Temporary Agricultural Employment of H-2A Aliens in the United States, 6884-6995 [2010-2731]

Agencies

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

[Federal Register Volume 75, Number 29 (Friday, February 12, 2010)]
[Rules and Regulations]
[Pages 6884-6995]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2731]



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Part II





Department of Labor





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Employment and Training Administration



20 CFR Part 655



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Wage and Hour Division

29 CFR Part 501



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

Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / 
Rules and Regulations

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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, Labor.

ACTION: Final rule.

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SUMMARY: The Department of Labor (the Department or DOL) is amending 
its regulations governing the certification of temporary employment of 
nonimmigrant workers in temporary or seasonal agricultural employment 
and the enforcement of the contractual obligations applicable to 
employers of such nonimmigrant workers. The Department is also amending 
the regulations at 29 CFR part 501 to provide for enhanced enforcement 
under the H-2A program requirements so that workers are appropriately 
protected when employers fail to meet their obligations under the H-2A 
program.

DATES: This Final Rule is effective March 15, 2010.

FOR FURTHER INFORMATION CONTACT: For further information on 20 CFR part 
655, contact William L. Carlson, Ph.D., Administrator, Office of 
Foreign Labor Certification, Employment and Training Administration, 
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, 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 and Regulatory Background

    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. 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); see also 8 U.S.C. 1184(c)(1) and 
1188.\1\ The INA authorizes the Secretary of the Department of Homeland 
Security (DHS) to permit employers to import foreign workers to perform 
temporary agricultural labor or services of a temporary or seasonal 
nature if the Secretary of the U.S. DOL (Secretary) certifies that:
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    \1\ For ease of reference, all subsequent sections of the INA 
will be referred to by their corresponding section in the United 
States Code (U.S.C.).

    (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 Secretary has delegated these 
responsibilities, through the Assistant Secretary, Employment and 
Training Administration (ETA), to ETA's Office of Foreign Labor 
Certification (OFLC). The Secretary has delegated responsibility for 
enforcement of the worker protections to the Administrator of the Wage 
and Hour Division (WHD). The Department's H-2A regulations remained 
largely unchanged from the 1987 Rule until 2008. In 2008, the 
Department significantly revised these regulations at 73 FR 77110, Dec. 
18, 2008 (the 2008 Final Rule). Over the past several months, the 
Department undertook a review of the policy decisions reflected in the 
2008 Final Rule, specifically reviewing the worker protections afforded 
under that rule. This review resulted in a Notice of Proposed 
Rulemaking (NPRM) published in September 2009, 74 FR 45906, Sep. 4, 
2009.

B. Overview of Comments Received

    The Department received almost 7,000 comments on the proposed rule. 
We have determined that 349 of these comments were completely unique, 
13 were considered duplicates, and 6,577 were considered a form letter 
or based on a form letter.
    Commenters represented a broad range of constituencies for the H-2A 
program, including individual farmers, farm workers, farm associations, 
farm worker advocate groups, agents, law firms, farm labor bureaus, 
State Workforce Agencies (SWAs), State Government Officials, U.S. 
Congress Members and Committees, and various interested members of the 
public. The Department received comments both in support of and in 
opposition to the proposed regulation, which are discussed in greater 
detail below. These comments raised a variety of concerns, some general 
and some pertaining to specific provisions or specific proposals. After 
reviewing the comments thoughtfully and systematically, the Department 
has modified several provisions and retained others as originally 
proposed in the NPRM. In addition, there were several commenters that 
requested that due to the timing of the regulation falling during 
harvest time for many farmers and based on the complexity of the issues 
addressed, the Department should provide additional time to comment on 
the proposed rule. In response to these comments, the Department 
provided an additional 15 days for comments on the proposed rule.
    The Department received many comments that were deemed to be beyond 
the scope of the proposed rule. Some of these issues included pending 
legislation, the H-2B temporary nonagricultural worker program, 
comprehensive immigration reform, and specific issues related to the 
control of our nation's borders. These are issues that cannot be 
resolved or implemented through this regulatory process or are not 
within the purview of the Department. Additionally, comments submitted 
in a manner inconsistent with the specific directions of the NPRM or 
submitted after the comment period closed were not considered.
    The Department received many comments challenging the Department's 
decision to engage in new rulemaking for the H-2A program. The 
Department has inherent authority to change its regulations in 
accordance with the Administrative Procedure Act (APA). In this Final 
Rule we provide an appropriate justification for all of the changes 
that we are making to the H-2A program.
    The Department received requests by several commenters that the 
proposed rule be published in Spanish since the workers who use the 
program predominantly speak and write Spanish as their first language. 
The APA at 5 U.S.C. 552(a)(1) requires agencies to

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publish regulations in the Federal Register. The Department initiated 
conversations with the Office of the Federal Register on the subject of 
publishing regulations in a language other than English. However, the 
Office of the Federal Register informed the Department that based on 
its limited resources and personnel it is unable to publish any 
documents in a language other than English.

C. Severability

    To the extent that any portion of this Final Rule is declared 
invalid by a court, the Department intends for all other parts of the 
Final Rule that are capable of operating in the absence of the specific 
portion that has been invalidated to remain in effect. Thus, even if a 
court decision invalidating a portion of this Final Rule results in a 
partial reversion to the current regulations or to the statutory 
language itself, the Department intends that the rest of the Final Rule 
continue to operate, if at all possible in tandem with the reverted 
provisions.

II. Discussion of Comments Received

    The Department has addressed those areas in which it received 
comments. With regard to specific provisions on which the Department 
did not receive comments, it has retained the provisions as proposed, 
except where clarifying edits have been made, which have been explained 
below.

A. Section 655.103 Overview of This Subpart and Definition of Terms

1. Section 655.103(a) Overview
    The overview section in the proposed rule was shortened from the 
2008 Final Rule to avoid any possibility that it may contain mandates 
not contained in the sections following it. The Department received no 
comments on this change and is leaving the section unchanged in the 
Final Rule.
2. Section 655.103(b) Definitions
    For the purposes of this section, the Department has included a 
discussion of those definitions that received comments. Any definitions 
that did not receive comments have been retained as proposed without 
further changes, unless otherwise noted.
a. Agricultural Association
    The NPRM proposed a slight change to the definition of agricultural 
association. The 2008 Final Rule seemed to imply that an agricultural 
association could be both an agent of its employer members and an 
employer at the same time. The NPRM clarified that an agricultural 
association could either be an agent or an employer (whether a sole 
employer or joint with its members) but not both. The Department 
received no comments on this change; therefore, the Final Rule reflects 
the language proposed in the NPRM without any modification.
b. Area of Intended Employment
    The NPRM made no significant changes from the 2008 Final Rule in 
the definition of area of intended employment. The only changes were in 
the elimination of the redundancies and the use of etc. in the listing 
of examples of the factual circumstances that could constitute a normal 
commuting distance or commuting area. One commenter suggested that the 
Department add a definite number of miles, such as 75 miles, within 
which all work locations must be located. The commenter suggested that 
because of the size of the area of intended employment coupled with the 
length of the certification period, U.S. workers who only want to do 
one kind of agricultural job may be dissuaded from applying. Another 
commenter suggested narrowing the area of intended employment because 
commuting distances within an area of intended employment could be 
upwards of 90 miles and it would be unreasonable for the Department to 
expect U.S. workers to commute such a distance every day without being 
provided housing.
    The Department understands the concerns of both commenters; 
however, their concerns are misplaced. The term area of intended 
employment is used in conjunction with recruitment, which should cast a 
net as wide as possible to inform all potential U.S. workers of an 
upcoming contract in their area. U.S. workers are entitled to the same 
housing as the H-2A workers if they are not reasonably able to return 
to their residence within the same day as discussed under Sec.  
655.122(d)(1).
    As for the commenter's concern that a worker who only wanted to do 
one type of agricultural activity would be precluded from applying, 
changing the definition of an area of intended employment would not 
alleviate such a situation. The term is used primarily for recruitment 
purposes to ensure that the designated SWAs receive the job order so 
that U.S. workers have the opportunity to apply for the job. Therefore, 
the Final Rule adopts the definition as proposed in the NPRM, with the 
exception of a minor editorial change.
c. Corresponding Employment
    In the definition of corresponding employment, the Department 
proposed that all workers employed by H-2A employers doing work 
performed by H-2A workers be considered engaged in corresponding 
employment. The proposal returns to the requirements of the 1987 Rule, 
with one difference which is explained below. The Final Rule adopts the 
language of the NPRM as proposed.
    The change from the 1987 Rule is the addition of the phrase or in 
any agricultural work performed by the H-2A workers. This language was 
added to address the adverse impact on U.S. workers when an H-2A 
employer engages H-2A workers in agricultural work outside the scope of 
work found in the approved job order, including work impermissibly 
performed outside the area of intended employment. Domestic workers 
should not be disadvantaged when an employer violates the terms and 
conditions of the H-2A job order. This does not require that every 
worker on a farm be paid the H-2A required wage. It does, however, 
require that workers employed by an H-2A employer who perform the same 
agricultural work as the employer's H-2A workers be paid at least the 
H-2A required wage for that work.
    A number of commenters opposed the proposal to return to the prior 
definition of corresponding employment because they agreed with the 
rationale offered for the change in the 2008 Final Rule (which limited 
the protections to newly hired workers). These commenters stated that 
we provided no basis for a return to the prior definition, offered no 
evidence to support the proposed definition, and did not account for 
the increased costs. A labor contractor opposed the definition because 
it would require the payment of the Adverse Effect Wage Rate (AEWR) to 
non-H-2A workers who performed incidental work that was also performed 
by H-2A workers.
    A worker advocate favored the proposal because it would ensure that 
U.S. workers would not be adversely affected by H-2A workers. Another 
advocacy organization supported the proposal because it would not 
penalize local workers and would contribute to a stable workforce.
    The effect of the proposed definition which would require U.S. 
workers to be paid the same wages and conditions that H-2A workers 
receive when performing the same work is not new. Hearings were held in 
1962 to address the impact on the wages and working conditions of 
domestic workers due to the use of temporary foreign workers to perform 
agricultural work. The 1980 Senate Judiciary Report on Temporary Worker 
Programs discussing the 1962 hearings

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stated that U.S. employers were required to offer domestic workers 
wages equal to foreign workers as a prerequisite for labor 
certification. See Congressional Research Service: ``Report to the 
Senate Committee on the Judiciary: Temporary Worker Programs: 
Background and Issues, 53 (1980).'' For many years, the H-2 program has 
required employers to pay wage rates to domestic workers as determined 
by DOL. See 32 FR 4571, Mar. 28, 1967.
    The preamble to the 1979 H-2 rulemaking provided that employers 
must offer and provide U.S. workers at least the same level of wages, 
benefits, and working conditions offered or provided to foreign 
workers. See 43 FR 10308, Mar. 10, 1979. The 1987 Rule continued the 
application of this principle and introduced the term corresponding 
employment, stating that those regulations were 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 the H-2A certification. The 
regulations made specific reference to workers in corresponding 
employment hired by H-2A employers as well as to any other worker 
employed in corresponding employment. See 52 FR 20527-20528, and 20531, 
Jun. 1, 1987.
    Courts have consistently upheld the Department's interpretation 
that the wages and benefits offered or provided to the H-2A workers 
must also be provided to domestic workers. See Farmer v. Employment 
Security Comm'n of N.C., 4 F.3d 1274, 1276, n.2, 3 (4th Cir. 1993) (H-
2A employers must make certain benefits available to all temporary 
agricultural laborers); see also Williams v. Usery, 531 F.2d 305, 306 
(5th Cir. 1976) (the Secretary's authority is limited to making an 
economic determination of what rate must be paid all workers to 
neutralize any adverse effect resulting from the influx of temporary 
foreign workers), and NAACP, Jefferson County v. Donovan, 566 F.Supp. 
1202, 1205 (D.D.C. 1983) (the AEWR is the rate at which DOL requires 
growers to pay all of their farm workers before the Department will 
allow them to import alien labor; the purpose of requiring payment of 
the AEWR is to prevent importation of nonimmigrant laborers from having 
an adverse effect on the prevailing wage rate).
    The 2008 Final Rule stripped these protections from longtime 
employees of H-2A employers, applying H-2A protections only to newly-
hired workers and the H-2A workers themselves. The preamble to the 2008 
Final Rule reasoned that longtime U.S. workers paid below the AEWR were 
no worse off for the hiring of H-2A workers at the higher AEWR and 
therefore were not adversely affected by the hiring of H-2A workers. On 
further review, this explanation fails to account for the role of the 
AEWR in protecting against possible wage depression from the 
introduction of foreign workers. Further, as one commenter observed, 
since newly-hired employees are entitled to the AEWR, a longtime 
employee may quit his current employment and re-apply for the same job 
with the same employer to obtain the new higher AEWR. This anomaly puts 
too high a premium on longtime employees knowing the AEWR, 
understanding their rights under the regulations, and having the 
security, rare in low-wage agricultural employment, to quit a job with 
the expectation of being immediately rehired. Under this Final Rule, 
longtime U.S. workers will be entitled to the wage rates paid to H-2A 
employees without having to quit their jobs and be rehired.
    One commenter noted that the proposal ignores market-based 
principles. Another asserted that supervisors who occasionally did jobs 
performed by H-2A workers would have to be paid the AEWR. As explained 
above, the AEWR is intended to supplement wage rates that have been 
depressed by the presence of H-2A and other foreign workers. In that 
sense it is not reflective of market forces. Supervisors presumably 
would be paid more than the AEWR and the Final Rule does not require 
that their wages be reduced. To the extent that is not the case, the 
requirement to pay them the AEWR would only apply for the period of 
time they perform work done by H-2A workers.
    One commenter requested that the definition of corresponding 
employment be expanded to include joint employment, and another 
requested that U.S. workers of fixed-site employers be included in the 
definition when their employer contracts with an H-2A Labor Contractor 
(H-2ALC) to provide H-2A workers. We do not believe it is necessary to 
include joint employment in the definition of corresponding employment, 
as the regulatory definition of joint employment makes clear that each 
employer in a joint employment relationship bears all of the 
obligations of an employer. Accordingly, U.S. workers employed by a 
joint employer of H-2A workers would be in corresponding employment, if 
performing the same work. However, the INA limits the Secretary's 
enforcement authority to employers (or joint employers) of H-2A 
workers. See 8 U.S.C. 1188(g)(2).
d. H-2A Labor Contractors (H-2ALCs)
    The definition of an H-2ALC in the Final Rule remains unchanged 
from the NPRM. One commenter questioned whether the Department should 
grant certification to labor contractors to participate in the program, 
noting that, for growers, the H-2A program is a means to obtain the 
labor needed to meet their end, the production of a farm commodity, 
whereas for the labor contractor, the H-2A workers themselves are the 
desired end. Some commenters objected to the inclusion of the 
activities of recruitment and employment in the definition of an H-
2ALC, asserting that these activities are only applicable to domestic 
migrant and seasonal workers already covered by the Migrant and 
Seasonal Agricultural Worker Protection Act (MSPA). Because the 
Department's enforcement experience shows agricultural labor 
contractors have lower compliance rates than fixed-site agricultural 
employers, additional obligations are required for them. This requires 
a definition that distinguishes each type of employer. The fact that 
some H-2ALCs engage in activities covered by other statutes (such as 
MSPA) does not mean that the Department should ignore those activities 
when they relate to H-2A workers.
    A representative of the sheep shearing industry objected to the 
potential classification of sheep shearing contractors as H-2ALCs. The 
argument presented by this commenter is that Congress specifically 
exempted employers in this industry from farm labor contractor (FLC) 
licensing requirements under MSPA; therefore, they should be exempt 
from being considered H-2ALCs.
    The definition of an H-2ALC broadly encompasses employers who seek 
to participate in the H-2A program, but do not fit the definition of a 
fixed-site employer. The shearing contractor does not have a fixed site 
where the agricultural activities are performed; therefore, it cannot 
be a fixed-site employer and by default is an H-2ALC. The fact that 
shearing contractors are exempt from MSPA licensing requirements does 
not affect their status as H-2ALCs.
    In addition, this commenter mistakenly believes that the name and 
location of each ranch where the shearing will take place must be in 
the advertisement. This was a requirement in the 2008 Final Rule, but 
was eliminated in the NPRM. The NPRM proposed to require that 
advertisements

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contain the geographic area of intended employment with enough 
specificity to apprise applicants of any travel requirements and where 
applicants will likely have to reside to perform the labor or services. 
Therefore, the Department does not believe this to be a significant 
burden warranting a special definition of employer for the shearing 
industry.
    This commenter also asserted that sheep shearing contractors will 
have to file separate applications for each area of intended employment 
and in some cases may have to file two different applications for one 
area of intended employment, if the contractor must return to the same 
area of intended employment after moving to a different area of 
intended employment. This commenter points out that under the 1987 Rule 
and the 2008 Final Rule there were special procedures for shearing 
contractors that provided for itinerary work and required only one 
application. The NPRM did not remove the special procedures at Sec.  
655.102. In addition, the ``Special Procedures for Employers in the 
Itinerant Animal Shearing Industry Under the H-2A Program'' found in 
Training and Employment Guidance Letter No. 17-06 are still in effect 
and would permit a sheep shearing employer to file an itinerary-based 
application. Therefore, the Department is not persuaded that this is a 
valid reason to exempt shearing contractors from the definition of an 
H-2ALC.
e. Job Opportunity
    One commenter opined that the new definition of job opportunity 
offered by the NPRM was not as specific as the 1987 Rule because it 
does not include the words job opening. The commenter contended that a 
definition of job opportunity without a reference to a job opening is 
invalid. The Department disagrees. There is no meaningful distinction 
between the two concepts and adding the phrase job opening would be 
redundant.
f. Job Order
    The definition of job order has been modified in this Final Rule to 
add the word material for consistency with the definitions of job offer 
and work contract.
g. Master Application
    The NPRM proposed to include a definition of master application. 
Although we did not receive comments directly addressing the 
definition, based on comments received on the treatment of master 
applications in Sec.  655.131(b), we are clarifying several aspects 
including that a master application may cover multiple areas of 
intended employment within a single State but no more than two 
contiguous States. These clarifications are discussed in more detail in 
the preamble for that section.
h. Positive Recruitment
    The 2008 Final Rule definition included the concept of interviewing 
qualified and eligible individuals. The NPRM added the language that 
positive recruitment is performed under the auspices and direction of 
the OFLC. The Department received no comments on the definition of this 
term; therefore, the definition is unchanged in the Final Rule.
i. Prevailing Practice
    The 2008 Final Rule defined the term prevailing whereas the NPRM 
defined the term prevailing practice. We have returned to the 
formulation used in the 1987 Rule which defines prevailing practice. 
This definition applies to certain terms of employment, e.g., family 
housing, which must be offered by employers if they reflect prevailing 
practice, i.e., are offered by a majority of the employers employing a 
majority of the workers in the area. Since the term prevailing wage is 
otherwise defined, there is no need for a definition of the term 
prevailing.
j. Prevailing Wage
    The NPRM defined prevailing wage as the wage established under 20 
CFR 653.501(d)(4). The Department received no comments on this change. 
Therefore, the Final Rule adopts the language of the NPRM without 
change.
k. Successor in Interest
    The NPRM proposed no substantive changes to the definition of 
successor in interest; however, it added one factor to the 
circumstances that may be considered in determining whether an employer 
is a successor in interest. The change clarified that whether the 
former management or persons with an ownership interest in the prior 
firm retain a management interest in the successor firm may be 
considered in the successor determination. One commenter opposed the 
proposed clarification, but did not provide a reason for its 
opposition. The definition is adopted as proposed.
l. United States
    The NPRM included in the definition of United States language 
regarding the transition program effective date of the application of 
Federal immigration law to the Commonwealth of the Northern Mariana 
Islands (CNMI). That transition program effective date having passed, 
we have accordingly deleted that language as CNMI now is included 
automatically in the definition of United States under U.S. immigration 
law.
m. United States Worker
    The NPRM included a definition of U.S. workers that referenced, as 
did the 2008 Final Rule, the INA. Although no comments were received on 
this definition we have edited the definition for clarity.
3. Section 655.103(c) Definition of Agricultural Labor or Services
    The NPRM proposed to modify the definition of agricultural labor or 
services in several ways. It proposed to retain all three of the 
statutory definitions set forth in the INA, which include agricultural 
labor as defined in sec. 3121(g) of the Internal Revenue Code of 1986 
(IRC), agriculture as defined in sec. 3(f) of the Fair Labor Standards 
Act (FLSA), and the pressing of apples for cider on a farm, 8 U.S.C. 
1188(a)(15)(H)(ii)(a). The NPRM proposed to remove three provisions 
from the definition. The first expressly provided that an activity is 
agriculture, even though it meets only one of the statutory 
definitions. The second allowed H-2A employees to engage in certain 
activities that are not included in the statutory definitions, provided 
that H-2B workers were not performing the same work in the same place. 
The third allowed H-2A workers to perform work that was not listed on 
the Application for Temporary Employment Certification (Application), 
so long as it was less than 20 percent of the work and incidental to 
the agricultural work performed. The Final Rule retains the first 
provision that had been proposed for removal but removes the latter two 
provisions. The NPRM also had proposed to retain logging employment in 
the definition and to add reforestation and pine straw activities. The 
Final Rule retains logging, but does not add reforestation and pine 
straw activities.
    The IRC and FLSA definitions include work performed by a farmer or 
on a farm cultivating, raising, or harvesting crops and raising 
livestock and other animals and bees, including the operation and 
maintenance of the farm. The IRC definition also includes the packing 
and processing of agricultural and horticultural commodities so long as 
more than half of the commodities are produced by the farmer performing 
the packing and processing.
    The FLSA definition has been interpreted to have a primary meaning 
(e.g., production, cultivation, growing and harvesting of any 
agricultural or

[[Page 6888]]

horticultural commodities) as well as a broader secondary meaning that 
includes any practices 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, and delivery 
to carriers for transportation to market.
    In 2008, changes to FLSA regulations at 29 CFR part 780 and 29 CFR 
part 788 addressing Christmas tree production were published 
simultaneously with the H-2A regulations. These changes to FLSA 
regulations did not change the applicability of H-2A to Christmas tree 
production. The H-2A definition of agricultural labor or services 
includes the IRC definition of this term. The IRC recognizes as 
agricultural labor those services performed in the employ of any person 
in connection with the planting, raising, cultivating, and harvesting 
of Christmas trees when such services are performed on a farm. 
Therefore, such activities come within the scope of H-2A.
a. An Occupation Included in Either Statutory Definition
    The NPRM proposed the removal of a clarifying sentence stating that 
an occupation included in either the IRC or the FLSA definition is 
considered agricultural labor or services even though the occupation 
does not appear in both definitions. This means that if the work is 
within the scope of either the IRC or the FLSA definition of 
agriculture, then the work is within the scope of the H-2A program. 
Although the Department believed that this principle was clear and the 
provision superfluous, several commenters found it useful. The Final 
Rule reinstates the deleted sentence, with slight editorial 
modifications.
b. Removal of Handling, Packing, Processing, and Other Non-Agricultural 
Activities Where the Farmer Processed Less Than 50 Percent of the 
Commodity
    The NPRM also proposed the removal of the definition of 
agricultural labor and services that had been added in the 2008 Final 
Rule that permitted 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 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. This 
provision allowed activities defined as nonagricultural work under the 
FLSA and the IRC to be performed by H-2A workers, so long as no H-2B 
workers were employed at the same worksite doing the same work. The 
Final Rule adopts the proposed deletion, returning to the definition 
used in the 1987 Rule.
    A few commenters sought the Department's rationale for the removal 
of this language. One commenter expressed disappointment regarding the 
proposed removal, asserting that it was a major change that would 
impact packing houses that might not be able to obtain workers through 
the H-2B program due to the annual cap on that program. This commenter 
further asserted that since such H-2B workers often worked alongside H-
2A workers and their jobs are clearly in the stream of agriculture, the 
language should be re-inserted.
    The 2008 Final Rule's definition was problematic because it allowed 
a farmer to employ both H-2A workers and H-2B workers to perform 
identical work, so long as the H-2A workers and the H-2B workers were 
employed in different locations. Congress clearly intended to create 
two separate programs: H-2A for agricultural work and H-2B for other, 
nonagricultural work. Compare 8 U.S.C. 1101(a)(15)(H)(ii)(a) and 8 
U.S.C. 1101(a)(15)(H)(ii)(b). A regulation that allows H-2A workers and 
H-2B workers to perform the same activity is inconsistent with this 
Congressional intent. Furthermore, Congress has already addressed the 
proper classification of packing and processing work by including the 
IRC definition, which specifies that these activities are considered 
agricultural labor only if more than 50 percent of the commodity on 
which the work is being performed has been produced by the farmer. In 
other words, work in a packing shed on a farm, packing apples or 
peaches which are grown on the same farm, falls within the definition 
and thus within the H-2A program. However, if more than 50 percent of 
the apples or peaches being packed come from other farms, the work is 
no longer considered agriculture.
    The Department believes that this statutory limitation is 
meaningful, and that Congress intended it to apply to different types 
of work. As a result, the Department has determined that it is 
appropriate to return to the definition of agriculture as set forth in 
the 1987 Rule and has deleted this provision.
c. Removal of Minor and Incidental Activities
    Further, the NPRM proposed the removal of the phrase other work 
typically performed on a farm that is not specifically listed on the 
Application and is minor (i.e., less than 20 percent of the total time 
worked) and incidental to the agricultural labor or services for which 
the H-2A worker was sought. Several commenters objected to this change, 
asserting that the removal of this language would unfairly limit their 
flexibility in assigning H-2A workers to different kinds of work, and/
or to work which was not listed on the job order. Commenters also 
expressed fears that the removal of the 20 percent tolerance for work 
that is not listed on the Application would subject employers to 
debarment if H-2A workers perform work that is outside the scope of the 
job order for even a small fraction of their time.
    The comments appear to reflect a misunderstanding of the 2008 Final 
Rule's use of the terms minor and incidental. For example, commenters 
complained that they would no longer be able to assign H-2A workers to 
such nonagricultural work as directing traffic at retail outlets (as 
opposed to roadside stands selling agricultural goods produced on the 
farm), and unloading truckloads of purchased merchandise (as opposed to 
farm products) to be offered for sale to retail customers. These 
activities are not incidental to the agricultural activities performed 
by H-2A workers, and they do not appear to relate to agriculture in any 
way. In light of these comments, it appears that the language added to 
the definition of agriculture led to confusion rather than 
clarification.
    On further review, the Department believes that the proposed return 
to the 1987 Rule definition still provides farmers adequate flexibility 
in the use of H-2A workers, while respecting congressional intent that 
the work be agricultural in nature. These workers can, for example: 
Work at a farmer's roadside retail stand; handle, package or sell 
agricultural or horticultural goods produced on the farm; or perform 
maintenance work on farm buildings and machinery. These activities are 
performed by a farmer or on a farm and are incidental to farming 
operations, and therefore meet the FLSA definition of agriculture. In 
addition, the IRC definition of agricultural labor or services 
encompasses a broad range of activities, such as the management of 
wildlife on a farm, the ginning of cotton, or the handling, planting, 
drying, packing, packaging, processing, freezing, grading, storing, or 
delivering to storage or to market, of any agricultural or 
horticultural commodity, as long as more than 50 percent of the goods 
were produced by the farmer-employer. These definitions provide 
considerable latitude to the employer as to the type of work for which 
H-2A

[[Page 6889]]

workers may be used. They have been used for decades and are well 
understood.
    Further, the INA is clear that in order for the Secretary to 
certify a petition, an applicant must demonstrate that there are not 
sufficient workers to perform the labor or services involved in the 
petition. It is incongruous to claim that such a broad degree of 
flexibility is needed to encompass work that has not yet been 
identified, while representing in the Application for H-2A workers that 
there are not enough U.S. workers available to perform such work. To 
approve an Application that would allow a worker to perform a 
substantial amount of work that was not included in the Application 
would not be in keeping with the plain statutory language requiring the 
Department to find that there are not enough workers available to 
perform the work for which H-2A workers are being sought. The 2008 
Final Rule's 20 percent tolerance allowed H-2A workers to work a full 
day a week, every week for the entire job order, in work other than 
that listed on the Application. This broad language effectively allowed 
an employer to apply for 10 workers although the employer had only 
identified work for which eight workers were needed. This permitted an 
employer with a substantial number of H-2A workers to routinely assign 
them unadvertised work that would have been sufficient to support the 
hiring of additional U.S. workers. Such a tolerance is not minor and is 
inconsistent with the statutory standard. Therefore, the Final Rule 
deletes this provision from the definition.
    Finally, several commenters expressed concerns that removing the 
reference to incidental work from the definition of agricultural labor 
or services, coupled with proposed changes in the provisions addressing 
revocation and debarment, might lead to an employer being debarred for 
having assigned a worker outside the scope of the job order for even a 
small fraction of time. However, the Department does not intend to 
debar an employer whose H-2A workers perform an insubstantial amount of 
agricultural work not listed in the Application. In exercising our 
enforcement discretion when an employer has worked an H-2A worker 
outside the scope of the activities listed on the job order due to 
unplanned and uncontrollable events (such as a freeze that prevents 
planting or heavy rains that prevent harvesting), the Department will 
consider the employer's explanation, so long as the activities are 
within the scope of H-2A agriculture, have been occasional or sporadic, 
and the time spent in total is not substantial. Moreover, the debarment 
regulations require that the violation be substantial, and that a 
number of factors must be considered in making that determination, 
including: An employer's previous history of violations; the number of 
workers affected; the gravity of the violation; the employer's 
explanation, if any; its good faith; and its commitment to future 
compliance. Under these criteria, the good faith assignment of a worker 
to work not listed in the Application for a small amount of time would 
not result in debarment. The Final Rule deletes the provision providing 
a blanket 20 percent tolerance for work outside the scope of the 
Application, as proposed.
d. Definition of Agricultural Labor or Services--Inclusion of 
Reforestation and Pine Straw Activities
    The Department proposed that the definition of agricultural labor 
or services include reforestation activities, defined as predominately 
manual forestry work including but not limited to tree planting, brush 
clearing, and pre-commercial tree thinning. It also proposed to include 
pine straw activities, defined as certain activities predominately 
performed using hand tools, including but not limited to raking, 
gathering, baling, and loading of pine straw, a product of pine trees 
that are managed using agricultural or horticultural/silvicultural 
techniques. Currently, employers engaged in these activities may use 
the H-2B program. Reforestation, a sub-industry of forestry, is 
commonly performed by migrant crews who are overseen by labor 
contractors and share the same characteristics as traditional 
agricultural crews. The same reasoning was used in proposing to include 
pine straw activities within the scope of the H-2A program. 
Overwhelmingly, the comments were opposed to adding reforestation 
activities and pine straw activities to the H-2A program. We are 
convinced by these comments and therefore the Final Rule does not 
include reforestation and pine straw activities.
    A number of employer commenters claimed that the way in which 
contracts are awarded to reforestation companies would preclude 
applicants from being able to file H-2A applications in realistic 
timeframes and would make it difficult to comply with H-2A provisions; 
they asserted that such contracts are often for short duration, making 
it particularly difficult to provide documentation that housing, 
typically hotels or motels, had been secured far in advance. Some of 
the commenters projected their increased costs and predicted the costs 
could put them out of business or preclude them from using the program 
to employ an authorized workforce.
    Employee advocates indicated they were concerned about moving such 
workers into the H-2A program, since such a change would mean these 
workers would lose the protections afforded to them by the MSPA, 
particularly the right to a Federal cause of action to enforce these 
rights, replete with statutory liquidated damages for violations. 
Commenters indicated that the loss of protections under MSPA outweighed 
whatever additional benefits or protections inclusion in the H-2A 
program would offer. Several commenters suggested that the better 
course of action would be for the Department to provide additional 
protections to these workers through changes in the regulations that 
govern the H-2B program.
    Only a few commenters supported the proposed change. One stated 
that the activities were agricultural and thus it was unreasonable for 
forestry contractors to have all the regulatory responsibilities of 
agricultural employers but be denied access to agricultural labor under 
the H-2A visa program. Others supported the change based on the reasons 
the Department had used in making the proposal. A State agency 
supported the proposal but cautioned there would be increased efforts 
and costs for their agency to carry out additional housing inspections 
and prevailing wage and practices surveys. We received only one comment 
that specifically addressed the proposed inclusion of pine straw 
activities, and it supported the inclusion based on a circuit court 
decision that found that these activities fell within the definition of 
agriculture under MSPA. We note that the court in this decision did not 
rely on the definitions of agriculture used in either the FLSA or the 
IRC, which are the statutory definitions included in the H-2A program. 
See Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d 1163 (11th Cir. 
2003).
    Taking into account the lack of support from all sides to the 
proposed inclusion of reforestation activities and pine straw 
activities in the H-2A program, the Department has decided not to 
include these activities in the definition of agricultural labor or 
services in the Final Rule. We will consider whether it is appropriate 
to propose additional protections for these workers in any future 
revision of the H-2B program.

[[Page 6890]]

e. Definition of Agricultural Labor or Services--Logging
    The NPRM proposed to keep logging in the H-2A program; however, the 
definition section of the NPRM proposed a more detailed definition of 
logging employment. The justification for this decision to include 
logging in the definition was contained in the preamble to the 2008 
Final Rule.
    The Department received some comments on the inclusion of logging 
in general and the definition in particular. One commenter indicated no 
opposition to the inclusion of logging in the definition of 
agricultural labor or services but noted that the Department offered no 
justification for inclusion of logging in the NPRM. Another commenter 
stated that the rationale for including logging in the definition is 
inconsistent with prior regulations and principles of statutory 
interpretation. This commenter asserted that the statutory language of 
8 U.S.C. 1101(a)(15)(H)(ii)(b) clearly encompasses all temporary 
service or labor other than agricultural labor or services, and argued 
that the Department arbitrarily used the phrase agricultural labor or 
services (defined by several statutory provisions) as authority to 
expand the scope of the H-2A program to cover virtually all work with 
renewable natural resources. The commenter argued that the division of 
8 U.S.C. 1101(a)(15)(H)(ii) into (a) and (b) (devolving into the H-2A 
and H-2B programs) was not intended to grant the Department unlimited 
discretion to make legislative changes, as proposed in Sec.  
655.103(b).
    The same commenter asserted that the inclusion of logging in the 
definition as in 2008 would constitute a substantial change from past 
practice that does not protect U.S. workers. This commenter also 
contended that moving these workers from a visa program with caps to 
one without statutory caps would not assist in protecting them from 
exploitation by labor contractors. Instead the commenter proposed that 
the more stringent labor protections applicable to H-2ALCs be 
incorporated into the H-2B regulations for all temporary foreign 
workers not working at fixed locations.
    The Department disagrees with this commenter. Congress clearly gave 
the Secretary authority to define agricultural labor and services 
through regulation. 8 U.S.C. 1101(a)(15)(H)(ii)(a). As stated 
previously, the Department's rationale was discussed in detail in the 
2008 Final Rule. Proposed changes to the H-2B regulations are not a 
part of this rulemaking.
    A reforestation contractor noted that logging was included under 
the H-2A program due to misconceptions about the industry, namely that 
the companies are mainly labor contractors who hire and move migrant 
crews. This commenter indicated that several logging employers would be 
interested in using temporary, seasonal foreign workers to fill labor 
shortfalls if the program allowed for working conditions and benefits 
that are common to prevailing logging employer practices. The commenter 
did not specify the prevailing logging practices being referenced; 
however, we believe that inclusion of logging activities in the H-2A 
program appropriately balances the interests of logging employers and 
workers.
    A State agency indicated that the Department's definition of 
logging operations is consistent with the definition used by the 
Occupational Safety and Health Administration (OSHA) and commended the 
Department. However, the commenter was concerned that the definition of 
logging employment might encompass certain positions such as logging 
supervisors, mechanics, mechanics' helpers, and operations engineers 
(who cut and maintain roads for access). The commenter stated that 
these positions do not meet the standards for H-2A agricultural 
employment and do not constitute employment on an agricultural 
employer's farmstead. This commenter requested that the Department 
clarify that these positions are not included in the H-2A program. The 
NPRM definition identifies the types of logging activities for which 
labor certification may be granted. We did not intend to change the 
scope of logging activities adopted by the 2008 Final Rule and 
therefore employees who were previously granted logging status may 
continue to be certified under the definition now contained in the H-2A 
program. The Final Rule retains the language from the NPRM.
4. Section 655.103(d) Temporary or Seasonal Nature
a. General Comments Regarding Temporary or Seasonal Nature
    The NPRM proposed to adopt the definition of temporary or seasonal 
nature currently used by DHS in its H-2A regulations. The Department 
received more than a dozen comments on this proposed change in the 
definition. All of them opposed the change. Many found that there was 
no rational basis for the change and stated that the preamble 
explanation was insufficient. Many said that the existing definition 
had worked effectively for more than 20 years and should be retained. 
Of those who explained why, the primary reason stated was that the DHS 
definition is meant to apply to the worker, not the employer, and DOL 
is tasked with determining the needs of the employer rather than the 
worker; therefore, the DHS definition used in the NPRM is 
inappropriate. Many of the commenters pointed out that the existing 
definition is well-established and is the subject of many years of 
precedential court decisions. These commenters asserted that departing 
from this well-established definition would be highly disruptive to the 
program.
    Other commenters believe that the definition of temporary or 
seasonal nature in the NPRM is too vague and requires further 
delineation if it is to be kept. Specifically, these commenters point 
out that adding short to annual growing cycle limits the timeframe, and 
the requirement for labor levels far above those necessary for ongoing 
operations during that short timeframe could exclude small farmers who 
might only need one or two additional employees during the peak of 
their season.
    The Department has decided to retain the language of the NPRM which 
was not intended to create any substantive change in how the Department 
administers the program. If additional clarification is needed in the 
future, we will provide such clarification through the use of guidance 
memoranda, bulletins, special procedures (as applicable) and other 
guidance documentation.
b. Treatment of the Dairy Industry Under the Definition of Temporary or 
Seasonal Nature
    The Department received numerous comments requesting the inclusion 
of the dairy industry in the definition of agricultural labor or 
services.
    All of these commenters expressed a critical need for foreign labor 
in the dairy industry. Several commenters referenced an internal survey 
of a national organization of milk producers that indicated that an 
estimated 62 percent of milk production on these farms was attributed 
to immigrant labor. One commenter asserted that domestic workers do not 
want to fill the available jobs in the dairy industry. Another 
commenter stated that a shortage of domestic labor is particularly 
acute in this industry, in which employers experience year-round 
employment needs and must invest significant resources into employee 
recruitment and retention.

[[Page 6891]]

    Most of these commenters sought the inclusion of dairy under H-2A 
special procedures, likening the dairy industry to sheepherders (and 
also loggers and cider pressers) whose need is not temporary, but who 
enjoy the benefits of the program. One commenter argued that the 
industry should be included on an expanded temporary basis of 1 year at 
a time. This commenter referred to isolated, anecdotal evidence from 
before the passage of the Immigration Reform and Control Act of 1986 
(IRCA) where the Department permitted successive 1-year certifications 
for an employer that demonstrated a particular need.
    The determination of whether a particular dairy activity is 
eligible for an H-2A certification rests on a finding that the duration 
of the activity and the need for that activity is temporary or 
seasonal. The majority of activities encompassed by the dairy industry, 
and milk production in particular, are year-round activities and 
therefore cannot be classified as temporary. The Department has no 
legal authority, nor is there legislative precedent, that would allow 
for the inclusion of the entire dairy industry in the H-2A program.
    Sheepherders, which many of the commenters cited as an example of 
an exception to the definition of temporary, owe their inclusion in the 
program to a statutory provision dating back to the 1950s. That 
legislative inclusion was implicitly ratified in IRCA. No such 
legislative inclusion of the dairy industry as a whole has yet to be 
provided by Congress.

Prefiling Procedures

5. Section 655.120 Offered Wage Rate
    In response to comments, the Final Rule adds the agreed-upon 
collectively bargained wage to the list of required wage rates. The 
rationale for this change is explained below, after the discussion of 
the AEWR.
a. The Department's Execution of the Offered Wage Rate
(i) The Provision of an AEWR in the H-2A Program
    The Department has decided to retain the concept of an AEWR as part 
of the H-2A program and that the basis for computing the H-2A AEWR 
shall be the annual average of combined crop and livestock workers' 
wages applicable for each state as reported by the U.S. Department of 
Agriculture's (USDA) Farm Labor Survey (FLS) reports. This section 
discusses the Department's rationale for retaining the AEWR and then 
discusses the Department's rationale for changing the methodology used 
to calculate the AEWR.
(ii) The Need for an AEWR
    The admission of temporary foreign workers under the H-2A program 
is predicated on a certification by the Secretary that

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)(B)).

Accordingly, under Sec.  655.120(a) of this Final Rule, an employer 
must offer, advertise in its recruitment, and pay a wage that is the 
highest of the AEWR, the prevailing hourly wage or piece rate, the 
collectively bargained wage rate, or the Federal or State minimum wage, 
except where a special procedure is approved.

    This requirement reflects a longstanding concern that there is a 
potential for the entry of foreign workers to depress the wages and 
working conditions of domestic agricultural workers. The AEWR is the 
minimum wage rate that agricultural employers seeking nonimmigrant 
foreign workers must offer to and pay their U.S. and foreign workers if 
the prevailing wage rate, the collectively bargained wage rate, and any 
Federal or State minimum wage rates are below the AEWR. The AEWR is 
designed to prevent the potential wage-depressive impact of foreign 
workers on the domestic agricultural workforce. The AEWR is a wage 
floor, and its existence does not prevent the worker from seeking, or 
the employer from paying, a higher wage.
    From the outset of the Federal Government's involvement in the 
admission of temporary foreign agricultural workers, the Government has 
sought to protect similarly employed U.S. workers from the potential 
adverse effect such employment would have on their wages. Since 1953, 
the Department has computed and published AEWRs for the temporary 
employment of nonimmigrant foreign workers for agricultural employment 
under various admission programs. See H.N. Dellon, ``Foreign 
Agricultural Workers and the Prevention of Adverse Effect'', 17 Labor 
Law Journal 739 (1966) for a detailed history of the early decades of 
publication of AEWRs by the Department. Mr. Dellon's article notes 
that, as far back as 1953, employers seeking to employ foreign 
nationals to work in various crop activities (in that case, under the 
Bracero Program) were required to pay not less than a wage established 
by DOL. AEWRs began to be set periodically on a statewide basis, first 
for a subset of States based on applications for temporary foreign 
workers and subsequently for all States (except Alaska).
    As time passed, the establishment of AEWRs became more formalized, 
and AEWRs were computed and set for the H-2 program as well, after 
public notice and comment. See, e.g., 29 FR 19101-19102, Dec. 30, 1964; 
32 FR 4569, 4571, Mar. 28, 1967; and 35 FR 12394-12395, Aug. 4, 1970.
    Economic theory provides the initial justification for the use of 
an AEWR. Economic theory holds that, other things being constant, any 
increase in the supply of labor available in a labor market segment 
would result in a decrease in the equilibrium wage. This theory-based 
observation of the effect of increased labor supply is the basis for 
the concern that currently employed, or incumbent, farm workers would 
be adversely affected by lowered wages as a result of an influx of 
temporary foreign farm workers.
    Similarly, economic theory holds that, under conditions of an 
emerging labor shortage, the previously observed wage (prevailing local 
wage) may not reflect the equilibrium wage.\2\ Instead, adjustments 
would occur over time \3\ and the observed wage would increase by an 
amount sufficient to attract more workers until supply and demand were 
met in equilibrium. Absent an increase of workers under the H-2A 
program, wages would rise above the currently observed wage in order to 
dispel the labor shortage until sufficient additional domestic labor 
was attracted into the market from neighboring geographic areas or 
other occupations. By computing an AEWR to approximate the equilibrium 
wage that would result absent an influx of temporary foreign workers, 
the AEWR serves to put incumbent farm workers in the position they 
would have been in but for the H-2A program. In this sense, the AEWR 
avoids adverse effects on currently employed workers by preventing 
wages from stagnating at the local prevailing

[[Page 6892]]

wage rate when they would have otherwise risen to a higher equilibrium 
level over time.
---------------------------------------------------------------------------

    \2\ The notion that a single point wage would be observed for a 
market in equilibrium is a simplification. In the abstract, an 
equilibrium wage is the wage at which the quantity of labor supplied 
by workers matches the quantity of labor demanded by employers. In 
practical reality a range of individual wage contract amounts may be 
observed reflecting individual labor productivity differences, 
relative bargaining strengths of contracting parties, timing of 
employment contracts, imperfect knowledge of market conditions by 
one or both parties, location factors and a myriad of other 
influences, but this array of individual wage contract values yields 
a particular average as a measure of the distribution's central 
tendency, and this average is conveniently referenced as the 
equilibrium wage.
    \3\ Including, given enough time, the possibility of 
substitution of capital for labor.
---------------------------------------------------------------------------

    In practical application, there are a number of obstacles and 
limitations that hinder the market adjustment process to an equilibrium 
wage as indicated by the theoretical labor market analysis. Foremost of 
these is the limitation imposed by inefficiency in the transmission of 
information about labor market conditions (job openings, revised wage 
offers, conditions of employment, etc.) across both physical and social 
distances. Information transmission inefficiencies affect all labor 
markets. Most jobs in the U.S. are filled through informal information 
and referral processes. It has been estimated that fewer than 20 
percent of job openings are listed on public labor exchange information 
systems or advertised in public media.\4\
---------------------------------------------------------------------------

    \4\ See Bayer, Patrick, Ross, Stephen, and Topa, Giorgio, 
``Place of Work and Place of Residence: Informal Hiring Networks and 
Labor Market Outcomes.'' National Bureau of Economic Research 
Working Paper No. 11019, 2005 for a review of research regarding the 
impact of differences in access to labor market information and 
social networks in shaping the different wage and employment 
outcomes of different groups of workers. See Ozga, S.A., ``Imperfect 
Markets Through Lack of Information.'' Quarterly Journal of 
Economics, February 1960, 74(1), pp. 29-52, for a theoretical 
discussion of the effects of imperfect information flows on labor 
market dynamics. See Holzer, Harry J., ``Informal Job Search and 
Black Youth Unemployment.'' American Economic Review, June 1987, 
77(3), pp. 446-452 for a discussion of how minorities, and 
especially youth, are disadvantaged by the relative inefficiency of 
their informal job search and labor market information networks.
---------------------------------------------------------------------------

    Farm workers are especially likely to be disadvantaged in terms of 
access to information about new or changing labor market conditions or 
job opportunities. The physical distances and relative social isolation 
typical of many rural environments slows the transmission of 
information by word-of-mouth. Even though seasonal migrant workers may 
move great distances from one crop area to another over the course of 
the planting, tending and harvesting seasons, their knowledge is often 
limited to a familiar circuit of employment opportunities, and they 
often lack rapid access to information that would enable them to alter 
routine migration patterns to take advantage of new opportunities. The 
low educational attainment of farm workers is a major barrier to 
efficient access and rapid response to changing labor market 
conditions. Over 45 percent of U.S. citizens who are employed as hired 
farm workers do not have a high school diploma, and 21 percent of U.S. 
citizens employed as hired farm labor have less than a 10th grade 
education.\5\ These farm workers with low educational attainment, 
numbering over 246,000 U.S. citizens, and many more if permanent 
resident non-citizens are included, often have limited reading ability 
and limited access to newspapers and other media in which job 
opportunities and wage offers might be advertised. They are also 
disproportionately poor, and their economic status may limit their 
physical access to public labor market information and assistance 
resources.
---------------------------------------------------------------------------

    \5\ Based on analysis of 2005-2009 data from the Current 
Population Survey (CPS), Annual Social and Economic Conditions 
Supplement. The analysis of CPS data was restricted to U.S. citizens 
because non-citizens in the sample could not be identified as 
legally documented residents or not.
---------------------------------------------------------------------------

    The resulting limitations in the flow of labor market information 
hinder the rapid adjustment of wages to a market equilibrium level. 
This situation can lead to localized short-run critical shortages of 
farm labor and result in spikes in farm labor wages that are much 
greater in magnitude than would be the case if information flowed more 
readily and markets adjusted more rapidly to a final equilibrium. Wide 
fluctuations in local wages may create a hardship for farmers who need 
to plan financially for expected labor costs. Unexpectedly large 
increases in labor costs may reduce profits. Shortages of labor at 
critical times may cause tangible waste if crops cannot be harvested at 
the appropriate time. It was in part to alleviate such difficulties 
facing farmers, as well as to discourage the unauthorized employment of 
workers, that Congress enacted legislation to facilitate the temporary 
importation of foreign labor to meet short-term gaps in the domestic 
supply of labor in critical locales. However, Congress also recognized 
the need to protect the wages and access to jobs of citizens and other 
permanent residents employed in the farm labor sector, and Congress 
placed with the Secretary the responsibility to ensure that the process 
of importation of foreign labor to aid farme