as a
basis for determining how to allocate audit resources was fundamental
to the design of the December 2008 Rule. As discussed in the preamble
to the December 2008 Rule, the Department envisioned a robust audit
system that monitored filings under the re-engineered attestation-based
process to ensure that the employment of H-2A workers does not
adversely affect the wages and working conditions of similarly employed
U.S. workers. Without such a system, the potential for fraud is
increased, program integrity is in jeopardy, and U.S. workers are at
risk of adverse affect.
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\2\ In addition, the Department has not yet created a fillable
form, compelling employers to print the form and type or hand-write
the information being collected.
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In response to the Department's statements about its inability to
provide sufficient training for SWAs and stakeholders on the December
2008 regulations, a number of commenters indicated that trainings were
conducted in Denver and Atlanta in advance of the effective date of the
regulations. In addition, several commenters asserted that DOL
conducted more than one training for both SWA staff and employers prior
to the effective date of the regulations and noted that this was the
first time DOL presented training on the December 2008 Rule to the user
community.\3\ Another commenter indicated that extensive training was
conducted and materials were provided at no charge to stakeholders and
had been available in PDF on DOL's Web site.
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\3\ This is in fact incorrect, even if relevant; even in recent
years the Department has engaged in significant outreach to its user
communities in foreign labor programs. See, e.g., Announcement of
Public briefings on the H-2B Temporary Non-agricultural Worker Labor
Certification Program, 72 FR 17940 (Apr. 10, 2007); Announcement of
Public Briefings on Using Redesigned Labor Certification Forms and
Stakeholder Meeting, 74 FR 2634 (Jan. 15, 2009).
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The Department made attempts to educate both stakeholders and SWAs
as well as its own staff, holding not only
[[Page 25975]]
briefing sessions for the public (in which some SWA staff participated)
but also for SWAs, limiting the latter to the transition procedures.
However, the December 2008 Rule, published during the middle of a
Presidential transition period, became effective only 30 days after the
publication, as noted above. This gave both internal and external users
little time to understand, implement, and adapt to the changes
contained in the December 2008 Rule. Most significantly, the Department
had little opportunity, prior to the effective date of the rule, to
provide adequate assistance to the affected communities on both sides
of the application process.
c. Processing Delays
In its March 17, 2009 Notice of Proposed Suspension, the Department
pointed to delays and corresponding disruption to the program in the
middle of the growing season as a core reason for temporarily
suspending the current regulations pending additional review.
Most comments received in response to this statement disagreed with
the Department's assertion that it had experienced processing delays.
Many commenters complained that the Department failed to offer
specific, detailed and concrete evidence demonstrating the nature and
extent of the processing delays. Large growers associations cited
contrary experience, indicating either fewer delays under the current
regulations than in the past, or timely processing of applications.
However, several commenters along with a substantial number of other
program users expressed a great deal of frustration with the Department
for failing to meet their need for extensive technical assistance, as
well as a general lack of comprehension of the December 2008 Rule.
One commenter stated that DOL staff has done a good job
implementing the current regulations on the operational level, despite
complaints of inadequate staff, improper infrastructure and archaic
computer support. Others commenters noted that employers have
experienced fewer delays under the new regulations despite the fact
that the H-2A program has always been understaffed.
Despite the anecdotal experiences of individual commenters, the
ability of the Chicago National Processing Center (CNPC) to issue
timely case decisions under the new H-2A regulations has decreased.
Timely case decisions (in which an acceptance/modification letter is
issued no later than 7 days of receipt of the H-2A application and/or a
final determination no later than 30 days before the employer's date of
need) have decreased as a percentage of H-2A applications adjudicated
in any given week. While the percentage of delayed cases--cases outside
the statutory timeframes for adjudication--has varied since the
effective date of the current rule, it has not fallen below 27% of all
cases in process at that time, and has been as high as 58%. The median
days processing time for 2009 has also exceeded the times in 2008; in
February 2009, the median number of days to process a case was 27 days
(compared to 23 days for the same time period in 2008). In March 2009,
the median number of days to process a case was 25, compared to 23 days
in March 2008. In summary, the number of days from case receipt to
adjudication has increased, as has the Department's percentage of
delayed cases. Therefore, despite the December 2008 rule's intended
purpose, that rule is at least one factor in the increases in the time
in which applications have been handled, which has led to increased
delays in application processing.
While the increased processing times may seem modest, they are
cause for concern to the Department. In a statutory processing
timeframe in which applications are filed only 45 days prior to the
date of need and must be adjudicated no later than 30 days prior to
date of need, delays of even a few days signal a significant failure by
the Department to meet its statutory timeframes. One of the
Department's goals in seeking to streamline the processing of H-2A
applications was to ensure timely processing of applications--which was
already a concern for the Department. Not only has that goal not been
achieved, the new processing model has, at least so far, pushed that
goal farther away. The processing delays also highlight the
Department's ever-increasing inability to adequately perform its
functions under the December 2008 Rule. This is particularly worrisome
considering that the Department has seen its number of H-2A
applications actually decrease compared to the same time span last
year, with the Department receiving only 706 H-2A applications in
February 2009, compared to 930 applications it received during the same
month last year. Due to this demonstrated trend, the Department
foresees increased difficulties in meeting its statutory processing
times if the H-2A program experiences its anticipated increase in
future participation. Delays in the Department's processing times mean
that DHS and the Department of State have less time to process visa
petitions, grant visas and admit workers before the employer's date of
need. While there is no evidence that the current delays have caused
harm, if the delays continue to increase, as it appears likely that
they will, at some point the harm will become very real.
Though most commenters did not address the effect of additional
demands on the Department to process incoming applications, one large
growers' association opposed to the suspension noted that the existing
DOL-reported delays will be increased by a suspension, resulting in
unacceptable delays and gridlock for H-2A and H-2B employers for the
majority of applications scheduled to be filed in April through June
2009.
The Department disagrees that a suspension will exacerbate the
current delays in processing program applications. The process for
filing and handling applications during the suspension will be the
filing procedures of the former rule with which CNPC and SWA staff and
all previous program users are familiar. The burden of review during a
suspension will be shared by SWAs and the CNPC. As a consequence,
processing times should decrease with the reinstatement of the former
rule.
d. Confusion and Disruption Under the Procedures of the December 2008
Rule
The Department said in its March 17, 2009 Notice of Proposed
Suspension that there is increasing evidence that continuing to
implement the December 2008 regulations in light of existing experience
and before additional examination is disruptive and confusing to the
Department's administration of H-2A program, SWAs, agricultural
employers and domestic and foreign workers.
The Department received several comments supporting the suspension
because of this confusion and ensuing disruption. One commenter noted
that the regulations should be suspended because they have caused
confusion among employers, State Workforce Agency staff and workers.
Another commenter cited anecdotal evidence of policy confusion and
contradictions on the local level requiring a certain group of
employers to pay overtime wages contrary to the current regulations,
although this commenter generally opposed suspension of the 2008 rule
on this basis. Another commenter, writing on behalf of a State
Workforce Agency, indicated that confusion is already manifest in the
processing of job orders during the transition period. Yet another
commenter provided examples of confusion prevalent in communications
between the SWA and the CNPC on such issues as the timing of receipt of
[[Page 25976]]
job orders from the CNPC, the use of master applications, and the
timely identification of traditional labor supply States.
Another commenter indicated that SWAs are currently receiving
insufficient support from the CNPC for dealing with pre-filing issues,
such as rejection of qualified U.S. workers. Confusion also exists
about the timing of housing inspections which are being conducted under
two sets of differing regulations. The same commenter provided
additional evidence of confusion and disruption, including the presence
of anomalies in wage rates, which have caused the issuance of wage rate
determinations that are occasionally lower than the State minimum wage
rate; and also, instances where an SWA was instructed to make referrals
to non-provider and non-traditional labor supply states, which in turn
reduced the chances of getting U.S. workers to fill the positions.
The Department received other comments which challenged its
assertions about the confusion and disruption caused by the current
regulations. The most common objection from the commenters challenged
the very existence of confusion and disruption under the December 2008
regulations, and noted that DOL did not specify in the Notice of
Proposed Suspension the types of confusion and disruption experienced
in administering the program or present examples. In addition, a large
number of commenters argued that employers and the larger regulated
community were not experiencing confusion. At least one commenter added
that DOL would create confusion and disruption by suspending the
regulations. One large grower association identified DOL as the source
of confusion and disruption and accused the Department of limiting
access to guidance, training and informational resources, and
neglecting to fulfill its obligations in advising the regulated
community on the current regulations.
The majority of commenters opposed to the suspension posited that
there is no disruption among users resulting from the relevant legal
and economic concerns associated with the December 2008 Rule. One
commenter indicated that the current H-2A program is different from the
prior regulatory regime in form and substance but the changes do not
constitute such a fundamental shift in the Department's obligations,
given the long lead time before the rule's promulgation to warrant a
precipitous change in direction. One association noted that the largest
users of the current H-2A program reported that the December 2008
regulations have made for a more logical, predictable, reliable and
less disruptive approach to securing legal labor than the old
regulations.
While each commenter's experience may be different, the Department
disagrees with those commenters that there has been no disruption or
confusion resulting from the new regulations. That the Department did
not spell out in detail the specifics of the confusion experienced by
program users, but only summarized the level of confusion and suggested
it was sufficient to propose suspending the rule, does not negate the
existence or lessen the impact of such confusion. Indeed, the
Department received over 200 e-mail inquiries seeking clarification of
the December 2008 regulations during the 3 months that a special
mailbox was open to the public.
Moreover, the inquiries that the Department has received show the
general lack of understanding and knowledge among employers with the
process implemented by the December 2008 Rule. As noted above, the
Department did conduct two briefing sessions for the public in December
2008 just before the publication of the December 2008 Rule, which fewer
than 200 H-2A employers, agents, attorneys, farmworker advocates, State
Workforce Agency employees, and others were able to attend. The
attendees were provided an advance (draft) copy of the rule text at the
meeting, and were provided a brief overview of the new regulations to
be issued by DOL, (by both ETA and ESA). The Department of Homeland
Security, which issued its own H-2A regulations at the same time, also
participated in both briefings. These two briefings, however, did not
even begin to respond to the questions and concerns arising from the
new rule. Moreover, because of the resource constraints discussed
earlier and the change in administrations and priorities, the
Department has not been able to individually address the subsequent
comments and questions nor provide adequate general program guidance.
After that briefing, the Department has received, between late
December and early March, at least 250 written inquiries from program
users on the basic program requirements. Some of these questions, both
simple and complex, have come from some of the same commenters who now
say they have seen no difficulties with the new rule. While a few
questions demonstrated an understanding of the new rule, many others
demonstrated complete confusion with the new regulatory requirements,
the forms, or the process in general. The following are some of the
questions received by the Department as recently as March 2009 which
show a fundamental lack of understanding of the new rule:
``Do I advertise before I send in the application and do I send
copies of this advertising?''
``To confirm, does form 9142 take the place of both form 750 and
790 in the new H-2A certification processing?''
``Does employer have to place a job order with SWA before filing
the application with DOL? Is there any wait time?''
These questions evidence confusion about the basic program requirements
and employers' obligations under the December 2008 regulations.
In addition, many more questions were directed to the individual
SWAs, which at times over the past few months have provided
contradictory or misinformed guidance (as noted by some commenters), in
large part due to the SWA staff's own lack of understanding of the
December 2008 rule. The Department has become aware, for example, that
at least one SWA, a full month into the program, was erroneously giving
out incorrect wage rates, which were directly contrary to the
requirements of the new regulations. Another SWA asked the Department,
as recently as April 2009, whether, on an application filed under the
December 2008 Rule, it was required to refer, and the employer required
to accept, referrals through 50 percent of the contract period (the
``50 percent rule'' of the former regulations), not the 30 days post-
date of need as required under the December 2008 Rule.
SWAs still have a significant role under the December 2008
regulation, so their fundamental misunderstanding of the essential
elements of the new regulation threatens program integrity and
contributes to the public's continued confusion about the H-2A
application process and corresponding employer obligations.
The most telling evidence of confusion among the farming employer
community, however, lies in the number of applications the Department
has received that require modifications in order to be made acceptable
for processing. In the first three months of the program, January,
February and March 2009, the Department found that 50%, 56%, and 46% of
the applications processed in those months, respectively, required
modifications to the applications. For the same timeframe last year,
the percentages of applications requiring modifications were 10%, 16%,
and 26%, respectively. This severe disparity of modifications of
everything
[[Page 25977]]
from minimum requirements to contract issues demonstrates how little
knowledge of the new regulations even seasoned users of the program
have been able to glean.
Based on the volume and nature of the inquiries that the Department
has received in the early days of the December 2008 Rule, as well as
the number of applications that require further investigation, the
Department disagrees that there is no confusion. The significant lack
of understanding of the new rule is evident from the questions the
Department continues to receive daily from even seasoned program users,
and is of deep concern to the Department. Even if some members of the
regulated community understand the current implementation of the new
rule sufficiently for compliance purposes, there remains the fact that
the December 2008 rule is not yet fully implemented, as the Department
is still operating the program within the transition procedures prior
to full Final Rule implementation.
2. Avoiding the Disruption of Fully Implementing a Complex Regulatory
Scheme When Further Review of Policy and Economic Concerns Are
Warranted
In the March 17 Notice, the Department identified as a factor in
considering whether to suspend the current regulations the disruptive
effect of implementing a complex regulatory scheme without further
consideration of the legal and economic concerns that have arisen
during the current economic downturn, such as the rising unemployment
among U.S. workers and the impact that may have on the Department's H-
2A statutory obligation to ensure no adverse effect on the U.S. worker
population from the introduction of the foreign workforce. Although the
Department received many comments opposing this basis for suspending
the regulations, the Department also received several comments strongly
supporting the proposed action.
One commenter asserted that the current regulations should be
suspended because of the change in economic circumstances which has
taken place since the promulgation of the December 2008 Rule, including
the increased unemployment that is having an effect on the availability
of U.S. workers. Another commenter on the State level noted that
unemployment has increased nationally and in its State in a way not
anticipated during the rulemaking process for the December 2008 Rule.
The commenter urged that the Department must have an opportunity to
reconsider policy implications of the H-2A program overall,
particularly those program components that are likely to have an
adverse impact on the U.S. workforce in the changed economic
circumstances.
Another commenter indicated that DOL did not provide supporting
evidence showing that the delay in implementation of the December 2008
regulations will cause disruption in the agricultural sales, production
and market conditions, even in this unstable economic environment. This
commenter went on to assert that DOL's proposed suspension will drive
up costs and force users out of the program and negatively impact
supporting jobs in the greater economy, thus itself generating a
disruptive economic impact. Another commenter noted that DOL's mandate
is not to abate the effects of increased unemployment but to protect
workers, which it is adequately doing under the current regulations.
The commenter's objection to the proposed suspension based on the
purported increase in employers' expenses due to an increase in
required wage rates is a critical reason the Department needs to
examine and re-evaluate the wage regime instituted under the December
2008 Rule. One of the Department's most important functions in its
administration of the H-2A program is to ensure that admission of H-2A
workers does not adversely affect the wages of U.S. workers. At all
times, but particularly in the midst of a severe economic downturn, the
Department is required to ensure that its regulations do not create or
compound an adverse effect on U.S. workers. This is particularly the
case where, as in the H-2A program, the Department has a statutory
obligation to ensure protection of U.S. agricultural workers, one of
the most vulnerable sectors of the workforce.\4\ The many commenters
who cite increased wages as a central reason for not suspending the
December 2008 Rule are doing so on the grounds that wage costs for
their foreign workforce under the former regulations will be higher
than under the December 2008 Rule. One of the primary reasons that the
new Administration wants to review the December 2008 Rule is precisely
to determine whether the generally reduced wage rates under that rule
are having a depressive effect on farmworker wages.
---------------------------------------------------------------------------
\4\ There is little dispute among commenters with the
Department's position that farm hires are disadvantaged in the labor
market relative to most other U.S. wage and salary workers. U.S.
Department of Agriculture, ``Profile of Hired Farmworkers, A 2008
Update,'' Economic Research Report, No. 60, July 2008, page iii.
---------------------------------------------------------------------------
The Department stated in its Notice of Proposed Suspension that the
December 2008 Rule, and the policy positions from which the rule was
promulgated, may need to be reconsidered given the efforts being made
by the current Administration to stabilize the economy. A majority of
commenters criticized the Department for considering a change in the
regulations on policy grounds. Some of these commenters asserted that
even if the current Administration does not agree with the policies
represented by the December 2008 Rule, the December 2008 Rule was
carefully considered, planned and prepared over a long period of time
and underwent a significant amount of review. Others noted that the
December 2008 Rule was legally promulgated and should not be
``scrapped'' without the Department first undertaking a similarly
painstaking new rulemaking process.
The Department also received comments supporting its desire to
revisit the policies of the previous Administration reflected in the
December 2008 Rule in light of the goals and objectives of the current
Administration. One such commenter argued that it would be an
inefficient use of limited agency resources, as well as confusing and
disruptive to the program users, to engage in the full implementation
of the December 2008 Rule if the Department is likely to issue a
different rule soon. This commenter felt the suspension would be less
disruptive and confusing than continuation of the December 2008 rule.
The Department agrees that it is not appropriate to fully implement
a rule that is under reexamination by the current Administration. The
Administration has, through the suspension, taken the first step to
begin a review of the regulatory policies of the previous
Administration reflected in the December 2008 Rule in light of its own
policies.
The Department also agrees with those commenters who feel that less
disruption will follow from a suspension than from a continuation of
the December 2008 Rule. The Administration is not at this time
eliminating the rulemaking of the previous Administration; rather, it
is temporarily putting that rulemaking on hold in order to review the
policies in that rulemaking and, if warranted, reopen the issues
contained in the H-2A program for further notice and comment. The
suspension is of limited duration in both effect and time; by providing
notice and an end date, the Department is limiting the impact of the
suspension as much as is feasible while
[[Page 25978]]
still enabling the review the Administration believes is necessary. The
December 2008 Rule is not now being ``scrapped'' but is being
temporarily suspended in order for the Administration to undertake what
it considers to be an essential review.
B. Impetus for the Timing of Suspension
The March 17 Notice of Proposed Suspension stresses the importance
of moving swiftly with the suspension in order to avoid confusion and
disruption of the H-2A program in the midst of the growing season.
One group of farmworker advocate organizations offered support for
the immediate implementation of a suspension, arguing that the
regulations must be suspended before the end of the transition period
of the current regulations to avoid compounded confusion and
disruptions in application processing due to the Department's inability
to fully and properly implement the complex new regulatory program.
Other comments supported this position, noting that if there is a
likelihood that a new program will be designed and the December 2008
Rule changed, the December 2008 Rule should be suspended immediately in
order to prevent confusion and disruption.
Most commenters, however, criticized the Department's timing of the
suspension, indicating that it would be disruptive during the critical
time for crop production. The commenters argued that the suspension
overlapping with the growing season will hurt the employers who have
already planned and calculated their costs on the basis of the current
regulations.
As discussed further below, however, the Department has clearly
indicated its intent to apply the current regulations to all
applications filed prior to the effective date of this Final Rule.
Since most applications for this growing season have been filed or will
have been filed before this Final Rule becomes effective, the
Department does not believe that the concerns about disruption for this
season are a major concern. For additional discussion, see Section III.
infra.
C. The Department's Authority To Suspend the December 2008 Rule
A number of commenters objected to the proposed suspension of the
December 2008 Rule because the Department's rulemaking process for the
proposed suspension was not in compliance with the Administrative
Procedure Act (APA). There appeared to be differing views among the
commenters on the conformity of the Notice of Proposed Suspension with
the rulemaking requirements under the APA. Accordingly, the Department
reiterates the key facts relating to the rulemaking process undertaken
thus far. On March 17, 2009, the Department published its Notice of
Proposed Suspension in the Federal Register. The Notice proposed to
suspend the December 2008 Rule for nine months and to reinstate the
Prior Rule. The Notice requested comments relating solely to the
proposed suspension itself (i.e., not the substance or merits of either
rule) from the public through March 27, 2009. The publication of the
Notice of Proposed Suspension did not in any way result in the
immediate suspension of the December 2008 Rule. Rather, the Department
accepted comments from the public during the ten-day period between
March 17, 2009 and March 27, 2009. Once the comment period closed, the
Department reviewed and considered the comments that it received from
the public and, through this Final Rule, is suspending the December
2008 Rule and reinstating the Prior Rule for 9 months. The suspension
of the December 2008 Rule and reinstatement of the Prior Rule will not
take effect until 30 days after the date of this Final Rule's
publication.
These facts are significant with respect to various comments that
the Department's actions during this rulemaking process are a violation
of the APA. Because different actions are cited by the commenters as
bases of the asserted APA violation, we address each action separately.
1. 10-Day Comment Period
A number of commenters argued that the 10-day comment period
provided in the Notice of Proposed Suspension was unreasonable and
violated the APA. Commenters claimed that many farmers were in the
midst of their growing season, and 10 days was too short of a period to
provide a sufficient response to the notice. Rather, these commenters
stated that an adequate comment period required at least 30 days.
Additionally, some commenters cited the apparent discrepancy between
the 10-day comment period for the proposed suspension and the 60-day
comment period for the Department's rulemaking process for the December
2008 Rule. Accordingly, there were many requests to extend the comment
period up to 60-90 days.
Section 553 of the APA plainly states:
(b) General notice of proposed rule making shall be published in
the Federal Register, unless persons subject thereto are named and
either personally served or otherwise have actual notice thereof in
accordance with law. The notice shall include:
a statement of time, place, and nature of public rule making
proceedings;
reference to the legal authority under which the rule is
proposed; and
either the terms or substance of the proposed rule or a
description of the subjects and issues involved.
* * * * *
(c) After notice required by this section, * * * the agency
shall give interested persons an opportunity to participate in the
rule making through submission of written data, views, or arguments
with or without opportunity for oral presentation. After
consideration of the relevant matter presented, the agency shall
incorporate in the rules adopted a concise general statement of
their basis or purpose.
An agency is only required to provide a ``meaningful opportunity''
for comments on a proposed rule, which means that an agency's mind must
be open to considering them. See Grand Canyon Air Tour Coalition v.
FAA, 154 F.3d 455 (D.C. Cir. 1998). Nowhere does the APA set forth a
minimum time period for accepting rulemaking comments. In fact, courts
have upheld comment periods as short as seven days. See Northwest
Airlines, Inc. v. Goldschmidt, 645 F.2d 1309 (8th Cir. 1981).
Additionally, comment periods shorter than 30 days have been upheld
where there was no evidence of any harm to the petitioners by the short
comment period, as demonstrated by the volume and substance of comments
received by the agency and the measurable effect such comments had on
the final rule. See Florida Power & Light Company v. U.S., 846 F.2d
765, 772 (D.C. Cir. 1988) (upholding 15-day comment period where 61
comments were received, ``some of them lengthy'') and Omnipoint
Corporation v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996) (upholding 15-day
comment period where 45 comments and 42 letters were received).
Here, the Department received over 800 comments, many of which
contained detailed analyses of the impact suspension would have on the
participants in the H-2A program and which the Final Rule has addressed
and taken into account. Given the absence of a required minimum comment
period under the APA, the sheer volume and substance of the comments
and the Department's detailed discussion and consideration of the
comments in this Final Rule, the Department believes that the 10-day
comment period for this rulemaking is reasonable. Furthermore, while
the Department did provide a longer comment period during the 2008 H-2A
rulemaking process, a shorter timeframe is warranted here given the
[[Page 25979]]
need for expediency as discussed earlier in this preamble and the much
more limited scope of this suspension rulemaking.
2. Limitation of Scope of Comments to Suspension
An agricultural association objected to the Department's limitation
of the scope of comments to the suspension itself, as opposed to
comments on the merits or substance of either the current H-2A rule or
its predecessor rule. The association stated that it has numerous
comments it would like to offer on both the current regulations, as
well as the prior regulations, and on this basis the association
objected to the Department's reinstatement of the old regulations
during the suspension period.
As the Notice of Proposed Suspension makes clear, the current
Administration intends to review and evaluate the social and economic
implications of the December 2008 Rule. The Department stated that if
it were to decide to suspend the December 2008 Rule, the Department
will either ``engage in further rulemaking or the suspension will be
lifted after 9 months.'' Thus, comments on the merits of the existing
and previous program would be appropriate when the merits of the
program are actually at issue in that rulemaking. The suspension of the
December 2008 Rule and reinstatement of the Prior Rule is strictly a
temporary measure arising from the Department's need to review in an
expeditious manner the December 2008 Rule to ensure that the Department
effectively carries out the statutory objectives and requirements of
the H-2A program. The December 2008 Rule has not been repealed; it will
only be held in abeyance for nine months. Unless the Department engages
in further rulemaking, about which comments on the substance and merits
of the proposed regulation will be solicited, the December 2008 Rule
will continue to remain in effect once the suspension expires after
nine months.
3. Effective Date of Suspension
As mentioned earlier, there was some confusion among the commenters
as to when the suspension would take effect. Some commenters believed
that the suspension took effect upon publication of the Notice of
Proposed Suspension or would take effect immediately at the close of
the comment period. Another commenter believed that the suspension
would take effect before April 1, 2009. Accordingly, a few commenters
stated that the Department was required to show good cause in order for
the suspension of the current H-2A rule to take effect immediately.
However, the Department never stated in the Notice of Proposed
Suspension, nor does it intend in this Final Rule, that the suspension
would take effect immediately.
As explained earlier, neither the publication of the Notice of
Proposed Suspension, nor the close of the comment period resulted in
the immediate suspension of the December 2008 Rule. The Department
never intended to issue, and in fact is not issuing, a Final Rule
suspending the December 2008 Rule without having undertaken a
substantive review and consideration of the comments that were
submitted during the comment period. Part of this misunderstanding may
be attributed to the Department's reference in its Notice of Proposed
Suspension that ``if the suspension continues on April 1, 2009, the
previous regulations that were in effect on April 1, 2008 would appear
in the next published version of the CFR as 20 CFR 655.1 and 20 CFR
part 655.'' The Department merely intended to track the publication
schedule of the CFR, in which title 20 is updated annually as of April
1st. However, the Department acknowledges that the statement may have
been thought to erroneously imply that the suspension would have been
in effect before April 1, 2009, which was not the Department's
intention. The Department would like to clarify that because the
suspension did not take effect before April 1, 2009, this year's
published version of the CFR as 20 CFR 655.1 and 20 CFR part 655 will
contain the December 2008 Rule in effect as of April 1, 2009.
A farmworker advocacy organization expressed support for the
suspension to take effect immediately upon publication of the Final
Rule of suspension. However, while the circumstances described in this
preamble warrant suspending the December 2008 Rule, the Department
recognizes the need to have some period of adjustment to the Prior
Rule, in light of the challenges associated with changing regulatory
programs, as noted by many commenters. Accordingly, the Department has
determined not to waive the 30-day delayed effective date requirement
in Section 553(d) of the APA.
D. Impact of Suspension
The Department received many comments expressing concern about the
impact of the suspension. The Department first would like to explain
and clarify how the suspension of the current rule and reinstatement of
the Prior Rule will take effect before addressing the particular
concerns raised by commenters. The suspension will become effective 30
days after the date of publication of this Final Rule. The Department
stated in its Notice of Proposed Suspension that ``[i]f a final
decision is reached to suspend the H-2A Final Rule, any H-2A
application for which pre-filing positive recruitment was initiated in
accordance with the H-2A Final Rule prior to the date of suspension
will continue to be governed by the H-2A Final Rule.'' This statement
must be understood in the context of the Department's subsequent
extension of the transition procedures.
On April 16, 2009, after the issuance of the Notice of Proposed
Suspension, the Department published an Interim Final Rule (IFR) which
extended the transition period under 20 CFR 655.102(b)(2) to cover all
applications with a date of need on or before January 1, 2010. See 74
FR 17597. During the transition period employers do not engage in pre-
filing recruitment in traditional or expected labor supply States in
which there are a significant number of qualified domestic workers.
Under the transition procedures, employers are provided information on
expected labor supply States as part of their post-filing recruitment
instructions. Given that all applications filed before the effective
date of the suspension will still be subject to the transition
provision at 20 CFR 655.102(b)(2), which provides for post-filing
recruitment, no employers will be required to engage in pre-filing
positive recruitment before the effective date of the suspension.
Nevertheless, in keeping with the intent expressed in the Notice of
Proposed Suspension, any H-2A application which is filed while the
December 2008 Rule is still in effect will continue to be governed by
the December 2008 Rule, while applications filed on or after the
effective date of the suspension and the reinstatement of the Prior
Rule will be governed by the Prior Rule.
Despite a recommendation from a farmworker advocacy organization to
apply the Prior Rule to all pending and approved job orders, the
Department does not believe there is a legal basis to do so, and
therefore will not apply the Prior Rule to applications filed under the
December 2008 Rule. Following the farmworker advocacy organization's
suggestion would undermine employers' expectations and reliance on the
current rule prior to its suspension. Moreover, implementing this
suggestion may violate the prohibition on retroactive rulemaking. See
Nat'l Mining Ass'n v. Dep't of Labor, 292 F.3d 849, 860 (D.C. Cir.
2002).
[[Page 25980]]
The reinstatement of the Prior Rule will be accompanied by the
reinstatement of Form ETA-750 in the H-2A program. Form ETA-9142 for H-
2A applications\5\ may be filed up to the day before the effective date
of the suspension. However, as of the effective date of this Final
Rule, employers will be expected to use Form ETA-750, and any H-2A
applications filed using the Form ETA-9142 will not be accepted.
---------------------------------------------------------------------------
\5\ Note that the discontinuation of Form ETA-9142 in the H-2A
program in no way affects the requirement to use the Form ETA-9142
in the H-2B program.
---------------------------------------------------------------------------
1. Uncertainty of Applicable Regulations; Impact on Planning and
Operations
A number of commenters expressed concerns about the confusion and
disruption that would result from the suspension of the December 2008
Rule. In particular, a State agricultural agency questioned: (1)
Whether farmers would be allowed to abandon applications when they
learn that they are going to be subject to the Prior Rule; (2) whether
it would be possible for farmers to end up with some workers being
subject to the December 2008 Rule and some to the Prior Rule; (3)
whether farmers will find that their applications filed under the
December 2008 Rule are rejected once the Prior Rule is in place. Such
concerns were echoed by a number of farmers and agricultural
associations, particularly as to how the suspension would affect
applications filed but not yet approved.
Employers always have had the ability to abandon or withdraw
pending applications without penalty, regardless of which regulations
apply. However, as explained above, the Department has clearly
identified the time frame for determining whether an application falls
under the December 2008 Rule or the Prior Rule. Applications filed
before the effective date of this Final Rule will be governed by the
December 2008 Rule. Applications filed on or after the effective date
of this Final Rule will be governed by the Prior Rule. Thus,
applications filed before the effective date of this Final Rule will
not be governed by the Prior Rule and therefore, could not be rejected,
nor will the employer be penalized, because the application is not in
compliance with the Prior Rule.
The Department understands that one of the results of this
suspension is that a farmer may have workers subject to two different
sets of rules, depending on the date on which the applications covering
the H-2A workers were filed. However, as discussed in greater detail in
Section II(C)(3) of this preamble, such situations already occur and
have not detrimentally affected the H-2A enforcement process.
A number of growers also raised concerns about having invested much
time and effort in learning the December 2008 Rule, and that their
reliance on the December 2008 Rule in planning for their 2009 growing
season will cause them to incur additional administrative, operations,
and financial burdens if the December 2008 Rule is suspended. In
particular, one agricultural association stated that their members
planned for their 2009 crop activities using the December 2008 Rule to
budget for operating costs, secure financing, plan personnel needs,
finalize contracts, and schedule product deliveries. They claimed that
such c