Temporary Agricultural Employment of H-2A Aliens in the United States, 45906-45965 [E9-21017]

Agencies

• Employment and Training Administration
• Wage and Hour Division
• DEPARTMENT OF LABOR

[Federal Register Volume 74, Number 171 (Friday, September 4, 2009)]
[Proposed Rules]
[Pages 45906-45965]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21017]



[[Page 45905]]

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Part II





Department of Labor





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Employment and Training Administration



20 CFR Part 655



Wage and Hour Division

29 CFR Part 501



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Temporary Agricultural Employment of H-2A Aliens in the United States; 
Proposed Rule

Federal Register / Vol. 74 , No. 171 / Friday, September 4, 2009 / 
Proposed Rules

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Part 501

RIN 1205-AB55


Temporary Agricultural Employment of H-2A Aliens in the United 
States

AGENCY: Employment and Training Administration, and Wage and Hour 
Division, Employment Standards Administration, Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of Labor (the Department or DOL) is proposing 
to amend its regulations governing the certification of temporary 
employment of nonimmigrant workers in temporary or seasonal 
agricultural employment and the enforcement of the contractual 
obligations applicable to employers of such nonimmigrant workers. This 
Notice of Proposed Rulemaking (NPRM or Proposed Rule) reexamines the 
process by which employers obtain a temporary labor certification from 
the Department for use in petitioning the Department of Homeland 
Security (DHS) to employ a nonimmigrant worker in H-2A status. The 
Department also proposes to amend the regulations at 29 CFR part 501 to 
provide for sufficient enforcement under the H-2A program so that 
workers are appropriately protected when employers fail to meet the 
requirements of the H-2A program.

DATES: Interested persons are invited to submit written comments on the 
Proposed Rule on or before October 5, 2009. Interested persons are 
invited to submit comments on the proposed form mentioned herein; such 
comments must be received on or before November 3, 2009.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB55, by any one of the following 
methods:
     Federal e-Rulemaking Portal at www.regulations.gov: Follow 
the Web site instructions for submitting comments.
     Mail: Please submit all written comments (including disk 
and CD-ROM submissions) to Thomas Dowd, Administrator, Office of Policy 
Development and Research, Employment and Training Administration, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room N-5641, 
Washington, DC 20210.
     Hand Delivery/Courier: Please submit all comments to 
Thomas Dowd, Administrator, Office of Policy Development and Research, 
Employment and Training Administration, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N-5641, Washington, DC 20210.
    Please submit your comments by only one method. Comments that are 
received by the Department through means beyond those listed in this 
Proposed Rule or that are received after the comment period has closed 
will not be reviewed in consideration of the Final Rule. The Department 
will post all comments received on https://www.regulations.gov without 
making any change to the comments, including any personal information 
provided. The https://www.regulations.gov Web site is the Federal e-
rulemaking portal and all comments posted there are available and 
accessible to the public. The Department cautions commenters not to 
include their personal information such as Social Security Numbers, 
personal addresses, telephone numbers, and e-mail addresses in their 
comments as such submitted information will become viewable by the 
public on the https://www.regulations.gov Web site. It is the 
commenter's responsibility to safeguard his or her information. 
Comments submitted through https://www.regulations.gov will not include 
the commenter's e-mail address unless the commenter chooses to include 
that information as part of his or her comment.
    Postal delivery in Washington, DC, may be delayed due to security 
concerns. Therefore, the Department encourages the public to submit 
comments via the https://www.regulations.gov Web site.
    Docket: For access to the docket to read background documents or 
comments received, go to the Federal e-Rulemaking portal at https://www.regulations.gov. The Department will also make all the comments it 
receives available for public inspection during normal business hours 
at the Employment and Training Administration (ETA) Office of Policy 
Development and Research at the above address. If you need assistance 
to review the comments, the Department will provide you with 
appropriate aids such as readers or print magnifiers. The Department 
will make copies of the rule available, upon request, in large print 
and as electronic file on computer disk. The Department will consider 
providing the Proposed Rule in other formats upon request. To schedule 
an appointment to review the comments and/or obtain the rule in an 
alternate format, contact the Office of Policy Development and Research 
at (202) 693-3700 (VOICE) (this is not a toll-free number) or 1-877-
889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT: For further information on 20 CFR part 
655, contact William L. Carlson, PhD, Administrator, Office of Foreign 
Labor Certification, 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 on 29 CFR part 501 contact James Kessler, 
Farm Labor Branch Chief, 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. Revisions to 20 CFR Part 655 Subpart B

A. Statutory Standard and Regulatory History

    The H-2A nonimmigrant worker visa program enables United States 
(U.S.) agricultural employers to employ foreign workers on a temporary 
basis to perform agricultural labor or services in the absence of U.S. 
labor. Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality 
Act (INA or the Act) defines an H-2A nonimmigrant as one admitted to 
the U.S. on a temporary or seasonal basis to perform agricultural labor 
or services. 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 
1184(c)(1) and 1188. The H-2A class of admission is rooted in the 
Immigration and Nationality Act of 1952, which created an H-2 visa for 
nonimmigrant admission for all types of temporary labor. The 
Immigration Reform and Control Act of 1986 (IRCA), three decades later, 
amended the INA to establish a separate H-2A visa classification for 
agricultural labor under INA sec. 101(a)(15)(H)(ii)(A). Public Law 99-
603, Title III, 100 Stat. 3359 (November 6, 1986).

[[Page 45907]]

    The INA authorizes the Secretary of DHS to permit employers to 
import foreign workers to perform temporary agricultural services or 
labor of a seasonal or temporary nature if the Secretary of the United 
States Department of Labor (Secretary) certifies that:

    (A) There are not sufficient U.S. 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.

8 U.S.C. 1188(a)(1).

    The INA also sets out the conditions under which a certification 
may not be granted, including:

    (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 of Labor 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 nonimmigrant 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 multi-state 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 employment 
service system of the employer's job offer. The obligation to engage 
in positive recruitment under this paragraph shall terminate on the 
date the H-2A workers depart for the employer's place of employment.

8 U.S.C. 1188(b).

    The Secretary has delegated these responsibilities, through the 
Assistant Secretary, Employment and Training Administration (ETA), to 
ETA's Office of Foreign Labor Certification (OFLC).
    The statute applies strict timelines to the processing of requests 
for certification. The Secretary may not require that such a request, 
or Application for Temporary Labor Certification, be filed more than 45 
days before the employer's date of need, and certification must occur 
no later than 30 days before the date of need, provided that all the 
criteria for certification are met. 8 U.S.C. 1188(c). If the 
Application for Temporary Labor Certification fails to meet threshold 
requirements for certification, notice must be provided to the employer 
within 7 days of the date of filing, and a timely opportunity to cure 
deficiencies must be provided to the employer.
    To obtain a temporary labor certification, the employer must 
demonstrate that the need for the services or labor is of a temporary 
or seasonal nature. The employer must also establish that the job 
opportunity for the temporary position is full-time. The statute also 
institutes certain employment-related protections, including workers' 
compensation insurance, recruitment, and housing, to which H-2A 
employers must adhere. 8 U.S.C. 1188(c).

B. Current Regulatory Framework

    The Department operated the H-2A program for more than two decades 
under regulations promulgated in the wake of IRCA or earlier. For the 
most part, the regulations at title 20 of the Code of Federal 
Regulations (CFR) part 655 were published at 52 FR 20507, Jun. 1, 1987 
(the 1987 Rule). On December 18, 2008, the Department published final 
regulations revising these regulations and also revising the companion 
regulations at 29 CFR part 501 governing the enforcement 
responsibilities of the Department's Wage and Hour Division (WHD) under 
the H-2A program (the 2008 Final Rule). Included in that rulemaking 
were revisions to Fair Labor Standards Act (FLSA) regulations at 29 CFR 
parts 780 and 788. 73 FR 77110, Dec. 18, 2008.
    The 2008 Final Rule made several significant changes in the 
processing of H-2A Application for Temporary Labor Certification 
(Application). The 2008 Final Rule uses an attestation-based model, 
unlike the previous rule, which mandated a fully-supervised labor 
market test. Under the 2008 Final Rule, employers conduct the required 
recruitment and, based upon the results of that effort, apply for a 
number of needed foreign workers. Thereafter, employers attest that 
they have undertaken the necessary activities and made the required 
assurances to workers, rather than have such actual efforts reviewed by 
a Federal or State official, as was the process in the 1987 Rule. The 
2008 Final Rule relies largely on post-adjudication integrity measures 
to review selected documentation from a percentage of employers to 
compensate for a lack of hands-on review. It also reflects several 
significant policy shifts; chief among these was the decision to base 
the Adverse Effect Wage Rate (AEWR), which is the wage determined by 
the Department to be the minimum below which adverse impact to domestic 
workers would accrue, on the Occupational Employment Statistics (OES) 
Wage Survey collected by the Department's Bureau of Labor Statistics 
(BLS), rather than data compiled by the U.S. Department of Agriculture 
(USDA), National Agriculture Statistics Service (NASS) in its quarterly 
Farm Labor Survey Reports, which was what was relied upon in the 1987 
Rule.
    Following the issuance of the 2008 Final Rule, a lawsuit was filed 
in the U.S. District Court for the District of Columbia challenging the 
H-2A Final 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 
2008 Final Rule, the Department violated 8 U.S.C. 1188 and the 
Administrative Procedures Act (APA). The plaintiffs requested a 
temporary restraining order and preliminary injunction, along with a 
permanent injunction that would prohibit DOL from implementing the 2008 
Final Rule. The plaintiffs' requests for a temporary restraining order 
and preliminary injunction were denied and the 2008 Final Rule went 
into effect as scheduled on January 17, 2009.
    The Administration, however, desired to review the policy decisions 
emanating from the 2008 Final Rule, made by a prior Administration, 
particularly on the role of the H-2A program in supplying foreign 
workers in agricultural activities, and with specific review of the 
protections afforded under that rule to all agricultural workers in 
general and the domestic workforce in particular. This review was 
believed to be particularly timely in light of the rising unemployment 
among U.S. workers and their apparent increasing availability for these 
jobs. Regardless, the Department upon review has determined the current 
level of worker protections and incentives for U.S. workers to accept 
employment in agriculture require expansion and are accordingly 
addressed in this NPRM. The Department's concern is that our 
agricultural economy should to the fullest extent feasible employ U.S. 
workers and they be granted a level of worker safety and protection

[[Page 45908]]

characterized in other occupations and that the need for foreign labor 
be when only there are demonstrably no available domestic workers for 
these jobs.
    Accordingly, the Department extended the transition period 
contained in the 2008 Final Rule. In addition, the Department proposed 
to suspend the 2008 Final Rule in a Notice of Proposed Suspension at 74 
FR 11408, Mar. 17, 2009. After considering the comments submitted in 
connection with the Notice of Proposed Suspension, the Department 
suspended the 2008 Final Rule and reinstated the regulations in effect 
prior to the 2008 Final Rule in order to effectuate a thorough review 
of the regulatory activity undertaken and to determine whether a new 
rulemaking effort was appropriate. 74 FR 25972, May 29, 2009. The 
Department stated in the Final Suspension that it intended to reinstate 
the former regulations for a 9-month period, after which time it would 
revert to the suspended regulations, unless a new rulemaking was in 
place. On June 29, 2009, the United States District Court for the 
Middle District of North Carolina issued a preliminary injunction 
enjoining the implementation of the Final Suspension. North Carolina 
Growers' Association v. Solis, 1:09-cv-00411 (June 29, 2009). As a 
result of that order, as of the date of publication of this Proposed 
Rule, the 2008 Final Rule remains in effect.

C. Need for New Rulemaking

    The Department has determined for a variety of reasons that a new 
rulemaking effort is necessary for the H-2A program. The Department, 
upon due consideration, believes that the policy underpinnings of the 
2008 Final Rule, e.g. streamlining the H-2A regulatory process to defer 
many determinations of program compliance until after an Application 
has been fully adjudicated, do not provide an adequate level of 
protection for either U.S. or foreign workers.
    In addition, the usage of the program since January 2009 has 
demonstrated that the policy goals of the 2008 Final Rule have not been 
met. One of the clear goals of the 2008 Final Rule was to increase 
usage of the H-2A program, to make usage easier for the average 
employer, and more affordable. However, applications have actually 
decreased since the implementation of the new program. Employers filed 
3,176 applications in the first three and one half months of Fiscal 
Year (FY) 2009, prior to the implementation of the 2008 Final Rule 
(October 1, 2008-January 16, 2009). In the six and one half months from 
January 17, 2009, to July 31, 2009, 4,214 applications were filed. When 
compared to the previous year (FY 2008), in which 8,360 applications 
were filed, employers are not increasing their usage of the program. 
See Chart of Average Monthly H-2A Applications Received by OFLC, infra. 
Not only has usage not increased under the program revisions, there has 
actually been a reversal of an existing multi-year trend toward 
increased program utilization. While factors other than the regulatory 
changes may play a role in this decrease, without accomplishing the 
prior rules' goal of increasing program usage, the Department can no 
longer justify the significant decrease in worker protections.
    The Department also feels that there are insufficient worker 
protections in the attestation-based model in which employers merely 
confirm, and do not actually demonstrate to the satisfaction of an 
objective government observer, that they have performed an adequate 
test of the U.S. labor market. Even in the first year of the 
attestation model it has come to the Department's attention that 
employers, either from a lack of understanding or otherwise, are 
attesting to compliance with program obligations with which they have 
not complied. Specific situations have been reported to the Department 
of employers who have imposed obstacles in the way of U.S. workers 
seeking employment. Examples of this have included the requirement of 
interviewing in-person at remote interview sites that require payment 
to access; multiple interview processes for job opportunities requiring 
no skills or experience; test requirements that are not disclosed to 
the applicants; contact information that is disconnected, is located 
outside the U.S., or proves incorrect; farm labor contractors who 
attest to a valid license who in fact have none; and contractors who 
have not obtained surety bonds . This anecdotal evidence from different 
geographical sectors, representative of both new filers and experienced 
program users, has been obtained by the Department in the course of its 
activities in processing cases (in responses to requests for 
modifications), auditing certified cases, and in complaints from U.S. 
workers since the effective date of the 2008 Final Rule. Such non-
compliance appears to be sufficiently substantial and widespread for 
the Department to revisit the use of attestations, even with the use of 
back-end integrity measures for demonstrated non-compliance.
    The Department has also determined that the area in which 
agricultural workers are most vulnerable--wages--has been adversely 
impacted to a far more significant extent than anticipated by the 2008 
Final Rule. As discussed further below, the shift from the AEWR as 
calculated under the 1987 Rule to the recalibration of the prevailing 
wage as the AEWR of the 2008 Final Rule resulted in a substantial 
reduction of farmworker wages in a number of labor categories, and the 
obvious effects of that reduction on the workers' and their families' 
ability to meet necessary costs is an important concern to the current 
Administration.
    In order to adequately protect U.S. and H-2A workers, the 
Department is proposing the changes further discussed in the 
subsections below. The Department is engaging in new rulemaking to 
provide the affected public with notice and opportunity to engage in 
dialogue with the Department on the H-2A program. The Department took 
into account both the regulations promulgated in 1987, as well as the 
significant reworking of the regulations in the 2008 Final Rule, in 
order to arrive at a Proposed Rule that balances the worker protections 
of the 1987 Rule and the program integrity measures of the 2008 Final 
Rule. Much of the 2008 Final Rule has been retained in format, as it 
presents a more understandable regulatory roadmap; it has been used 
when its provisions do not conflict with the policies proposed in this 
NPRM. To the extent the 2008 Final Rule presents a conflict with the 
policies underpinning this Proposed Rule, it has been rewritten or the 
provisions of the 1987 Rule have been adopted. To the extent the 1987 
Rule furthers the policies that underlie this rule, those provisions 
have been retained. These changes are pointed out below.

D. Overview of Proposed Process

    In the proposed model, an employer must initiate the request for H-
2A certification 60 to 75 days prior to the date of need by submitting 
an Agricultural and Food Processing Clearance Order, Form ETA-790, to 
the State Workforce Agency (SWA) in the area of intended employment to 
be placed as an intrastate job order. Concurrent with submitting the 
job order, the employer must request a housing inspection. The SWA will 
review the proposed terms and conditions, ensure that the wage offered 
meets the required wage, and commence required recruitment by placing 
the job order into intrastate clearance. The housing inspection must be 
completed prior to the issuance of the certification, since this is a 
requirement to access to the interstate clearance system (see 20 CFR 
653.501(d)(2)(xv) and 654.403(e)).

[[Page 45909]]

The SWA must keep the job order posted and continue to refer employment 
applicants until 50 percent of the employer's contract period is 
complete. See Sec.  655.135(d).
    The employer must consider all U.S. worker applicants referred 
throughout the recruitment period. The employer may reject candidates 
only for lawful, job-related reasons. If the employer hires sufficient 
able, willing, and qualified U.S. workers during this pre-filing 
recruitment period to meet its needs, then the employer does not need 
to file a labor certification application for foreign workers with the 
Department's National Processing Center (NPC).
    If the employer finds an insufficient number of U.S. workers 
available to meet its needs, then it may seek H-2A workers by filing 
with the NPC an Application, ETA Form 9142, along with a copy of the 
ETA-790 form at least 45 days prior to the date of need and an initial 
recruitment report. See Sec.  655.130(b). Associations, labor 
contractors (known as H-2ALCs in this program), and agents have 
specific additional requirements, outlined below. Upon review by the 
NPC, the employer will either receive a Notice of Acceptance or a 
Notice of Deficiency. If the employer receives the latter, it will have 
no more than 12 days to modify the Application and return it to the 
NPC.
    Once the NPC accepts the Application, the employer will be required 
to begin positive recruitment as specified in the Notice of Acceptance. 
The employer will also be required to accept referrals not only from 
the local SWA, but also SWAs that the NPC has designated as traditional 
supply States and to which the local SWA has sent an interstate job 
order. As part of this positive recruitment, the employer will be 
required to place newspaper advertisements, which must comply with 
Sec.  655.152.
    By the deadline set by the NPC in the Letter of Acceptance, the 
employer must complete a recruitment report and submit it to the NPC. 
The employer continues positive recruitment until the H-2A workers 
leave for the employer's place of business or the first date of need, 
whichever is earlier. 8 U.S.C. 1188(b)(4).
    During the first 50 percent of the contract period the employer 
must accept any referral of U.S. workers from the SWA and continue to 
update the recruitment report. At the end of the 50 percent period, the 
employer finalizes the recruitment report and retains it along with 
copies of the advertisements placed throughout the recruitment period 
in case of an audit. The NPC issues either a Certification in 
accordance with Sec.  655.161 or a Denial Letter in accordance with 
Sec.  655.164. Extensions can be granted only in accordance with Sec.  
655.170. Should the NPC deny the Application, the employer has the 
right to appeal the decision to the Office of Administrative Law Judges 
(ALJs). See Sec.  655.171.
    Should any integrity measures, by which the Department means the 
measures it uses to determine which employers have complied with their 
worker protection obligations and what actions it takes against 
employers who have failed to do so, such as audits, debarment, or 
revocation, be instituted against the employer by the Department 
(either by OFLC or by the WHD), the employer will have an opportunity 
to respond. Once a decision has been rendered, the employer has the 
right to appeal a negative decision to the Department's ALJ as 
described in Sec.  655.171.
    The following time sequence occurs generally in the proposed H-2A 
program:
    60-75 days from date of need: Employer commences process by 
submitting job order for clearance.
    60-75 days from date of need: SWA clears job order, employer begins 
accepting referrals from SWA.
    45-75 days from date of need: Employer accepts referrals, conducts 
interviews, and begins to compile recruitment report.
    45 days from date of need: Employer files Application.
    38-44 days from date of need: Employer receives instructions from 
CO, SWA commences interstate recruitment, employer conducts positive 
recruitment, continues to compile recruitment report. Employer 
continues positive recruitment until the H-2A workers leave for the 
employer's place of business or the first date of need.
    30-38 days from date of need: CO certifies or denies.
    50 percent of contract period (past date of need): Employer 
continues to accept referrals of U.S. worker applicants.

II. Discussion of 20 CFR 655 Subpart B

A. Introductory Sections

1. Sec.  655.100 Scope and Purpose of Subpart B
    This provision informs the users of the regulatory part of the 
authority of the H-2A labor certification process, drawn directly from 
statute. It provides the statutory basis for the regulatory process for 
receiving, reviewing and adjudicating an Application for H-2A job 
opportunities.
2. Sec.  655.101 Authority of the Office of Foreign Labor Certification 
(OFLC) Administrator
    The OFLC is the office within ETA that exercises the Secretary's 
authority for determining the availability of U.S. workers and where 
there are not sufficient U.S. workers available, certifying that the 
employment of H-2A nonimmigrant workers will not adversely effect the 
wages and working conditions of similarly employed workers. Such 
determinations are arrived at by the OFLC acting through its 
Administrator. The Administrator, in turn, delegates to staff the 
responsibility to make these determinations. Certifying Officers (COs) 
in the Chicago National Processing Center (CNPC) are primarily 
responsible for the activities of reviewing Applications and making 
adjudicatory decisions.
3. Sec.  655.102 Special Procedures
    Section 655.102 proposes the establishment, continuation, revision, 
or revocation of special procedures. The H-2A regulations have, since 
their creation, included a provision for special procedures for 
variances from the process outlined in the regulation. These are 
situations where the Department recognizes that variations from the 
normal H-2A labor certification processes are appropriate to permit 
access to the program for specific industries or occupations. These 
include, for example, sheepherding, and occupations in range production 
of livestock, as well as custom combine occupations. Accordingly, the 
Department has always reserved the right to, in its discretion, develop 
and implement special procedures for H-2A Applications relating to 
specific occupations. Such special procedures supplement the procedures 
described in subpart B for all H-2A Applications.
    Historically, these special procedures have encompassed the 
authority to establish monthly, weekly, or semi-monthly AEWR for 
particular occupations. That process will continue under this proposal.
4. Sec.  655.103 Overview of This Subpart and Definition of Terms
    Although the Department is proposing a number of changes to the 
definitions section, most of the changes are to improve clarity and do 
not substantively change the meaning of the term. Substantive changes 
to definitions are discussed below.
    The Department has retained the definition of ``employee'' from the 
2008

[[Page 45910]]

Final Rule. This definition is based on the common law definition, as 
set forth in the Supreme Court's holding in Nationwide Mutual Insurance 
v. Darden, 503 U.S. 318, 322-324 (1992), which is more consistent with 
the statute than the definition contained in the 1987 Rule. The 
Department is proposing to modify the definition of ``employer'' from 
that set forth in the 2008 rulemaking, in order to conform the 
definition to that used in most other Department-administered programs. 
The definition of ``successor in interest'' has been modified from that 
in the 2008 Final Rule to make it clearer.
    Under 8 U.S.C. 1101(a)(15)(h)(ii)(A) the H-2A program encompasses 
agricultural services or labor defined by the Secretary to at least 
include agricultural labor or services as defined in the Internal 
Revenue Code (IRC) and the FLSA, and the pressing of apples for cider 
on a farm. Before the 2008 Final Rule, the Department never exercised 
its authority to expand the scope of the H-2A program beyond 
agricultural employment as defined in IRC or FLSA.
    In the 2008 Final Rule, the Department changed the regulatory 
definition of ``agricultural labor or services'' to include work 
activities of the type typically performed on a farm and incidental to 
the agricultural labor or services for which an H-2A labor 
certification was approved. Because the FLSA definition of agriculture 
already encompasses incidental work (``and any practices * * * 
performed by a farmer or on a farm as an incident to or in conjunction 
with such farming operations''), the Department believes that inclusion 
of a definition of incidental activities is duplicative. The Department 
also views as duplicative the clarification, included in the 2008 Final 
Rule that an activity that meets either the IRC or the FLSA definitions 
of agriculture is considered agricultural labor or services for H-2A 
program purposes. Therefore, the Department proposes to eliminate the 
separate definition of incidental work and the duplicative 
clarification.
    The Department, however, is proposing to continue to include 
``logging activities'' in the definition of ``agricultural labor or 
services'' for the same reasons discussed in the 2008 Final Rule. Prior 
to 1986, the Department had applied the same standards to logging 
employment as it applied to traditional agricultural employment. In 
1986, IRCA separated the H-2 visa category into agricultural work under 
the H-2A visa and nonagricultural work under the H-2B visa. As 
discussed above, the H-2A program was intended to cover agricultural 
labor or services as defined by the Secretary, including but not 
limited to agricultural labor or services as defined in the IRC and the 
FLSA. The Department chose at that time not to expand the definition of 
agriculture beyond the statutory minimum. Nevertheless, the Department 
simultaneously continued the existing regulatory H-2A-like standards 
for logging workers who were admitted under the H-2B program. Logging 
employers, therefore, have been subject to a substantially similar set 
of obligations and processes as H-2A employers, but their nonimmigrant 
employees must enter on H-2B, rather than H-2A, visas.
    In the 2008 Final Rule the Department determined that there was no 
longer any reason to maintain two substantially similar yet slightly 
divergent processes for agriculture and logging, and returned to our 
1965-1986 practice of treating both activities alike. The types of 
activities in which the employers in both fields engage--i.e., 
harvesting of agricultural and horticultural products--and the labor 
certification requirements to which they are subject, are essentially 
the same. This proposal contains the identical provision as the 2008 
Final Rule. The Department has also added a definition of ``logging 
operations'' consistent with that used by the Occupational Safety and 
Health Administration (OSHA).
    In addition, the Department is now proposing to also include 
reforestation activities within the definition of ``agricultural labor 
or services.'' For purposes of the H-2A program, ``reforestation 
activities'' will be defined as predominately manual forestry work that 
includes, but is not limited to, tree planting, brush clearing, pre-
commercial tree thinning, and forest fire fighting. Temporary foreign 
workers engaged in reforestation activities are currently admitted 
under the H-2B program.
    Reforestation work is commonly performed by migrant crews and 
overseen by labor contractors. The Department's experience has been 
that contractor work performed by migrant crews, which carries these 
similar characteristics to reforestation, is subject to a higher rate 
of violations than that performed by work performed for fixed-site 
workers. For this and other reasons, the Department has imposed 
additional requirements and obligations on labor contractors, H-2ALCs, 
under the H-2A program. These reforestation crews share the same 
characteristics as traditional agricultural crews, and the 
characteristics of most reforestation contractors are nearly identical 
to the characteristics of farm labor contractors found in traditional 
agriculture, and dissimilar than other occupations found in the H-2B 
program. It is common for their work to be paid on a piece rate basis; 
they work in locations typically with no access to public 
transportation, and are often left to their own devices to secure 
housing and food. These workers generally reside in remote locations 
for short periods of time with little or no access to community or 
government resources to assist them with work-related problems. The 
2008 Final Rule included logging, a sub-industry of forestry, within 
the scope of H-2A agricultural labor. Reforestation workers, another 
sub-industry of forestry, who perform work in such remote locations and 
for such short periods of time should have the benefit of the same 
terms and conditions of employment as loggers as well as other 
traditional migrant crews with whom they share characteristics of 
employment. Being dependent on the crew leader combined with being in 
remote locations, with little or no access to community or government 
resources, increases the potential to be exploited by crew leaders. Due 
to the isolated and often harsh nature of reforestation activities and 
reforestation working conditions, and the similarities in the workforce 
between reforestation and traditional agricultural activities, as well 
as the potential for exploitation of such transient crews, the 
Department is proposing to include reforestation activities in the 
definition of ``agricultural labor or services.''
    For like reasons, the Department is also proposing to include 
``pine straw activities'' in its definitions. Crews engaged in the 
raking, gathering, baling, and loading of pine straw, activities 
typically performed manually with hand tools, share these same 
characteristics of traditional agriculture crews. This is employment 
typically controlled by labor contractors, and as discussed above, the 
Department's experience has found a higher violation rate with labor 
contractors as opposed to fixed-site employers. These crews work in 
remote locations, often for short periods of time. These crews are 
highly transient and are typically dependent on the crew leader for all 
transportation, and typically in remote locations, are often left to 
their own devices to secure housing. They are also typically paid on a 
piece rate basis. Being so dependent on the crew leader combined with 
being in such remote locations, with little or no access to community 
or government resources, increases the potential to be exploited by 
crew leaders. Due to the

[[Page 45911]]

nature and working conditions of these pine straw activities, and the 
similarities in the workforce between pine straw and traditional 
agricultural activities, as well as the heightened potential for 
exploitation by crew leaders, the Department is proposing to include 
pine straw activities in the definition of agricultural labor or 
services.
    The Department is proposing a simplified definition of a 
``temporary or seasonal nature'', to track the definition found in the 
DHS regulations at 8 CFR 214.2(h)(5)(iv)(A). Both the 1987 Rule and 
2008 Final Rule used a definition derived from the Migrant and Seasonal 
Agricultural Worker Protection Act (MSPA). Upon further consideration, 
the Department has concluded that the MSPA definition, which is driven 
by the circumstances of individual workers, is not compatible with the 
needs of the H-2A program, which relates to the temporary/seasonal 
needs of employers. This has led to confusion under the previous rules, 
which the Department now seeks to rectify.
    Also in the definitional provisions of the proposed regulations, 
the Department proposes to define ``corresponding employment'' to more 
accurately reflect the statutory requirement that, as a condition for 
approval of H-2A petitions the Secretary certify that the employment of 
the alien in such labor or services will not adversely affect the wages 
and working conditions of workers in the U.S. similarly employed. To 
ensure that similarly employed workers are not adversely affected by 
the employment of H-2A workers, the Department makes certain that 
workers engaged in corresponding employment are provided no less than 
the same protections and benefits provided to H-2A workers.
    ``Corresponding employment'' is defined as the employment of 
workers who are not H-2A workers by an employer whose H-2A Application 
was approved by OFLC in any work included in the job order, or any 
agricultural work performed by the H-2A workers. ``Corresponding 
employment'' would include non-H-2A workers employed by an employer 
whose Application was approved by ETA who are performing work included 
in the job order or any other agricultural work performed by the 
employer's H-2A workers as long as such work is performed during the 
validity period of the job order. The definition includes both non-H-2A 
workers hired during the recruitment period required under these 
regulations and non-H-2A workers already working for the employer when 
recruitment begins. In the 2008 Final Rule, only workers newly hired by 
the H-2A employer were considered as engaged in corresponding 
employment. However, in this NPRM the Department is proposing to define 
corresponding employment more in keeping with the statutory language 
mandating that the importation of H-2A workers not adversely impact the 
wages and working conditions of workers similarly employed in the U.S. 
Such adverse impact could include providing housing at no cost to H-2A 
workers while housing domestic workers performing the same work in the 
same housing with a housing charge or reducing wages of domestic 
workers in order to have more available resources in order to import H-
2A workers. Some might argue that precluding domestic workers from 
being paid the higher rate offered to H-2A workers is an adverse 
impact.

B. Prefiling Requirements

1. Sec.  655.120 Offered Wage Rate
a. The Need for an Adverse Effect Wage Rate (AEWR)
    The AEWR is the minimum wage rate that agricultural employers 
seeking nonimmigrant alien workers must offer to and pay their U.S. and 
alien workers, if prevailing wages and any Federal or State minimum 
wage rates are below the AEWR. The AEWR is a wage floor, and the 
existence of the AEWR does not prevent the worker from seeking a higher 
wage or the employer from paying a higher wage.
    The Department continues to believe that the justification for the 
establishment of an AEWR cited in the final rule published in 1989 
specifically on the AEWR methodology, remains valid:

    Even though the evidence is not conclusive on the existence of 
past adverse effect, DOL still believes that its statutory 
responsibility to U.S. workers will be discharged best by the 
adoption of an AEWR set at the USDA average agricultural wage in 
order to protect against the possibility that the anticipated 
expansion of the H-2A program will itself create wage depression or 
stagnation.

(54 FR 28037, Jul. 5, 1989.)

    The AEWR not only addresses the potential adverse effect that the 
use of low-skilled foreign labor may have on the wages paid to native-
born agricultural workers, but also protects U.S. workers whose low 
skills make them particularly vulnerable to wage deflation resulting 
from the hiring of immigrant labor. This is true even in the event of 
relatively mild, and thus very difficult to measure, wage deflation. 
Additionally, an adverse effect wage rate will potentially result in 
greater employment opportunities for U.S. workers, furthering statutory 
intent.
    The statute recognizes that U.S. agricultural workers need 
protection from potential adverse effects of the use of foreign 
temporary labor, because they generally comprise an especially 
vulnerable population whose low educational attainment, low skills, low 
rates of unionization and high rates of unemployment leave them with 
few alternatives in the non-farm labor market. Consequently, their 
ability to negotiate wages and working conditions with farm operators 
or agriculture services employers is quite limited. The Department 
therefore believes that its statutory mandate justifies returning to 
the previous methodology as it better ensures U.S. workers are not 
adversely affected. Additionally, it creates a floor below which wages 
cannot be negotiated, thereby strengthening the ability of this 
particularly vulnerable labor force to negotiate over wages with 
growers who are in a stronger economic and financial position in 
contractual negotiations for employment.
    The Department has determined that the area in which agricultural 
workers are most vulnerable--wages--has been adversely impacted to a 
far more significant extent than anticipated by the 2008 Final Rule. 
Experience with the 2008 Final Rule to date demonstrates, that on 
average, required wages under the program have declined by 
approximately $1.44 per hour.\1\ The 2008 Final Rule did not anticipate 
such a precipitous drop in workers' wages and as a result, the 
Department seeks to rectify this adverse effect on agricultural 
workers.
---------------------------------------------------------------------------

    \1\ See Preamble section IV A. Administrative Information, 
Executive Order 12866.
---------------------------------------------------------------------------

    Furthermore, exclusive reliance on the traditional notion of the 
prevailing wage (i.e., the wage paid for that occupation in area of 
intended employment) is inappropriate to the unique circumstances of 
the H-2A program. The other temporary foreign labor programs 
administered by the Department are subject to statutory visa caps. 
Historically, those programs have not involved the influx of large 
numbers of foreign workers into a particular labor market. In these 
other programs, it is realistic to conclude that payment of a 
prevailing wage to the foreign workers will have no adverse effect on 
U.S. workers. This assumption is not valid in the H-2A context. The 
program is uncapped and experience indicates that it can involve large 
numbers of foreign workers entering a specific labor market. Under 
these circumstances employment

[[Page 45912]]

of foreign workers may produce wage stagnation in the local labor 
market. Access to an unlimited number of foreign workers in a 
particular labor market at the current prevailing wage would inevitably 
keep the prevailing wage improperly low. The most effective way to 
address this problem is to superimpose a wage floor based on a survey 
that encompasses a wide enough geographic area so that the wage 
depressing effect of the use of H-2A workers will be ameliorated if not 
completely avoided.
b. Determining the Adverse Effect Wage Rate
    In the 2008 Final Rule, the Department changed the data on which 
the AEWR is based from the USDA Farm Labor Survey (FLS) to data from 
the BLS OES. Additionally, the Department added a four-tiered set of 
skill levels to permit wages to be set based on the relative complexity 
of the job activities. As recognized in the 2008 rulemaking, the FLS 
and the OES survey are the leading candidates among agricultural wage 
surveys potentially available to the Department to set AEWRs. Although 
the Department solicited comment on the potential for alternative wage 
surveys in 2008, it received no ideas for useable alternative wage 
surveys. However, the Department again seeks comment on whether there 
are other approaches to calculating the AEWR that should be considered, 
as well as on its decision to revert to what it considers to be, on 
balance, a survey that provides more accurate and targeted data.
    The OES wage survey is among the largest ongoing statistical survey 
programs of the Federal Government. The OES program surveys 
approximately 200,000 establishments every 6 months, and over 3 years 
collects the full sample of 1.2 million establishments. The OES program 
collects occupational employment and wage data in every State in the 
U.S. and the data are published annually. The Department already uses 
OES wage data to determine prevailing wages in other temporary worker 
programs.
    The OES agricultural wage data, however, has a number of 
significant defects. Perhaps most significantly, BLS OES data do not 
include wages paid by farm employers. Rather, the OES focuses on 
establishments that support farm production, rather than engage in farm 
production. Given that the employees of non-farm establishments 
constitute a minority of the overall agricultural labor force, it can 
be argued that these data are therefore not representative of the farm 
labor supply, does not provide an appropriately representative sample 
for the labor engaged by H-2A employers.
    In contrast, the USDA FLS surveys between 11,000 and 13,000 farms 
and ranches each quarter on multiple subjects, including the number of 
hired farm workers, the gross wages paid to workers, and their total 
hours worked. Only farms and ranches with value of sales of $1,000 or 
more are included in the scope of the survey. Hired farm workers are 
defined as ``anyone, other than an agricultural service worker, who was 
paid for at least 1 hour of agricultural work on a farm or ranch.'' The 
survey seeks data on four types of hired workers: field workers, 
livestock workers, supervisors, and other workers.
    USDA, through the National Association of State Departments of 
Agriculture, uses four collection methods for the FLS: mail, CATI 
(computer-assisted telephone interviews), personal visits (for larger 
operations), and online (only about 2 percent of respondents). The FLS 
sample is distributed across the entire country, with the geographic 
detail covering 15 multistate regions and 3 stand-alone States. This 
broader geographic scope makes the FLS more consistent with both the 
nature of agricultural employment and the statutory intent of the H-2A 
program. Because of the seasonal nature of agricultural work, much of 
the labor force continues to follow a migratory pattern of employment 
that often encompasses large regions of the country. Congress 
recognized this unique characteristic of the agricultural labor market 
with its statutory requirement that employers recruit for labor in 
multistate regions as part of their labor market, prior to receiving a 
labor certification for employing H-2A workers. The 2008 Final Rule did 
not sufficiently account for this labor market attribute and the 
Department believes that by returning to the FLS' regionally-based 
methodology that inconsistency will be remedied.
    USDA calculates and publishes average wage rates for four 
categories of workers each quarter. Wage rates are not calculated and 
published for supervisors or other workers, but are for field workers, 
livestock workers, field and livestock workers combined, and total 
hired workers. Within the FLS, the wage rates, or average hourly wage, 
by category are defined as the ratio of gross wages to total hours 
worked. To the extent workers receive incentive pay, the average wage 
rate would exceed the workers actual wage rate. Because the ratio of 
gross pay to hours worked may be greater than a workers' actual wage 
rate, some statistics agencies refer to the ratio as average hourly 
earnings, and not as hourly wages or wage rate.
    The FLS-derived wage rate estimate for the four categories of 
workers is published quarterly, and annual averages are published as 
well. The Department has in the past used these annual averages to 
arrive at the annual AEWR. Before the implementation of the 2008 Final 
Rule, the Department used the regional annual average for the category 
field and livestock workers combined as the annual AEWR for each State 
within a given geographic region.
    The FLS survey and publication schedule provides timely data for 
purposes of calculating the relevant State AEWRs. The FLS is the only 
source of data on farm worker earnings that is routinely available and 
published within 1 month of the survey date. The quarterly gathering of 
data ensures that the annual averages are more accurately reflective of 
the fluctuations of farm labor patterns, which are by definition 
seasonal and thus more subject to fluctuation than other occupations. 
This is in contrast to the OES data which can lag in wage rate 
reporting by up to 3 years and may be collected from surveys during 
times of the year when agricultural workers are not present in a 
specific geographic area, thus providing less precise calculations.
    The FLS is the only annually available data source that actually 
uses information sourced directly from farmers. The majority of farm 
workers are hired directly by farm operators. The FLS reports for 2008, 
for example, showed that 73.4 percent (730,800 per quarter on average) 
of all hired workers on farms had been directly hired by farm 
operators. The FLS also collects data on the number of workers and 
wages of workers performing agricultural services on farms (i.e., 
workers supplied by services contractors) in California and Florida. 
California and Florida account for the preponderance of agricultural 
service contract labor provided to farms. In 2008, on average, 
California accounted for 42.6 percent (112,750) of the estimated 
national total 264,700 farm workers supplied under agricultural 
services contracts.
    The FLS is a scientifically-conducted quarterly survey of the wages 
of farm and livestock workers and includes small farms not covered in 
other surveys. The scope and frequency of the survey means that all 
crops and activities covered by the H-2A program are included in the 
survey data and that peak work periods are also covered. The Department 
believes that the average hourly wage, based on the FLS data, 
compensates for any wage depression or

[[Page 45913]]

stagnation resulting from the large numbers of undocumented workers in 
the agricultural labor market. Using this methodology, regional AEWRs 
will be calculated based on the previous year's annual combined average 
hourly wage rate for field and livestock workers in each of 15 
multistate regions and 3 stand-alone States, as compiled by the USDA 
quarterly FLS Reports. In contrast, while the OES is an appropriate 
wage survey for other industries, it was not designed for the purpose 
of calculating an hourly wage for agricultural labor, does not survey 
farms and therefore does not provide data in the agricultural sector 
appropriate to what is needed to make the adverse effect wage 
determinations as required under the H-2A program. Therefore, the 
Department believes that the USDA FLS survey of farm and livestock 
workers presents the most appropriate data for determining the adverse 
effect wage in the agricultural sector for use in the H-2A program.
    For these reasons, the Department proposes to return to its 1989 
methodology for the formulation of the AEWR. The Department proposes to 
annually publish for each State the AEWR based on the average combined 
hourly wage for field and livestock workers for the four quarters of 
the prior calendar year from the USDA's NASS FLS. The Department seeks 
comments on this methodology.
    The Department is also proposing to discontinue the process in the 
2008 Final Rule of including within the AEWR four wage levels 
reflecting differences based on required skill levels and levels of 
responsibility. It is our experience that the majority of hired farm 
labor, and the vast majority of labor for which H-2A certification is 
sought, is in low-skilled positions where wage differences are not 
driven by the level of skill required and responsibility required. Such 
skill differences are difficult to discern and create opportunities for 
error, either intentional or inadvertent. In addition, and perhaps most 
important, to whatever extent such differences may exist, no wage data 
is collected that could reasonably be used to identify them.
    The Department is also proposing a new provision in this NPRM: if a 
prevailing hourly wage or piece rate is announced by the Department as 
increasing during the work contract to such an extent as it becomes 
higher than the AEWR or the legal Federal or State minimum wage, the 
employer must pay the new amount for the remaining duration of the 
contract. This change in policy is intended to ensure workers are paid 
throughout the life of their contracts at an appropriate wage 
commensurate with the baseline of the market value of their services. 
The Department expects that in these rare instances it will notify 
employers of the new wage and allow a period of time to ensure 
compliance.
2. Sec.  655.121 Job Orders
    The INA requires employers to engage in recruitment through the 
Employment Service job clearance system, administered by the SWAs. See 
8 U.S.C. 1188(b)(4); see also 29 U.S.C. 49 et seq., and 20 CFR part 
653, subpart F. This proposal requires the employer to place a job 
order with the SWA serving the area of intended employment for 
intrastate clearance in order to test the local labor market to confirm 
the lack of U.S. workers prior to filing an Application. This process 
is consistent with the 2008 Final Rule. This eliminates the needless 
expenditure of limited government resources processing Applications 
when U.S. workers are actually available. If the job opportunity is 
located in more than one State within the same area of intended 
employment, the employer may submit a job order to any one of the SWAs 
having jurisdiction over the anticipated worksites to place the job 
order, but that SWA must forward the job order to the companion SWAs to 
have it placed in all locations simultaneously.
    The employer must submit the job order to the SWA no more than 75 
calendar days and no fewer than 60 calendar days before the date of 
need. Upon clearance and placement of the job order in intrastate 
clearance, the SWA must keep the job order on its active file until 50 
percent of the H-2A contract period is reached, and must refer each 
U.S. worker who applies (or on whose behalf an Application is made) for 
the job opportunity during that time period. Any issue with respect to 
whether a job order may be properly placed in the intrastate clearance 
system that cannot be resolved with the applicable SWA must be first 
brought to the attention of the CO in the NPC.
    The placement of the job order in the intrastate clearance system 
is typically a conditional access to the employment service system, 
given the requirement that the employer provide housing that meets 
applicable standards. 20 CFR 654.403(a). When the job order is placed 
in intrastate clearance, the SWA must inspect the housing that is to be 
provided to H-2A workers and those workers in corresponding employment 
who are not reasonably able to return to their residence within the 
same day. 20 CFR 654.403(e).
    The Department has eliminated the requirement in the 2008 Final 
Rule that SWAs must complete the employment eligibility verification 
process (Form I-9 or Form I-9 plus E-Verify) for all workers referred 
to the job order by the SWA. This is a reversion to the 1987 Rule, 
under which workers in most States self-attested that they were 
eligible to take up the employment, in other words that they met the 
definition of a U.S. worker or were authorized to be employed in the 
U.S. The Department has done so for several reasons. The Department, 
upon reconsideration of the rationale for this practice after decades 
of not requiring States to verify employment eligibility of referrals, 
has decided to again place the responsibility for H-2A employment 
eligibility verification back on the employer, where the statute places 
it as a primacy. A referral is not an offer of employment--the 
individual may not apply for and may reject the position, they may not 
even be offered the position; regardless there are legal distinctions 
between refer and hire which are again being separated with this 
decision. While the Department does not desire that SWAs should refer 
any undocumented workers to any H-2A job opportunities they assist, it 
is also a resource (both financial and human) issue for States to 
complete, update and maintain Forms I-9 for referrals. Most States rely 
on an attestation for ensuring the eligibility of applicants who 
utilize SWA resources other than H-2A job referrals (such as job skills 
training), and by returning to this practice States will ensure that no 
worker seeking services in the public workforce system is treated 
disparately.
    The operational benefits address two general categories of 
difficulty with I-9 verification by SWAs: SWAs have been at best 
inconsistent in operationalizing the requirement and have reported back 
significant difficulties in doing so. SWAs offer decentralized services 
but the H-2A job orders are often handled in a central (single) 
location. Due to the necessity of physical inspection, more staff--some 
of whom are not State merit staff--must be trained to perform document 
inspection, especially in geographically large States. In addition, 
States forwarding workforce referrals to other States (e.g., 
traditional labor supply States) carry a disproportionate share of 
verification because of the higher number of referrals they are charged 
with sending on; the receiving States cannot assist as the worker is 
not physically present to present the documentation. Employment 
verification is moreover seen as

[[Page 45914]]

discriminatory in that SWAs must verify eligibility of only those 
referrals to H-2A job orders and are not required to verify referrals 
for non-H-2A job orders; this is particularly an issue given the 
typical ethnic makeup of migrant agricultural referrals. Further, 
referrals are disparately impacted; individuals that show up (or are 
sent) to the farm as so-called gate potential hires do not get the 
benefit of employment verification by the SWA but must be verified by 
the employer. Accordingly, workers will be handled by two processes--
the employer and the State referring the worker.
    The 2008 Final Rule recommended use of E-Verify but did not (indeed 
could not) require its use by States. States have been extremely slow 
to use E-Verify, despite the efforts on the part of United States 
Citizenship and Immigration Services (USCIS) to implement access to E-
Verify for SWAs and the training efforts of the Department to ensure 
States are comfortable in using it. This is in part because USCIS 
requires a State to apply equal use of E-Verify to all workers who are 
referred, which given the mandate for H-2A job orders only, is 
difficult to apply unless the State is required to (or agrees to) 
verify all referrals to all job orders and not only those it is 
required to do. In addition, the use of E-Verify requires the 
completion of the Form I-9, and is an extra step requiring already 
stretched resources.
    The Department has accordingly determined that SWAs may choose to 
complete employment eligibility verification on those individuals it 
refers in accordance with USCIS regulatory procedures, but are not 
required to do so. The Department believes that the administrative 
burdens of this activity do not outweigh its benefits. The savings to 
SWAs in time and human capital are more effectively directed at the 
core functions of the nation's public workforce system, the effective 
placement of U.S. workers in appropriate job opportunities.
3. Sec.  655.122 Contents of Job Offers
    The job offer sets out the terms and conditions of employment 
contained within the job order. The employer can give this information 
to the workers by providing a copy of the job order or a separate work 
contract. A written job offer is critical to inform potential workers 
of the terms and conditions of employment and to demonstrate compliance 
with all of the obligations of the H-2A program. For H-2A program 
purposes, the job offer must contain, at a minimum, all of the worker 
protections that apply to both domestic and foreign workers pursuant to 
these regulations. The Department considers the job offer essential for 
providing the workers sufficient information to make informed 
employment decisions. The job order, which is the document representing 
the terms and conditions of the job offer, must be provided with its 
pertinent terms in a language the worker understands.
    The Department is proposing to retain most of the 2008 Final Rule 
requirements concerning job offers. As these requirements are familiar 
to the regulated community, the Department's discussion below focuses 
solely on the main differences between this section and the 
corresponding section in the 2008 Final Rule as well as minor nuances 
and clarifications.

a. Prohibition against preferential treatment (Sec.  655.122(a)).

    The Department's statutory obligation in administering the H-2A 
program dictates that the employer be required to extend a job offer 
containing the same benefits, wages and working conditions for both 
U.S. and foreign workers. An employer may not impose any additional 
restrictions or obligations on U.S. workers. Under the proposed 
regulations, the employ