Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 61660-61831 [2022-20506]
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Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Parts 653 and 655
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA–2019–0007]
RIN 1205–AB89
Temporary Agricultural Employment of
H–2A Nonimmigrants in the United
States
Employment and Training
Administration and Wage and Hour
Division, Department of Labor.
ACTION: Final rule.
AGENCY:
The Department of Labor
(Department or DOL) is amending its
regulations governing the certification of
agricultural labor or services to be
performed by temporary foreign workers
in H–2A nonimmigrant status (H–2A
workers) and enforcement of the
contractual obligations applicable to
employers of such nonimmigrant
workers. These regulations are
consistent with the Secretary of Labor’s
(Secretary) statutory responsibility to
certify that there are not sufficient able,
willing, and qualified workers available
to fill the petitioning employer’s job
opportunity, and that the employment
of H–2A workers in that job opportunity
will not adversely affect the wages and
working conditions of workers in the
United States similarly employed.
Among the issues addressed in this final
rule are improving the minimum
standards and conditions of
employment that employers must offer
to workers; expanding the Department’s
authority to use enforcement tools, such
as program debarment for substantial
violations of program requirements;
modernizing the process by which the
Department receives and processes
employers’ job orders and applications
for temporary agricultural labor
certifications, including the recruitment
of United States workers (U.S. workers);
and revising the standards and
procedures for determining the
prevailing wage rate. This final rule will
strengthen protections for workers,
modernize and simplify the H–2A
application and temporary labor
certification process, and ease
regulatory burdens on employers.
DATES: This final rule is effective
November 14, 2022.
FOR FURTHER INFORMATION CONTACT: For
further information regarding 20 CFR
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SUMMARY:
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part 653, contact Kimberly Vitelli,
Administrator, Office of Workforce
Investment, Employment and Training
Administration, Department of Labor,
200 Constitution Avenue NW,
Washington, DC 20210, telephone: (202)
693–3980 (this is not a toll-free
number). Individuals with hearing or
speech impairments may access the
telephone numbers above via
Teletypewriter (TTY)/
Telecommunications Device for the Deaf
(TDD) by calling the toll-free Federal
Information Relay Service at 1 (877)
889–5627.
For further information regarding 20
CFR part 655, contact Brian Pasternak,
Administrator, Office of Foreign Labor
Certification, Employment and Training
Administration, Department of Labor,
200 Constitution Avenue NW, Room N–
5311, Washington, DC 20210, telephone:
(202) 693–8200 (this is not a toll-free
number). Individuals with hearing or
speech impairments may access the
telephone numbers above via TTY/TDD
by calling the toll-free Federal
Information Relay Service at 1 (877)
889–5627.
For further information regarding 29
CFR part 501, contact Amy DeBisschop,
Director of the Division of Regulations,
Legislation, and Interpretation, Wage
and Hour Division, Department of
Labor, Room S–3502, 200 Constitution
Avenue NW, Washington, DC 20210,
telephone: (202) 693–0406 (this is not a
toll-free number). Individuals with
hearing or speech impairments may
access the telephone number above via
TTY/TDD by calling the toll-free Federal
Information Relay Service at 1 (877)
889–5627.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Current Regulatory Framework
D. Summary of Major Provisions of This
Final Rule
E. Summary of Costs and Benefits
F. Severability
II. Acronyms and Abbreviations
III. Background and Public Comments
Received on the Notice of Proposed
Rulemaking
IV. Discussion of General Comments
V. Section-by-Section Summary of This Final
Rule, 20 CFR Part 655, Subpart B; 20
CFR 653.501(c)(2)(i); and 29 CFR Part
501
A. Introductory Sections
1. Section 655.100, Purpose and Scope of
Subpart B
2. Section 655.101, Authority of the
Agencies, Offices, and Divisions of the
Department of Labor; and 29 CFR 501.1,
Purpose and Scope
3. Section 655.102, Transition Procedures
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4. Section 655.103, Overview of This
Subpart and Definition of Terms; 20 CFR
653.501(c)(2)(i) of the Wagner-Peyser Act
Regulations; and 29 CFR 501.3,
Definitions
B. Pre-Filing Procedures
1. Section 655.120, Offered Wage Rate
2. Section 655.121, Job Order Filing
Requirements
3. Section 655.122, Contents of Job Offers
4. Section 655.123, Optional Pre-Filing
Positive Recruitment of U.S. Workers
5. Section 655.124, Withdrawal of a Job
Order
C. Applications for Temporary
Employment Certification Filing
Procedures
1. Section 655.130, Application Filing
Requirements
2. Section 655.131, Agricultural
Association and Joint Employer Filing
Requirements
3. Section 655.132, H–2A Labor Contractor
Filing Requirements; and 29 CFR 501.9,
Enforcement of Surety Bond
4. Section 655.133, Requirements for
Agents
5. Section 655.134, Emergency Situations
6. Section 655.135, Assurances and
Obligations of H–2A Employers
7. Section 655.136, Withdrawal of an
Application for Temporary Employment
Certification and Job Order
D. Processing of Applications for
Temporary Employment Certification
1. Section 655.140, Review of Applications
2. Section 655.141, Notice of Deficiency
3. Section 655.142, Submission of
Modified Applications
4. Section 655.143, Notice of Acceptance
5. Section 655.144, Electronic Job Registry
6. Section 655.145, Amendments to
Applications for Temporary Labor
Certification
E. Post-Acceptance Requirements
1. Section 655.150, Interstate Clearance of
Job Order
2. Section 655.153, Contact With Former
U.S. Workers
3. Section 655.154, Additional Positive
Recruitment
4. Section 655.155, Referrals of U.S.
Workers
5. Section 655.156, Recruitment Report
6. Sections 655.157, Withholding of U.S.
Workers Prohibited, and 655.158,
Duration of Positive Recruitment
F. Labor Certification Determinations
1. Section 655.161, Criteria for Certification
2. Section 655.162, Approved Certification
3. Section 655.164, Denied Certification
4. Section 655.165, Partial Certification
5. Section 655.166, Requests for
Determinations Based on Nonavailability
of U.S. Workers
6. Section 655.167, Document Retention
Requirements of H–2A Employers
G. Post-Certification
1. Section 655.170, Extensions
2. Section 655.171, Appeals
3. Section 655.172, Post-Certification
Withdrawals
4. Section 655.173, Setting Meal Charges;
Petition for Higher Meal Charges
5. Section 655.174, Public Disclosure
6. Section 655.175, Post-Certification
Amendments
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H. Integrity Measures
1. Section 655.180, Audit
2. Section 655.181, Revocation
3. Section 655.182, Debarment; 29 CFR
501.16, Sanctions and Remedies—
General; 29 CFR 501.19, Civil Money
Penalty Assessment; 29 CFR 501.20,
Debarment and Revocation; 29 CFR
501.21, Failure To Cooperate With
Investigations; 29 CFR 501.41, Decision
and Order of Administrative Law Judge;
29 CFR 501.42, Procedures for Initiating
and Undertaking Review; 29 CFR 501.43,
Responsibility of the Office of
Administrative Law Judges; 29 CFR
501.44, Additional Information, if
Required; and 29 CFR 501.45, Decision
of the Administrative Review Board
I. Labor Certification Process for
Temporary Agricultural Employment in
Range Sheep Herding, Goat Herding, and
Production of Livestock Operations
1. Modernizing Recruitment Requirements
2. Regulatory Revisions Implemented by
This Final Rule
3. Other Comments
J. Labor Certification Process for
Temporary Agricultural Employment in
Animal Shearing, Commercial
Beekeeping, and Custom Combining
1. Section 655.300, Scope and Purpose
2. Section 655.301, Definition of Terms
3. Section 655.302, Contents of Job Orders
4. Section 655.303, Procedures for Filing
Applications for Temporary Employment
Certification
5. Section 655.304, Standards for Mobile
Housing
VI. Discussion of Revisions to 29 CFR Part
501
A. Conforming Changes
B. Section 501.9, Enforcement of Surety
Bond
C. Section 501.20, Debarment and
Revocation
D. Terminology and Technical Changes
E. Intervening Rulemakings
VII. Administrative Information
A. Executive Orders 12866 (Regulatory
Planning and Review) and 13563
(Improving Regulation and Regulatory
Review)
B. Regulatory Flexibility Act, Small
Business Regulatory Enforcement
Fairness Act, and Executive Order 13272
(Proper Consideration of Small Entities
in Agency Rulemaking)
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
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I. Executive Summary
A. Purpose of the Regulatory Action
This final rule amends the standards
and procedures by which the
Department grants certification of
agricultural labor or services to be
performed by H–2A workers on a
seasonal or temporary basis, and
enforcement of the contractual
obligations applicable to employers of
H–2A workers. The major provisions
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contained in this final rule will
strengthen protections for workers,
modernize and simplify the H–2A
application and temporary labor
certification process, and ease
regulatory burdens on employers.
It is the policy of the Department to
maintain robust protections for workers
and vigorously enforce all laws within
its jurisdiction governing the
administration and enforcement of
nonimmigrant visa programs. This
includes the coordination of the
administration and enforcement
activities of the Employment and
Training Administration (ETA), Wage
and Hour Division (WHD), and the
Department’s Office of the Solicitor in
the promotion of the hiring of U.S.
workers and the safeguarding of wages
and working conditions in the United
States. In addition, these agencies make
criminal referrals to the Department’s
Office of Inspector General to combat
visa-related fraud schemes.
The Department is updating its H–2A
regulations to ensure that employers can
address temporary labor needs by
employing foreign agricultural workers,
without undue cost or administrative
burden, while maintaining the
program’s strong protections. The
changes in this final rule will enhance
WHD’s enforcement capabilities,
thereby ensuring that responsible
employers are not faced with unfair
competition and allowing for robust
enforcement against program fraud and
abuse that undermine the rights and
interests of workers.
B. Legal Authority
The Immigration and Nationality Act
(INA), as amended by the Immigration
Reform and Control Act of 1986 (IRCA),
establishes an ‘‘H–2A’’ nonimmigrant
visa classification for a worker ‘‘having
a residence in a foreign country which
he has no intention of abandoning who
is coming temporarily to the United
States to perform agricultural labor or
services . . . of a temporary or seasonal
nature.’’ 8 U.S.C. 1101(a)(15)(H)(ii)(a);
see also 8 U.S.C. 1184(c)(1) and 1188.1
The admission of foreign workers under
this classification involves a multi-step
process before several Federal agencies.
A prospective H–2A employer must first
apply to the Secretary for a certification
that:
• there are not sufficient workers who
are able, willing, and qualified, and who
will be available at the time and place
needed, to perform the labor or services
involved in the petition, and
1 For ease of reference, sections of the INA are
referred to by their corresponding section in the
United States Code.
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• 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 prohibits
the Secretary from issuing this
certification—known as a ‘‘temporary
agricultural labor certification’’—unless
both of the above-referenced conditions
are met and none of the conditions in
8 U.S.C. 1188(b) apply concerning
strikes or lock-outs, labor certification
program debarments, workers’
compensation assurances, and positive
recruitment.
The Secretary has delegated the
authority to issue temporary agricultural
labor certifications to the Assistant
Secretary for Employment and Training,
who in turn has delegated that authority
to ETA’s Office of Foreign Labor
Certification (OFLC). See Secretary’s
Order 06–2010 (Oct. 20, 2010), 75 FR
66268 (Oct. 27, 2010). In addition, the
Secretary has delegated to the
Department’s WHD the responsibility
under 8 U.S.C. 1188(g)(2) to assure
employer compliance with the terms
and conditions of employment under
the H–2A program. See Secretary’s
Order 01–2014 (Dec. 19, 2014), 79 FR
77527 (Dec. 24, 2014).
Once an employer obtains a
temporary agricultural labor
certification from DOL, it may then file
a petition for a nonimmigrant worker
with the Secretary of Homeland
Security. See 8 U.S.C. 1184(c).2 If the
employer’s petition is approved, the
foreign workers residing outside the
United States whom it seeks to employ
must, generally, apply for a
nonimmigrant H–2A visa at a U.S.
embassy or consulate abroad, and seek
admission to the United States with U.S.
Customs and Border Protection.3 If the
employer seeks to employ foreign
workers already performing work in the
United States in H–2A status and
wishes to petition the workers through
an extension of stay or change of status,
the foreign workers are not required to
apply for a visa but should they depart
from the United States subsequent to
being granted such H–2A status, must
generally obtain an H–2A visa in order
to return to the country.
2 Under sec. 1517 of title XV of the Homeland
Security Act of 2002, Public Law 107–296, 116 Stat.
2135, reference to the Attorney General’s or other
Department of Justice Official’s responsibilities
under sec. 1184(c) have been expressly transferred
to the Secretary of Homeland Security. See 6 U.S.C.
202, 271(b).
3 See generally 8 U.S.C. 1225; 8 CFR part 235.
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C. Current Regulatory Framework
Since 1987, the Department has
operated the H–2A temporary labor
certification program under regulations
promulgated pursuant to the INA. The
standards and procedures applicable to
the certification and employment of
workers under the H–2A program are
found in 20 CFR part 655, subpart B,
and 29 CFR part 501. The majority of
the Department’s current regulations
governing the H–2A program were
published in 2010.4 In addition, the
Department has issued special
procedures for the employment of
foreign workers in the herding and
production of livestock on the range as
well as animal shearing, commercial
beekeeping, and custom combining
occupations.5 The Department
incorporated the provisions for
employment of workers in the herding
and production of livestock on the range
into the H–2A regulations, with
modifications, in 2015.6 The provisions
4 Final Rule, Temporary Agricultural Employment
of H–2A Aliens in the United States, 75 FR 6884
(Feb. 12, 2010) (2010 H–2A Final Rule); but see
Final Rule, Modernizing Recruitment Requirements
for the Temporary Employment of H–2A Foreign
Workers in the United States, 84 FR 49439 (Sept.
20, 2019) (2019 H–2A Recruitment Final Rule)
(rescinding the requirement that an employer
advertise its job opportunity in a print newspaper
of general circulation in the area of intended
employment; expanding and enhancing the
Department’s electronic job registry; and leveraging
the expertise and existing outreach activities of
State Workforce Agencies (SWAs) to promote
agricultural job opportunities); see also Final Rule,
Rules Concerning Discretionary Review by the
Secretary, 85 FR 30608 (May 20, 2020) (establishing
a system of discretionary secretarial review over
cases pending before or decided by the Board of
Alien Labor Certification Appeals [BALCA] and to
make technical changes to Departmental regulations
governing the timing and finality of decisions of the
Administrative Review Board [ARB] and the
BALCA).
5 See Training and Employment Guidance Letter
(TEGL) No. 32–10, Special Procedures: Labor
Certification Process for Employers Engaged in
Sheepherding and Goatherding Occupations under
the H–2A Program (June 14, 2011), https://
wdr.doleta.gov/directives/corr_doc.cfm?docn=3042;
TEGL No. 15–06, Change 1, Special Procedures:
Labor Certification Process for Occupations
Involved in the Open Range Production of Livestock
under the H–2A Program (June 14, 2011), https://
wdr.doleta.gov/directives/corr_doc.cfm?docn=3044;
TEGL No. 17–06, Change 1, Special Procedures:
Labor Certification Process for Employers in the
Itinerant Animal Shearing Industry under the H–2A
Program (June 14, 2011), https://wdr.doleta.gov/
directives/corr_doc.cfm?docn=3041; TEGL No. 33–
10, Special Procedures: Labor Certification Process
for Itinerant Commercial Beekeeping Employers in
the H–2A Program (June 14, 2011), https://
wdr.doleta.gov/directives/corr_
doc.cfm?DOCN=3043; TEGL No. 16–06, Change 1,
Special Procedures: Labor Certification Process for
Multi-State Custom Combine Owners/Operators
under the H–2A Program (June 14, 2011), https://
wdr.doleta.gov/directives/corr_
doc.cfm?DOCN=3040.
6 Final Rule, Temporary Agricultural Employment
of H–2A Foreign Workers in the Herding or
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governing the employment of workers in
the herding and production of livestock
on the range are now codified at 20 CFR
655.200 through 655.235.7
D. Summary of Major Provisions of This
Final Rule
After careful consideration of the
public comments received, this final
rule adopts much of the regulatory text
proposed in the notice of proposed
rulemaking (NPRM or proposed rule)
published in the Federal Register on
July 26, 2019, with some significant
changes.8 In particular, and as discussed
in detail elsewhere in this preamble,
this final rule adopts the following
major changes to the Department’s H–
2A program regulations:
Strengthening Worker Protections and
Program Integrity
• Revises the standards and
procedures by which employers
qualifying as H–2A Labor Contractors
(H–2ALCs) obtain temporary labor
certification by permitting the electronic
submission of surety bonds, adjusting
the required surety bond amounts based
on changes to adverse effect wage rates
(AEWR), adopting a common bond form
that includes standardized bond
language, and permitting debarment of
H–2ALCs that fail to provide adequate
surety bonds. These provisions are
intended to reduce the likelihood of
program abuse by ensuring H–2ALCs
are better able to meet their payroll and
other program obligations to workers,
streamline the process for accepting
surety bonds, and strengthen the
Department’s authority to address
noncompliant bonds.
• Clarifies the definitions of
‘‘employer’’ and ‘‘joint employment,’’
the use of these terms in the filing of
Applications for Temporary
Employment Certification, and the
responsibilities of joint employers.
Employers that file as joint employers
Production of Livestock on the Range in the United
States, 80 FR 62958 (Oct. 16, 2015) (2015 H–2A
Herder Final Rule).
7 Consistent with a court-approved settlement
agreement in Hispanic Affairs Project, et al. v.
Scalia et al., No. 15-cv-1562 (D.D.C.), the
Department recently rescinded 20 CFR
655.215(b)(2).
8 Notice of Proposed Rulemaking, Temporary
Agricultural Employment of H–2A Nonimmigrants
in the United States, 84 FR 36168 (July 26, 2019).
In late 2020, the Department published a final rule
to revise the methodology by which it determines
the hourly AEWR for non-range agricultural
occupations. Final Rule, Adverse Effect Wage Rate
Methodology for the Temporary Employment of H–
2A Nonimmigrants in Non-Range Occupations in
the United States, 85 FR 70445 (Nov. 5, 2020) (2020
H–2A AEWR Final Rule). The 2020 H–2A AEWR
Final Rule addressed only that aspect of the NPRM.
This final rule addresses the remaining aspects of
the NPRM published on July 26, 2019.
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are treated as such as a matter of law for
purposes of compliance and
enforcement. In addition, employers
that do not file applications but
nonetheless jointly employ workers
under the common law of agency are
responsible as joint employers. These
provisions are intended to enhance
worker protections by providing greater
clarity regarding the responsibilities of
joint employers, consistent with the
statute and the Department’s current
policy and practice.
• Provides that rental and/or public
accommodations secured to house
workers must meet applicable local,
State, or Federal standards addressing
certain health or safety concerns (e.g.,
minimum square footage per occupant,
sanitary food preparation and storage
areas, laundry and washing facilities),
and requires employers to submit
written documentation that such
housing meets applicable standards and
contains enough bed(s) and room(s) to
accommodate all workers requested.
These provisions are intended to better
protect the health and safety of workers
without imposing an undue burden on
employers.
• Enhances the Department’s
debarment authority by holding agents
and attorneys, and their successors in
interest, accountable for their own
misconduct independent of the
employer’s violation(s), and clarifies
that Applications for Temporary
Employment Certification filed by
debarred entities during the period of
debarment will be denied without
review. These provisions are intended
to improve program integrity and
promote greater compliance with
program requirements.
Modernizing the H–2A Application
Process and Prevailing Wage Surveys
• Establishes a single point of entry
by requiring that employers, except in
limited circumstances, electronically
file Applications for Temporary
Employment Certification, job orders,
and all supporting documentation
through a centralized electronic system
maintained by the Department, and
permits the use of electronic signatures
meeting valid signature standards.
These provisions are intended to reduce
costs and burdens for most employers,
improve the quality of applications,
reduce the frequency of delays
associated with deficient applications,
and better facilitate interagency datasharing.
• Codifies the use of electronic
methods for the OFLC Certifying Officer
(CO) to send notices and requests to
employers, circulate approved job
orders to appropriate SWAs for
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interstate clearance and recruitment of
U.S. workers, and issue temporary labor
certification decisions directly to the
Department of Homeland Security
(DHS). These provisions are intended to
modernize OFLC’s processing of
applications to minimize delays, reduce
administrative costs for the employer
and the Department, and expedite the
delivery of temporary agricultural labor
certifications to DHS, while maintaining
program integrity.
• Replaces outdated prevailing wage
survey guidelines from the Department’s
ETA Handbook 385 (Handbook 385)
with modernized standards that are
more effective in producing prevailing
wages for distinct crop or agricultural
activities, and expands the universe of
State entities that may conduct
prevailing wage surveys, including
SWAs, other State agencies, State
colleges, or State universities. These
provisions are intended to refine the
minimum standards for prevailing wage
surveys, including providing SWAs
with the flexibility to leverage other
State survey resources to expand the
number and scope of surveys conducted
based on information that is as reliable
and representative as possible. In
addition, while the minimum standards
may not ensure statistically valid
estimates for larger categories of
workers, they are designed to provide
more options for SWAs to make
decisions about prioritizing precision,
accuracy, granularity, or other quality
factors in the data they use to inform
prevailing wages.
Expanding Employer Access and
Flexibilities To Use the H–2A Program
• Establishes new standards that
permit individual employers possessing
the same need for agricultural services
or labor to file a single Application for
Temporary Employment Certification
and job order to jointly employ workers
in full-time employment, consistent
with the statute and the Department’s
longstanding practice. This provision is
intended to provide small employers
who cannot offer full-time work for their
H–2A employees with an opportunity to
participate in the H–2A program and
ensure each employer will be held
jointly liable for compliance with all
program requirements.
• Codifies a unique set of standards
and procedures, with some revisions,
for employers that employ workers
engaged in animal shearing, commercial
beekeeping, and custom combining
according to a planned itinerary across
multiple areas of intended employment
(AIE) in one or more contiguous States.
These provisions are intended to
provide appropriate flexibilities for
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employers engaged in these unique
agricultural activities that are
substantially similar to the processes
formerly set out in administrative
guidance letters, and greater certainty in
the handling of these applications by
the Department under 20 CFR part 655,
subpart B.
E. Summary of Costs and Benefits
Executive Order (E.O.) 12866 9 and
E.O. 13563 10 direct agencies to assess
the costs and benefits of available
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This rulemaking has been
designated a ‘‘significant regulatory
action’’ under section (sec.) 3(f)(1) of
E.O. 12866. Accordingly, it has been
reviewed by the Office of Management
and Budget (OMB).
The Department estimates that this
final rule will result in costs, cost
savings, and qualitative benefits. The
cost of this final rule is associated with
rule familiarization and recordkeeping
requirements for all H–2A employers, as
well as increases in the amount of
surety bonds required for H–2ALCs.
This final rule is expected to have an
annualized quantifiable cost of $2.75
million and a total 10-year quantifiable
cost of $19.29 million at a discount rate
of seven percent. The cost savings of
this final rule are the electronic
submission of applications and
application signatures, including the
use of electronic surety bonds, and the
electronic sharing of job orders
submitted to the OFLC National
Processing Center (NPC) with the SWAs.
This final rule is estimated to have
annualized cost savings of $0.16 million
and total 10-year quantifiable cost
savings of $1.12 million at a discount
rate of seven percent.
The Department estimates that this
final rule will result in an annualized
net quantifiable cost of $2.59 million
and a total 10-year net cost of $18.17
million, both at a discount rate of seven
percent and expressed in 2021 dollars.
The Department expects that this final
rule will provide qualitative benefits
including: (1) clearer application of
certain housing-related standards when
9 E.O. 12866, Regulatory Planning and Review, 58
FR 51735 (Oct. 4, 1993).
10 E.O. 13563, Improving Regulation and
Regulatory Review, 76 FR 3821 (Jan. 21, 2011).
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employers choose to meet their H–2A
housing obligations by providing rental
and/or public accommodations, which
will bolster worker health and safety
protections; (2) an improved process of
submitting and reviewing H–2A
applications, which will reduce
workforce instability; and (3) the
adoption of electronic surety bonds and
a standardized bond form, which will
help streamline the H–2A application
process and reduce delays. The
Department believes that the qualitative
benefits outweigh the quantitative net
costs in this rule.
F. 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 this final rule that can operate
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 this final rule continue
to operate, to the extent possible, in
tandem with the reverted provisions.
II. Acronyms and Abbreviations
AEWR Adverse effect wage rate(s)
AIE Area(s) of intended employment
ALJ Administrative Law Judge
AOWL Agricultural Online Wage Library
ARB Administrative Review Board
ARIMA Autoregressive integrated moving
average
BALCA Board of Alien Labor Certification
Appeals
BLS Bureau of Labor Statistics
CBA Collective bargaining agreement
CFR Code of Federal Regulations
CO Certifying Officer(s)
COVID–19 Novel coronavirus disease
CPI Consumer Price Index
DBA Doing Business As
DC District of Columbia
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
DOS Department of State
ECI Employment Cost Index
E.O. Executive Order
E–SIGN Electronic Signatures in Global and
National Commerce Act
ETA Employment and Training
Administration
FEIN Federal Employer Identification
Number
FICA Federal Insurance Contributions Act
FLAG Foreign Labor Application Gateway
FLC Farm Labor Contractor
FLS Farm Labor Survey
FLSA Fair Labor Standards Act
FR Federal Register
FTC Federal Trade Commission
FY Fiscal Year(s)
GPEA Government Paperwork Elimination
Act
H–2ALC(s) H–2A Labor Contractor(s)
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HR Human Resources
iCERT iCERT Visa Portal System
ICR Information Collection Request
IFR Interim final rule
INA Immigration and Nationality Act
IRC Internal Revenue Code
IRCA Immigration Reform and Control Act
of 1986
IRS Internal Revenue Service
MSA Metropolitan Statistical Area(s)
MSPA Migrant and Seasonal Agricultural
Worker Protection Act
NAICS North American Industry
Classification System
NOA Notice(s) of Acceptance
NOD Notice(s) of Deficiency
NPC National Processing Center
NPRM Notice of proposed rulemaking
NPWC National Prevailing Wage Center
NW Northwest
OALJ Office of Administrative Law Judges
OEWS Occupational Employment and
Wage Statistics
OFLC Office of Foreign Labor Certification
OIRA Office of Information and Regulatory
Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health
Administration
PRA Paperwork Reduction Act
Pub. L. Public Law
PWD Prevailing wage determination(s)
QCEW Quarterly Census of Employment
and Wages
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
RV Recreational vehicle
SBA Small Business Administration
Sec. Section of a Public Law
Secretary Secretary of Labor
SOC Standard Occupational Classification
Stat. U.S. Statutes at Large
SWA(s) State Workforce Agency(-ies)
TDD Telecommunications Device for the
Deaf
TEGL Training and Employment Guidance
Letter
TTY Teletypewriter
UI Unemployment insurance
UMRA Unfunded Mandates Reform Act of
1995
U.S. United States
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration
Services
USDA U.S. Department of Agriculture
WHD Wage and Hour Division
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III. Background and Public Comments
Received on the Notice of Proposed
Rulemaking
On July 26, 2019, the Department
published an NPRM requesting public
comments on proposals intended to
modernize and simplify the process by
which OFLC reviews employers’ job
orders and applications for temporary
agricultural labor certifications for use
in petitioning DHS to employ H–2A
workers. See 84 FR 36168. The
Department also proposed to amend the
regulations for enforcement of
contractual obligations applicable to the
employment of H–2A workers and
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workers in corresponding employment
administered by WHD, and to amend
the Wagner-Peyser Act regulations
administered by ETA to provide
consistency with revisions to H–2A
program regulations governing the
temporary agricultural labor
certification process. Id. The NPRM
invited written comments from the
public on all aspects of the proposed
amendments to the regulations. A 60day comment period allowed for the
public to inspect the proposed rule and
provide comments through September
24, 2019.
The Department also received
requests for an extension of the
comment period for the NPRM. While
the Department appreciated the issues
raised concerning the public’s
opportunity to examine the rule and
comment, the Department decided not
to extend the comment period. The
Department continues to believe that a
60-day comment period was sufficient
to allow the public to inspect the
proposed rule and provide comments,
and this conclusion is supported by
both the volume of comments received
and by the wide variety of stakeholders
that submitted comments within the 60day comment period.
The Department received a total of
83,532 public comments in docket
number ETA–2019–007 in response to
the NPRM. In addition, the Department
received 128 comments in response to
document WHD_FRDOC_0001–0070
prior to the comment submission
deadline. These comments were
incorporated into docket number ETA–
2019–007, and each comment received
a note on regulations.gov indicating that
it was timely received. The commenters
represented a wide range of
stakeholders from the public, private,
and not-for-profit sectors. The
Department received comments from a
geographically diverse cross-section of
stakeholders within the agricultural
sector, including farmworkers, workers’
rights advocacy organizations, farm
owners, trade associations for
agricultural products and services, notfor-profit organizations representing
agricultural issues, and other
organizations with an interest in
farming, ranching, and other
agricultural activities. Public sector
commenters included Federal elected
officials, State officials, and agencies
representing 14 State governments.
Private sector commenters included
business owners, recruiting companies,
and law firms. Other commenters
included immigration advocacy groups,
public policy organizations, and trade
associations interested in immigrationrelated issues. The vast majority of
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comments specifically addressed
proposals and issues contained in the
NPRM. The Department recognizes and
appreciates the value of comments,
ideas, and suggestions from all those
who commented on the proposal, and
this final rule was developed after
review and consideration of all public
comments timely received in response
to the NPRM.11 12
IV. Discussion of General Comments
Following careful consideration of the
public comments received, the
Department made a number of
modifications to the NPRM’s proposed
regulatory text. Section V of this
preamble sets out the Department’s
interpretation and rationale for the
amendments adopted to 20 CFR part
655, subpart B, 20 CFR 653.501(c)(2)(i),
and 29 CFR part 501, section by section.
Before setting out the detailed sectionby-section analysis below, however, the
Department will first acknowledge and
respond to general comments that did
not fit readily into this organizational
scheme.
Of the total public comments
received, 82,893 comments were
associated with form letters or letter
writing campaigns. One not-for-profit
organization submitted the names of
8,602 community members expressing
general concerns about worker wages,
11 As explained elsewhere in this rule, the
Department separately published a final rule—the
2020 H–2A AEWR Final Rule—that addressed the
proposal and public comments concerning the
AEWR methodology and was limited to only that
aspect of the NPRM. This final rule addresses the
remaining aspects of the NPRM. Previously, on
January 15, 2021, the Department announced and
posted on OFLC’s website an unpublished final rule
on these remaining aspects of the NPRM, explaining
that the rule was pending publication in the
Federal Register with a 30-day delayed effective
date. See Announcements, U.S. Department of
Labor Withdraws Forthcoming H–2A Temporary
Agricultural Program Rule for Review (Jan. 20,
2021), https://www.dol.gov/agencies/eta/foreignlabor/news. On January 20, 2021, however, the
Department withdrew this document from the
Office of the Federal Register, prior to the document
being made available for public inspection, for the
purpose of reviewing issues of law, fact, and policy
raised by the rule. Therefore, the unpublished draft
rule (hereinafter referenced as ‘‘the January 2021
draft final rule’’) never took effect. 5 U.S.C.
552(a)(1), 553; cf. Humane Society v. U.S. Dep’t of
Ag., No. 20–5291,—F.4th—, 2022 WL 2898893, at
*8 (D.C. Cir. 2022) (holding that ‘‘agencies may
repeal a rule made available for public inspection
in the Office of the Federal Register only after
complying with the [Administrative Procedure
Act’s] procedural requirements’’). The Federal
Register and the Code of Federal Regulations
remain the official sources for regulatory
information published by the Department. Id. Any
statements in the January 2021 draft final rule do
not represent the Department’s formal policy.
Moreover, the January 2021 draft final rule and any
statements contained therein do not, and may not
be relied upon to, create or confer any right or
benefit, substantive or procedural, enforceable at
law or equity by any individual or other party.
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worker safety, and enforcement of
immigration laws. A not-for-profit
foundation and labor union letter
writing campaign resulted in the
submission of more than 74,000 form
letters and postcards from individual
farmworkers expressing general
concerns over issues such as the growth
of the H–2A program, worker wages,
costs to workers, working conditions,
housing conditions, job opportunities
for U.S. workers, and enforcement and
oversight of program protections.
Additional letter writing campaigns
were organized by agricultural
associations, trade associations, local
groups of farmers, and private
individuals. The Department recognizes
and appreciates the public’s interest in
this regulatory action. Where these
letters discussed substantive changes
within the scope of the rule, the
Department has considered and
addressed these issues, in detail, in the
section-by-section analysis of this
preamble.
Many of the comments received
expressed general support for or
opposition to the proposed rule, without
discussing specific provisions of the
NPRM. The Department received
comments from individual business
owners, farmers, and trade associations
that expressed general support for
taking action to change the H–2A
program, including efforts to streamline
the electronic document filing system,
modernizing and improving the
efficiency of the program, making the
program more flexible and responsive to
farmer needs, and creating an
environment that fosters a more stable
workforce without harming U.S.
workers. Other commenters stressed the
importance of protecting and improving
the American farming industry through
the proposed regulations. Another
commenter mentioned the growth of the
H–2A program in their State as evidence
that the program plays a vital role in the
agricultural sector. The Department
values and appreciates these
commenters’ support for the proposed
rule, as well as their unique and
informed perspectives on the program’s
strengths and proposed points of
improvement.
In addition to comments expressing
general support for the rule, the
Department received several comments
supporting other comments that were
submitted in response to the NPRM.
Most of these comments were from
individual farmers and ranchers
expressing support for a comment
submitted by an agricultural association
or trade association. The Department
acknowledges the time and effort
undertaken by these commenters to
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voice their opinions on this rulemaking
and lend their support for the opinions
of others. Where these comments
supported substantive changes within
the scope of the rule, the Department
has considered and addressed these
issues, in detail, in the section-bysection analysis of this preamble.
The Department also received several
comments in general opposition to the
changes proposed in the NPRM,
including from private citizens,
farmworkers, and workers’ rights
advocacy organizations. These
comments included concerns that
changes to the H–2A program could
disproportionately harm small farms. In
accordance with the Regulatory
Flexibility Act (RFA), an analysis on the
impact on small farms was performed,
and the results were considered in
formulating this final rule. Additional
commenters expressed the view that
stronger protections and accountability
for worker safety and living conditions
are needed, asserting that the changes
proposed in the NPRM would serve to
weaken labor standards and increase
instances of abuse within the
immigration system. Some commenters
feared that the proposed changes would
disproportionately harm marginalized
communities, including immigrants,
individuals with disabilities, and people
of color. One commenter opposed the
changes proposed in the NPRM out of
a general concern that such changes,
once implemented, would encourage
employers to deny jobs to U.S.
farmworkers in order to hire foreign
workers for less pay. Still other
commenters stated that the changes
proposed in the NPRM would make
working and living conditions worse for
farmworkers both within the H–2A
program as well as farmworkers who are
already lawfully present in the United
States and employed in that capacity.
These commenters underscored the
importance of increasing protections for
both U.S. workers’ and H–2A workers’
living and working conditions. Some
commenters worried that the proposed
changes would increase costs to
workers, decrease their wages, or both.
In contrast, one commenter expressed
concern about the proposal increasing
costs for employers through higher
wages and labor standards for workers.
Other commenters expressed general
concerns about how the changes would
impact food safety and the appeals
process. A few commenters criticized
the proposed rule for not including
provisions to address recruitment fees
and sectors in agriculture that have
year-round needs for labor.
The Department values and
appreciates the participation and input
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from these commenters and the
perspectives they have to offer. The
mission of DOL is to foster, promote,
and develop the welfare of the wage
earners, job seekers, and retirees of the
United States; improve working
conditions; advance opportunities for
profitable employment; and assure
work-related benefits and protection of
workers’ rights. Under this charge, the
Department continues to be as diligent
as possible in safeguarding worker
rights, promoting the welfare of all
workers, and investigating and
preventing abuse within the U.S.
agricultural economy, and it shares
these commenters’ concerns for the
protection of all farmworkers in the
United States. Where these comments
supported substantive changes within
the scope of the rule, the Department
has considered and addressed these
issues, in detail, in the section-bysection analysis of this preamble.
V. Section-by-Section Summary of This
Final Rule, 20 CFR Part 655, Subpart B;
20 CFR 653.501(c)(2)(i); and 29 CFR
Part 501
This section of the preamble provides
the Department’s responses to public
comments received on the NPRM and
rationale for the amendments adopted to
20 CFR part 655, subpart B, 20 CFR
653.501(c)(2)(i), and 29 CFR part 501,
section by section, and generally follows
the outline of the regulations. Within
each section of the preamble, the
Department has noted and responded to
those public comments that are
addressed to that particular section of
this final rule. If a proposed change is
not addressed in the discussion below,
it is because the public comments did
not substantively address that specific
provision and no changes have been
made to the proposed regulatory text.
The Department received some
comments on the NPRM that were
outside the scope of the proposed
regulations, and the Department offers
no substantive response to such
comments. The Department also has
made some nonsubstantive changes to
the regulatory text to correct
grammatical and typographical errors,
in order to improve readability and
conform the document stylistically, that
generally are not discussed below.
A. Introductory Sections
1. Section 655.100, Purpose and Scope
of Subpart B
The NPRM proposed minor
amendments to this section to clarify
the purpose of the H–2A program
regulations in paragraph (a) and the
scope of those regulations in paragraph
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(b). Proposed paragraph (a) reflected the
purpose of the final rule as realizing the
Department’s statutory authority to
establish a process through which it will
make factual determinations regarding
the issuance of a temporary agricultural
labor certification and certify its
determination to DHS. See 8 U.S.C.
1188(a). Proposed paragraph (b)
described the scope of the Department’s
role in receiving, reviewing, and
adjudicating Applications for
Temporary Employment Certification,
including establishing standards and
obligations with respect to the terms
and conditions of the temporary
agricultural labor certification with
which H–2A employers must comply,
and the rights and obligations of H–2A
workers and workers in corresponding
employment. The Department received
some comments on this provision, but
has not made any substantive changes to
the regulatory text in response to these
comments. Therefore, as discussed
below, this provision remains
unchanged from the NPRM except for
minor technical changes.
Although many commenters generally
applauded the Department’s efforts to
amend the H–2A regulations through
this rulemaking activity, others stated
the proposed regulations were
unsatisfactory in addressing a wide
array of immigration and workforce
issues impacting the United States.
Some called for an ‘‘overhaul’’ of the
immigration system as it relates to
agricultural labor through this rule or
through a ‘‘guest’’ worker program, and
some suggested creation of a system
where the agricultural workforce would
have a pathway to citizenship. Others
stated that the changes proposed in this
rulemaking would weaken workers’
wages, protections, and U.S. worker
recruitment obligations, and would not
incentivize farmers’ use of E-Verify
administered by DHS and the Social
Security Administration. However, no
commenters objected to the
Department’s proposed language under
§ 655.100 stating the purpose and scope
of its H–2A program regulations based
on the Department’s statutory authority
under the INA.
To the extent commenters urged
action beyond the proposed changes
that the Department presented for
public comment in the NPRM, their
comments are outside the scope of this
rulemaking. To the extent these
commenters commented on the
Department’s proposals in specific
provisions of the NPRM (e.g., wage
requirements or recruitment
obligations), the Department has
addressed their specific comments in
the preamble discussion of those
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particular provisions. Generalized
comments relating to this final rule are
addressed in section IV, Discussion of
General Comments. In the absence of
objection to the Department’s proposed
revisions to this regulatory language
describing the purpose and scope of its
H–2A program regulations, the
Department has adopted these
provisions as proposed, with minor
changes in § 655.100. In this final rule,
the Department reversed the order of the
words ‘‘purpose’’ and ‘‘scope’’ in the
section heading in order to reflect the
sequence of topics in paragraphs (a) and
(b). The Department also revised
‘‘temporary agricultural labor or
services’’ to now read ‘‘agricultural
labor or services of a temporary or
seasonal nature’’ and included the word
‘‘temporary’’ in front of ‘‘foreign
workers’’ to better reflect the
determinations made in the
Department’s temporary agricultural
labor certification.
2. Section 655.101, Authority of the
Agencies, Offices, and Divisions of the
Department of Labor; and 29 CFR 501.1,
Purpose and Scope
The NPRM proposed minor
amendments to this section related to
the delegated authorities of ETA and
WHD and the division of
responsibilities between the agencies in
administering the H–2A program. In
addition to other statutory
responsibilities required by 8 U.S.C.
1188, proposed paragraph (a) addressed
ETA’s authority to carry out the
Secretary’s responsibility to issue
temporary agricultural labor
certifications through OFLC, while
proposed paragraph (b) addressed
WHD’s authority to carry out the
Secretary’s authority to investigate and
enforce the terms and conditions of H–
2A temporary agricultural labor
certifications under 8 U.S.C. 1188, 29
CFR part 501, and 20 CFR part 655,
subpart B (‘‘this subpart’’) (collectively,
‘‘the H–2A program’’). Proposed
paragraph (c) reminded program users
of ETA and WHD’s concurrent authority
to impose a debarment remedy, when
appropriate, under ETA regulations at
20 CFR 655.182 or under WHD
regulations at 29 CFR 501.20. The
Department received a few comments
on this provision, none of which
necessitated substantive changes to the
regulatory text. Therefore, as discussed
below, this provision remains
unchanged from the NPRM.
Some commenters raised concerns
about potential delays or confusion
related to the manner in which ETA and
WHD coordinate enforcement and share
authority, as well as the level of
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expertise of enforcement agencies to
which ETA and WHD may make
referrals. One commenter expressed
concern about the frequency of WHD
investigations of H–2A employers, as
compared to non-H–2A employers, and
objected to what it perceived as an
expansion of WHD’s enforcement
authority. Another commenter
suggested that the complementary
regulation at 29 CFR 501.1(b) be revised
to explicitly reference OFLC’s authority
to carry out responsibilities under 20
CFR part 655, subpart B, in addition to
its authority under the statute. As the
regulations are promulgated pursuant to
OFLC’s statutory authority, the
Department considers the proposed
regulations to adequately describe the
scope of OFLC’s authority. Further, by
adding paragraph (b) to 20 CFR 655.101,
the Department clarifies the role of
WHD with regard to 20 CFR part 655,
subpart B, within that subpart rather
than solely within the complementary
regulation at 29 CFR 501.1(c) and brings
consistency to 20 CFR 655.101 and 29
CFR 501.1; both now address ETA’s and
WHD’s roles. To the extent commenters
raised concerns about the manner in
which ETA and WHD coordinate
enforcement and shared authority, in
practice, those specific comments are
addressed in connection with the
relevant regulatory provision (e.g., 20
CFR 655.182(g)). As no commenter
raised issues with the proposed
revisions to the description of the
authority of the Department’s agencies,
offices, and divisions under 20 CFR
655.101 and 29 CFR 501.1 that
necessitate changes, the Department is
adopting them in this final rule without
change.
3. Section 655.102, Transition
Procedures
a. Rescinding the Provision Allowing for
the Creation of Special Procedures
As stated in the NPRM, the
Department’s H–2A regulations have,
since their creation, provided authority
under 20 CFR 655.102 to ‘‘establish,
continue, revise, or revoke special
procedures for processing certain H–2A
applications,’’ and the Department has
exercised a limited degree of flexibility
in determining when specific variations
from the normal labor certification
processes were necessary to permit the
temporary employment of foreign
workers in specific industries or
occupations. However, the Department
proposed to rescind the special
procedures provision in its H–2A
regulations in light of the decision in
Mendoza v. Perez, 754 F.3d 1002, 1022
(D.C. Cir. 2014), which found that the
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Department’s determination to establish
special procedures for sheep, goat, and
cattle herding under § 655.102 was
subject to the Administrative Procedure
Act, possessed all the hallmarks of a
legislative rule, and could not be issued
through sub-regulatory guidance. The
Department underwent notice-andcomment rulemaking to convert the subregulatory guidance for sheep and goat
herding and production of livestock on
the range into formal regulations; those
provisions appear in the Department’s
H–2A regulations at 20 CFR 655.200
through 655.235. 2015 H–2A Herder
Final Rule, 80 FR 62958.13 Accordingly,
the Department proposed in the NPRM
new regulatory provisions under
§§ 655.300 through 655.304 to
incorporate the remaining special
procedures covering the specific
occupations of animal shearing,
commercial beekeeping, and custom
combining into the H–2A regulatory
framework, effectively rescinding the
TEGLs covering those occupations. The
Department received some comments on
the Department’s proposal to rescind
existing § 655.102, but as discussed
below, none warranted changes to the
Department’s proposed rescission.
Therefore, the rescission of this
provision remains unchanged from the
NPRM.
Some commenters generally
supported the proposal to engage in
rulemaking (i.e., through the NPRM and
this final rule) to incorporate the
procedures and standards from the
TEGLs for itinerant animal shearing,
commercial beekeeping, and custom
combining into the H–2A regulations,
with some remarking that it provided an
opportunity to comment on specific
aspects of occupational variances. The
Department addresses these specific
comments in the preamble sections
below that discuss §§ 655.300 through
655.304. Several other commenters
expressed support for this proposal and
cited general agreement with the
conclusion that such procedures are
substantive and require formal noticeand-comment rulemaking.
One trade association stated that it
‘‘takes no position’’ on the proposed
rule’s rescission of the special
procedures provision, but recommended
the procedures and standards set forth
in TEGLs should undergo ‘‘appropriate
due process’’ before attaining the status
of regulations. Although other trade
13 The Department recently rescinded
§ 655.215(b)(2) in a separate rulemaking. Final Rule,
Adjudication of Temporary and Seasonal Need for
Herding and Production of Livestock on the Range
Applications Under the H–2A Program, 86 FR
71373 (Dec. 16, 2021) (2021 H–2A Herder Final
Rule).
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associations and individual commenters
were in favor of eliminating informal
special procedures, they recommended
the Department retain the ability to
develop formal special procedures when
circumstances arise in the future. These
commenters noted that U.S. agriculture
will continue to evolve, and the
Department must have the appropriate
tools to implement immediate changes
to assist farmers while protecting
workers.
The Department understands the
concerns expressed by a few
commenters that consideration of
special variances for specific industries
or occupations, other than those
addressed in this final rule at §§ 655.200
through 655.235 and §§ 655.300 through
655.304, may be appropriate at some
point in the future. However, in light of
the court’s decision in Mendoza and the
similarity between the special
procedures at issue in that case and the
current H–2A special procedure TEGLs,
the Department has determined that it
should engage in formal notice-andcomment rulemaking procedures (i.e.,
through the NPRM and this final rule)
to incorporate into the regulations its
current H–2A special procedures.
Rescission of the broad authority in
§ 655.102 to establish special
procedures does not preclude the
Department from engaging in future
notice-and-comment rulemaking or
issuing guidance; rather, it reassures the
public that the Department will engage
in notice-and-comment rulemaking to
establish variances in the future.
Accordingly, the Department is
adopting its proposal to rescind from
the H–2A regulations the explicit
provision permitting the Department to
establish special procedures for
processing certain Applications for
Temporary Employment Certification
under § 655.102.
b. Transition Procedures for
Implementing Changes Created by This
Final Rule
As stated in the NPRM, the
Department proposed to repurpose
§ 655.102 to clarify which set of
regulations—the 2010 H–2A Final
Rule 14 or this final rule—an employer
14 The Department’s reference to ‘‘the 2010 H–2A
Final Rule’’ herein includes the regulatory text
adopted through that rulemaking, 75 FR 6884, and
in other minor revisions that took effect prior to the
effective date of this final rule. 2019 H–2A
Recruitment Final Rule, 84 FR 49439 (rescinding
the requirement that an employer advertise its job
opportunity in a print newspaper of general
circulation in the area of intended employment;
expanding and enhancing the Department’s
electronic job registry; and leveraging the expertise
and existing outreach activities of SWAs to promote
agricultural job opportunities); see also Final Rule,
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must satisfy for each Application for
Temporary Employment Certification
that it has already submitted or that it
is preparing to submit when this final
rule becomes effective. The Department
proposed to rename § 655.102 as
‘‘Transition procedures,’’ and add
regulatory language to support an
orderly and seamless transition between
the rules.
Paragraph (a) proposed that an
Application for Temporary Employment
Certification submitted to the OFLC
NPC before the effective date of the final
rule would be processed under the
regulations in effect when it was
submitted (i.e., the 2010 H–2A Final
Rule). However, an employer’s
engagement with H–2A program
requirements begins in advance of its
submission of the Application for
Temporary Employment Certification to
the NPC, with its submission of a job
order to the SWA for review and
clearance. In order to provide similar
regulatory continuity for H–2A program
job orders, paragraphs (b) and (c)
proposed a procedure for determining
which set of regulations would apply to
an Application for Temporary
Employment Certification submitted to
the NPC on or after the effective date of
the final rule.
As a result, any Application for
Temporary Employment Certification
with a first date of need no later than
90 days after the effective date of this
final rule would be processed under the
2010 H–2A Final Rule. All other
Applications for Temporary
Employment Certification submitted on
or after the effective date of this final
rule would be processed under this final
rule. The Department received some
comments on this provision, none of
which necessitated substantive changes
to the regulatory text. Therefore, as
discussed below, this provision remains
unchanged from the NPRM.
The majority of commenters that
addressed transition procedures,
including trade associations, an
employer, and a SWA, generally
supported the proposal. However, they
expressed concern that the transition
period might occur during a busy season
or across calendar years, depending on
the timing of the final rule’s publication.
Rules Concerning Discretionary Review by the
Secretary, 85 FR 30608 (establishing a system of
discretionary secretarial review over cases pending
before or decided by the BALCA and to make
technical changes to Departmental regulations
governing the timing and finality of decisions of the
ARB and the BALCA); 2021 H–2A Herder Final
Rule, 86 FR 71373 (amending the regulations
regarding the adjudication of temporary need for
employers seeking to employ nonimmigrant
workers in job opportunities covering the herding
or production of livestock on the range).
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These commenters urged the
Department to include sufficient time in
the transition period for employers to
become familiar with new requirements
and for the Department and SWA to
develop and implement processes
associated with the changes in the final
rule, ideally outside of busy filing
periods (e.g., September, October, and
November). The Department considered
these interests and concluded that the
transition procedures adopted in this
final rule ensure that all job orders and
Applications for Temporary
Employment Certification submitted to
the SWA and/or NPC before the
effective date of this final rule will
continue to be governed by the 2010 H–
2A Final Rule. Not only will this
approach ensure that the rule change
does not complicate or disrupt an
employer’s application process midstream, but it will provide an
appropriate period after publication of
this final rule during which the
Department, SWAs, and employers can
adjust to the new rule before an
employer submits its first job order for
processing under this final rule (i.e.,
with a first date of need more than 90
days after the effective date of this final
rule).
Three commenters remarked on the
length of the transition period proposed.
Two trade associations objected to what
they viewed as a delay of the actual
effective date of the final rule. They
remarked that the final rule would not
be fully in effect on the 30th day after
publication. In contrast, a SWA urged
the Department to consider a longer
transition period, such as 180 days after
the final rule’s publication date, stating
that both SWAs and employers need
more than 90 days to adjust to the
substantive changes being proposed,
e.g., survey methodologies and
staggered entry.15
The Department appreciates both the
SWA’s suggestion for more time as well
as other commenters’ concerns about
prompt implementation of the new rule.
The transition period implemented in
this final rule balances these concerns.
It allows the Department to implement
necessary changes to program
operations, application forms, and
technology systems, and to provide
training and technical assistance to the
NPC, SWAs, employers, and other
15 The Department decided not to adopt several
major changes proposed in the NPRM (e.g.,
staggered entry), as discussed in relevant preamble
sections, which mitigates the SWA’s concern to
some degree. In addition, as explained in the
preamble discussing § 655.120, the Department
anticipates the modernized prevailing wage
determination (PWD) survey requirements will
reduce the burden on SWAs.
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stakeholders in order to familiarize
them with changes required by this rule.
However, the transition period also
balances the preparation required to
properly implement the new rule with
the importance of promptly
implementing the modernized
regulations. It requires employers to
prepare job orders in compliance with
the new regulations, and it requires the
NPC and SWA to be prepared to receive
those job orders, 46 days after
publication of this final rule. Further,
using employers’ first date of need after
this final rule’s effective date, rather
than a job order or Application for
Temporary Employment Certification
submission date, better ensures that
workers who perform labor or services
during the same season will be covered
by the same set of regulations.
4. Section 655.103, Overview of This
Subpart and Definition of Terms; 20
CFR 653.501(c)(2)(i) of the WagnerPeyser Act Regulations; and 29 CFR
501.3, Definitions
a. AEWR
The NPRM proposed conforming
changes to the definition of AEWR to be
consistent with the NPRM’s proposal to
adjust the methodology used to
establish AEWR in the H–2A program.
Subsequently, the Department issued
the 2020 H–2A AEWR Final Rule (85 FR
70445), which revised the AEWR
methodology for non-range agricultural
occupations and included a revised
definition of AEWR. On December 23,
2020, in United Farm Workers v. Dep’t
of Labor, No. 20–cv–01690 (E.D. Cal.
filed Nov. 30, 2020), the U.S. District
Court for the Eastern District of
California issued an order preliminarily
enjoining the Department from further
implementing the 2020 H–2A AEWR
Final Rule.16 On April 4, 2022, after the
parties submitted summary judgment
briefing, the court vacated the 2020 H–
2A AEWR Final Rule and remanded the
rule to the agency for further rulemaking
consistent with the court’s order.17 In
this final rule, the Department is
implementing the court’s vacatur of the
2020 H–2A AEWR Final Rule by
removing from the CFR the regulatory
text that the Department promulgated
through that rulemaking at § 655.103(b)
16 Order Granting Plaintiffs’ Motion for a
Preliminary Injunction, United Farm Workers v.
U.S. Dep’t of Labor, No. 20–cv–1690 (E.D. Cal. Dec.
23, 2020), ECF No. 37. The court’s order was issued
two days after the effective date of the 2020 H–2A
AEWR Final Rule.
17 Order Granting Plaintiffs’ Motion for Summary
Judgment, United Farm Workers v. U.S. Dep’t of
Labor, No. 20–cv–1690 (E.D. Cal. Apr. 4, 2022), ECF
No. 102; Judgment, United Farm Workers v. U.S.
Dep’t of Labor, No. 20–cv–1690 (E.D. Cal. Apr. 4,
2022), ECF No. 103.
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(the definition of AEWR), thereby
restoring the regulatory text to appear as
it did before the effective date of the
2020 H–2A AEWR Final Rule.
The Department has good cause to
bypass any otherwise applicable
requirements of notice and comment
and a delayed effective date for this
portion of the rule because they are
unnecessary and would be contrary to
the public interest. See 5 U.S.C.
533(b)(B), (d). First, the changes made
here carry out the ministerial task of
effectuating the court’s vacatur order
and restores the regulatory text to the
operative regulatory text in place prior
to the publication of the now-vacated
rule (the definition of AEWR in effect
under the 2010 H–2A Final Rule). Since
the court’s vacatur order, no other party
has sought to appeal the court’s order or
otherwise block it from taking effect.
The Department has therefore
concluded that the notice and delayed
effective date requirements are
unnecessary.
Second, the Department has
concluded that taking comment on this
change would be contrary to the public
interest because it could lead to
confusion, particularly among the
regulated public, as to the applicable
definition of the AEWR and the AEWR
methodology. This is especially true in
light of the Department’s December 1,
2021, NPRM proposing revisions to the
reinstated 2010 AEWR methodology.
Continuing to include the vacated
methodology in the CFR while
simultaneously proposing to amend the
2010 AEWR methodology in the
separate rulemaking could be
unnecessarily confusing to the regulated
community. This change eliminates any
possible confusion over the current
AEWR methodology and, more
importantly, any confusion over what
methodology the Department has
proposed to change in its current AEWR
rulemaking.18
The Department has concluded that
each of these reasons—that notice and
comment and a delayed effective date
are unnecessary, impracticable, and
contrary to the public interest—
independently provides good cause to
bypass any otherwise applicable
requirements of notice and comment
and a delayed effective date.
b. Area of Intended Employment and
Place of Employment
The NPRM proposed minor
amendments to the definition of AIE by
18 As noted below, the comment period for the
2021 H–2A AEWR NPRM closed on January 31,
2022, and the Department will address comments
received in response to that proposal in that
separate rulemaking.
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replacing the terms ‘‘place of the job
opportunity’’ and ‘‘worksite’’ with a
newly defined term ‘‘place(s) of
employment.’’ The Department received
some comments on this provision, none
of which necessitated substantive
changes to the regulatory text.
Therefore, as discussed below, these
definitions remain unchanged from the
NPRM with one minor revision.
As explained in the NPRM, the CO
will continue using the definition of AIE
to assess whether each place of
employment—defined as a worksite or
physical location where work under the
job order actually is performed by the
H–2A workers and workers in
corresponding employment—is within
normal commuting distance from the
first place of employment listed on the
job order as a work location or, if
designated, the centralized ‘‘pick-up’’
point (e.g., worker housing) to every
other place of employment identified in
the application and job order. After
considering comments, as discussed
below, the Department adopts the
proposed definitions of AIE and place of
employment with one minor change, to
use the term ‘‘place of employment’’ in
the singular in the definition of AIE.
Some commenters suggested the
Department make substantive revisions
to the proposed definition of ‘‘place of
employment,’’ given how it is applied in
the proposed definition of AIE at 20
CFR 655.103(b), and the explicit
limitation of an Application for
Temporary Employment Certification to
one AIE that the Department proposed
to incorporate at § 655.130(e). Some
commenters asserted that travel time
from one point on a farm to another
(e.g., from one field to another
noncontiguous field, or from a field to
a packing facility) and/or incidental
travel off the farm to places outside of
the AIE should not be considered in the
Department’s AIE evaluation. Several
commenters, including a trade
association, agent, and employers, used
job opportunities involving trucking
duties (e.g., delivering an employer’s
crops to storage or market) as examples
of their concerns. These commenters
objected to listing all of a trucker’s
delivery and pick-up locations on the
Application for Temporary Employment
Certification as worksites, which the CO
would analyze under the definition of
AIE at § 655.103(b) and subject to the
geographic limitation at § 655.130(e).
Several trade associations, agents, and
employers commented that the
Department should adopt the H–1B
definition of place of employment at
§ 655.715, asserting that the Board of
Alien Labor Certification Appeals
(BALCA) has done so in some appeal
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decisions. One commenter stated that
adopting the H–1B definition would
ensure that certain locations where
work is performed for short durations
are excluded from consideration in
analysis of the AIE. An employer
supported this approach as flexible and
efficient, while other commenters stated
it would provide clarity and certainty to
the AIE evaluation. An agent
acknowledged that the H–1B definition
might be ‘‘less-than-ideal for the H–2A
program for other reasons’’ and
proposed a slightly modified version of
the H–1B definition.
The Department declines to adopt the
H–1B definition of ‘‘place of
employment’’ for the H–2A program
because doing so would be a major
change that commenters and
stakeholders generally could not have
anticipated as an outcome of the
rulemaking, thus warranting additional
public notice and opportunity for
comment. Additionally, the H–1B
definition of ‘‘place of employment’’ is
tailored to the specialty occupations
eligible for the H–1B program, and this
definition is not easily retrofitted or
modified to apply to agricultural
occupations eligible for the H–2A
program.19 Finally, such a change is not
necessary to address commenters’
concerns.
The Department’s proposed definition
of AIE considers the normal commuting
distance to the place of employment
where the workday begins, not the
geographic scope of a worker’s route
after the workday begins. Under the
proposed definition of ‘‘place of
employment,’’ a truck driver’s delivery
locations, for example, are places of
employment, as they are worksites or
other physical locations at which the
truck driver performs work under the
job order. However, those delivery
locations are not considered in the AIE
analysis of normal commute to the place
of employment because the workday for
the job opportunity begins before a
worker travels to those locations. The
19 For example, the H–1B regulations provide the
following examples of non-worksites (i.e., locations
that do not constitute a place of employment) for
an H–1B worker: ‘‘[a] computer engineer sent to
customer locations to ‘troubleshoot’ complaints
regarding software malfunctions; a sales
representative making calls on prospective
customers or established customers within a ‘home
office’ sales territory; a manager monitoring the
performance of out-stationed employees; an auditor
providing advice or conducting reviews at customer
facilities; a physical therapist providing services to
patients in their homes within an area of
employment; an individual making a court
appearance; an individual lunching with a
customer representative at a restaurant; or an
individual conducting research at a library.’’ See
§ 655.715. These examples have limited parallels
within the agricultural economy.
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geographic scope limitation on such
places of employment (i.e., after the
workday begins) are addressed under
§ 655.130(e), which, as revised,
accommodates work at ‘‘places of
employment outside of a single [AIE]
only as is necessary to perform the
duties specified in the Application for
Temporary Employment Certification,
and provided that the worker can
reasonably return to the worker’s
residence or the employer-provided
housing within the same workday.’’
While not assessed as part of an AIE
review, an employer must identify on
the Application for Temporary
Employment Certification and job order
all places of employment, including
those after the workday begins, to allow
both for the Department to review, and
U.S. workers to be apprised of, the
material terms and conditions of the job
opportunity. If specific addresses are
unknown, such as in the case of crop
delivery to storage or market, the
employer may describe the places to
which deliveries will be made with as
much specificity as possible (e.g.,
county or city names). To be clear, all
worksites and physical locations where
work will be performed under the job
order, both those to which a worker
must commute and those to which a
worker must travel after their workday
begins, must be disclosed in the
Application for Temporary Employment
Certification and job order; however,
those worksites and physical locations
to which a worker must travel after the
workday begins to perform work under
the job order will not be analyzed under
the definition of AIE. These comments
and the limitation of an Application for
Temporary Employment Certification to
one AIE, absent an exception, are
discussed further in relation to the
geographic scope provision at
§ 655.130(e).
A State employment agency expressed
concern that the term ‘‘places of
employment’’ may result in employer
misrepresentation of the actual
worksite, lead to confusion around
where the ‘‘actual worksite’’ is located
when reviewing a job order, and require
the SWAs to identify more deficiencies
in cases where the employer does not
specify the worksite as a place of
employment. A forestry employer
expressed concern that the proposed
definition would be unworkable
because the employer performs work at
places of employment across areas
wider than normal commuting
distances, considers employer-provided
housing to be home, and does not
expect workers to return home to their
permanent residence each day.
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To add clarity, the Department has
revised the definition of AIE so that
‘‘place of employment’’ is singular. As
discussed above, there may be a number
of places of employment listed on an
Application for Temporary Employment
Certification, as an employer must
identify each worksite or physical
location where work under the job order
will be performed. However, the CO
uses only one place—the first place of
employment identified or, if designated,
the centralized ‘‘pick-up’’ point (e.g.,
worker housing)—to determine the
normal commuting distance around that
place and whether all of the worksites
or physical locations to which a worker
may commute to begin the workday are
within that normal commute. Where an
employer’s job opportunity involves a
planned itinerary (e.g., animal shearing
subject to § 655.300), and in the event
an AIE analysis is required, the normal
commute at each place along the
planned itinerary would be analyzed.
Some commenters asserted that a
normal-commuting-distance analysis
should focus on the location of the
housing or pick-up point employers
provide for workers, rather than the
places of employment listed on an
employer’s Application for Temporary
Employment Certification. A trade
association, with support from other
commenters, stated that, because
employers are required to provide
transportation to worksites from the
housing the employer provides or a
pick-up point, a normal commuting
distance for U.S. workers should be
measured from their home to the
housing or pick-up point, not the
worksite(s); and thus argued that
worksites have little bearing on the AIE
labor market test. Another trade
association similarly remarked that the
‘‘housing or pick-up point, rather than
the worksite’’ should be the determining
factor, asserting that this would reflect
the commuting patterns of agricultural
workers more accurately. An employer
urged adoption of a standard that would
consider a worksite to be within the AIE
if the employer has provided housing at
the worksite; as normal commuting
distance would be measured from each
of the various locations where the
employer provided housing to workers,
employers could file fewer Applications
for Temporary Employment
Certification, each application covering
multiple AIEs. Similarly, an agent stated
that employers are required to provide
housing within a normal commuting
distance, which ‘‘would allow for
multiple work/housing locations on a
single application.’’
The Department disagrees with
commenters who assert that the location
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of one or more places of employment is
not relevant to evaluating normal
commuting distance whenever an
employer provides transportation from a
designated pick-up point, such as the
housing it provides to H–2A workers
and those workers in corresponding
employment who are not reasonably
able to return to their own residence
within the same day, as provided in
§ 655.122(d)(1). The Department
likewise disagrees that providing
additional housing at the place of
employment negates the need for the
AIE analysis. A worker who does not
reside at the pick-up point must
commute either to the pick-up point or
to the place of employment directly.
Further, if the workday does not begin
at the pick-up point, the commute for a
worker who travels to the pick-up point
using their own transportation
continues from the pick-up point to the
place of employment using the
employer’s transportation. To the extent
a commute involves multiple segments,
workers in corresponding employment
may not be able to reasonably return to
their own residences within the same
day. Although an employer would be
required to provide such workers with
housing, the Department noted in the
NPRM (and farmworkers and their
advocates agreed in comments) that
longer-than-normal commuting
distance, transportation issues, and any
requirement to live away from home
and family are all factors that can
discourage U.S. workers from accepting
temporary agricultural job
opportunities, impacting recruitment
and the Department’s ability to assess
the labor market prior to issuing a final
determination. Should a worker in
corresponding employment choose not
to live in employer-provided housing to
reduce the commute, the Department
has health and safety concerns, such as
driver fatigue that can be exacerbated by
increased commute times. In a comment
addressing transportation safety under
§ 655.122(h), a State employment
agency noted that driver fatigue in
agriculture is a ‘‘real and concerning
issue,’’ stating that it is not uncommon
to see workers at worksites that are
hours away from housing sites. (To the
extent these commenters are discussing
workers’ movement between various
places of employment after the workday
begins, the Department has addressed
this issue above and in § 655.130(e).)
Separately, a workers’ rights advocacy
organization discussed the use of the
definition of AIE for other purposes, for
example, to frame the geographic area
for prevailing practice and wage
surveys, asserting that regulatory
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language at §§ 655.122(d)(5) and
653.501(c)(2)(i) limits AIE in those
contexts to a single State. Those
comments with regard to prevailing
wage surveys are addressed in the
discussion of prevailing wage
determinations (PWDs) at § 655.120(c).
In addition to soliciting comments on
the proposed definitional changes, the
Department invited input on whether it
should further revise the definition of
AIE either to continue making factbased determinations on a case-by-case
basis, with the consideration of other
objective factors such as commuting or
labor market area designation systems or
other comprehensive commuting
studies and data, or to implement a
uniform standard, like a maximum
commuting distance or time above
which a commute would be considered
unreasonable in all cases. The
Department asked that comments
address the advantages and
disadvantages of different alternatives
and how implementation would provide
greater clarity and ensure the integrity
of the labor market test.
Commenters varyingly expressed
general concerns that the current
definition of AIE is too broad, too
narrow, or too ambiguous, but without
offering an alternative framework. A
trade association stated that AIE ‘‘varies
by the nature of the employer’s need
and does not fit neatly into one defined
box,’’ while an employer expressed
concern that the current definition
created such a broad standard that it
could result in subjective review of an
application. An agent suggested the
definition of AIE should be expanded to
reflect that agricultural employers now
have statewide and interstate
production to ‘‘reduce crop failure risks,
expand marketing windows, and
improve capital utilization’’; otherwise,
the commenter suggested, the definition
failed to accommodate modernization of
agricultural operations. Many
farmworkers emphasized that it is
important to them to work close either
in distance or time to where they live
due to the lack of a driver’s license,
post-work obligations like schoolwork,
and the need to care for their children
and be available if family emergencies
occur. A workers’ rights advocacy
organization expressed concern that the
definition of AIE leads to a large AIE
and results in fewer U.S. worker
applicants for job opportunities because
the regulation does not require
employers to provide transportation to
local workers.
Some commenters objected to the use
of Metropolitan Statistical Areas (MSAs)
in the H–2A program’s definition of AIE
as an objective means of evaluating a
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normal commute in particular areas, but
did not offer an alternative. Some trade
associations, with support from other
commenters, asserted that MSAs and
commuting distance have no correlation
with the nature of agricultural work. For
example, one commenter stated that
commute times associated with MSAs
‘‘bear little resemblance to how
agricultural workers get to their jobs.’’ A
workers’ rights advocacy organization
expressed concern that many
farmworkers will have difficulty
traveling to and between distant points
within large MSAs and cited language
from OMB stating that MSAs ‘‘are not
designed as a general-purpose
framework for nonstatistical activities.’’
See 2010 Standards for Delineating
Metropolitan and Micropolitan
Statistical Areas; Notice, 75 FR 37246
(June 28, 2010). One of the trade
associations, with other commenters
echoing its statement, noted that the
widely varying commute times
associated with different MSAs will
make it difficult for a Farm Labor
Contractor (FLC) to contract with a
farmer with certainty about whether the
farm will be determined to be inside or
outside an arbitrary commute time for
that specific MSA.
The commenters who addressed
whether the Department should impose
a more uniform standard for all
employers, such as a maximum
commuting distance or time above
which a commute would be considered
unreasonable in all cases, generally did
not support a rigid measure of time or
distance applicable in all cases. Several
trade associations and an agent stated
that use of a specific metric to
determine reasonable commuting
distance would be difficult due to
various factors. An agent commented
that employers transport workers to
‘‘wherever the work is available,’’ and
the Department should not limit
transportation to commute times that
may vary widely based on factors like
traffic patterns. One stated that
measuring commutes in miles would be
inappropriate because it would not
account for areas in which distance can
be traveled quickly, and measuring in
time would penalize those who travel
difficult terrain or encounter heavy
traffic during daily commutes. One
trade association stated that there is too
much variation in terrain, weather,
population concentration, road quality,
and traffic across the country to apply
a rigid definition of normal commuting
distance. Another trade association
similarly remarked that it would be
impossible to use a definitive rigid
measure of reasonable commuting
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distance due to variation in agriculture
across the country, and urged the
Department to provide more flexibility.
While one agent suggested that a rigid
commuting distance could be
consistently applied, an employer urged
the Department to adopt a flexible
approach and not apply a rigid
definition of normal commuting
distance.
The commenters who suggested a
maximum commute distance or
commute time disagreed as to an
appropriate limit. Trade associations,
individual employers, and an agent
suggested the Department should not
consider a commute time to be
unreasonable unless, for example, the
worksite is at least 2 hours from the
housing, the pick-up point, or both. One
viewed it as a more easily understood
approach that ‘‘would prevent any
misunderstanding of whether a specific
farm will fit an MSA’s commute time
and better conform to the realities of
agricultural employment.’’ An agent
commented that a smaller, more
restrictive AIE is not helpful to anyone,
neither the small local workforce that is
not large enough for farmers’ needs, nor
the farmer who will have to artificially
separate parts of its widespread
operation to fit into discrete AIEs. This
commenter argued that the Department
has ‘‘no statistics that legal, local or
domestic workers would take jobs if
they were just confined to about a 60mile radius of any one farm.’’ By
comparison, a workers’ rights advocacy
organization urged the Department to
limit the definition of ‘‘normal
commuting distance’’ to distances
‘‘considerably shorter than the 60+ mile
figure’’ requested by employers and
suggested that a more reasonable
maximum distance might be 45 miles.
Some commenters who opposed a
maximum commuting distance stated
that if the Department were to adopt a
maximum distance standard, it should
provide flexibility to account for typical
travel delays.
Upon careful consideration of all
comments received, the Department
declines to further modify the definition
of AIE. Although using MSAs as a proxy
for commuting area may result in
broader geographic areas than might
seem typical for jobs in rural areas,
employers are required to provide
housing to any worker in corresponding
employment unable to reasonably return
home at the end of the workday,
including those who reside within the
broadly identified commuting area.
Some commenters appeared to conflate
the concept of ‘‘reasonable commuting
distance’’ as used in this section with
the requirement that the employer
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provide housing to workers in
corresponding employment who are not
reasonably able to return to their
residence within the same day. The
Department notes that reasonable
commuting distance as it relates to AIE
is a general concept, whereas a
determination as to whether a worker in
corresponding employment is
reasonably able to return to their
residence at the end of the day is
specific to the worker in question.
Therefore, it is possible that a worker in
corresponding employment could reside
within a reasonable commuting distance
of the place of employment, but could
not reasonably return to their residence
at the end of the day due to personal
circumstances (e.g., lack of a private
vehicle or public transportation). In
such a situation, the employer would be
required to offer housing to the worker
in corresponding employment.
Therefore, while commenters provided
certain arguments that MSAs might be
an imperfect fit in some situations, these
comments neglect to consider the
continued value in using MSAs to
provide a level of predictability and
adjudicatory consistency for employers
nationwide, which the Department and
many commenters both consider
important. As commenters have not
identified any clearly superior
alternative, this final rule continues to
rely on a case-by-case approach to
assessing AIE given the varying
circumstances across areas that affect
travel and commuting times.
c. Average AEWR
The NPRM proposed to define a new
term ‘‘average adverse effect wage rate’’
(average AEWR). The term is necessary
to effectuate the Department’s proposal
to make adjustments to the H–2ALC
surety bond amounts based on changes
to a nationwide average AEWR. The
Department proposed to calculate the
average AEWR as a simple average of
the published AEWRs applicable to the
Standard Occupational Classification
(SOC) 45–2092 (Farmworkers and
Laborers, Crop, Nursery, and
Greenhouse) and publish an updated
average AEWR annually to serve as the
benchmark for future adjustments to the
required bond amounts.
The Department received only two
comments specifically relating to the
proposal to define the average AEWR.
Both commenters misunderstood the
nature of this proposal, believing that
the Department was proposing an
alternative to the wage sources listed in
§ 655.120(a), and opposed the proposal
for this reason. The Department
reiterates that the average AEWR is only
intended to be used as a benchmark for
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making adjustments to the required
bond amounts. Under this proposal, the
average AEWR does not change or
replace the wage rate required under
§ 655.120(a).20
Accordingly, the Department adopts
the definition of average AEWR with
minor modifications. As defined in this
final rule, the average AEWR is the
simple average of the AEWRs applicable
to the SOC 45–2092 (Farmworkers and
Laborers, Crop, Nursery, and
Greenhouse) and published by the
OFLC Administrator in accordance with
§ 655.120.21 The revised definition
clarifies that once set, the average
AEWR remains in effect until the OFLC
Administrator publishes an adjusted
average AEWR and it becomes effective.
Adjustments to the average AEWR will
occur consistent with the schedule for
adjusting the relevant AEWRs under
§ 655.120.
d. Corresponding Employment
The NPRM did not propose
amendments to the definition of
corresponding employment or request
comments on any aspect of the
definition. However, the Department
received a few comments suggesting
modifications to the definition, none of
which necessitated substantive changes
to the regulatory text from the NPRM.
Therefore, this final rule retains the
definition of corresponding employment
from the current rule without change.
Several commenters stated that the
definition should be modified to
include a de minimis exception,
allowing non-H–2A workers to perform
a limited amount of work similar to the
duties described in the job order or
performed by the H–2A workers without
being considered to be engaged in
corresponding employment.
Alternatively, several commenters
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20 See
84 FR 36168, 36179 (explaining that the
Department proposes to maintain the current
requirement in § 655.120(a) that an employer must
offer, advertise in its recruitment, and pay a wage
that is the highest of the AEWR, the prevailing
wage, the agreed-upon collective bargaining wage,
the Federal minimum wage, or the State minimum
wage, with only minor changes).
21 The AEWR methodology proposed in the
NPRM would have resulted in the publication of
separate AEWRs specific to the SOC 45–2092 and
other occupational classifications for field and
livestock workers. Under the modifications made to
the Department’s AEWR methodology in the 2020
H–2A AEWR Final Rule, the OFLC Administrator
would instead publish an AEWR for each State for
a combined field and livestock workers category,
which would be applicable to the SOC 45–2092.
However, as discussed above, the 2020 H–2A
AEWR Final Rule was preliminarily enjoined in
United Farm Workers v. U.S. Dep’t of Labor, No.
20–cv–01690 (E.D. Cal. Dec. 23, 2020). Regardless
of the precise AEWR methodology used, the average
AEWR will be based on the AEWRs that apply to
the SOC 45–2092, whether they are SOC-specific or
for a combined field and livestock workers category.
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indicated that the definition should be
more similar to the definition of
corresponding employment under the
H–2B program regulations, which
defines corresponding employment to
include work that is either substantially
similar to the work included in the job
order or substantially the same work
performed by H–2B workers, and
excludes certain full-time, incumbent
employees. See 20 CFR 655.5; 29 CFR
503.4.
The Department has carefully
considered these comments requesting
that the definition of corresponding
employment be revised and narrowed
but declines to alter the definition of
corresponding employment at this time.
The Department did not propose any
changes to the definition of
corresponding employment or request
comments on any aspect of the
definition. Many parties who would be
affected by any change in the definition
of corresponding employment therefore
had no reason to anticipate any change
in the current definition or to provide
input as to how the definition could be
revised. The Department received only
a limited number of comments on this
topic, all from employers and their
representatives, with no feedback from
other affected parties to enable the
Department to obtain multiple
perspectives on this issue. Further, the
regulation provides important
protections for workers by requiring that
non-H–2A workers performing the same
work as H–2A workers receive the same
wages and working conditions as H–2A
workers. Accordingly, the Department
declines to adopt any changes to the
definition of corresponding
employment.
e. Employer and Joint Employment
The NPRM proposed amendments to
the definitions of ‘‘employer’’ and ‘‘joint
employment’’ to clarify the use of these
terms in the filing of Applications for
Temporary Employment Certification
and the responsibilities of joint
employers, consistent with the INA and
the Department’s longstanding
administrative and enforcement
practice. The Department received many
comments on these proposed
definitions, none of which necessitated
substantive changes to the regulatory
text. Therefore, as discussed below,
these definitions remain unchanged
from the NPRM with one minor
revision.
Section 218 of the INA recognizes that
growers, agricultural associations, and
H–2ALCs that file applications are
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employers or joint employers.22 In
conformity with the statute as well as
the Department’s current policy and
practice, the NPRM proposed to clarify
the definitions of employer and joint
employment with respect to the H–2A
program to include all of those entities
the statute deems employers or joint
employers. Specifically, the Department
proposed to add language to the
definition of joint employment to clarify
that an agricultural association that files
an application as a joint employer is, at
all times, a joint employer of all H–2A
workers sponsored under the
application and, if applicable, of
corresponding workers. The Department
further proposed to clarify the definition
of joint employment to include an
employer-member of an agricultural
association that is filing as a joint
employer, but only during the period in
which the employer-member employs
H–2A workers sponsored under the
association’s joint employer application.
The Department proposed to add
language to the definition of joint
employment to clarify that growers that
file the joint employer application
proposed in § 655.131(b) are joint
employers, at all times, with respect to
the H–2A workers sponsored under the
application and all workers in
corresponding employment. In light of
these proposed changes, the Department
also proposed a slight change to the
joint employment language in the
current regulation to clarify that entities
that do not file applications but jointly
employ workers under the common law
of agency are also joint employers that
may be held liable for violations under
the statute. In other words, entities that
file applications as joint employers are
joint employers as a matter of law,
regardless of the common law of agency.
The Department will assess the joint
employer status of all other entities
based on the nature of the employment
relationship between the putative joint
employer and the worker under the
common law of agency, as provided in
the existing definition of employee at
§ 655.103 and required by Supreme
Court precedent. In addition to the
proposed changes to the definition of
joint employment, the Department
proposed to add language to the
definition of employer to clarify that a
22 See 8 U.S.C. 1188(c)(2) (‘‘The employer shall be
notified in writing within seven days of the date of
filing if the application does not meet the [relevant]
standards’’); 8 U.S.C. 1188(c)(3)(A)(i) (‘‘The
Secretary of Labor shall make . . . the certification
described in subsection (a)(1) if . . . the employer
has complied with the criteria for certification’’); 8
U.S.C. 1188(d)(2) (‘‘If an association is a joint or
sole employer of temporary agricultural workers,
. . . [H–2A] workers may be transferred among its
[employer-]members’’).
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person who files an application other
than as an agent is an employer and,
similarly, that a person on whose behalf
an application is filed is an employer.
As the Department noted in the NPRM,
these proposed revisions reflected the
Department’s longstanding
administrative and enforcement practice
that is already familiar to employers.
Joint Employment for Agricultural
Associations Filing as a Joint Employer
With Their Employer-Members
The Department received numerous
comments related to its proposal to
clarify that an agricultural association
that files an application as a joint
employer is, at all times, a joint
employer of all H–2A workers
sponsored under the application and, if
applicable, of corresponding workers.
Two associations supported the
proposed definition of joint
employment. Two other associations
submitted lengthy comments opposing
the proposal. The two associations
opposing the proposal each asserted the
INA does not permit the Department to
impose joint employer liability on an
agricultural association for the
violations of an association member,
unless the association committed,
participated in, or had knowledge of the
violation. The associations cited sec.
1188(d)(3)(A) of the INA, which limits
the debarment of joint employer
agricultural associations based on
violations an employer-member
commits to instances in which the
agricultural association committed,
participated in, had knowledge of, or
had reason to know of the violation. The
associations submitted that Congress’s
specific choice to permit debarment for
an employer-member violation only
when an agricultural association meets
this standard evinces a general intent to
hold agricultural associations otherwise
accountable for employer-member
violations only when they committed,
participated in, or knew of the
underlying violation.
The associations explained that
Congress conferred a ‘‘special status’’ on
agricultural associations ‘‘in order to
level the playing field for small
employers’’ and that imposing joint
employer liability on agricultural
associations that elect to file a joint
employer application would ‘‘frustrate
that status’’ because associations cannot
afford exposure to such liability. Both
assert that exposure to such liability
would result in associations’ inability to
file joint employer applications. The
associations also stated that the
Department has historically applied the
common law of agency to determine
whether an entity employs a worker and
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oppose the ‘‘proposed radical change to
agency law.’’
Two other associations asserted that
the Department has never held an
association liable for employer-member
violations unless the association was
involved in or directly participated in
the violation. One of these associations
also agreed with the two associations
described immediately above that the
proposal to hold agricultural
associations accountable for employermember violations when the
agricultural association elected to file a
joint employer application is
inconsistent with the statute. That
association also commented that the
proposal will reduce small farmers’
access to the program and potentially
threaten the existence and participation
of associations in the program. And
finally, various other employer
commenters lodged general objections
to holding associations liable for the
violations that their employer-members
commit.23
A workers’ rights advocacy
organization supported the
Department’s proposal to clarify that an
agricultural association that elects to file
a joint employer application is at all
times a joint employer of the H–2A
workers sponsored under the
application as well as any
corresponding workers. The commenter
submitted that the clarification will
incentivize associations to monitor
employer-member compliance with
program requirements.
After carefully considering the
comments it received, the Department
has decided to retain its proposed
clarification of the definition of joint
employment to include language
specifying that an agricultural
association that files an application as a
joint employer is, at all times, a joint
employer of all H–2A workers
sponsored under the application and
any corresponding workers. The plain
language of sec. 1188(d) of the INA
requires this interpretation. Section
1188(d)(2) only allows an agricultural
association to file a single application
on behalf of its employer-members to
sponsor H–2A workers that it may
‘‘transfer’’ among its membership ‘‘[i]f
[the agricultural] association is a joint or
sole employer of temporary agricultural
23 Another agricultural association that submitted
a comment (generally supported by several other
commenters, including trade associations and
individual employers) offered no criticism of the
NPRM’s clarification that agricultural associations
that file a joint employer application are liable at
all times for violations committed against H–2A
workers sponsored under the applications as well
as any applicable corresponding workers.
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workers.’’ 24 Thus, an association attests
to joint employer status when it submits
a joint employer application for
authorization to transfer
H–2A workers among its membership.
In addition to permitting the association
to transfer H–2A workers, filing a single
application rather than individual
applications on behalf of each
employer-member of an agricultural
association results in significant
financial savings and substantially
reduces the efforts and costs associated
with the required recruitment and
advertising. The statute requires an
agricultural association to assume joint
employer (or sole employer) status to
qualify for these benefits.25 Even if the
statutory language did not compel this
result, the Department would
nevertheless adopt this interpretation as
agricultural associations are uniquely
positioned to be knowledgeable of
program requirements, and this
requirement encourages associations
that transfer workers among their
employer-members to ensure that their
employer-members understand program
rules and regulations, assist their
membership in achieving compliance,
and provide accountability for
agricultural associations filing as joint
employers.
Should an agricultural association
prefer not to accept the obligations of
joint (or sole) employment, it may
choose instead to file individual
applications on behalf of its employermembers as an agent, thereby limiting
its liability, consistent with sec.
1188(d)(1) (but also foregoing the
privileges that apply if it files a Master
Application). The statutory scheme
accordingly permits an agricultural
association to choose to assume the
24 See also the title of sec. 1188(d)(2) (‘‘Treatment
of Associations Acting as Employers.’’) (emphasis
added).
25 See Admin. v. WAFLA, ALJ No. 2018–TAE–
00013 (OALJ Aug. 25, 2021), appeal pending, ARB
No. 2021–0069 (agricultural association is a joint
employer of workers employed under master
application as a matter of law); Little v. Solis, 297
FRD. 474, 478 (D. Nev. Jan. 27, 2014) (as a joint
employer applicant, agricultural association is a
joint employer of H–2A workers for purposes of the
H–2A program); Ruiz v. Fernandez, 949 F. Supp. 2d
1055, 1072 (E.D. Wash. June 7, 2013) (an
agricultural association that submits a joint
employer application is a party to the H–2A
workers’ work contracts as a matter of law);
Martinez-Bautista v. D & S Produce, 447 F. Supp.
2d 954, 962 (E.D. Ark. Aug. 25, 2006) (entities that
jointly applied to employ H–2A workers are joint
employers of the workers); cf. WHD v. Native
Techs., Inc., ARB No. 98–034, 1999 WL 377285, *6
(ARB May 28, 1999) (filer of a labor condition
application under H–1B provisions of the INA is an
‘‘employer’’ by operation of law, independent of
criteria under the common law test of employer);
but see Admin. v. Azzano Farms & WAFLA, ALJ No.
2019–TAE–00002 (OALJ Oct. 2, 2019), appeal
pending, ARB No. 2020–0013.
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traditional responsibilities of a joint/
sole employer, including any liability to
the workers it jointly/solely employs—
or file an application as an agent and
generally avoid employer liability.
However, when associations file as
agents, H–2A workers cannot be
transferred among their employermembers, pursuant to sec. 1188(d)(2).
The Department notes the contention
that it has never sought to hold an
agricultural association liable for
employer-member violations unless the
agricultural association was involved in
the violations is inaccurate. Holding an
association accountable for employermember violations when the association
attested to joint employer status is
consistent with WHD’s current statutory
interpretation and its enforcement
policy. WHD is presently asserting
before the ARB that an association is
liable for its employer-member’s
violations based solely on its having
filed a joint employer application.26
WHD has also previously sought to
enforce program requirements against
other associations based solely on their
election of joint employer status.
Additionally, it is inaccurate to state
that sec. 1188(d)(3)(A) provides that
violations committed by an association
member are not the responsibility of an
association unless the Secretary
determines that the association
participated in, had knowledge of, or
had reason to know of the violations.
Rather, this section provides that an
association is not subject to debarment
when an employer-member commits a
violation (unless the Secretary
determines that the association or other
employer-member participated in, had
knowledge of, or had reason to know of
the violations). Read together, sec.
1188(d)(2) and (3)(A) assign full legal
responsibility to agricultural
associations for employer-member
violations, with the exception of a
release from program debarment for an
agricultural association when the
Department cannot satisfy sec.
1188(d)(3)(A)’s more exacting standard.
The debarment standard provides a
meaningful limitation on the
Department’s authority to debar an
agricultural association for its employermember’s violations. Consistent with
the provision, the Department’s
implementing regulations do not permit
the Department to debar an association
merely because its employer-member
committed a substantial violation that
subjects the employer-member to
debarment. See 29 CFR 501.20(f).
26 See Azzano Farms, ARB No 2020–0013;
WAFLA, ARB No. 2021–0069.
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When an association is not subject to
debarment, civil money penalty
assessments against the agricultural
association for employer-member
violations may be lower than those
assessed for association members. As
the Department noted in the NPRM, it
will continue to apply its longstanding
policy with respect to imposing liability
among culpable joint employers. This
policy includes consideration of the
factors at § 501.19(b) when the
Department assesses civil money
penalties. The Department applies these
factors to joint employers on a case-bycase basis. Thus, for example, if the
Department determines an agricultural
association achieved no financial gain
from an employer-member’s failure to
pay the required wage to H–2A or
corresponding workers, but that the
employer-member achieved significant
financial gain, the civil money penalty,
if any, applicable to the association
would likely be less than that applicable
to the employer-member for this
violation.
Joint Employment for Employers Filing
Joint Employer Applications Under
§ 655.131(b)
The Department received various
comments concerning its proposal to
add language to the definition of joint
employment clarifying that growers that
file the joint employer application
proposed in § 655.131(b) are joint
employers, at all times, with respect to
the H–2A workers sponsored under the
application and any corresponding
workers. Five organizations representing
growers’ interests expressed
appreciation that the Department was
proposing to permit ‘‘small growers to
jointly apply’’ for H–2A workers and to
permit such growers to share H–2A
workers. However, these commenters, as
well as a sixth organization, all opposed
the Department’s proposal to treat each
grower as a joint employer at all times
for purposes of liability. The five
organizations representing growers’
interests requested that the Department
only hold employer(s) that commit a
program violation accountable. They
asserted that co-applicants that do not
commit the violations are ‘‘innocent’’
and should not be held liable ‘‘for
another employer’s violation(s).’’ The
sixth organization similarly submitted
that ‘‘[o]nly the employer [that] is guilty
for violating the terms of the program
should be penalized.’’ Another
organization representing growers’
interests likewise contended ‘‘there is
no basis for extending liability to any
entity that did not have knowledge of or
participate in any violation . . . .’’
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A workers’ rights advocacy
organization suggested that the job order
that joint employers file in connection
with a § 655.131(b) joint employer
application should include language
specifying that all named employers are
agreeing to joint employment liability
for the entire period of employment
listed on the order. Otherwise, the
commenter asserted, joint employers
might contend liability extends solely to
the dates on which H–2A workers
complete work at the property owned or
operated by the particular employer.
The commenter specifically submitted
this addition is necessary to prevent
joint employer applicants from
‘‘disputing joint employment should
something go wrong.’’
The Department has reviewed closely
the comments it received on this
subject. It has decided to retain its
proposed clarification of the definition
of joint employment to include language
specifying that the joint employers that
file an application under § 655.131(b)
are, at all times, joint employers of all
H–2A workers sponsored under the
application and, if applicable, of
corresponding workers. The purpose of
the Department’s proposal to add
§ 655.131(b) to its implementing
regulations was to permit a small grower
that has a need for H–2A workers but
cannot, alone, guarantee full-time
employment to use the H–2A program
by joining with another (or other) small
grower(s) in the same area to obtain
H–2A workers to perform the same
work. Full-time employment under the
program is 35 hours per workweek. See
§ 655.135(f). The proposal accordingly
permits co-applicants that cannot,
alone, employ a worker for 35 hours per
workweek to file an application together
to employ H–2A workers and to move
sponsored H–2A workers from one
employer to another to satisfy the 35
hours per workweek requirement.
The statute specifically contemplates
that all filers (other than agents) are
employers and only expressly permits
an entity (i.e., an agricultural
association) to move H–2A workers
from one employer to another when the
entity agrees to retain program
responsibility and liability with respect
to the workers it moves. See 8 U.S.C.
1188(d)(2). Therefore, as the Department
stated in the NPRM and reaffirms here,
the statute requires entities that jointly
apply for H–2A workers whom they
intend to move among themselves to
retain program responsibility with
respect to the H–2A workers and, if
applicable, any corresponding workers.
Because the statute provides that an
entity permitted to move H–2A workers
from one employer to another must
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retain program responsibility with
respect to the workers, and because the
retention of such responsibility will aid
the Department’s enforcement of the
program and enable corresponding
workers and H–2A workers to obtain the
wages they are owed consistent with
joint employment principles, the
Department is not adopting the
commenters’ request to release coapplicants from liability for the
violations that another co-applicant
commits. Thus, if the Department
determines any employer named in the
Application for Temporary Employment
Certification under § 655.131(b) has
committed a violation, either one or all
of the employers named in the
Application for Temporary Employment
Certification can be found responsible
for remedying the violation(s) and for
attendant penalties. For example, if
employer C and employer D file a joint
employer application under proposed
§ 655.131(b) and employer C fails to pay
the H–2A workers the required wage,
employer D will be jointly liable for
employer C’s violations. This approach
not only conforms to the statute, it is
consistent with judicial authority.27
Further, even if the statutory language
did not require this interpretation, the
Department would adopt it. The
Department believes this policy will
encourage employer compliance while
helping to ensure that any back wages
owed by joint employers will be paid.
As an enforcement matter, it can be
difficult to determine exactly where
workers employed by joint employers
are employed in a given workweek. The
focus on the joint nature of the
employment rather than the individual
employer will assist in obtaining the
wages owed to workers in the event they
are underpaid and provide an incentive
for all joint employers to maintain and
monitor compliance.
However, the Department retains
discretion to impose lower civil money
penalties against the joint employers
that did not commit the underlying
violation. If it determines any such
penalties are appropriate, such penalties
may be less than those it imposes
against the joint employer that
committed the violation. As the
Department noted above, it will
continue to apply its longstanding
policy with respect to imposing liability
among culpable joint employers. This
policy includes consideration of the
27 Martinez-Bautista v. D & S Produce, 447 F.
Supp. 2d 954, 960–62 (E.D. Ark. 2006) (ruling
entities that jointly applied to employ H–2A
workers are joint employers of the workers and
rejecting application of agricultural association
liability principles when the joint employers had
not filed through an association).
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factors at 29 CFR 501.19(b) when the
Department assesses civil money
penalties. The Department applies these
factors to joint employers on a case-bycase basis. Thus, for example, if the
Department determines a joint employer
had no previous history of violations,
but that the other joint employer had a
previous history of violations, the civil
money penalty, if any, applicable to the
joint employer with no previous history
of violations would likely be less than
that applicable to the joint employer
that committed the violation.
Furthermore, as with agricultural
associations that filed a joint employer
application with their employermembers, the Department will not debar
a joint employer that filed a joint
employer application under 20 CFR
655.131(b) merely because another joint
employer committed a substantial
violation that subjects that other joint
employer to debarment. Thus, for
instance, if employer D in the example
above did not participate in employer
C’s violation, the Department will not
seek to debar employer D, even if
employer C’s underlying violation is
substantial and subjects employer C to
a debarment remedy. The Department
has edited 20 CFR 655.182(h) and 29
CFR 501.20(f) to confirm this approach.
Joint Employment Period for
Employer-Members Employing H–2A
Workers Under an Agricultural
Association Filing as a Joint Employer
With the Employer-Members
The Department proposed to clarify
the definition of joint employment to
include an employer-member of an
agricultural association that is filing as
a joint employer during the time the
employer-member employs H–2A
workers sponsored under the
association’s joint employer application.
Therefore, an employer that employs H–
2A workers sponsored under an
agricultural association joint employer
application is jointly employing the H–
2A workers with the agricultural
association and, accordingly, is liable
for any violations committed during the
period it employs such workers. The
proposed rule additionally clarified that
an employer that is a member of an
agricultural association that filed a joint
employer application is only in joint
employment with the agricultural
association when it is employing the
pertinent H–2A workers. Thus, if
employer-member A commits program
violations at a time when it is the only
employer-member jointly employing the
pertinent H–2A workers with the
agricultural association, other employermembers within the association are not
liable for such violations (provided the
other employer-members did not
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participate in the violations, which were
substantial, and thereby subject
themselves to debarment). See 8 U.S.C.
1188(d)(3)(A); 29 CFR 501.20(f). The
Department received no comments that
caused it to reconsider this proposal.
The Department has accordingly
implemented the provision unchanged
from the NPRM in this final rule.
The Department notes that the
arrangement described above under
§ 655.103(b) is different from employers
filing joint employer applications under
§ 655.131(b) that are, at all times, liable
for any violation that another joint
employer commits. As discussed
previously, each § 655.131(b) joint
employer is permitted to move H–2A
workers to its co-applicants, whereas it
is the agricultural association, not the
employer-member, that may transfer
workers when the agricultural
association files as a joint or sole
employer. The statute expressly permits
an association to move H–2A workers
from one entity to another only when
the association agrees to retain program
responsibility with respect to the moved
H–2A workers by filing as a joint or sole
employer. The Department has
accordingly concluded that to permit
§ 655.131(b) joint employers to move
workers, it must require the joint
employers, like an agricultural
association permitted to transfer H–2A
workers, to retain program
responsibility with respect to the H–2A
workers. In short, the legally relevant
analog to § 655.131(b) joint employers
for purposes of determining whether to
require such employers to retain
program responsibility at all times is an
agricultural association that files a joint
or sole employer application (not an
employer-member of such an
association). As a matter of policy,
providing joint employers joint
responsibility also serves to better
ensure compliance with statutory and
regulatory requirements in the same
way that shared responsibility between
associations and their membership
incentivizes compliance.
The Joint Employment Language More
Expressly Codifies That the Common
Law of Agency Determines Joint
Employer Status for Non-Filers
In the NPRM, the Department
proposed a slight change to the joint
employment language in the current
regulation to make clear that an entity
that meets the definition of employer
under the common law of agency but
did not file an H–2A application is a
joint employer. As the Department
explained in the NPRM, controlling
judicial and administrative decisions
provide that to the extent a Federal
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statute does not define the term
employer, the common law of agency
governs whether an entity is an
employer.28 Accordingly, the proposal
continued to use the common law of
agency, as provided by current
§ 655.103 in the definition of employee,
to define the term joint employment for
associations and growers that have not
filed applications (as well as to define
the term employer when an entity has
not filed an application). Thus, for
example, under the Department’s
current and continuing enforcement
policy—with which employers are
already familiar—a grower is a joint
employer with an H–2ALC with which
it contracts to provide H–2A workers if
the grower is jointly employing the H–
2A workers under the common law of
agency. The Department received no
comments that caused it to reconsider
this proposal. It has accordingly
implemented the proposal unchanged
from the NPRM in this final rule.29
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The Department Is Adopting
Clarifications to the Definition of
Employer Proposed in the NPRM
In the NPRM, the Department
proposed to add language to the
definition of employer to clarify both
that a person who files an application
other than as an agent is an employer
and that a person on whose behalf an
application is filed is an employer. An
employer association opposed the
proposed clarification. Its comment
appeared to say that the definition of
employer should be no broader than an
entity that employs H–2A workers
under the common law of agency. Two
other associations asserted the proposed
clarifications to the definition of
employer are inconsistent with the INA.
These two associations specifically
asserted the statute does not permit the
Department to hold agricultural
associations accountable as an
28 See Nationwide Mutual Insurance v. Darden,
503 U.S. 318, 322–24 (1992); Garcia-Celestino v.
Ruiz Harvesting, 843 F.3d 1276, 1288 (11th Cir.
2016); Admin. v. Seasonal Ag. Services, Inc., ARB
Case No. 15–023, 2016 WL 5887688, at *6 (ARB
Sept. 30, 2016). The focus of the common law
standard is the ‘‘hiring entity’s ‘right to control the
manner and means by which the product is
accomplished.’ ’’ Ruiz Harvesting, 843 F.3d at 1292–
93 (quoting Darden, 503 U.S. at 323). Application
of the standard typically entails consideration of a
variety of factors. See id. at 1293 (citing Darden, 503
U.S. at 323–24).
29 The Department additionally notes, as it did in
the NPRM, that the current H–2A program
definitions of employer and joint employment, as
well as those the Department is implementing
herein, are different from the definitions of
‘‘employer,’’ ‘‘employee,’’ and ‘‘employ’’ in the Fair
Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA)
and the definition of ‘‘employ’’ in the Migrant and
Seasonal Agricultural Worker Protection Act, 29
U.S.C. 1801 et seq. (MSPA).
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‘‘employer’’ when they have filed a joint
employer application on behalf of their
employer-members. The Department
addressed above why the statute not
only permits but also requires it to treat
an agricultural association that files a
Master Application as a joint employer
of the pertinent workers. Because a joint
employer is simply an employer of
workers that another entity also
employs, the statute requires the
Department to treat an agricultural
association that files an application as a
joint employer as an ‘‘employer.’’ The
Department’s clarification of the
definition of employer to include those
that file an application (other than as an
agent) is not only consistent with the
INA; the INA compels it. Further, even
if the INA did not compel this
conclusion, the Department would
nonetheless adopt these clarifications as
a matter of good policy. The Department
believes this policy will encourage
employer compliance by providing an
incentive for associations to disseminate
information, make additional inquiries
regarding their employer-members’
responsibilities to workers under
certified H–2A applications, and help to
assure that any back wages owed by
joint employers will be paid in full.
The Department also received a
comment that the current definition of
employer does not adequately
contemplate complex business
organizations. It is beyond the scope of
this rulemaking for the Department to
determine all the ways that a business
seeking to use the H–2A program might
organize itself. The Department hopes
the following general guidance will be
useful to entities that use complex
business structures. The Department
will treat the entity that files an
application as an employer unless the
filer identifies itself as an agent. If the
filer identifies itself as an agent, the
Department will treat as an employer
the entity the agent identifies as its
principal. The Department will also
treat any other entity that actually
employs the pertinent H–2A workers
under the common law of agency as an
employer. For example, if one entity
within a complex business organization
files an application as an employer and
another entity within the same complex
business organization employs the
workers under the common law of
agency, the Department will treat each
entity as an employer (whether or not
the filer jointly employs the workers
under the common law). Other tests that
may pertain to the employment
relationship under Federal common law
such as the integrated employer or the
successor in interest tests may also be
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applicable depending on the facts of the
individual case. This paragraph is
intended to provide general guidance,
however, and as mentioned above, it is
beyond the scope of this rulemaking to
determine all the ways that a business
seeking to participate in the program
might organize itself.
A commenter also brought to the
Department’s attention a minor
grammatical error in the regulatory
text’s definition of employer at
paragraph (iii). The Department agrees
with the commenter and has made a
minor technical change to the language
to address the grammatical error.
Employer-Member Responsibility for
Violations Committed Under a Joint
Employer Application Filed by an
Agricultural Association
Consistent with existing practice, the
Department observed in the NPRM that
when an agricultural association files a
joint employer application, an
employer-member of that association is
an employer of the H–2A workers
during the time the employer-member
employs the workers. The Department
further noted that when only one
employer-member is employing the H–
2A workers at the time of a program
violation, only that employer-member
and its agricultural association are
fiscally responsible for program
violations. The Department received no
comments opposing this approach and
is accordingly implementing it
unchanged from the NPRM.
Department’s Approach To Imposing
Liability Among Culpable Joint
Employers
In the NPRM, the Department
proposed to continue to apply its
longstanding policy with respect to
imposing liability among culpable joint
employers. This policy, as noted
previously, includes consideration of
the factors at 29 CFR 501.19(b) when the
Department assesses civil money
penalties. The Department applies these
factors to joint employers on a case-bycase basis. For example, if the
Department determines an agricultural
association achieved no financial gain
from an employer-member’s failure to
pay the required wage to H–2A or
corresponding workers, but that the
employer-member achieved significant
financial gain, the civil money penalty,
if any, applicable to the association
would likely be less than that applicable
to the employer-member for this
violation.
The Department received multiple
comments supporting this approach. For
example, a grower association
specifically voiced its support for the
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case-by-case approach. The Department
also received a comment from another
grower association opposing this
approach, however, arguing that only
the culpable party or parties should be
assessed a civil money penalty. As
noted above, the Department will apply
the relevant factors on a case-by-case
basis to joint employers and thus
appropriately consider culpability. The
Department accordingly intends to
continue to assess civil money penalties
against joint employers in this manner.
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Proposal To Move Certain Requirements
in the Definition of Employer
The current definition of employer in
the H–2A program requires an employer
to have a place of business in the United
States and a means of contact for
employment as well as a Federal
Employer Identification Number (FEIN).
The Department proposed to move these
requirements to §§ 655.121(a)(1) and
655.130(a). The proposal required a
prospective employer to include its
FEIN, its place of business in the United
States, and a means of contact for
employment in both its job order
submission to the NPC and its
Application for Temporary Employment
Certification. The Department is
implementing its proposal to move
these requirements unchanged from the
NPRM in this final rule.
f. First Date of Need and Period of
Employment
The NPRM proposed to add
definitions of the terms ‘‘first date of
need’’ and ‘‘period of employment.’’
The Department received many
comments on the definition of ‘‘first
date of need’’ and has revised the
proposed definition after consideration
of these comments, as discussed below.
The Department received no comments
on the proposed definition of ‘‘period of
employment’’ and has adopted the
definition without change from the
NPRM.
The Department explained in the
NPRM that an employer indicates the
period of employment on its job order
and Application for Temporary
Employment Certification by identifying
the first and last dates on which it
requires the temporary agricultural labor
or services for which it seeks a
temporary agricultural labor
certification. The first date the employer
identifies on the job order and
Application for Temporary Employment
Certification is used as the date on
which work will start for purposes of
recruitment and for calculating program
requirements (e.g., the positive
recruitment period under § 655.158).
However, as actual start dates may vary
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due to such factors as travel delays or
crop conditions at the time the
employer expected work to begin, the
Department proposed to define the term
‘‘first date of need’’ as the first date on
which the employer ‘‘anticipates’’
requiring the temporary agricultural
labor or services sought. The
Department explained that the inclusion
of the word ‘‘anticipates’’ in the
definition would provide a limited
degree of flexibility—up to 14 calendar
days after the first date of need listed on
the temporary agricultural labor
certification—for the actual start date of
work for some or all of the temporary
workers hired to occur.
Commenters who supported the
proposed definition and the inclusion of
the word ‘‘anticipates,’’ included
employers, agents, trade associations,
two State government commenters, and
a State elected official. These
commenters asserted that some
flexibility to adjust actual start dates
would simplify the program and
facilitate both compliance and
administration, while ensuring workers
still receive the benefits promised.
Commenters who opposed the
definition, including a workers’ rights
advocacy organization and farmworkers,
focused their opposition on the
potential for actual start date variability
underlying the word ‘‘anticipates.’’
These commenters asserted that delayed
start dates are harmful to workers, who
value predictability and certainty in
employment start dates, particularly
where they turn down other work or
have to travel far to make themselves
available to work at the time and place
needed. In addition, these commenters
stated that farmworkers have expenses
beyond housing and meals and cannot
afford to lose expected pay for up to 2
weeks, should the actual start date be
later than the first date of need offered.
Similarly, one State government
commenter recommended the
Department further clarify employer
obligations to provide subsistence and/
or meals to workers when work does not
start on the anticipated start date to
ensure that employers understand and
satisfy those obligations.
The workers’ rights advocacy
organization urged the Department to
strengthen protections in the
employment service regulations at
§ 653.501(c)(5) if the Department retains
the proposal, by requiring the employer
to pay workers the hourly rate for the
hours listed on the job order on each
day work is delayed (not only the
workdays in the first workweek), unless
the employer notifies both the SWA and
worker (not only the SWA) at least 10
days before the anticipated start date,
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61677
and setting the three-fourths guarantee
calculation to the anticipated start date,
rather than the actual start date.
Amending the regulations at
§ 653.501(c)(5) as suggested would be a
major change to that regulation that
commenters and stakeholders could not
have anticipated as an outcome of the
proposed definitions, thus warranting
additional public notice and
opportunity for comment. As such, the
Department declines to adopt the
suggestion at this time.
A number of commenters expressed
concern about the proposal. One
employer thought workers might misuse
the definition to arrive ‘‘late’’ and, as a
result, employers would not have
workers in place when needed.
However, the Department did not intend
for this definition to provide a flexible
window for workers’ arrival at the place
of employment without the employer’s
consent. During recruitment, workers
agree to make themselves available at
the time and place needed. Should a
worker not report for work for 5
consecutive working days without the
employer’s consent, the employer may
exercise the abandonment provision at
§ 655.122(n). In addition, a workers’
rights advocacy organization expressed
concern about the definition’s
application in master applications (i.e.,
applications agricultural associations
may file in joint employment with their
employer-members). The commenter
thought that the actual start date
flexibility, when combined with the
Department’s proposal to allow
employer-members’ actual start dates to
vary by up to 14 days, could result in
workers employed under a master
application having actual start dates that
vary by up to 28 days. This commenter
asserted that this combination would
increase the complexity of master
applications and uncertainty for
workers, which could discourage U.S.
workers from applying. However, the
proposed definition was intended to
anchor the 14-day actual start date
flexibility applicable to all employermembers on the master application to
the earliest anticipated start date of any
employer-member included in the
application. As a result, all employermembers included in the master
application would have been limited to
the same 14-day ‘‘anticipated’’ start date
flexibility window as any other H–2A
application, calculated from the earliest
employer-member start date included in
the application.
One commenter supported the
definition and the 14-day flexibility
discussed but stated 30 days of
flexibility would be preferable. The
commenter’s suggestion would amplify
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concerns other commenters have
expressed about workers waiting for
work to begin, which is a concern
shared by the Department. In addition,
the suggestion is inconsistent with the
Department’s observation of existing
practice, as discussed above, in which a
start date may vary slightly due to
factors beyond an employer’s control.
Because the Department intended in the
NPRM to clarify, not change, existing
requirements and practice regarding
anticipated and actual start dates, the
Department declines to adopt the
suggestion by the commenter.
After consideration of the comments
and suggestions, the Department
reiterates that the proposed definition,
including the word ‘‘anticipates,’’ was
only intended to make plain the
Department’s existing understanding
that a projected start date of need is
difficult to set with certainty, given the
required time periods for filing, and the
actual start date of agricultural work
must be afforded some flexibility to
accommodate environmental and other
agricultural conditions at the time work
was projected to begin. For example, the
Wagner-Peyser agriculture clearance
system uses the term ‘‘anticipated’’ in
relation to start dates and provides a
process close to the start date the
employer identified in the job order for
the employer, the SWA, and referred
farmworkers to communicate regarding
the actual start date of work. See
§ 653.501(c)(1)(iv)(D), (c)(3)(i) and (iv),
(c)(5), and (d)(4). These regulations
require an employer to notify the SWA
of start date changes at least 10 business
days before the originally anticipated
start date and require the SWA to notify
farmworkers that they should contact
the SWA between 9 and 5 business days
before the anticipated start date to verify
the actual start date of work.
§ 653.501(c)(5) and (d)(4).
The Department also appreciates the
opportunity to clarify employer
obligations and worker protections
regarding possible changes from the first
date of need disclosed in the H–2A job
order to the actual start date of work. As
discussed above, the Wagner-Peyser
agriculture clearance system regulations
facilitate communication between
employers and farmworkers before
workers who must travel to the place of
employment depart for the place of
employment. If an employer fails to
timely notify the SWA of a start date
change (i.e., at least 10 business days
before the anticipated first date
identified in the job order), beginning
on the first date of need, it must offer
work hours and pay hourly wages to
each farmworker who followed the
procedure to contact the SWA for
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updated start date information. See
§ 653.501(c)(3)(i) and (c)(5). In addition,
under the Department’s H–2A
regulations at § 655.145(b), if an
employer requests a start date delay
after workers have departed for the
place of employment, the employer
must assure the CO that it will provide
housing and subsistence to all workers
who are already traveling to the place of
employment, without cost to the
workers, until work commences. If an
employer fails to comply with its
obligations, the SWA may notify the
Department’s WHD for possible
enforcement, as provided in
§ 653.501(c)(5), or the Department may
pursue revocation of the temporary
agricultural labor certification,
following the procedures at § 655.181,
or debarment of the employer, following
the procedures at 20 CFR 655.182 or 29
CFR 501.20.
Although the January 2021 draft final
rule would have adopted the proposed
definition of ‘‘first date of need,’’ after
further consideration of the comments,
the Department has determined that
adopting the definition as proposed—
including the term ‘‘anticipates,’’ which
the Department explained as a 14-day
start date flexibility in the actual start
date of work—in this final rule could
increase, rather than decrease,
complexity and confusion with regard
to an employer’s obligations in the event
a start date delay is necessary. Including
the word ‘‘anticipates’’ in the definition
added ambiguity to the requirement,
which could increase the potential for
miscommunication or
misunderstandings about when workers
should be expected to begin work, or
from when they should expect to be
compensated. For example, as discussed
above, commenters interpreted the
proposal to mean that workers could
choose to arrive within a flexible
window of time, or that this would
allow a variability of up to 28 days in
master applications. In addition to the
potential confusion this change might
cause, the Department agrees that
adding this language without also
considering additional worker
protections could be detrimental to
workers, and this was not the
Department’s intention. As such, the
Department has revised the definition of
‘‘first date of need’’ in this final rule to
remove the term ‘‘anticipates’’ and the
related 14-day flexibility for the actual
start date of work.
While the Department appreciates the
suggestions commenters made with
regard to enhancing existing worker
protections related to start date delays,
those suggestions are beyond the scope
of this rulemaking as noted above. The
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proposal within the scope of this
rulemaking was inclusion of start date
flexibility of up to 14 days in the
definition of ‘‘first date of need’’ and
conforming language. For clarity, the
Department reiterates that revising the
proposed definition has no impact on
the employer’s obligations in the event
of a start date delay, for example, under
the Wagner-Peyser agriculture clearance
system regulations.
g. Job Order
The NPRM proposed minor
amendments to the definition of ‘‘job
order’’ to conform to the proposed
change under § 655.121, requiring
electronic filing of the job order by the
employer and transmittal of the
approved job order by the CO to the
SWA, and updating the job order form
name and number. The Department
received one comment on the proposed
changes to this definition, which did
not necessitate substantive changes to
the regulatory text. Therefore, as
discussed below, this definition remains
unchanged from the NPRM.
A workers’ rights advocacy
organization expressed support for the
proposal, explaining that electronic
filing would streamline processing
times and reduce burden, but
commented that the SWA, in addition to
the NPC, should receive immediate
notice of the filing of the job order and
proposed that the words ‘‘and SWA’’ be
added to the end of the proposed
definition. The Department appreciates
the comment but respectfully declines.
As explained in addressing comments
on § 655.121, the changes to the job
order filing process, under this final
rule, avoid duplication of processes and
will create significant savings and
efficiencies for employers, SWAs, and
the Department. Furthermore,
transmission of the job order to the
SWA will be virtually instantaneous
upon submission in OFLC’s Foreign
Labor Application Gateway (FLAG)
system.
h. Prevailing Wage
Proposed Definition in 20 CFR
655.103(b)
The NPRM defined prevailing wage as
the wage rate established by the OFLC
Administrator for a crop activity or
agricultural activity and geographic area
based on a survey conducted by a State
that meets the requirements in
§ 655.120(c). The Department received
no comments on this change. This final
rule therefore adopts the language of the
NPRM with a minor revision to account
for a prevailing wage for a distinct work
task or tasks performed within a crop or
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agricultural activity, as applicable. This
modification conforms the definition of
prevailing wage with current practice
and language in ETA Handbook 385, as
well as changes made to other portions
of § 655.120(c) in this final rule,
discussed below.
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Proposal in 20 CFR 653.501(c)(2)(i)
The current H–2A regulation defines
‘‘prevailing wage’’ as the ‘‘[w]age
established pursuant to § 653.501(d)(4),’’
the Wagner-Peyser Act regulation that
covers clearance of both H–2A and nonH–2A interstate and intrastate
agricultural job orders. Due to regulatory
revisions to part 653, § 653.501(d)(4) no
longer addresses prevailing wages but
rather discusses the referral of
workers.30 The current version of
§ 653.501(c)(2)(i), in turn, requires
SWAs to ensure the employer has
offered no less than the higher of
prevailing wages or the applicable
Federal or State minimum wage for H–
2A and non-H–2A agricultural job
orders, but it does not address how
prevailing wages are established.
In the NPRM, the Department
proposed to use the same methodology
to establish the prevailing wage for both
H–2A and non-H–2A agricultural job
orders. As a result, it proposed to amend
§ 653.501(c)(2)(i) to define ‘‘prevailing
wage’’ for the agricultural recruitment
system in the same manner as the
Department proposed to define
‘‘prevailing wage’’ for the H–2A
program in § 655.103(b). Section
655.103(b), as proposed, defined
‘‘prevailing wage’’ as ‘‘[a] wage rate
established by the OFLC Administrator
for a crop activity or agricultural activity
and geographic area based on a survey
conducted by a [S]tate that meets the
requirements in § 655.120(c).’’ As
discussed below, this final rule adopts
the proposed amendment to
§ 653.501(c)(2)(i) with minor clarifying
changes.
A workers’ rights advocacy
organization opposed the Department’s
proposed change to § 653.501(c)(2)(i) on
the basis that it only referred to
prevailing wage surveys, thus
establishing such surveys as the ‘‘sole
mechanism’’ to determine whether the
prevailing wage rate is the highest rate
of pay. This commenter expressed
concern that the proposal would reduce
the SWA’s role in determining
30 The Department revised 20 CFR part 653 in
2016 in response to the enactment of the Workforce
Innovation and Opportunity Act in 2014, which
amended the Wagner-Peyser Act. See Final Rule,
Workforce Innovation and Opportunity Act, 81 FR
56072 (Aug. 19, 2016). The contents in
§ 653.501(d)(4) are now located, with changes not
relevant here, in § 653.501(c)(2)(i).
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prevailing wages. The commenter
explained the current regulation at
§ 653.501(c)(2)(i) allows an ‘‘active role’’
by SWAs to ‘‘independently determine’’
that prevailing wages in some areas of
a State are higher than the AEWR, the
minimum wage, or the prevailing wage
in other areas. By codifying a survey
methodology, the commenter believed,
the Department would restrict the
SWAs’ ability to use other methods to
determine whether the job order is
offering an ‘‘adequate’’ wage. According
to the commenter, the current regulation
protects U.S. workers, especially piece
rate workers, who receive a higher wage
rate than their peers in other parts of the
State, as a result of collective bargaining
or market conditions.
After careful consideration of the
commenter’s concerns, the Department
has decided to retain the NPRM
proposal with minor clarifying changes.
Specifically, this final rule adopts the
NPRM’s proposal to amend
§ 653.501(c)(2)(i) so that it incorporates
the Department’s revised prevailing
wage survey methodology in
§ 655.120(c) and revised definition of
‘‘prevailing wage’’ in § 655.103(b). In
addition, this final rule revises
§ 653.501(c)(2)(i) to more clearly
distinguish the minimum requirements
for wages and working conditions. The
existing regulation addresses the
minimum requirements for working
conditions within the minimum
requirements for wages, which may
cause confusion as to the standards that
apply to each requirement. Accordingly,
this final rule separates these
requirements into two different
sentences to clarify that agricultural
positions subject to 20 CFR part 653,
subpart F, must, at a minimum, offer (1)
the applicable prevailing wage or the
applicable Federal or State minimum
wage, whichever is higher, and (2)
working conditions that are not less
than the prevailing working conditions
among similarly employed workers in
the AIE. The standards governing the
prevailing wage methodology are set
forth in revised §§ 655.103(b) and
655.120(c), and addressed in the
preamble to § 655.120(c). The standards
governing the wage rate an H–2A
employer must offer, advertise in its
recruitment, and pay are set forth in
revised §§ 655.120(a) and 655.122(l).
The Department disagrees with the
commenter that the above-referenced
revisions to § 653.501(c)(2)(i) will
diminish the SWA’s role in determining
prevailing wages under the H–2A
program. Under this final rule, SWAs
will continue to follow the Department’s
criteria for prevailing wage surveys,
either to conduct a survey itself or to
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61679
select a survey conducted by another
State agency to submit to the
Department. Prior to this rule, the SWAs
used ETA Handbook 385, which was
last updated in 1981, and other subregulatory guidance to conduct such
surveys and submit prevailing wage
findings, when available, to the
Department for review. In this sense, the
Department has directed SWAs to use
prevailing wage surveys to determine
prevailing wage rates for agricultural job
orders since at least 1981. The NPRM
simply proposed to amend §§ 655.103(b)
and 653.501(c)(2)(i) to reflect the new
proposed survey methodology at
§ 655.120(c).
Under the revised methodology,
SWAs continue to play an active role in
determining prevailing wages. They
retain the discretion to develop,
administer, and report the results of
prevailing wage surveys to the
Department, including the discretion to
determine where to conduct surveys for
particular crop or agricultural activities
and, if applicable, distinct work task(s)
within those activities, subject to the
methodological requirements of this
final rule. For example, SWAs may
conduct prevailing wage surveys of
State, sub-State, and regional geographic
areas based on the factors listed in
§ 655.120(c)(1)(vi). In instances where a
non-SWA State entity conducts the
prevailing wage survey, the SWA will
review the survey and submit, if
appropriate and as before, the
applicable information to the
Department.
Moreover, prevailing wage surveys are
but one method used to determine
whether the wage offer in a job order for
temporary agricultural work is
‘‘adequate.’’ Employers applying for H–
2A temporary labor certification must
generally offer in their job order and pay
the highest of five wage sources (i.e., the
AEWR, the prevailing wage, the agreedupon collective bargaining wage, the
Federal minimum wage, or the State
minimum wage). See § 655.120(a)
(excluding certain employment). All
other (non-H–2A) employers seeking to
place interstate or intrastate job orders
for temporary agricultural work must
still pay the highest of the applicable
prevailing wage or the applicable
Federal or State minimum wage, as
specified under this section.
The commenter’s assertion that the
current regulation protects U.S. workers
who enjoy a higher wage rate as a result
of collective bargaining conflates the
prevailing wage and the required wage
for purposes of the H–2A program. As
explained above, prevailing wage
surveys are but one of the distinct wage
sources the Department compares to
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determine which wage source is the
highest and therefore the wage that an
H–2A employer must offer and pay. If
an employer files an H–2A application
for job opportunities subject to the
agreed-upon collective bargaining wage,
the collective bargaining wage would be
evaluated as one of the applicable wage
sources under § 655.120(a). If the
collective bargaining wage is the highest
of available wage sources applicable to
the H–2A application, the employer
must offer and pay that wage to its H–
2A workers and non-H–2A workers in
corresponding employment. Similar
principles hold for a non-H–2A
interstate or intrastate agricultural job
order, in which the prevailing wage may
differ from the required wage a
particular employer may be legally
obligated to offer and pay. Section
653.501(c)(2)(i) provides a floor, rather
than a ceiling, for the wage that must be
offered in an interstate or intrastate job
order for a temporary agricultural
position. Employers may always offer
wages that exceed the minimum
required under this section, and in some
instances, such as where an applicable
collective bargaining agreement (CBA)
requires a higher wage offer, they may
be obligated to do so. However, the
Department reminds H–2A employers
that any job offer to U.S. workers must
offer no less than the same benefits,
wages, and working conditions that the
employer is offering, intends to offer, or
will provide to H–2A workers.
§ 655.122(a).
i. Successor in Interest
The Department proposed conforming
changes to the definition of ‘‘successor
in interest’’ consistent with proposed
changes to 20 CFR 655.182 and 29 CFR
501.20, which clarify that the
Department may take action against an
employer, agent, attorney, or
combination thereof, for debarrable
violations described under those
sections. As discussed below, this
provision remains unchanged from the
NPRM. A workers’ rights advocacy
organization supported the conforming
changes to the definition without
further comment. An agent further
proposed that the Department should
modify the definition of successor in
interest to formally adopt guidance
issued under the 2010 H–2A Final Rule
where the Department determined that
the regulation could be reasonably
interpreted to allow a temporary
agricultural labor certification to be
assumed by a successor employer. The
commenter also thought the definition
should be more generalized, rather than
framed from an enforcement
perspective. Although the Department
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appreciates this comment, further
modification to the definition is
unnecessary. The Department added
agents and attorneys to the definition to
clarify that successor in interest to
agents and attorneys may be subject to
enforcement actions, consistent with 20
CFR 655.182 and 29 CFR 501.20. In
doing so, the Department made no
change to the definition with regard to
employers. The Department maintains
its position, established in the
supporting guidance, that a successor in
interest entity may use a temporary
agricultural labor certification issued,
provided that it assumes all obligations,
liabilities, and undertakings arising
under the temporary agricultural labor
certification. Therefore, this final rule
adopts the proposed definition from the
NPRM without change.
j. Additional Definitions Adopted in
This Final Rule
The NPRM proposed minor
amendments to the definition of
Temporary Agricultural Labor
Certification and proposed adding
definitions of the following terms to
provide greater clarity throughout the
regulations: Act, Administrator,
applicant, Application for Temporary
Employment Certification, BALCA,
Chief Administrative Law Judge (ALJ),
DHS, ETA, H–2A Petition, MSA, OFLC
Administrator, piece rate, place of
employment, Secretary of Labor,
Secretary of Homeland Security, U.S.
Citizenship and Immigration Services
(USCIS), WHD, and WHD
Administrator. The Department received
no comments on the proposed
definitions of these terms. Therefore,
this final rule adopts the definitions of
these terms from the NPRM, with two
minor changes. In this final rule, the
Department simplifies the definition of
‘‘USCIS’’ to mean U.S. Citizenship and
Immigration Services, an operational
component of DHS, while defining
‘‘DHS’’ as the Department of Homeland
Security as established by sec. 111 of
title 6, U.S. Code. The respective
authorities and functions of DHS and
USCIS, as an operational component of
DHS, are set forth in their authorizing
statutes, implementing regulations, and
delegation of authorities.
k. 20 CFR 655.103(c) and 29 CFR
501.3(b), Definition of Agricultural
Labor or Services
The NPRM proposed amendments to
expand the regulatory definition of
agricultural labor or services pursuant to
8 U.S.C. 1101(a)(15)(H)(ii)(a) to include
reforestation and pine straw activities.
The Department received many
comments on this section and, for the
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reasons explained below, has decided to
rescind the proposal to incorporate
reforestation and pine straw activities
into the definition of agricultural labor
or services at § 655.103(c). However, in
proposing the occupational definitions
for itinerant employment in animal
shearing, commercial beekeeping, and
custom combining at § 655.301, subject
to the proposed procedural variances
contained in §§ 655.300 through
655.304, the Department has made a
technical, conforming revision to this
section to clarify that the job duties
under § 655.301 qualify for certification
under the H–2A program.
The Department proposed to define
reforestation activities as predominantly
manual forestry operations associated
with developing, maintaining, or
protecting forested areas, including, but
not limited to, planting tree seedlings in
specified patterns using manual tools,
and felling, pruning, pre-commercial
thinning, and removing trees and brush
from forested areas. The proposed
definition of reforestation activities
would have included some forest fire
prevention or suppression duties, when
incidental to other reforestation
activities, and would have excluded
vegetation management activities in and
around utility, highway, railroad, and
other rights-of-way because these
activities involve the destruction of
vegetation, not cultivation. The NPRM
proposed to define pine straw activities
as operations associated with clearing
the ground of underlying vegetation,
pine cones, and debris; and raking,
lifting, gathering, harvesting, baling,
grading, and loading of pine straw for
transport from pine forests, woodlands,
pine stands, or plantations.
In the NPRM, the Department
reasoned that reforestation and pine
straw activities share fundamental
similarities with traditional agricultural
industries, both in terms of activities
performed and working conditions.
These similarities had previously
prompted the Department to consider
similar proposals to include
reforestation and pine straw activities
within the H–2A program in the 2008
and 2009–2010 rulemakings, but
ultimately the Department rejected these
proposals due to lack of stakeholder
support. 2010 H–2A Final Rule, 75 FR
6884; 2008 H–2A NPRM, 73 FR 8538,
8555 (Feb. 13, 2008). The NPRM posited
that many of the comments that led the
Department to opt against expanding the
definition of agriculture in the 2009–
2010 rulemaking were no longer
applicable due to recent regulatory
changes in the H–2B program—
specifically the publication of the 2015
H–2B Interim Final Rule (IFR) (80 FR
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24042, Apr. 29, 2015), which
implemented cost-related requirements
in the H–2B program similar to those
currently found in H–2A.
Comments Related to the Inclusion of
Reforestation and Pine Straw Gathering
Activities in the H–2A Program
Comments attributable to the
reforestation industry or its
representatives either opposed the
change or did so absent significant
changes to the proposal. Some industry
commenters simply stated that the H–
2A program, particularly with the
changes proposed in the NPRM, was a
less attractive, more costly, and more
burdensome alternative to the H–2B
program. Other commenters rejected the
assertion that reforestation shared
similar characteristics to traditional
agricultural industries and stated that
these differences resulted in the H–2A
program, or certain key H–2A
provisions, being essentially
unworkable for the reforestation
industry.
Many industry commenters stated
that the unpredictable nature of
reforestation work precluded
compliance with the H–2A program.
Some commenters posited that the H–
2A program was designed for workers
returning to the same fields each year,
whereas reforestation occurs on a
rotating cycle of up to 30 years and is
heavily weather-dependent. Industry
commenters stated that the flexibility
required for reforestation work presents
difficulties in obtaining pre-inspected
housing that complies with H–2A
housing standards, and that it would be
impossible at the time of the application
to determine whether each potential
motel along an itinerary would meet
these standards. Another industry
commenter stated that it would be
impossible to make hotel reservations in
advance as schedules are constantly
changing. Some commenters also
indicated that remote worksites require
additional housing flexibility, such as
tents or mobile housing.
Industry commenters further stated
that the unpredictable and transient
nature of reforestation work would not
allow employers to submit itineraries to
the Department when applying for
temporary labor certification, and that
the requirement of a separate
application per itinerary was
unworkable and would dramatically
increase filing costs. One commenter
stated that some reforestation employers
have more than 30 crews working on 30
separate itineraries, and another
commenter with 35 crews on separate
itineraries stated that its filing costs
would increase from $8,500 for one
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application to $297,500 for 35
applications.
Similarly, many industry commenters
stated that the reforestation industry
would be unable to comply with the H–
2A requirement to provide meals or
kitchen facilities to workers.
Commenters stated that motel
accommodations for reforestation
workers frequently lack kitchen
facilities, and that the unpredictable
nature of reforestation work means that
arranging catering is logistically
difficult. Some commenters stated that
the workers cook for themselves at the
worksites. One commenter may have
misunderstood the H–2A meals
requirement and stated that it could not
provide meals and kitchen facilities
(whereas only one or the other is
required).
Further, industry commenters
opposed the proposed exclusion of
utility right-of-way maintenance
activities from the definition of
reforestation activities. These
commenters asserted that utility rightof-way maintenance cannot be divorced
from other reforestation activities
because the same companies necessarily
engage in both, and the activities are
nearly identical. Commenters stated that
a large number of forestry employers—
including three of the top five H–2B
employers overall—also perform utility
right-of-way spraying, and these
activities are included in the same
contracts and have the same job duties
as reforestation work. Another
commenter stated that the exclusion of
utility right-of-way work would
bifurcate a successful business model
historically used by the industry, and
another stated that the two industries
rely on the same workforce and
separating them between visa
classifications would harm both
industries.
The Department received significantly
fewer comments from the pine straw
industry. Three comments from the pine
straw industry supported the proposal
to include pine straw in the definition
of agricultural labor or services for the
reasons offered in the NPRM, one of
which represented a letter-writing
campaign with 100 identical comments.
These comments emphasized that the
pine straw industry is agricultural in
nature and should be regulated as such
under agricultural rules. Additionally,
one commenter pointed out that many
pine straw companies already use the
H–2A program.
Worker advocates opposed the
proposal, primarily because the
inclusion of the pine straw and
reforestation industries in the H–2A
program would remove nonimmigrant
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61681
reforestation and pine straw workers’
access to MSPA protections. These
commenters identified access to the
MSPA right to private action as an
essential worker protection for H–2B
workers engaged in reforestation and
pine straw activities. Employee
advocates also expressed concern that
reforestation and pine straw employers
would stop paying overtime to
reforestation and pine straw workers
due to a misunderstanding (as explained
below) (either from the commenter itself
or on the part of the employer) that H–
2A employees are exempt from the
FLSA overtime requirements simply by
virtue of holding an H–2A visa. Some
commenters also stated that the
inclusion of reforestation within the
uncapped H–2A program removes the
numerical limitation on one of the
largest users of the capped H–2B
program and presents a substantial
benefit to all H–2B employers by
essentially providing H–2B cap relief.
Commenters raised other concerns
and objections to the inclusion of
reforestation and pine straw activities in
the H–2A program. Two commenters
stated that the Department’s rationale
for the proposal was not justified and
does not overcome objections raised in
prior rulemakings to similar proposals.
One commenter stated that costs for
reforestation employers would increase
because they would not be permitted to
house four employees in the same hotel
room under the H–2A standards. This
same commenter also stated that
reforestation employers would be
unable to comply with the three-fourths
guarantee due to the uncertainty
inherent in reforestation work, that the
Department is unable to enforce the H–
2B inbound transportation standards in
some States, and that the Department
risked violating the permanent
injunction entered under Bresgal v.
Brock, 843 F.2d 1163 (9th Cir. 1987).31
Two commenters representing State
governments posited that inclusion of
these industries in the H–2A program
would increase work for SWAs and
asked if additional funding would be
provided. Another commenter advised
that the Department and the Department
of State (DOS) must be fully funded,
particularly given any potential
expansions to the H–2A program.
Comments from non-industry specific
sources, including agents, State
31 In Bresgal v. Brock, the Ninth Circuit Court of
Appeals enjoined the Department to cease refusing
to enforce MSPA as to recruiting, soliciting, hiring,
employing, furnishing, or transporting any migrant
or seasonal agricultural worker for all
predominantly manual forestry work, including but
not limited to tree planting, brush clearing, precommercial tree thinning, and forest firefighting.
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governments, State farm bureaus and
trade associations, tended to favor the
proposal, albeit mostly in a generic and
unsubstantiated way. Some comments
expressed their support for any
expansion of the H–2A program. One
commenter representing the
landscaping industry expressed support
for the proposal because it would
relieve pressure on the H–2B visa cap,
and an insurance association supported
the proposal because this expansion of
H–2A would require more employers to
obtain surety bonds. One State farm
bureau, however, supported the
proposal because the forest industry
adds $6.4 billion annually in value to
Arkansas’ economy, and expanding the
scope of the H–2A program would allow
this industry to address labor shortages.
Upon careful consideration of the
comments submitted, the Department
declines to adopt the proposal to
include reforestation and pine straw
activities within the H–2A program. As
noted above, the Department had
hypothesized in the NPRM that
objections to similar proposals in
previous rulemakings would no longer
be considered relevant; however, this
hypothesis was disproved by the
multitude of comments in opposition.
As was found in the 2009–2010
rulemaking, comments from or on
behalf of those that would be most
affected by the reforestation proposal
(i.e., from the reforestation industry and
employee advocates) overwhelmingly
opposed the proposal, citing, in part,
additional burdens due to the
differences between the programs.
While the pine straw industry submitted
some comments supporting its inclusion
in the H–2A program, the Department
finds persuasive the concerns raised by
employee advocates and accordingly
declines to adopt the proposal with
respect to pine straw as well.
Additionally, as many commenters
identified, pine straw employers are
currently permitted use of the H–2A
program (pursuant to the FLSA
definition of agriculture and if the other
requirements of the program are met) if
the pine straw activities are performed
by a farmer or on a farm as an incident
to or in conjunction with such farming
activities. For example, employees
engaged in the gathering of pine straw
on a Christmas tree farm are engaged in
H–2A agriculture if the Christmas trees
are produced using extensive
agricultural and horticultural
techniques.32 Declining to adopt the
32 These techniques include activities such as
planting seedlings in a nursery; ongoing treatment
with fertilizer, herbicides, and pesticides as
necessary; replanting in line-out beds or in
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proposal has no impact on employers
seeking workers to perform pine straw
gathering under these circumstances,
and such employers may continue to
use the H–2A program. On the other
hand, pine straw gathering that is not
performed by a farmer or on a farm (e.g.,
that occurs in wild or uncultivated
forests, in forest tree nurseries, or on
timber tracts, or that is performed in
conjunction with commercial
landscaping activities) does not
constitute agricultural labor or services;
employers seeking temporary foreign
workers to perform pine straw activities
under these circumstances may
continue to use the H–2B program.
Though not within the scope of this
rulemaking, the Department also wants
to take this opportunity to address
comments raising concerns about the
current state of working conditions for
H–2B reforestation workers. When
commenters indicate that they cannot
reasonably provide meals or kitchen
facilities to reforestation workers
because the worksites are too remote
and conditions too uncertain, the
Department cannot ignore the
implication that some reforestation
workers may not currently have access
to sufficient food and/or facilities to
prepare food. Itinerant workers
constitute a vulnerable population;
these workers are frequently wholly
dependent on their employer for
housing and transportation, work in
remote areas far removed from services,
and may not be fully aware of their
geographic location. The Department
reminds employers of itinerant workers
not using the H–2A program that they
should, at the very least, facilitate access
to food and/or kitchen facilities by
ensuring that workers have sufficient
time and available transportation
options to access grocery stores/cooking
facilities, and/or prepared meals.
In response to concerns expressed by
commenters that some reforestation
employers using the H–2B program may
not provide full-time job opportunities
and may not pay for inbound
transportation, the Department reminds
the public that such legal requirements
are already in place. An H–2B job
opportunity must be for full-time work,
defined as 35 hours of work per week,
and the FLSA applies independently of
the H–2B program’s requirements.
Specifically, the Fifth Circuit’s decision
in Castellanos-Contreras v. Decatur
Hotels, LLC, 622 F.3d 393 (5th Cir.
2010), affects an employer’s
responsibility for inbound
cultivated soil; yearly pruning or shearing; and
harvesting for ornamental use. See 29 CFR
780.216(b).
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transportation costs under the FLSA in
that Circuit, but does not affect an
employer’s inbound transportation
obligations pursuant to the H–2B
program regulations, nor does it affect
the Department’s ability to enforce those
obligations. See 20 CFR 655.20(d); 20
CFR 655.5; 29 CFR 503.16(d); 29 CFR
503.4; 20 CFR 655.20(j)(1)(i); and 29
CFR 503.16(j)(1)(i).
Other Comments Requesting the
Inclusion or Exclusion of Certain
Agricultural Activities or Industries in
the H–2A Program
The Department received many
comments in this section that did not
address the specific proposal relating to
reforestation and pine straw, but rather
suggested modifications to the scope of
the H–2A program to include or exclude
other activities or industries. As
discussed below, the Department is not
adopting these suggested modifications
to the definition of agricultural labor or
services.
These commenters sought to expand
the H–2A program to include all
employment in packing houses or
processing facilities that pack, process,
or handle agricultural or horticultural
commodities, even if, for example, more
than half of the commodities are
produced by other growers. Commenters
stated that this division between
packing houses based solely on the
producer of the commodity is outdated
and inequitable, because some packing
houses have access to the H–2A
program whereas others conducting
identical activities do not. Commenters
stated that all packing houses
experience the same shortage of labor,
regardless of the producer of the
products, and the nature of the H–2B
program is inadequate to address the
packing house’s needs, both in terms of
the number of workers available under
the program and certification processing
timelines. Multiple commenters
suggested an expansive definition of
agricultural labor or services
encompassing packing houses and
processing facilities.
Many commenters stated that the
H–2A program should encompass all
transporting of an agricultural
commodity to a facility for preparation
to market, regardless of who produced
the commodity or where the
transportation occurs. Several
commenters stated that harvesting is not
complete until the product arrives at the
packing facility or place of first
processing, and the transportation to the
place of first processing is an essential
component of harvesting. Others stated
that a contractor transporting
agricultural or horticultural products is
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essentially working for, or acting in the
place of, the grower that produced those
products, and thus is engaged in
agricultural work. Many commenters
referenced a critical shortage of truck
drivers willing, qualified, and available
to transport crops (particularly within
the shorter season inherent in
agriculture), and noted that many
growers do not have the means to
perform these transportation services
themselves. The expansive definition
submitted by multiple commenters
similarly addressed this issue by
suggesting inclusion of the following:
the transportation of any agricultural or
horticultural product in its
unmanufactured state by any person
from the farm to a storage facility, to
market, or to any place of handling,
planting, drying, packing, packaging,
processing, freezing, or grading such as
a packing house, a processing
establishment, a gin, a seed
conditioning facility, a mill, or a grain
elevator; and the handling, planting,
drying, packing, packaging, processing,
freezing, or grading by any person of
any agricultural or horticultural
commodity in its unmanufactured state.
Some commenters sought the explicit
inclusion of specific industries in the
definition of agriculture or more
generally in the H–2A program. Some
commenters requested that the H–2A
program encompass work in seafood
cultivation, harvesting, and processing
due to the industry’s connection to food
production and its difficulty in meeting
its labor needs using a domestic
workforce and the capped H–2B
program. One commenter requested that
the definition explicitly incorporate
activities related to the care and feeding
of horses and suggested it should
incorporate grooms, stable-hands,
exercise riders, and general caretakers,
regardless of where the work is
performed. A different commenter
sought the inclusion of all
agribusinesses, including agricultural
retailers, in the program. Some
commenters stated that all aspects of the
ginning of cotton, including the related
transportation from the field to the gin,
are agricultural. A trade association
representing the landscaping industry
suggested the reclassification of several
other industries currently within the
H–2B program to reduce pressure on the
H–2B visa cap.
Some commenters stated that specific
industries, or employers in general,
should have the flexibility to use either
the H–2A or H–2B program depending
on their specific needs. Some
commenters opined that employers have
the expertise to know which program
best meets their needs, whereas others
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stated that their industry was
sufficiently diverse to require
participation in both the H–2A and
H–2B programs.
One commenter sought to exclude
activities from the program that are
currently performed by H–2A workers.
Specifically, this commenter suggested
that work in constructing livestock
buildings on farms, when the worker is
not employed by the farmer, should not
be permitted in the H–2A program
because the work is, generally, nonagricultural.
To the extent that commenters
suggested amendments to the
definitions of agricultural labor under
sec. 3121(g) of the Internal Revenue
Code (IRC) and agriculture under sec.
3(f) of the FLSA, these suggestions are
outside the scope of this rulemaking as
well as beyond the Department’s
statutory authority under the H–2A
program. Congress defined these terms
in their respective statutes and
expressly incorporated these definitions
into sec. 101(a)(15)(H)(ii)(a) of the INA.
Any ability to amend these definitions,
or their incorporation in the INA, also
lies with Congress. Similarly, the
Department is unable to reinterpret
these statutory definitions solely within
the context of the INA; the Department
is constrained by pre-existing
interpretations of these definitions
within their respective statutes,
including their implementing
regulations, sub-regulatory guidance,
and resulting case law. As a result, the
Department cannot edit or limit these
definitions in this rulemaking, such as
by removing the 50-percent threshold
from the IRC definition of agricultural
labor; reinterpreting the phrase ‘‘in the
employ of the operator of a farm’’; or
excluding all construction occupations
from the H–2A program because, in
specific circumstances, construction
work may constitute agricultural labor
or services within one of the statutory
definitions. In addition, the Department
notes that it defers to the Department of
the Treasury’s Internal Revenue Service
(IRS) for interpretation of the IRC.
The Department has carefully
considered all comments requesting that
the Secretary use his statutory authority
to define additional activities and/or
industries as agricultural labor or
services, and respectfully declines to
make further revisions to this definition
beyond the technical or conforming
revisions discussed above. These
comments did not respond to proposals
made in the NPRM, nor did the
Department propose or invite comment
on possible additions to the definition
of agricultural labor or services beyond
the proposal to add reforestation and
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pine straw activities. All affected parties
could not reasonably expect that the
Department was contemplating and
seeking comment on potential additions
other than reforestation and pine straw
activities, and thus, the public has not
been fully afforded the opportunity to
consider and respond to the potential
inclusion of these activities and/or
industries in the H–2A program.
Many comments received in response
to the NPRM, as well as in previous
rulemakings, illustrate that some
employers perceive significant
advantages in participating in the H–2B
program as opposed to the H–2A
program, and vice versa, depending on
the labor demands of the specific
industries who commented.
Additionally, nearly all comments
regarding additional expansions to the
H–2A program originated from
employers and their representatives,
with minimal input from other affected
parties, further suggesting that all
parties could not reasonably have
thought to comment on the proposals to
expand the definition beyond the
additions proposed in the NPRM.
Consequently, the Department is
disinclined to further expand the
definition of agricultural labor or
services in this rulemaking.
The Department also declines to
adopt the suggestion that employers be
afforded the discretion to choose
participation in either the H–2A or
H–2B program. As previously explained
in the preamble to the 2010 H–2A Final
Rule, Congress clearly intended to
create two separate programs: H–2A for
agricultural work and H–2B for other,
non-agricultural work. Compare 8
U.S.C. 1101(a)(15)(H)(ii)(a) with 8 U.S.C.
1101(a)(15)(H)(ii)(b). 2010 H–2A Final
Rule, 75 FR 6884, 6888. Allowing
employers the discretion to use either
program based on their individual
preferences erases any meaningful
distinction between the two programs
and is inconsistent with congressional
intent. However, as some commenters
identified, certain industries necessarily
will use both the H–2A and H–2B
programs depending on the specific
activities being performed. For example,
the grooming and exercise riding of
horses at a racetrack in connection with
commercial racing is non-agricultural,
whereas the care and feeding of those
horses on a farm is agricultural work.33
33 Employees engaged in the breeding, raising,
and training of horses on farms for racing purposes
are agricultural employees as defined by the FLSA.
On the other hand, employees engaged in the
racing, training, and care of horses and other
activities performed off the farm in connection with
commercial racing are not employed in agriculture.
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Other Comments Requesting Expansion
of the H–2A Program for Year-Round
Employment in Agriculture
Many commenters requested that the
scope of the H–2A program be expanded
to include all job opportunities in
certain industries, regardless of whether
the opportunity is seasonal or
temporary, including dairy, mushroom,
poultry, livestock, aquaculture, and
indoor nursery/greenhouse farming.
Commenters emphasized that these
industries encounter the same labor
shortages as other agricultural
industries, and that the limitation of the
H–2A program to seasonal and
temporary agricultural work is
fundamentally inequitable and ignores
the realities faced by year-round
agriculture. Of the industries submitting
comments, commenters representing the
dairy industry noted particular concerns
with difficulties in obtaining and
retaining a sufficient workforce, and
proposed solutions such as allowing for
year-round visas and cycling different
short-term H–2A workers through
employment in a given year so that a
series of workers on temporary visas
could satisfy the employer’s permanent
need. Other commenters stated that
there was no statutory basis for allowing
herders to be employed for 364 days in
a year while not allowing the same for
other industries.
The Department received nearly
identical comments in response to the
2008 and 2009–2010 rulemakings. In
response to current comments, the
Department reiterates that it must
consider each employer’s specific job
opportunity on a case-by-case basis and
its program experience has consistently
shown that the majority of activities in
these industries are year-round and
therefore cannot be classified as either
temporary or seasonal as required under
the H–2A regulations and the INA, and
not because they are non-agricultural.
While the Department recognizes the
workforce challenges encountered by
various agricultural industries, it is
limited by the INA to certifying H–2A
applications for jobs of a temporary or
seasonal nature. As stated in the
preamble to the 2010 H–2A Final Rule,
the determination as to whether a
particular activity is eligible for H–2A
certification rests on a finding that the
duration of the activity or the need for
that activity is temporary or seasonal.
Permanent job opportunities cannot be
classified as temporary or seasonal.
2010 H–2A Final Rule, 75 FR 6884,
6890–6891. Instead, employers that
For these purposes, a training track at a racetrack
is not a farm. See 29 CFR 780.122.
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cannot find U.S. workers to fill
permanent rather than temporary or
seasonal jobs may wish to petition for
workers under employment-based
immigrant visa programs. See, e.g., 8
U.S.C. 1153(b)(3); see also 8 U.S.C.
1101(a)(15)(H)(ii)(a) (INA permits only
‘‘agricultural labor or services . . . of a
temporary or seasonal nature’’ to be
performed under the H–2A visa
category). Finally, with regard to
comments above related to the period of
need for herders, the Department
recently rescinded, in the separate 2021
H–2A Herder Final Rule, the 364-day
provision that governed the
adjudication of temporary need for
employers of sheep and goat herders
(§ 655.215(b)(2)) to ensure the
Department’s adjudication of temporary
or seasonal need is conducted in the
same manner for all H–2A applications.
Other Comments Related to the
Requirements for Overtime Pay Under
the FLSA
Some commenters expressed concerns
about or requested clarification of the
requirement for overtime pay under the
FLSA to H–2A workers. One commenter
said that some employers incorrectly
assume that H–2A workers are always
exempt from the FLSA overtime
requirement, and another commenter
made this same incorrect assumption in
its comment. Other commenters stated
that the classification of certain
industries and activities as agricultural
under one Act and non-agricultural
under another was confusing, and that
the reclassification of pine straw
activities as agricultural under the INA
would simplify compliance. Another
commenter suggested a regulatory
clarification that construction labor
performed on a farm for an independent
contractor, as opposed to for the farm
operator, is not agricultural employment
for the purposes of the FLSA, and that
employees providing such services are
entitled to overtime pay.
In light of these comments, the
Department reiterates that the FLSA
applies independently of the H–2A
program. H–2A workers are not exempt
from overtime pay under the FLSA
simply by virtue of holding an H–2A
visa, nor are workers engaged in
corresponding employment with H–2A
workers exempt from FLSA overtime
pay simply because they are so engaged.
The FLSA exempts employees
employed in agriculture, as defined in
sec. 3(f) of that same Act, from overtime
pay (and, in more limited
circumstances, from the Federal
minimum wage) in any workweek that
the worker is employed solely in
agriculture. See FLSA sec. 13(a)(6) and
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(b)(12), 29 U.S.C. 213(b)(6) and (12).
However, the INA defines agriculture
more broadly than the FLSA and,
consequently, some H–2A workers are
employed in activities that do not
constitute FLSA agriculture and thus are
entitled to FLSA overtime pay. For
example, H–2A workers employed by a
farmer are exempt from FLSA overtime
in any workweek in which they are
engaged in packing fruit grown
exclusively by that same farmer.
However, if during a given workweek
these same H–2A workers, in addition
to packing fruit grown by their employer
also pack fruit grown by another farmer,
they are entitled to FLSA overtime pay
in that workweek.34 Because the H–2A
program’s definition of agricultural
labor or services is broader than the
FLSA definition of agriculture (i.e., it
encompasses activities that constitute
agricultural labor under the IRC, as well
as logging and pressing of apples for
cider on a farm), workers may be
engaged in agricultural labor for H–2A
program purposes but exempt or
nonexempt from FLSA overtime in any
particular workweek depending on their
activities during that period. The
Department encourages employers to
consult the FLSA regulations at 29 CFR
part 780 to determine if employees are
entitled to FLSA overtime, and to
consult applicable State and local laws,
which may impose overtime or other
wage requirements.
Reforestation and pine straw
activities, as defined in the NPRM,
similarly do not constitute FLSA
agriculture unless performed by a
farmer or on a farm as incident to or in
conjunction with such farming
activities, and employees engaged in
these activities are frequently entitled to
FLSA overtime pay.
One commenter opined that
construction labor performed by an
independent contractor on a farm never
34 As defined by the FLSA, packing, processing,
and transporting agricultural or horticultural
commodities do not constitute agricultural
employment unless these activities are performed
by a farmer or on a farm as incident to or in
conjunction with such farming activities (i.e., the
farming activities of the farm or farmer). The
packing, processing, or transporting of fruit
produced by a different grower is performed as
incident to or in conjunction with the farming
activities of the farmer that produced the fruit, not
the employer, and thus is outside the scope of the
exemption from FLSA overtime pay. See generally
29 CFR part 780, subparts A, B, and C; §§ 780.137
and 780.138. FLSA exemptions are determined on
a workweek basis, and an employee performing
exempt work (i.e., packing, processing, and
transporting the employer’s own fruit) and
nonexempt work (i.e., packing, processing, and
transporting the fruit produced by a different
grower) in the same workweek is entitled to
overtime pay in that particular workweek. See
§§ 780.10 and 780.11.
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constitutes FLSA agriculture. The
Department notes that construction
labor may constitute FLSA agriculture
when performed by a farmer or on a
farm as incident to or in conjunction
with such farming activities.
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Minor Revisions Incorporating
Occupational Definitions for Animal
Shearing, Commercial Beekeeping, and
Custom Combining in the H–2A
Program
In proposing the occupational
definitions for itinerant employment in
animal shearing, commercial
beekeeping, and custom combining at
20 CFR 655.301, the Department
acknowledged in the NPRM that some
of the listed activities may not otherwise
constitute agricultural work under the
current definition of agricultural labor
or services in § 655.103(c), but are a
necessary part of performing this work
on an itinerary. See 84 FR 36168, 36222.
Accordingly, and solely for the purposes
of the proposed variances in §§ 655.300
through 655.304, the Department
explained that it would include these
activities in the occupational
definitions. Id. The Department did not
receive any comments on this aspect of
its proposal. However, because only
duties that fall within the definition of
agricultural labor or services under
§ 655.103(c) may be certified under the
H–2A program, and to clarify that the
activities set forth under the definitions
for animal shearing, commercial
beekeeping, and custom combining in
§ 655.301 qualify for certification under
the H–2A program, the Department is
making a technical, conforming revision
to § 655.103(c). Under new
§ 655.103(c)(5), the Department
expressly states that, for the purposes of
§ 655.103(c), agricultural labor or
services includes animal shearing,
commercial beekeeping, and custom
combining activities as defined and
specified in §§ 655.300 through 655.304.
Additionally, this final rule incorporates
the minor technical changes to correct
the internal citations from paragraphs
(c)(1)(iv) and (v) to now read paragraphs
(c)(1)(i)(D) and (E), respectively, in
§ 655.103(c)(1)(i)(E) and (F).
l. 20 CFR 655.103(d) and 29 CFR
501.3(c), Definition of a Temporary or
Seasonal Nature
The NPRM sought public comments
to inform a decision whether to retain
the current, two-arbiter model in which
both the Department and DHS evaluate
temporary or seasonal need during their
sequential review processes, or to move
the adjudication of an employer’s
temporary or seasonal need either
exclusively to DHS or exclusively to
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DOL. The Department solicited input
from the public on this idea as a way to
eliminate duplication of agency reviews.
The Department received many
comments on this idea and, for the
reasons explained below, has decided to
retain at present the current two-arbiter
model of DHS and DOL sequentially
adjudicating an employer’s temporary or
seasonal need.
The INA grants DHS broad authority
to determine whether to admit
temporary workers as H–2A
nonimmigrants based on an employer’s
petition, in consultation with
appropriate Federal agencies, and
further defines an H–2A nonimmigrant
as an individual coming temporarily to
the United States to perform agricultural
labor or services ‘‘of a temporary or
seasonal nature.’’ 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c)(1), and
1188. Pursuant to the INA and
implementing regulations promulgated
by the Department and DHS, the
Department evaluates an employer’s
need for agricultural labor or services to
determine whether it is seasonal or
temporary during the review of an
Application for Temporary Employment
Certification. 20 CFR 655.161(a); 8 CFR
214.2(h)(5)(i)(A) and (h)(5)(iv). In order
to promote greater consistency and
reduce stakeholder confusion
concerning the definition of temporary
or seasonal need, the Department
adopted the DHS definition in the 2010
H–2A Final Rule. See 75 FR 6884, 6890.
Compare 20 CFR 655.103(d) with 8 CFR
214.2(h)(5)(iv)(A).
Through its longstanding review of
the nature of an employer’s need as part
of its review of an Application for
Temporary Employment Certification,
such as examining the period of
employment identified on the H–2A
application and the nature of the
employer’s need for agricultural labor or
services, inclusive of the job duties,
qualifications and requirements, and
geographic locations where work will be
performed, the Department has
developed expertise and a process for
determining temporary or seasonal need
to which H–2A employers have become
accustomed. In addition, DHS
regulations state that an H–2A petition
must establish, among other things, that
the ‘‘employment proposed in the
certification is of a temporary or
seasonal nature’’ and that the
Department’s finding that employment
is of a temporary or seasonal nature
during review of the Application for
Temporary Employment Certification is
‘‘normally sufficient’’ for the purpose of
an H–2A Petition. 8 CFR 214.2(h)(5)(iv).
Under current practice, if the
Department issues a temporary
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61685
agricultural labor certification and the
employer files an H–2A Petition, DHS
may reevaluate and adjudicate the
employer’s temporary or seasonal need
using the same definition or may defer
to the Department’s finding.
Many commenters supported
eliminating the two-arbiter model, with
most identifying the Department as the
preferred sole arbiter. These
commenters argued that retaining both
arbiters creates uncertainty,
inconsistency, and redundancy with
harm to farmers, including crop loss as
a result of the time lost should DHS
reach a different, adverse decision later
in the process than the Department.
Most of the commenters who favored a
single-arbiter model supported the
Department as the sole arbiter. Some
commenters urged the Department to
consider a new arbiter of temporary or
seasonal need, namely the U.S.
Department of Agriculture (USDA).
Included among these commenters who
suggested USDA were several trade
associations, a couple of agents, and a
State government agency who named
the Department as their second choice
after USDA. Two other commenters, a
trade association, and a State
government agency suggested that the
Department perform the role over DHS
but with increased consultation with
USDA. However, in the NPRM, the
Department only sought public
comment on the potential for only DHS,
or only DOL, to serve as a sole arbiter.
The Department did not propose or seek
comment for an agency other than the
Department or DHS to perform this role.
Those commenters who favored the
Department as the adjudicating
authority for temporary or seasonal
need, as opposed to DHS, noted the
Department’s expertise and greater
comparative familiarity with the H–2A
program. Commenters also valued the
Department’s position in the petition
process relative to DHS, as employers
are able to make adjustments earlier
should questions regarding temporary or
seasonal need arise and before incurring
additional expenses associated with
filing an H–2A Petition with DHS.
Several commenters, including an
agent, an employer, and a trade
association, did not express a position
regarding whether the Department or
DHS should be the sole arbiter but
instead noted the importance of the
Department and DHS having congruent
definitions of whether employment is of
a temporary or seasonal nature.
Similarly, another agent did not clearly
express an opinion about whether there
should be a sole arbiter of temporary or
seasonal need but stated that DHS
should continue to hold decision-
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making authority with respect to the
temporary and seasonal requirements.
The Department appreciates the
variety of public comment on this
proposal. After careful consideration of
the comments received, the Department
has determined, that it will not at this
time be making such a substantial
change to the program.35 Therefore, this
final rule retains the current two-arbiter
model of DHS and DOL both
sequentially evaluating an employer’s
temporary or seasonal need.
The Department received additional
comments regarding the definition of a
temporary or seasonal nature at 20 CFR
655.103(d) and 29 CFR 501.3(c). Many
of these commenters urged the
Department to include year-round work,
particularly in the dairy industry. As the
Department only sought public
comment on determining whether the
Department or DHS should act as the
sole arbiter of temporary or seasonal
need, such comments are outside the
scope of this rulemaking.
B. Pre-Filing Procedures
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1. Section 655.120, Offered Wage Rate
The statute provides that an H–2A
worker is admissible only if the
Secretary determines that ‘‘there are not
sufficient workers who are able, willing,
and qualified, and who will be available
at the time and place needed, to perform
the labor or services involved in the
petition, and 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.’’ See 8 U.S.C.
1188(a)(1). In 20 CFR 655.120(a), the
Department currently meets this
statutory requirement, in part, by
requiring an employer to offer, advertise
in its recruitment, and pay a wage that
is the highest of the AEWR, the
prevailing wage, the agreed-upon
collective bargaining wage, the Federal
minimum wage, or the State minimum
wage. The Department proposed in the
NPRM to maintain this wage-setting
structure with only minor revisions and
modify the methodologies by which the
35 The January 2021 draft final rule indicated the
Departments’ intent for DOL to serve as the sole
arbiter of temporary or seasonal need through a
prospective delegation of authority from DHS as
well as a separate regulatory action to amend DHS’s
related regulations. However, the January 2021 draft
final rule was not published and never took effect.
Accordingly, any statements contained therein do
not represent the Department’s formal policy; and,
similarly, they do not, and may not be relied upon
to, create or confer any right or benefit, substantive
or procedural, enforceable at law or equity by any
individual or other party. As explained elsewhere
in this rule, the Federal Register and the Code of
Federal Regulations remain the official sources for
regulatory information published by the
Department.
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Department establishes the AEWR and
prevailing wages.
Prior to this final rule, the Department
engaged in rulemaking to revise the
methodology for establishing the AEWR
that addressed the Department’s
proposals at paragraphs (b)(1), (2), and
(5) of the NPRM, as well as the
definition of AEWR in § 655.103(b). See
85 FR 70445. Most recently, the
Department issued an NPRM on
December 1, 2021, which proposed to
revise the methodology for establishing
the AEWR. 86 FR 68174. The comment
period for the 2021 H–2A AEWR NPRM
closed on January 31, 2022, and the
Department will address those
comments in a separate rulemaking.
This final rule addresses all other
aspects of the Department’s proposals at
§ 655.120—specifically, paragraphs (a),
(b)(3) and (4), (c), and (d). In addition,
the Department reinstates the 2010 H–
2A Final Rule’s method and schedule
for updating the AEWR at paragraph
(b)(2), which is necessary due to vacatur
of the 2020 H–2A AEWR Final Rule, as
discussed in the preamble to the
definition of AEWR at § 655.103(b).
The Department received many
general comments related to H–2A labor
costs and wage requirements, some
claiming that wage requirements are too
high and others stating that wage
requirements are too low. To the extent
those comments raised specific
concerns or suggestions, they are
discussed below.
a. The Department Retains the
Requirement That the Offered Wage
Rate Must Be the Highest of the
Available Wage Sources
The Department protects against
adverse effect on the wages of workers
in the United States similarly employed
by requiring, at § 655.120(a), that an
employer must offer, advertise in its
recruitment, and pay a wage that is the
highest of the AEWR, the prevailing
wage, the agreed-upon collective
bargaining wage, the Federal minimum
wage, or the State minimum wage,
unless the occupation is subject to an
alternative wage rate structure. The
Department proposed three minor
changes to paragraph (a). As discussed
below, this final rule adopts the
proposed language from the NPRM with
minor conforming changes.
First, the Department proposed to
replace the current regulatory provision
that provides an exception for separate
wage rates set by ‘‘special procedures’’
(i.e., sub-regulatory variances from the
regulation) and instead include a
specific reference to the regulatory
provisions covering job opportunities in
the herding and production of livestock
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on the range under §§ 655.200 through
655.235. Applications to obtain labor
certifications to hire temporary
agricultural foreign workers to perform
herding or production of livestock on
the range, as defined in § 655.201, are
subject to the wage rate structure at
§ 655.211 and are the only exception to
the wage methodology set forth in this
final rule at § 655.120. Further, as
discussed above, the Department has
removed the authority in § 655.102 to
establish, continue, revise, or revoke
‘‘special procedures’’ for H–2A
occupations. The Department received
comments requesting that it address
herder wages, including a State law
involving overtime pay for herders;
however, these comments are outside
the scope of this rulemaking. The
Department explicitly stated in the
NPRM that it was not reconsidering the
herder wage rate methodology. 84 FR
36168, 36220–36221.
Second, the Department proposed to
replace the ‘‘prevailing hourly wage or
piece rate’’ with ‘‘prevailing wage rate’’
in recognition of the fact that the
Department has issued prevailing wage
rates that are not in the form of an
‘‘hourly’’ or ‘‘piece’’ rate wages,
including, for example, ‘‘monthly’’
prevailing wage rates.36 An employer
suggested the Department, instead,
replace ‘‘prevailing hourly rate or piece
rate’’ with ‘‘prevailing guaranteed
hourly rate’’ and use the hourly
guarantee alone to protect against
adverse effect on the domestic
workforce. The commenter explained
that such an approach would protect
wages without limiting employers’
flexibility to reward productive workers
through a piece rate or another
incentive-based system. The Department
declines to adopt the suggested
language. To the extent the commenter
seeks an hourly guarantee protection for
workers in the event an employer uses
incentive pay or piece rate, the
regulation already provides hourly rate
protection at § 655.122(l)(1) and (2);
and, to the extent the commenter seeks
to eliminate piece rate PWDs, such a
suggestion is beyond the scope of this
rulemaking. Further, the Department
does not limit an employer’s flexibility
to offer wages exceeding the minimum
required wage.
Third, the Department proposed to
clarify that the requirement to offer and
pay at least the prevailing wage rate
applies only ‘‘if the OFLC Administrator
36 The Department also makes corresponding
changes throughout the regulation, replacing ‘‘the
prevailing hourly wage or piece rate’’ with
‘‘prevailing wage’’ or ‘‘prevailing wage rate,’’ except
where a given provision specifically applies only to
prevailing piece rates.
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has approved a prevailing wage survey
for the applicable crop activity or
agricultural activity meeting the
requirements of paragraph (c)’’ of
§ 655.120.37 In the event there is no
prevailing wage finding applicable to an
employer’s job opportunity, the
employer’s wage obligation is the
highest of the other four applicable
wage sources listed in paragraph (a). An
employer that supported this proposal
asked the Department to clarify that the
OFLC Administrator must review the
survey for compliance with prevailing
wage methodology requirements,
asserting that underlying documentation
may have been lacking in the past. The
Department appreciates this concern
and notes that survey documentation
demonstrating compliance with
methodological requirements must be
attached to the updated prevailing wage
survey collection (i.e., Form ETA–232)
at the time of submission to the OFLC
Administrator. See § 655.120(c)(1)(i).
The Department received many
comments from workers’ rights
advocacy organizations that asserted the
Department is required to determine a
prevailing wage in all cases. These
commenters expressed concern that the
Department proposed to eliminate this
‘‘requirement,’’ and, by doing so, would
permit employers to offer below-market
wage rates in areas where a survey, if
conducted, would produce a higher rate
than the other wage sources. The
Department reiterates that this final rule
does not eliminate an existing
requirement; rather, the revised
language clarifies existing policy and
practice. State-conducted prevailing
wage surveys are another source of
information that can provide protections
for workers who are engaged in specific
crop or agricultural activities offering
piece rate pay or higher hourly rates of
pay than the applicable AEWR in a
geographic area. However, where the
crop or agricultural activities in a
geographic area are paid at hourly rates
lower than the AEWR, a Stateconducted prevailing wage survey
would not protect wages from adverse
effect; the AEWR does. The AEWR will
continue to serve as a wage floor that
prevents localized wage stagnation or
depression in areas and occupations in
which employers desire to employ H–
2A workers. Neither the statute nor the
Department’s H–2A program regulations
require the Department to determine a
prevailing wage rate in all cases, and the
Department’s regulations and guidance
have contemplated that there are
situations in which the wage sources
37 The Department also makes a corresponding
change to § 655.122(l).
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listed in § 655.120(a) may be
unavailable or inapplicable, as reflected
in past practice.38 As explained in the
NPRM, the Department primarily meets
its obligation to protect against adverse
effect on the wages of workers in the
United States similarly employed by
requiring employers to offer, advertise,
and pay at least the AEWR. 84 FR
36168, 36179. As such, requiring SWAs
to conduct prevailing wage surveys for
every crop and agricultural activity in
every area within their jurisdiction is
unnecessary to prevent adverse effect.
However, the Department agrees that
prevailing wage rates, under the PWD
methodology adopted in this final rule
at § 655.120(c), can provide additional
safeguards. The Department will
continue to issue PWDs based on
information that is as reliable and
representative as possible concerning
the average wages of U.S. workers in a
crop or agricultural activity and distinct
work task(s) within that activity, if
applicable, for a particular geographic
region. As explained below, this final
rule modernizes the PWD methodology
and empowers States to produce a
greater number of reliable prevailing
wage rates, which the OFLC
Administrator may approve under the
requirements of § 655.120(c).
The Department also received
comments that suggested the
Department should stop requiring H–2A
employers to offer and pay the highest
of the sources listed in paragraph (a)
and use a different wage-setting
standard instead. Two employers
recommended the Department set the
H–2A wage rate at the current Federal
minimum wage of $7.25 per hour, while
a trade association suggested the
Department use the minimum wage
adjusted annually using the Consumer
Price Index (CPI). A trade association
recommended the PWD, if available,
should be used to set the H–2A wage
requirement, even if that wage rate is
lower than the AEWR, as it is the most
38 See, e.g., AFL–CIO, et al, v. Dole, et al., 923
F.2d 182, 185 (D.C. Cir. 1991) (noting Congress did
not ‘‘define adverse effect and left it in the
Department’s discretion how to ensure that the
importation of farmworkers met the statutory
requirements’’ and that the Department’s chosen
methodology to prevent adverse effect is ‘‘a policy
decision taken within the bounds of a rather broad
congressional delegation’’); § 655.122(l)(1) (‘‘any
agreed-upon collective bargaining rate’’); 1987 H–
2A IFR, 52 FR 20496, 20502 (June 1, 1987) (noting
H–2A workers ‘‘must be paid at the highest of the
applicable wage rates’’); 2008 H–2A Final Rule, 73
FR 77110, 77115 (Dec. 18, 2008) (‘‘the highest of the
AEWR, prevailing wage, or minimum wage, as
applicable’’); 2010 H–2A Final Rule, 75 FR 6884,
6947 (‘‘some [S]tates do not perform prevailing
wage surveys’’); ETA Handbook 385 at I–115
(‘‘Should a survey not result in a prevailing wage
rate finding, another survey should be made at the
earliest appropriate time.’’).
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61687
accurate measure of the prevailing wage
for that specific crop activity in that
specific area. A public policy
organization recommended the
Department allow employers to pay H–
2A workers less than the AEWR and
prevailing wage rate, provided that U.S.
workers receive five percent more than
the highest of those two rates. These
comments are outside the scope of the
Department’s proposed modifications to
paragraph (a).
After consideration of the comments,
the Department adopts the proposed
language with two minor revisions.
First, the Department has revised
§ 655.120(a) to clarify that an employer
must offer and pay, at a minimum, the
highest of the enumerated wage sources,
but may choose to offer and pay a higher
rate. Second, the Department has
revised § 655.120(a)(2) to align with
language regarding prevailing wages at
§ 655.120(c). As discussed further in the
preamble to § 655.120(c)(1)(iii), the
revised language in this paragraph
recognizes that there may be a
prevailing wage for a distinct work task
or tasks within a crop or agricultural
activity in certain situations.
b. AEWR Determinations
This final rule covers the
Department’s proposals at paragraphs
(b)(3) and (4) of § 655.120, which the
Department reserved when addressing
paragraphs (b)(1), (2), and (5) in a
separate rulemaking (i.e., the 2020 H–
2A AEWR Final Rule). As explained
above in the preamble to the definition
of AEWR at § 655.103(b), the 2020 H–2A
AEWR Final Rule was vacated, leaving
the 2010 H–2A Final Rule in its place.
For the same reasons as noted in the
preamble to the AEWR definition, the
Department is implementing the court’s
vacatur of the 2020 H–2A AEWR Final
Rule in this final rule by removing from
the CFR the regulatory text that the
Department promulgated through that
rulemaking at § 655.120(b)(1), (2), and
(5), thereby restoring the regulatory text
to appear as it did before the effective
date of the 2020 H–2A AEWR Final
Rule, subject to the changes noted in
this section. The Department has good
cause to bypass otherwise applicable
requirements of notice and comment
and a delayed effective date because
these are unnecessary for the
implementation of the court’s vacatur
order and would be impracticable and
contrary to public interest in light of the
agency’s need to implement the final
judgment. See 5 U.S.C. 533(b)(B), (d).
Delaying the ministerial task of restoring
the regulatory text also would be
contrary to the public interest because it
could lead to confusion, particularly
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among the regulated public, as to the
applicable AEWR methodology. With
regard to changes in this section, the
Department issued the 2021 H–2A
AEWR NPRM, which proposed new
paragraphs (b)(1) and (5). Accordingly,
the Department retains the 2010 H–2A
Final Rule’s paragraph (c) that provides
for annual AEWR updates to be
published in the Federal Register,
redesignated as paragraph (b)(2) in this
final rule, and will address paragraphs
(b)(1) and (5) in a separate rulemaking.
i. Must Pay Any Higher AEWR on the
Published Effective Date of the New
Wage Rate
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The text adopted in the 2010 H–2A
Final Rule specified the employer’s
obligation to pay the wage rate ‘‘in effect
at the time work is performed.’’ 39 In the
event the OFLC Administrator publishes
an updated AEWR that is higher than
the previous AEWR, a prevailing wage
for the crop activity or agricultural
activity or task(s) and geographic area,
the agreed-upon collective bargaining
wage, the Federal minimum wage, or
the State minimum wage, the employer
must start paying the higher wage on the
effective date of the new rate. In the
Federal Register notice publishing the
updated AEWRs, the OFLC
Administrator identifies the effective
date of the new AEWRs. Proposed
§ 655.120(b)(3) was intended to more
clearly articulate the timing of the wage
adjustment by codifying the current
practice of providing employers a short
period of time (i.e., up to 14 days) to
update their payroll systems, such that
an employer would not be required to
adjust a worker’s pay in the middle of
a pay period, but would be required to
promptly implement the
adjustment.40 See 84 FR 36168, 36188.
Although the January 2021 draft final
rule would have accepted the proposal
to codify an adjustment period of up to
14 calendar days after the Department’s
publication of updated AEWRs in the
Federal Register, after further
consideration of the comments and as
explained below, the Department has
decided not to adopt this proposal, but
it otherwise adopts the proposed
language from the NPRM with minor
conforming changes.
39 Under 44 U.S.C. 1507, publication in the
Federal Register provides legal notice of the new
wage rates. Section 655.122(l) of the 2010 H–2A
Final Rule required employers to pay the wage rate
‘‘in effect at the time work is performed.’’
40 See, e.g., Notice, Labor Certification Process for
the Temporary Employment of Aliens in Agriculture
in the United States: 2020 Adverse Effect Wage
Rates for Non-Range Occupations, 84 FR 69774
(Dec. 19, 2019) (announcing AEWRs for 2020 on
December 19, 2019, to be effective January 2, 2020).
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The Department received comments
from associations, farm bureaus,
employers, agents, individual
commenters, an agricultural financial
services business, and a national
business advocacy organization
opposing the requirement that
employers must increase the wage rate
during the employment period if the
Department publishes a higher rate.
Many of these commenters expressed
concern this provision would make it
more difficult for employers to conduct
advance operational and budget
planning because, at the time of filing,
they would lack knowledge of the
required wage rate(s) throughout the
entire period of employment. An
association asserted the wage rate
required in the work contract should
prevail throughout the employment
period because ‘‘the determination of no
adverse impact to domestic workers has
been satisfied for the contract period’’
once the work contract is approved.
These commenters, however, generally
supported the Department’s proposal to
include a period of time for employers
to adjust to the new wage rate after
publication, rather than imposing an
obligation to immediately implement,
with an employer asserting immediate
implementation would have been
‘‘unrealistic at best’’ due to the
employer’s need to update pay
structures and a business advocacy
organization asserting 14 days is
insufficient. Another commenter urged
the Department to set a ‘‘date certain’’
on which the updated wage rates would
be effective.
The wage adjustment provision will
affect only those employers whose
OFLC-approved offered wage rate falls
below the permissible minimum wage
floor once the Department issues the
new wage rates. The duty to pay an
updated AEWR if it is higher than the
other wage sources is not a new
requirement, as employers participating
in the H–2A program historically have
been required to offer and pay the
highest of the AEWR, the prevailing
wage, or the Federal or State minimum
wage at the time the work is
performed.41 As explained in the 2010
H–2A Final Rule, ‘‘[t]he Department
recognizes that these wage adjustments
may alter employer budgets for the
41 See, e.g., 1987 H–2A IFR, 52 FR 20496, 20521;
Labor Certification Process for the Temporary
Employment of Aliens in Agriculture in the United
States; H–2A Program Handbook, 53 FR 22076,
22095 (June 13, 1988) (‘‘[c]ertified H–2A employers
must agree, as a condition for receiving
certification, to pay a higher AEWR than the one
in effect at the time an application is submitted in
the event publication of the [higher] AEWR
coincides with the period of employment’’).
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season’’ and, therefore, ‘‘employers are
encouraged to include into their
contingency planning certain flexibility
to account for any possible wage
adjustments.’’ 2010 H–2A Final Rule, 75
FR 6884, 6901. This is especially true
given that employers have been required
to make these adjustments for many
years and neither program experience
nor comments on the NPRM
demonstrated that a longer adjustment
period would be necessary to avoid
significant operational burdens on
employers or the layoffs and crop
deterioration cited by some
commenters. For similar reasons, the
Department believes concerns about
significant mid-contract increases in the
AEWR are overstated.
A SWA urged the Department to
require immediate implementation of
increased wage rates, asserting that a
delay of up to 14 days would deprive
workers of up to 2 weeks of pay at the
AEWR and, therefore, would produce
the type of adverse effect the
Department is required to prevent. This
commenter believed that if the
Department permitted a 14-day
adjustment period, it should require the
employer to ‘‘pay any increases
retroactively, perhaps in the pay period
after the new wage rate becomes
effective,’’ which the commenter stated
was consistent with the Department’s
FLSA regulations at 29 CFR 778.303.
The Department is sensitive both to the
worker protection concerns the SWA
raised and to adopting an approach that
could add complexity, which is
inconsistent with the Department’s
goals in this rulemaking to enhance
worker protections while simplifying
the program to facilitate compliance and
administration.
Therefore, in this final rule, the
Department has not adopted the
proposal that would have codified an
adjustment period of up to 14 calendar
days after the Department’s
announcement of the new AEWRs in the
Federal Register; instead, the
Department will continue current
practice of stating the effective date of
the new AEWRs in the Federal Register
announcement of the new AEWRs,
which may be immediate and will not
be more than 14 calendar days after
publication of that notice, consistent
with historical and current practice. In
addition, the Department has made a
minor revision to align with language
regarding prevailing wages at
§ 655.120(c). As discussed further in the
preamble to § 655.120(c)(1)(iii), the
revised language at § 655.120(b)(3)
recognizes that there may be a
prevailing wage for a distinct work task
or tasks within a crop or agricultural
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activity in certain situations.
Additionally, the Department has made
a minor revision to clarify that if an
updated AEWR is higher than the other
wage sources, the employer must pay at
least the updated AEWR, but may
choose to offer and pay a higher rate.
ii. Must Not Lower Wage Rate After
Publication of a Lower AEWR
In § 655.120(b)(4), the Department
proposed to prohibit employers from
lowering the wage rate during the
certified employment period in the
event the OFLC Administrator publishes
an updated AEWR that is lower than the
rate guaranteed on the job order. In
order to avoid potential confusion
regarding the requirement to continue to
pay the previously offered wage if a
lower rate is published during the
employment period, the Department
also proposed to remove language in
§§ 655.120(b) and 655.122(l) regarding
the wage rate ‘‘in effect at the time work
is performed.’’ This approach ensures
the wage rate does not fall below the
rate that was offered to workers and
agreed to in the work contract and
prevents employers from including a
clause in the job order to allow such a
reduction within contract terms. As
discussed below, this final rule adopts
the proposed language from the NPRM
unchanged.
Employer, association, agent, and
business advocacy group commenters
opposed the Department’s proposal to
prohibit employers from reducing the
wage rate during the employment
period, in the event the AEWR
decreases. Several commenters,
including associations, believed the
proposal would unfairly undermine
mutually agreed-upon contract terms.
Some of these commenters asserted that
the Department’s proposal infringed
upon the employers’ and workers’
contract rights by permitting the
Department to ‘‘void’’ or ‘‘abrogate’’ the
wage rate offered and agreed to in the
employment contract and prohibiting
the employer from including wage
reduction clauses in the contract. An
agent asserted the prohibition against
wage reductions mid-contract would
disadvantage employers with start dates
before an AEWR adjustment because
they would be required to pay a higher
rate throughout the period of
employment, while an employer with a
start date after the new AEWR rates are
published could pay the lower rate. Two
employers and a trade association stated
that the employer should be permitted
to pay a lower AEWR if one is published
because the AEWR is the ‘‘exact wage’’
necessary to protect U.S. workers, and
the commenters asserted ‘‘there is no
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valid basis to require payment of a
higher wage when that wage is no
longer determined to be the AEWR.’’
With respect to commenters’ concern
that these provisions infringe on
employers’ and workers’ freedom to
contract, H–2A employers are free to
include any terms and conditions in
employment contracts that comply with
all laws and regulations governing the
H–2A program and employment
generally. However, the Department
holds the view that agricultural workers
‘‘generally comprise an especially
vulnerable population whose low
educational attainment, . . . low rates
of unionization and high rates of
unemployment leave them with few
alternatives in the non-farm labor
market,’’ and, as a result, these workers’
‘‘ability to negotiate wages and working
conditions with farm operators or
agriculture service employers is quite
limited’’ (2009 H–2A NPRM, 74 FR
45906, 45911 (Sept. 4, 2009)), and this
‘‘limited bargaining power . . .
exacerbates the problem of stagnating
[wages]’’ (2010 H–2A Final Rule, 75 FR
6884, 6894). Prohibiting contract terms
that would lower wages paid below the
offered and agreed-to rates aligns with
these concerns and is consistent with
the Department’s broad discretion to
determine the most effective method of
ensuring the employment of H–2A
workers does not have an adverse effect
on the wages of workers in the United
States similarly employed.
The Department believes that
prohibiting downward adjustments of
wage rates during the period of certified
employment is necessary to provide
stability and predictability for workers
who have limited ability to negotiate
their wages and working conditions.
Accordingly, this will help protect
against potential adverse effects on the
workers’ wages and working conditions,
without increasing the employer’s wage
costs above those in effect at the time of
certification.
After consideration of the comments,
the Department is adopting the proposal
to prohibit the employer from reducing
the offered wage, even in cases where
the Department publishes a lower
AEWR. Because the employer
advertised and offered the higher rate on
its job order, the employer cannot
reduce the wage rate below the rate
already guaranteed in the work contract.
The Department has made a minor
revision to clarify that if an updated
AEWR is lower than the rate guaranteed
on the job order, the employer must pay
at least the rate guaranteed on the job
order, but may choose to offer and pay
a higher rate.
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c. Section 655.120(c) Prevailing Wage
Determinations
i. Background
The Department proposed to
modernize the methodology used to
conduct prevailing wage surveys that
applies to both H–2A and other
agricultural job orders placed in the
Wagner-Peyser Act agricultural
recruitment system. The Department
previously relied on ETA Handbook
385, which was last updated in 1981,
and other sub-regulatory guidance to set
the standards that govern the prevailing
wage surveys SWAs conduct to
establish prevailing wage rates. The
NPRM proposed to modernize these
standards in order to establish reliable
prevailing wage rates for employers and
workers, and allow SWAs and other
State agencies to conduct surveys using
standards that are more realistic in a
modern budget environment. Under the
proposed methodology, the OFLC
Administrator would issue a prevailing
wage for a given crop activity or
agricultural activity only if all of the
requirements in proposed
§ 655.120(c)(1) are met.
In particular, the NPRM proposed the
following methodological standards: (1)
the SWA must submit a standardized
form providing the methodology of the
survey; (2) the survey must be
independently conducted by the SWA
or another State entity; (3) the survey
must cover a distinct work task or tasks
performed in a single crop activity or
agricultural activity; (4) the surveyor
must make a reasonable, good faith
effort to contact all employers who
employ workers in the crop or
agricultural activity within the
geographic area surveyed or conduct a
randomized sampling of such
employers; (5) the survey must be
limited to the wages of U.S. workers,
report an average wage, and be based on
a single unit of pay used to compensate
at least 50 percent of the U.S. workers
included in the survey; (6) the survey
must cover an appropriate geographic
area based on several factors; and (7) the
survey must report the wages of at least
30 U.S. workers and five employers and
the wages paid by a single employer
must represent no more than 25 percent
of the sampled wages included in the
survey.
SWAs that seek to prioritize precision
of their estimates for the purpose of
statistical validity for numerically large
categories of workers may wish to
consider employing statistical sampling
methods that exceed the minimum
standards contained in this final rule,
such as those used by the National
Agricultural Statistical Service in the
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Agricultural Labor Survey.42 However,
as explained below, the Department is
not requiring enhanced sampling
methods.
In addition to these standards, the
NPRM proposed to establish (1) a 1-year
validity period for prevailing wage rates;
(2) a 14-day window in which
employers must implement newly
required higher prevailing wage rates;
and (3) the requirement that employers
continue to pay at least the rate
guaranteed on the job order if a
prevailing wage rate is adjusted during
a work contract. The Department
received comments both in support of
and in opposition to these proposals,
which are discussed in greater detail
below. These comments raised a variety
of concerns, some general and some
pertaining to specific provisions
identified in the NPRM. The
Department will first respond to the
general comments before turning to the
proposals in § 655.120(c) and the
specific comments related to these
proposals. As discussed below, the
Department is adopting paragraphs
(c)(1)(ii) and (vi) unchanged from the
NPRM and is adopting paragraphs (c)(1)
introductory text and (c)(1)(i), (iii)
through (v), and (vii) through (ix) with
some changes.
§ 655.120(a), they are outside the scope
of this rulemaking. With respect to
comments on setting accurate wages
when different factors affect agricultural
workers’ pay, the Department
acknowledges it cannot delay or forgo
its delegated duties because the
available data may be less than
perfect.43 The Department disagrees
with the commenters’ suggestion that
the inclusion of responses from
employers paying higher rates to
compete with H–2A employers
necessarily distorts survey results. The
commenters did not provide evidence
that the inclusion of such rates
‘‘distorts’’ survey findings or offer
examples of survey inaccuracies,
beyond mentioning surveys challenged
in two cases that have since been
dismissed in favor of the Department
and SWA.44 Moreover, the prevailing
wage rate is intended to reflect the
average wage of U.S. workers in a
geographic area for a crop or agricultural
activity and, if applicable, distinct work
task(s) within that activity. If employers
are paying a certain average rate and the
Department validates such a finding,
then that is the prevailing wage
employers must pay to applicable
workers when it is the highest of
available wages sources in § 655.120(a).
ii. General Comments on Prevailing
Wage Determinations
iii. General Comments on the Prevailing
Wage Survey Methodology
Several SWAs, employers, agents, and
trade associations supported
modernizing the prevailing wage
methodology and revising the
regulations to provide concrete
guidance and criteria. A SWA as well as
some employers and trade associations
believed the proposed standards were
not rigorous enough to produce accurate
PWDs. In contrast, workers’ rights
advocacy organizations claimed the
standards were too rigorous and would
result in too few PWDs. Similarly, two
U.S. Senators asserted the proposed
methodology ‘‘is overly complex’’ and
raises concerns, including ‘‘whether
SWAs will be adequately equipped to
undertake the wage surveys.’’ The
Senators did not provide additional
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The Department received general
comments regarding the need for PWDs.
Several commenters including
employers and trade associations
encouraged the Department to remove
PWDs from the H–2A regulations
entirely. Commenters explained
agricultural wages involved too many
factors, which prevent the government
from establishing an accurate wage rate
that is generally applicable and protects
the domestic workforce from adverse
effect. As an example of this
‘‘inaccuracy,’’ a few commenters
observed that employers who respond to
the survey in some regions or States pay
higher rates to compete with employers
who use the H–2A program in those
areas. According to the commenters, the
inclusion of these higher rates distorts
survey results.
To the extent these comments
recommend eliminating prevailing
wages as a wage source under
42 This detailed information on the statistical
methodology of the Farm Labor Survey (FLS) is
publicly available by searching reginfo.gov for
Information Collection Requests (ICRs) with the key
words ‘‘agricultural labor survey,’’ opening the most
recent ‘‘Agricultural Labor’’ ICR package, then
selecting ‘‘View Supporting Statement and Other
Documents’’ and opening the Supporting Statement
B (SSB) document.
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43 See Zirkle Fruit Co. v. U.S. Dep’t of Labor, et
al., 442 F. Supp. 3d 1366, 1383 (E.D. Wash. 2020)
(‘‘Agency action is not arbitrary or capricious
simply because it is imperfect. Nor are agencies
required to delay or forego their delegated duties
simply because they lack a perfect dataset from
which to undertake them.’’).
44 Zirkle Fruit Co., 442 F.Supp.3d at 1383; Order
Dismissing Case, Evans Fruit Co., et al. v. U.S. Dep’t
of Labor, et al., No. 19–cv–3202 (E.D. Wash. Nov.
7, 2019); see also Order Denying Plaintiffs’ Motion
for Preliminary Injunction, Evans Fruit Co., Inc. v.
U.S. Dep’t of Labor, et al., No. 19–cv–3202 (E.D.
Wash. Oct. 11, 2019) (agency’s actions are not
arbitrary simply because they rely on ‘‘imperfect
data or used an imperfect approach’’).
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explanation on why they believed the
proposal was too complex. Some
associations expressed concern there
was no ‘‘third party . . . peer review’’
to show the standards would result in
accurate prevailing wages. One
association stated, without additional
explanation, that changes to the survey
methodology should only be attempted
in a stand-alone rule, if at all. The
Department appreciates and values the
commenters’ general input on the
prevailing wage survey methodology
proposed in the NPRM. Because of the
general nature of these comments, the
Department is unable to address them in
further detail. Beyond these general
comments, the Department received
comments on the specific proposals in
§ 655.120(c), which are addressed in the
sections that follow.
iv. Section 655.120(c)(1) Introductory
Text and (c)(1)(i)
The Department proposed in
§ 655.120(c)(1) that the OFLC
Administrator will issue a prevailing
wage for a crop activity or agricultural
activity if all of the requirements in
§ 655.120(c)(1)(i) through (ix) are met.
The Department did not receive
comments on this specific proposal, and
therefore adopts the language in the
NPRM with a minor revision to account
for a prevailing wage for ‘‘a distinct
work task or tasks performed’’ within a
crop or agricultural activity, if
applicable. As discussed further in the
preamble to § 655.120(c)(1)(iii), the
revised language recognizes there may
be a prevailing wage for a distinct work
task or tasks within a crop or
agricultural activity in certain
situations, and conforms to similar
changes made to portions of § 655.120(c)
in this final rule.
In § 655.120(c)(1)(i), the Department
proposed to maintain the current
requirement that the SWA submit a
Form ETA–232 to explain the
methodology used to conduct the
prevailing wage survey. An employer
and trade association supported the
proposal, while several workers’ rights
advocacy organizations expressed
concern that the Department would only
require consideration of a prevailing
wage rate if it is approved by the
Department, and OFLC in particular,
because this could lead to the potential
rejection of a prevailing wage survey
finding submitted by a SWA.
Commenters, including two other trade
associations, added that the Department
should sanction SWAs that submit
noncompliant or invalid surveys.
After considering the comments
received in response to
§ 655.120(c)(1)(i), the Department has
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decided to retain the NPRM language
with the same minor revision related to
distinct work task(s) discussed above.45
The Department has reviewed and
approved SWA prevailing wage findings
for decades and paragraph (c)(1)(i)
reflects a continuation of this
longstanding review and approval
process, not a new requirement. See,
e.g., 1987 H–2A IFR, 52 FR 20496,
20521; ETA Handbook 385 at I–135. The
Department disagrees that a sanction is
needed, especially when the
Department has and will continue to
review prevailing wage findings
submitted by SWAs to ensure they
satisfy the Department’s methodological
requirements.
v. Section 655.120(c)(1)(ii)
The Department proposed to allow
State entities other than the SWA,
including a State agency, State college,
or State university, to independently
conduct prevailing wage surveys. This
proposal sought to encourage more
surveys conducted by reliable sources,
independent of employer or worker
influence. As the NPRM explained,
SWAs have limited capacity to conduct
surveys given other legal requirements,
including the statutory requirement to
conduct housing inspections. Other
State entities, however, may have
resources and expertise to conduct
prevailing wage surveys for purposes of
the H–2A program. Under the proposal,
a State entity other than the SWA could
choose to conduct a prevailing wage
survey using State resources without
any foreign labor certification program
funding. Alternatively, the SWA could
elect to wholly or partially fund a
survey conducted by another State
entity using funds provided by the
Department for foreign labor
certification programs.
The Department proposed to continue
to require the SWA to submit the Form
ETA–232 for any prevailing wage
survey, even if the survey was
conducted by another State entity. This
process is designed to ensure the
Department will not adjudicate
conflicting surveys in the event the
SWA identifies more than one State
prevailing wage survey that might be
used for purposes of the H–2A program.
The NPRM solicited comments on
alternate methods to address concerns
with possible conflicting surveys, and
whether there are additional neutral
sources of prevailing wage information
that the Department should use in the
H–2A program to further its effort to
45 The Department has updated Form ETA–232 to
align with the prevailing wage methodology in this
final rule.
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modernize State-conducted prevailing
wage surveys. The Department received
several comments on this proposal.
Following full consideration of these
comments, the Department has decided
to retain the proposal in this final rule
without change. The Department’s
responses to these comments are
provided below.
Use of Alternative Data Sources
A workers’ rights advocacy
organization recommended the
Department permit SWAs to determine
prevailing wages based on information
like employers’ job service listings for
similar positions and information in a
State unemployment insurance (UI)
database. The commenter explained that
a ‘‘wage survey is merely one of the
ways’’ to determine a prevailing wage
and ‘‘SWAs have a variety of real time
data available to them that is provided
by employers.’’ The commenter added
that job service staff funded by Migrant
and Seasonal Farmworker funds are
‘‘uniquely qualified’’ to assess if an
hourly or piece rate wage is consistent
with the prevailing practice in their
region. The commenter also urged the
Department to use the local wage from
the Occupational Employment and
Wage Statistics (OEWS) survey,46
formerly the Occupational Employment
Statistics survey prior to March 31,
2021, to establish prevailing wages for
crop activities paid on an hourly basis
when the SWA does not produce a
prevailing wage finding or if the
Department determines the finding
submitted does not satisfy
methodological requirements.
The Department appreciates the
suggestions from the commenter. The
Department agrees that SWAs and other
State entities may draw on UI data, job
service listings, and other sources of
State-generated information to formulate
prevailing wage surveys. For example,
SWAs may use information in their
State’s UI database as one source to help
identify the general universe of
employers to contact, so long as there is
a 20 CFR part 603 compliant agreement
for the transfer of the data. SWAs may
46 OEWS collects wage data from all 50 States as
well as the District of Columbia (DC), Puerto Rico,
Guam, and the Virgin Islands. See Bureau of Labor
Statistics (BLS), Occupational Employment and
Wage Statistics Overview, https://www.bls.gov/oes/
oes_emp.htm (last modified Mar. 31, 2021) (‘‘The
OEWS survey is a federal-state cooperative program
between [BLS] and [SWAs]. BLS provides the
procedures and technical support, draws the
sample, and produces the survey materials, while
the SWAs collect the data. SWAs from all [50
States], plus [DC], Puerto Rico, Guam, and the
Virgin Islands participate in the survey.
Occupational employment and wage rate estimates
at the national level are produced by BLS using data
from the [50 States] and [DC].’’).
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also refer to job orders and similar
information to help identify the pay
structures for certain crop or
agricultural activities to determine if
there are distinct work task(s) within
those activities before conducting a
survey. As explained in the NPRM,
prevailing wage surveys are specific to
crop and agricultural activities and
distinct tasks performed within these
activities in particular geographic areas,
as determined by SWAs. 84 FR 36168,
36185–36187. The Department has
relied on SWAs to determine prevailing
wages in the H–2A program for decades
because they are uniquely positioned to
determine the crops and activities to be
surveyed, the ideal times to conduct
surveys for various seasonal activities,
the universe of employers to be
surveyed, and the areas in which
employers operate, based on their
knowledge of prevailing local practices
and conditions, differing pay structures
for specific activities and crops, and the
movement of migratory farm labor
within the State. Based on this
knowledge of local conditions, SWAs
and other State entities can draw on
alternative sources of information as
they craft prevailing wage surveys in
accordance with the methodological
requirements in this rule.
To the extent the commenter is
suggesting that sources such as
employers’ job service listings or
information in a State UI database be
used to solely determine prevailing
wages, the Department is not able to
adopt this suggestion in this
rulemaking. Although these may be
neutral sources of wage information,
these sources are not surveys or data
collections designed to facilitate
identification of wages paid to workers
engaged in a particular activity in a
particular geographic area. As noted in
the NPRM, the Department proposed to
‘‘modernize the methodology used by
the SWAs to conduct prevailing wage
surveys’’ and ‘‘allow the SWAs and
other State agencies to conduct surveys
using standards that are more realistic.’’
84 FR 36168, 36178, 36179.47 The use
of these alternative data sources in lieu
of a State-conducted survey of wages in
47 See also e.g., 84 FR 36168, 36179
(‘‘Accordingly, the Department proposes to make
the changes discussed below to modernize the
prevailing wage methodology and empower States
to produce a greater number of reliable prevailing
wage surveys results.’’); 84 FR 36168, 36263
(prevailing wage defined as a wage rate established,
inter alia, ‘‘based on a survey conducted by a state
that meets the requirements in § 655.120(c)’’); 84 FR
36168, 36176 (proposing a corresponding change to
the Wagner-Peyser Act regulation at 20 CFR
653.501(c)(2)(i) to define ‘‘prevailing wage’’ in the
same manner for the agricultural recruitment
system as the Department proposes to define
‘‘prevailing wage’’ for the H–2A program).
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a crop or agricultural activity and
geographic area to determine prevailing
wages would require further
consideration, in part, regarding the
appropriate criteria such data sources
must meet to produce prevailing wages
in the H–2A program. Such a change to
the proposal—adding both a method of
determining prevailing wages other than
State-conducted surveys of employers as
well as the criteria for the SWA to use
in evaluating and using non-survey data
sources to determine prevailing wages—
cannot be adopted without further
consideration, including notice-andcomment rulemaking.
Similarly, the Department did not
propose to rely on an alternative nonState survey, such as the OEWS survey,
in the event a SWA or other State entity
conducts a survey but the survey does
not yield a PWD. Rather, the
Department proposed using the OEWS
survey to establish the AEWR in certain
circumstances. 84 FR 36168, 36183–
36184. Moreover, the NPRM explained
that the Department meets its obligation
to protect against adverse effect on the
wages of workers in the United States
similarly employed primarily by
requiring employers to offer, advertise,
and pay the AEWR, which is a form of
prevailing wage and under the current
wage methodology is the required wage
rate in approximately 95 percent of H–
2A applications. Id. at 36179. The
NPRM therefore clarified that the
Department is not obligated to establish
a prevailing wage separate from the
AEWR for every occupation and
agricultural activity in every State. Id.
Instead, the Department proposed to
modernize the methodology used by the
SWAs to conduct prevailing wage
surveys to serve as an additional wage
protection for workers in specific crops
and activities. Id. Adopting the
suggestion to use the OEWS survey
when there is no PWD from a Stateconducted survey would be a change
that commenters and stakeholders
generally could not have anticipated as
an outcome of the rulemaking, thus
warranting additional public notice and
opportunity for comment.
Finally, to the extent the commenter
is referring to SWA staff funded by
Wagner-Peyser Act funds when it refers
to ‘‘job service staff funded by Migrant
and Seasonal Farmworker funds,’’ the
Department agrees that SWAs are
‘‘uniquely’’ positioned to assess
differing pay structures based on their
knowledge of prevailing local practices
and conditions, as discussed above.
Private and Other Third-Party Surveys
An individual commenter mistakenly
believed the Department proposed to
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eliminate employer-provided prevailing
wage surveys, but there are no such
surveys under the H–2A program and,
as such, the NPRM did not propose their
elimination. Several trade associations,
agents, and a public policy organization
asked the Department to permit the use
of wage surveys conducted by other
third parties, including employerprovided surveys. One of these
commenters explained statistically valid
employer-provided surveys would save
Federal resources and allow for ‘‘more
accurate’’ surveys tailored to particular
areas and occupations. The commenter
stated it was irrational for the
Department to permit such surveys in
the H–2B program, but not the H–2A
program.
The Department declines to adopt the
request to allow private or employerprovided surveys. As a preliminary
matter, the Department notes that the
comment mischaracterizes the
Department’s position on the use of
employer-provided surveys in the H–2B
program. The 2015 H–2B Final Rule
permits employer-provided surveys
only in limited circumstances: (1) those
conducted by a State or State agency,
State college, or State university; (2)
those submitted for a geographic area
where the OEWS does not collect data,
or in a geographic area where the OEWS
provides an arithmetic mean only at a
national level for workers employed in
the SOC occupation; or (3) where the job
opportunity is not included in an
occupational classification of the SOC
system, or is included within a SOC
occupation designated as ‘‘all other.’’ 48
Further, only in the latter two scenarios
(i.e., (2) and (3)) would the Department
permit an employer to submit a private
wage survey for consideration.
Subsequently, Congress required the
Department to expand the types of
surveys permitted in the H–2B program
through Appropriations Act legislation
first enacted in 2015 and every year
since.49
48 See 2015 H–2B Final Rule, 80 FR 24146,
24165–24171 (Apr. 29, 2015) (discussing at length
the reasons the Department does not permit general
use of employer-provided private wage surveys);
§ 655.10(f); see also Comite de Apoyo a los
Trabajadores Agricolas (CATA) v. Perez, 774 F.3d
173, 191 (3d Cir. 2014) (directing ‘‘that private
surveys no longer be used in determining the mean
rate of wage for occupations except where an
otherwise applicable [OEWS] survey does not
provide any data for an occupation in a specific
geographical location, or where the [OEWS] survey
does not accurately represent the relevant job
classification’’).
49 See, e.g., Consolidated Appropriations Act,
2021, Public Law 116–260, div. H, tit. 1, sec. 110
(2020); Consolidated Appropriations Act, 2020,
Public Law 116–94, div. A, tit. I, sec. 110 (2019);
Consolidated Appropriations Act, 2016, Public Law
114–113, div. H, tit. I, sec. 112 (2015); see also
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Moreover, due to regulatory
differences between the H–2A and H–2B
programs, the Department believes it is
reasonable to exclude employerprovided surveys in the H–2A program
but allow them in limited circumstances
in the H–2B program. First, there is no
AEWR under the H–2B program.
Instead, the employer must offer a wage
that is at least equal to the prevailing
wage or the Federal, State, or local
minimum wage, whichever is highest.
Second, the PWD processes in the H–2A
and H–2B programs are distinct. In the
H–2B program, the prevailing wage is
determined on a case-by-case basis, in
advance of the employer’s application
filing with the OFLC NPC.50 In contrast,
prevailing wages under the H–2A
program are historically determined
using one method—SWA surveys
submitted to the OFLC Administrator—
and are applicable to all H–2A
applications for the crop or agricultural
activity in the area surveyed.51 There is
no mechanism in the H–2A program for
OFLC to evaluate wage surveys for
specific job opportunities or from
sources other than the SWA. Instead,
the SWA must submit prevailing wage
survey results to OFLC on the Form
ETA–232. This final rule continues this
requirement, even if the survey
submitted with the SWA’s Form ETA–
232 was conducted by another State
entity. Finally, given that employers are
required to pay the highest of the wage
sources listed in § 655.120(a), it seems
unlikely that an employer would submit
an alternate wage survey because the
wage finding from that survey would
impact the employer’s wage offer
requirement only if it is the highest
among the sources in § 655.120(a).
Surveys Conducted by Non-SWA State
Entities
An employer asserted that only State
agriculture agencies should conduct
surveys because SWAs and others lack
industry expertise. A trade association
opposed allowing SWAs to use surveys
conducted by other State entities
because this could create uncertainty
Effects of the 2016 Department of Labor
Appropriations Act (Dec. 29, 2015) at p. 4, https://
www.foreignlaborcert.doleta.gov/pdf/H-2B_
Prevailing_Wage_FAQs_DOL_Appropriations_
Act.pdf.
50 H–2B employers must obtain a PWD from the
National Prevailing Wage Center (NPWC) before
filing an H–2B application with the NPC. The
NPWC engages in a case-by-case analysis of the
employer’s job opportunity and several wage
sources.
51 During application review, the NPC compares
the prevailing wage for the crop or agricultural
activity and area, if available, to the other
applicable wage sources (i.e., AEWR; CBA; and
Federal and State minimum wages) to determine
the highest wage.
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and may produce wages that ‘‘fluctuate
wildly.’’ A public policy organization
stated the NPRM does not offer a
methodology to resolve conflicting
surveys or address whether State
universities may accept money from
grower associations to conduct
prevailing wage surveys. In contrast, a
commenter from academia and another
association supported the proposal in
the NPRM, with the association noting
that surveys conducted by non-SWA
State entities would ‘‘alleviate
concerns’’ over the reliability of OEWS
data for agricultural occupations and
provide a ‘‘reasonable alternative’’ to the
FLS.
The Department declines to adopt the
suggestion to limit surveys to State
agriculture agencies or SWAs. The
Department seeks to increase, rather
than limit, the number of State entities
that can conduct surveys in order to
encourage more prevailing wage
findings. The commenters’ suggestion
would conflict with this goal. Moreover,
the Department is retaining the SWA as
the entry point for other State entity
surveys in order to leverage the SWA’s
expertise in the selection of surveys to
submit for OFLC approval. In response
to the comment that the NPRM did not
offer a ‘‘methodology’’ to resolve
conflicting surveys, this final rule
clarifies that the SWA will evaluate
conflicting State surveys and submit to
the Department only one survey for a
crop or agricultural activity and distinct
work task(s) in that activity, if
applicable, for a particular area.
With regard to the comment on
whether State universities could accept
money from grower associations to
conduct a survey, the Department
understands this comment to be
concerned with the impartiality of Stateconducted surveys. As noted in the
2015 H–2B Final Rule, the Department
has a long history of partnering with
States to collect wage data and
determine prevailing wage rates. See 80
FR 24146, 24170. The Department
accepts surveys conducted by State
entities, such as State agriculture
agencies and universities, because these
sources are considered reliable and
independent of employer influence. Id.
The requirement that the State must
independently conduct the survey
means that the State must design and
implement the survey without regard to
the interest of any employer in the
outcome of the wage reported from the
survey. Id. In addition, the Department
does not believe wages will vary
significantly depending on the State
entity that conducts the survey. This is
because entities will be held to the same
methodological standards, and OFLC
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will review prevailing wage findings
prior to the issuance of any prevailing
wage rate to ensure the survey meets
methodological requirements.
vi. Section 655.120(c)(1)(iii)
The Department proposed that a
prevailing wage survey must cover a
distinct work task or tasks performed in
a single crop activity or agricultural
activity. The Department explained the
concept of distinct work tasks is
continued from ETA Handbook 385,
which provides:
Some crop activities involve a number of
separate and distinct operations. Thus, in
harvesting tomatoes, some workers pick the
tomatoes and place them in containers while
others load the containers into trucks or
other conveyances. Separate wage rates are
usually paid for individual operations or
combinations of operations. For the purposes
of this report, each operation or job related
to a specific crop activity for which a
separate wage rate is paid should be
identified and listed separately.
ETA Handbook 385 at I–113
(emphasis in original). The NPRM stated
‘‘[t]he distinct task requirement means
that even within a single crop, distinct
work tasks that are compensated
differently (e.g., picking and packing)
would be required to be surveyed in a
manner that produces separate wage
results.’’ 84 FR 36168, 36186.
The Department received several
comments on this proposal. Some trade
associations asked the Department to
clarify what constitutes a distinct work
task within a crop or agricultural
activity so employers can provide more
accurate and reliable wage data. A
workers’ rights advocacy organization
stated that it would be difficult for
SWAs to determine which activities are
paid differently until after the survey is
complete. One trade association
opposed the determination of wage rates
by tasks because it believed doing so
could negatively affect smaller
operations and expose employers to
liability.
After careful consideration of the
comments, the Department has decided
to retain the proposal in this final rule
with clarification in this section of the
preamble and a minor change to the
regulatory text. In particular, the
Department clarifies that if the SWA or
surveyor knows before the
administration of a survey that separate
wage rates are paid to a distinct work
task or tasks within a crop or
agricultural activity, then the survey
must be designed to capture that unique
task(s) and wage rate(s). This knowledge
could come from different sources,
including prior experience or
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stakeholder engagement during the
survey development phase.
The Department also clarifies that a
SWA or surveyor may determine that a
task or tasks within a crop or
agricultural activity is paid differently
during or after the survey
administration period. For example, a
survey form could ask employers to list
the crop activity—including distinct
work task(s) within each activity—
associated with each unique wage rate.
The survey could also provide a space
for employers to furnish additional
information on factors that may affect
wage rates. Depending on the responses
from employers (if any), the SWA or
surveyor may determine there are
distinct work task(s) within an activity
and that it therefore must calculate a
separate wage rate for this task or tasks.
The Department’s above clarifications
allow SWAs to retain discretion over
which crop and agricultural activities to
survey and the methods for collecting
data from employers—as is the case
under current standard practice—while
fulfilling the requirements of this
provision. Finally, consistent with
current practice and language in the
Handbook, the Department has revised
the regulatory text for this provision to
clarify that the survey must cover work
performed in a single crop or
agricultural activity and, if applicable, a
distinct work task(s) performed in that
activity. This change recognizes that not
every crop activity or agricultural
activity will have a distinct work task or
tasks and thus not every survey will
cover such task or tasks.52
In response to the trade associations’
request for clarification, the concept of
distinct work tasks is not new, but
rather a continuation from ETA
Handbook 385. As noted in the
Handbook, the hallmark of a distinct
work task performed in a crop or
agricultural activity is a separate wage
rate that is paid for that operation or job.
Given the factors that may affect wage
rates, the Department is unable to
provide an exhaustive list of tasks for all
crop or agricultural activities in all
geographic areas. Instead, what
constitutes a distinct work task must be
determined in each case, depending on
the information before the SWA or other
State surveyor.
The Department acknowledges the
workers’ rights advocacy organization’s
comment that SWAs may not know if
activities are paid differently until after
the completion of a survey. As clarified
above, a SWA or surveyor may
52 See ETA Handbook 385 at I–113 (‘‘Some crop
activities involve a number of separate and distinct
operations.’’) (emphasis added).
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determine a distinct work task or tasks
performed within a crop or agricultural
activity is paid differently during or
after the survey administration period.
The Department believes this
clarification addresses the workers’
rights advocacy organization’s comment
and notes SWA commenters did not
express concern that determining the
distinct work tasks to be covered by a
survey has been challenging under the
Handbook or will be challenging under
the similar provision proposed in the
NPRM. Finally, the trade association did
not explain how the proposal would
adversely affect smaller operations,
though it claimed that smaller
operations rely on fewer workers to
perform a more diverse array of tasks.
As explained above, the concept of a
distinct work task is a continuation from
ETA Handbook 385. The Department is
not aware of instances where employers
have been exposed to liability related to
this concept in the decades that
prevailing wage surveys have been
conducted using the Handbook and
related guidance. In addition, because a
separate wage rate is the hallmark of a
distinct work task, an applicable
employer—regardless of size—must pay
this rate if it is approved by OFLC as the
prevailing wage and is the highest of the
applicable wage sources in § 655.120(a).
vii. Section 655.120(c)(1)(iv)
The Department proposed that the
surveyor must make a reasonable, good
faith effort to contact all employers who
employ workers in the crop or
agricultural activity and geographic area
surveyed or conduct a randomized
sampling of such employers. The NPRM
explained this requirement is based on
general statistical principles and
consistent with ETA Handbook 385. 84
FR 36168, 36186 (citing ETA Handbook
385 at I–114). The NPRM proposed to
continue the use of a random sample
and clarified that a random sample or
survey of the entire population is a
requirement, not a recommendation. It
noted this requirement is consistent
with the H–2B prevailing wage
regulation at § 655.10 and current H–2B
prevailing wage guidance interpreting
the H–2B appropriations riders. The
Department received two general sets of
comments on this proposal. Having
carefully considered these comments,
the Department has decided to adopt the
regulatory text proposed in the NPRM,
with some revisions.
The first set of comments addressed
the requirement to contact all employers
in the area or a random sample of such
employers. A workers’ rights advocacy
organization asserted that contacting all
employers of workers in a particular
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crop or agricultural activity would be
impossible for States operating with
limited resources because no ready
database of this information exists. The
commenter asked the Department to
clarify what would constitute a
‘‘reasonable’’ attempt to contact all
employers in the universe and stated it
would be clearer to ask the States to
perform a random sample of employers
of which they have knowledge, rather
than a sample of all ‘‘such employers.’’
The commenter also suggested the
regulations allow States to propose an
alternative sampling method that aligns
with the conditions and resources in
that State. An agent claimed that
allowing a reasonable, good faith
attempt to contact all employers to
substitute for statistically valid
sampling ‘‘severely limits’’ the validity
of resulting wages. A trade association
stated it did not oppose the use of
random samples if the survey produces
reliable, statistically valid data and
wages are not separated by task or
otherwise discriminates against smaller
operations.
The Department agrees with the
workers’ rights advocacy organization
that the surveyor may not know the
universe of all relevant employers at the
beginning of a survey. This final rule
therefore clarifies that the surveyor may
estimate the universe of relevant
employers and make a reasonable, good
faith effort to contact these employers
based on the estimated universe. This
final rule also clarifies that under the
random sample option, the surveyor
must, at a minimum, estimate the
universe of relevant employers and
workers and then randomly select a
sufficient number of employers from the
estimated universe to contact in order to
satisfy the minimum employer and
worker sample size requirements. These
minimum requirements or ‘‘baseline
standards’’ are discussed in the
preamble to § 655.120(c)(1)(vii) through
(ix). The Department’s interpretation of
the random sample option is consistent
with its interpretation of a similar
requirement for employer-provided
surveys in the H–2B program.53
The NPRM proposed that a survey
must include the wages of U.S. workers
employed by at least five employers,
among other baseline standards. As
explained in the preamble discussing
§ 655.120(c)(1)(vii) through (ix), it is the
53 See, e.g., 2015 H–2B Final Rule, 80 FR 24146,
24173 (‘‘Proper randomization requires the surveyor
to determine the appropriate ‘universe’ of
employers to be surveyed before beginning the
survey and to select randomly a sufficient number
of employers to survey to meet the minimum
criteria on the number of employers and workers
who must be sampled.’’).
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Department’s understanding that some
crop or agricultural activities and
distinct work task(s) in a geographic
region may have a smaller number of
employers. The Department made
changes to § 655.120(c)(1)(vii) through
(ix) so that States may still determine a
prevailing wage in such a situation.
Consistent with those changes, the
Department amends this provision to
clarify that if the estimated universe of
employers is fewer than five, the
surveyor must contact all employers in
the estimated universe, instead of
contacting a random sample or making
a reasonable, good faith attempt to
contact such employers. This final rule
adds two clarifying edits: first, to
replace ‘‘conducted’’ with ‘‘contacted’’
in regard to a randomized sample for
consistency with the language in other
parts of the provision, namely the
‘‘contact all relevant employers’’ option,
and with the purpose of this provision,
which is to set forth how the surveyor
should contact employers in the
estimated universe. Second, this final
rule amends the regulatory text to
clarify that the estimated universe is for
a crop activity or agricultural activity
and, if applicable, a distinct work task
or tasks within that activity. This
clarification recognizes there may be a
PWD for a distinct work task or tasks
within a crop activity or agricultural
activity in certain situations, and is
consistent with changes to other
portions of § 655.120(c) in this final
rule.
Consistent with SWAs’ current
practice, the surveyor may estimate the
universe of relevant employers from
information obtained from sources such
as UI databases, open and closed job
orders, State labor market information,
and information provided by State
agricultural extension offices. The
surveyor has the option to conduct a
statistically valid sampling or stratified
random sampling by employer size.
However, the Department is not
requiring enhanced sampling methods.
Though the minimum standards in this
final rule may not return statistically
valid results in all cases due to the
reduced sample size requirements,54 the
Department believes that the
requirements in this provision, along
with other safeguards in § 655.120(c),
will allow for the increased availability
of State-specific data and crop/task
categorical granularity, and are aimed at
ensuring surveys that are sufficiently
54 As noted further below, the sample size
requirements in this final rule are consistent with
or exceed the OEWS survey requirements as well
as the ‘‘safety zone’’ standards used by the DOJ and
Federal Trade Commission (FTC) in the anti-trust
context.
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representative and do not rely on
selective sampling or other techniques
that may produce wage estimates that
are not representative of wages paid to
workers in the United States similarly
employed. In addition, these minimum
standards are intended to provide more
options for SWAs to make decisions
about whether to prioritize precision,
accuracy, granularity, or other quality
factors in the data they use to inform
prevailing wages. The Department will
provide technical assistance to the
SWAs, as needed.
In response to the suggestion to allow
an alternative sampling method, the
Department concludes that this final
rule balances the need to provide the
surveyor with the flexibility to
determine the type of survey to conduct
with the need to ensure the results of
the survey are as reliable as possible.
The Department does not believe there
is a reasonable alternative sampling
method that consistently balances these
goals, and the commenter did not
suggest any.
With regard to requests for
clarification on what constitutes a
‘‘reasonable’’ attempt to contact relevant
employers, the NPRM explained that a
reasonable, good faith effort might mean
the surveyor sends the survey through
the mail or other appropriate means to
all employers in the geographic area and
then follows up by telephone with all
non-respondents. 84 FR 36168, 36186;
see also 2015 H–2B Final Rule, 80 FR
24146, 24173. However, a surveyor can
make a ‘‘reasonable, good faith’’ attempt
to contact relevant employers in other
ways and the Department believes an
assessment of reasonable contact
methods will be determined most
effectively on a case-by-case basis,
depending on the facts before the OFLC
Administrator. The Department
disagrees with the agent’s comment that
allowing a reasonable, good faith
attempt to contact all employers
‘‘severely limits’’ the validity of the
resulting wage. Surveys often are based
on samples from a population and are
not ‘‘severely limited’’ merely because
the surveyor did not contact the entire
population. Rather, the validity of a
survey will depend on factors such as
the number of responses received. As
mentioned above, the minimum
standards in § 655.120(c) are aimed at
ensuring surveys that are sufficiently
representative and do not rely on
selecting sampling or other techniques
that result in biased prevailing wages.
The second set of comments
addressed the perceived elimination of
the in-person interview requirement.
Specifically, commenters, including two
trade associations, claimed that in-
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person interviews of employers and
employees are needed to obtain and
verify accurate wage data. A workers’
rights advocacy organization stated inperson interviews of workers are likely
necessary for reforestation and pine
straw work. In contrast, another
workers’ rights advocacy organization
and a commenter from academia agreed
that in-person interviews are no longer
practical.
In response to comments that inperson employer and employee
interviews are necessary, the
Department notes, as it explained in the
NPRM, that in-person interviews are
unnecessarily burdensome and
inconsistent with modern survey
methods. 84 FR 36168, 36179, 36185.
Neither the FLS nor OEWS survey
requires in-person interviews of
employers as the primary collection
method. Both the FLS and OEWS
survey, moreover, rely solely on
employer-reported data and do not
canvass workers directly. The
Department’s current standard practice
for conducting prevailing wage surveys
does not require SWAs to interview
employers in person.55 The commenters
did not explain why telephone, mail, or
electronic methods of contacting
employers are insufficient to collect
verifiably accurate results. The
Department’s current standard practice
also does not require SWAs to conduct
worker interviews.56 Therefore under
this final rule, SWAs are not obligated
to conduct in-person interviews of
employers or worker interviews.
Finally, because reforestation and pine
straw workers are not covered in the H–
2A program under this final rule, the
workers’ rights advocacy organization’s
comment that in-person interviews may
be required for these industries is no
longer applicable.
viii. Section 655.120(c)(1)(v)
The NPRM proposed to limit
prevailing wage surveys to the wages of
U.S. workers. It also proposed to require
the SWA or other State entity to
determine prevailing wages based on
the unit of pay used to compensate at
least 50 percent of the U.S. workers
included in the survey and that the rate
of pay must be based on the average
wage of all the U.S. workers within the
selected unit of pay. This final rule
adopts these provisions with changes,
explained below.
55 This practice is based on public guidance
issued by the Department to SWAs that amended
the guidance in ETA Handbook 385. See, e.g., TEGL
No. 21–20, Fiscal Year (FY) 2021 Foreign Labor
Certification Grant Planning Guidance (May 10,
2021).
56 See id.
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Limiting the Survey to the Wages of U.S.
Workers
Limiting prevailing wage surveys to
the wages of U.S. workers applies to
both determining the universe of
workers’ wages to be sampled and the
universe of workers’ wages reported.
The NPRM explained that this
limitation is consistent with current
policy 57 and reflects the Department’s
longstanding concern that including the
wages of non-U.S. workers may depress
wages.
Several trade associations and an
agent urged the Department not to limit
survey responses to the wages of U.S.
workers because of the potential legal
implications for employers, including
that employers may not know whether
workers are undocumented. These
commenters and others also opposed
the proposal on the basis that the
Department does not similarly exclude
from survey responses the wages paid to
H–2A workers and workers in
corresponding employment, which the
commenters claim may inflate or skew
the prevailing wage. Another trade
association suggested the inclusion of
non-U.S. workers would allow the
Department to determine whether
foreign workers are adversely affecting
the wages of U.S. workers. An employer
and trade association requested the
Department add a provision that would
make H–2A workers part of the
prevailing wage survey if more than 10
percent of the agricultural workforce in
a State is composed of H–2A workers or
workers in corresponding employment.
After careful consideration of the
comments, the Department has decided
to adopt the proposal to limit the survey
to U.S. workers. This final rule clarifies
that ‘‘determining the universe of
workers’ wages to be sampled’’ means
the survey instrument must ask
employers to report the wages of U.S.
workers only.
As explained above and in the NPRM,
this survey limitation is a continuation
of the Department’s current policy.
Employers already have experience
verifying worker eligibility prior to
employment, and they have the
obligation to continue to do so.
Moreover, the Department is not aware
of cases where employers have been
exposed to liability based on the wages
they have provided in response to SWA
survey requests. Survey results should
exclude the wages of H–2A workers, but
57 The NPRM noted that ETA Handbook 385 uses
the terms ‘‘domestic workers’’ and ‘‘U.S. workers’’
in describing the sample to be conducted, and the
previous version of the Form ETA–232 similarly
limits the survey to U.S. workers. 84 FR 36168,
36186 n. 50.
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should include the wages of U.S.
workers in the crop activity or
agricultural activity and distinct work
task(s), if applicable, and geographic
area. As noted above, the prevailing
wage rate is intended to reflect the
average wage of U.S. workers in a
geographic area and a given crop or
agricultural activity and, if applicable,
distinct work task(s) within that
activity. If prevailing wage surveys
determine employers are paying a
certain average rate for an activity or
distinct task(s) in an area and the
Department validates this finding, then
that rate is the prevailing wage rate and
must be paid to applicable workers
when it is the highest of available wages
sources listed in § 655.120(a).
The Department declines to adopt the
suggestion to include the wages of nonU.S. workers in a survey, or include the
wages of H–2A workers in surveys when
they are concentrated in an area,
because it is contrary to the purpose of
prevailing wage rates, which are
intended to reflect the wage paid to U.S.
workers in a given crop or agricultural
activity and geographic area. As
explained in the NPRM, limiting the
survey to U.S. workers reflects the
Department’s longstanding concern that
including the wages of non-U.S. workers
in a prevailing wage finding may
depress wages. 84 FR 36168, 36186. To
the extent U.S. workers in
corresponding employment are covered
by a prevailing wage survey, the
Department concludes that the survey
will sufficiently represent the wages
paid by that employer to its H–2A
workers as well. This is because H–2A
employers must offer to U.S. workers no
less than the same benefits, wages, and
working conditions the employer is
offering, intends to offer, or will provide
to their H–2A workers. See § 655.122(a).
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Unit of Pay Determinations
The NPRM proposed that a prevailing
wage be issued only if a single unit of
pay is used to compensate at least 50
percent of the U.S. workers included in
the survey, similar to the current
requirement in ETA Handbook 385.58
The Department proposed this
requirement both to verify that the rate
structure reflected in the survey is
actually prevailing and to allow the
wages included in the survey to be
averaged, as it would not be possible to
average wages using different units of
measurement.
58 ETA Handbook 385 at I–117 (noting that, if a
survey includes more than one unit of pay, a
prevailing wage rate is issued based on the unit of
pay that represents the largest number of workers).
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A trade association expressed support
for this proposal. A workers’ rights
advocacy organization requested the
Department revise the regulatory text to
clarify that the survey must report the
unit of pay used to compensate at least
50 percent of the workers represented in
the survey responses, not 50 percent of
all workers in the estimated survey
universe.
This final rule adopts the NPRM
proposal with changes to the regulatory
text in response to the above comments
and after the Department’s own further
consideration. First, the Department has
revised the provision to require the
PWD to be based on the unit of pay used
to compensate the largest number of
workers, rather than ‘‘at least 50 percent
of the workers,’’ which is consistent
with the current unit of pay provision
in the Handbook. The Department made
this change in this final rule because the
proposed ‘‘50 percent of U.S. workers’’
would impose a requirement that is
more stringent than the language in the
Handbook for crop or agricultural
activities involving several units of pay
(e.g., per hour, per pound with no
bonus, per pound with a bonus). While
uncommon, the Department
acknowledges there are instances where
the survey results reflect more than two
units of pay for a crop or agricultural
activity and distinct work task(s) in that
activity, if applicable. In such
situations, there will be at least one unit
of pay that is paid to the ‘‘largest
number of workers’’ whose wages are
reported in the survey, but it is possible
that no single unit of pay will account
for ‘‘at least 50 percent’’ of such
workers. Because the unit of pay that is
paid to the largest number of workers in
the survey can be considered prevailing,
the Department believes this proposed
change better aligns with its goal of
encouraging more prevailing wage
surveys through the adoption of
standards that are as reliable as possible,
while also accounting for the realities of
a modern budget environment.
The Department made some minor
revisions to the regulatory text for
clarity and conformity with other
provisions. The Department added
‘‘U.S.’’ before ‘‘workers’’ in the
regulatory text for clarification and
consistency with the requirement that
prevailing wage surveys include only
wages of U.S. workers. The Department
also changed the phrase from ‘‘whose
wages are surveyed’’ to ‘‘whose wages
are reported in the survey,’’ to address
the workers’ rights advocacy
organization’s request that the
Department clarify that this language
refers to survey responses received.
Finally, the Department added the
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language ‘‘and distinct work task(s), if
applicable’’ after ‘‘crop activity or
agricultural activity,’’ for clarity and
consistency with other changes to the
regulatory text in § 655.120(c). As
applied to this provision, this change
clarifies that if the surveyor determines
that a task (or tasks) within a crop or
agricultural activity is paid differently
(i.e., there is a distinct work task or tasks
within the activity), then the survey
should report the average wage of U.S.
workers in that distinct work task(s).
Rate of Pay Determinations
The NPRM proposed that the survey
must report the average wage of all
workers within the prevailing unit of
pay, which departed from the current
requirement in ETA Handbook 385 to
use a ‘‘40 percent rule’’ and a ‘‘51
percent rule’’ to determine the
prevailing rate of pay. The NPRM
proposed using the average wage
because it is consistent with the method
the Department proposed to determine
the AEWR, as well as the current
methodology for determining prevailing
wage rates in the H–2B program. The
NPRM solicited comments on the
proposal, as well as possible
alternatives, including whether the
Department should retain the ‘‘40
percent rule’’ or ‘‘51 percent rule’’ from
the Handbook or whether the
Department should, instead, establish
the prevailing wage at the median wage
based on wages in the prevailing unit of
pay.
An employer, a SWA, and several
trade associations urged the Department
to use the median wage rather than the
average wage on the basis that the
former lessens the impact of outliers. A
trade association recommended
retaining the 40 percent and 51 percent
rules without additional explanation. A
SWA supported replacing the 40 and 51
percent rules with this proposal as a
way to simplify the methodology for
determining the prevailing wage rate
and potentially reduce confusion among
stakeholders regarding how the
prevailing wage is determined, but it
asked for clarification on whether the
SWA must collect ‘‘piece rate
dimensions (i.e., specific linear
dimensions of apple bins).’’
After consideration of these
comments, the Department has decided
to adopt the NPRM proposal to use the
average or mean wage. As explained in
the 2015 H–2B Final Rule, the mean is
the appropriate wage to use to avoid
immigration-induced labor market
distortions.59 The mean is the arithmetic
59 See 80 FR 24146, 24159–24160; see also
Interim Final Rule, Wage Methodology for the
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average of all wages surveyed in a crop
or agricultural activity—and distinct
work task(s) within that activity, if
applicable—in the geographic area. If
the applicable prevailing wage is set
below the mean, it could result in a
depressive effect on U.S. workers’ wages
overall because the average wage of U.S.
workers in the relevant activity or
task(s) would be drawn down. See 2015
H–2B Final Rule, 80 FR 24146, 24159–
24160. Use of the mean is also
consistent with the Department’s
determination of prevailing wages for
other foreign worker programs. See 20
CFR 655.10(b)(2), (f)(2) (setting the
prevailing wage in the H–2B program at
the mean for the OEWS and employerprovided surveys); see also 20 CFR
656.40(b)(2) (similar for PERM); 20 CFR
655.731(a)(2)(ii) (similar for H–1B); 20
CFR 655.410(b)(1) (similar for CW–1).
Finally, this final rule clarifies that it
may be appropriate to collect piece rate
dimensions in some situations, such as
when the unit of measurement of a
piece is not standardized and can have
differing dimensions. However, these
determinations should be made on a
case-by-case basis by the SWA or State
entity conducting the survey. If
necessary, the Department will provide
technical assistance to the SWAs.
Other Comments on § 655.120(c)(1)(v)
Several trade associations and an
agent opposed the ‘‘50 percent of U.S.
workers’’ proposal because they
believed it would impose an unrealistic
wage level on employers as piece rate
work may be converted to hourly
compensation. They urged the
Department, without additional
explanation, to establish piece rate and
hourly wages separately to avoid piece
rate compensation for those who are
most productive from inflating hourly
wages. An employer and another trade
association claimed that piece rates are
effectively ‘‘double counted’’ when they
are incorporated into the calculations of
both the AEWR hourly rate and
prevailing piece rates.
The commenters’ specific concern
regarding the conversion of units of pay
is unclear. Under the Department’s
approach, a prevailing wage is issued
when a unit of pay is used to
compensate the largest number of U.S.
workers in the survey, assuming the
survey meets other applicable
requirements. For example, if 75 percent
of U.S. workers included in the survey
results are paid hourly, OFLC would
issue an hourly prevailing wage rate for
Temporary Non-Agricultural Employment H–2B
Program, Part 2, 78 FR 24047, 24058 (Apr. 24,
2013).
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that activity. If those workers were paid,
instead, by the piece based on the same
unit of measurement (e.g., bushel),
OFLC would issue a prevailing wage
based on a piece rate. As such, in
calculating a prevailing wage, OFLC
would not convert one unit of pay to
another (e.g., converting piece rates to
hourly rates) because the ‘‘largest
number of workers’’ standard must be
for the same unit of pay.
The Department declines to adopt the
suggestion to establish separate piece
rate and hourly wages because a wage
rate based on one unit of pay can be
prevailing for a crop or agricultural
activity and distinct work task(s), if
applicable, in the relevant geographic
area even if there are other units of
pay.60 Establishing both a prevailing
hourly rate and piece rate for an activity
or task(s) in every instance would be at
odds with the Department’s current
regulations and guidance under ETA
Handbook 385. However, there could be
a situation in which there are different
units of pay, each one accounting for an
equal number of U.S. workers whose
wages are reported in the survey.
Should this rare situation occur and the
survey meets other applicable
requirements, a separate prevailing rate
would be determined for each unit of
payment. This clarification is consistent
with the guidance in ETA Handbook
385. See ETA Handbook 385 at I–117.
To the extent commenters are
suggesting that piece rates, as incentive
pay, not be included in the calculations
of the AEWR, the Department declined
to adopt this suggestion in the 2020 H–
2A AEWR Final Rule. As that rule
explains, some agricultural jobs
guarantee only the State or Federal
minimum wage and otherwise pay
based on a piece rate; advertising an
hourly wage that does not include
‘‘incentive pay’’ is not a reasonable
‘‘base rate’’ for H–2A employers to
advertise to U.S. workers.61
Finally, some comments stated
prevailing wage surveys should account
60 See ETA Handbook 385 at I–117 (guidance on
determining the prevailing wage rate when there is
more than one unit of payment). Moreover,
§ 653.501(c)(2)(i) of the Wagner-Peyser Act
regulation states that ‘‘[i]f the wages offered are
expressed as piece rates . . . [the Employment
Service staff] must check if the employer’s
calculation of the estimated hourly wage rate is . . .
not less than the prevailing wage rate.’’ This
provision covers clearance of both H–2A and nonH–2A agricultural job orders and requires the SWA
to ensure that wages offered by an employer are not
less than the higher of several wage sources, as
applicable. By explicitly referencing different units
of pay, this regulation recognizes that the prevailing
wage rate may not be in the unit of payment that
the employer offers in its job order.
61 2020 H–2A AEWR Final Rule, 85 FR 70445,
70463; see also 2021 H–2A AEWR NPRM, 86 FR
68174, 68182.
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for the fact that H–2A employers pay
expenses not borne by non-H–2A
employers, such as housing,
transportation, visa costs, and
subsistence. The Department does not
agree. Prevailing wage surveys measure
the wage rates paid to U.S. workers, not
wage rates paid to H–2A workers or
total labor costs employers may incur to
ensure workers are available when and
where needed to perform the labor or
services an employer requires. As such,
adopting the commenters’ suggestion
would be inconsistent with the purpose
of the prevailing wage and may, instead,
depress the wages of workers in the
United States similarly employed.
ix. Section 655.120(c)(1)(vi)
The Department proposed that a
prevailing wage survey cover an
appropriate geographic area based on (1)
available resources to conduct the
survey; (2) the size of the agricultural
population covered by the survey; and
(3) any different wage structures in the
crop or agricultural activity within the
State. The Department stated in the
NPRM that it intended to codify existing
practice in which OFLC receives
prevailing wage surveys of State, subState, and regional geographic areas
based on the factors listed above. The
NPRM solicited comments on whether
the Department should consider other
factors in determining the appropriate
geographic area for prevailing wage
surveys.
A workers’ rights advocacy
organization requested the Department
clarify what would constitute an
appropriate area to survey, including an
explanation of the relevance of the ‘‘size
of the agricultural population’’ and how
it factors in these determinations. The
commenter claimed that, in practice,
prevailing wages are calculated by
SWAs within the boundaries of their
respective States because they do not
have the capacity or authority to survey
across State lines. The commenter also
asserted that SWAs appear to rely on
agricultural reporting areas, as the term
is used in ETA Handbook 385, and
suggested the Department codify the
asserted reliance on agricultural
reporting areas rather than the AIE. An
agent expressed concern that the
provision would permit SWAs to survey
‘‘truncated’’ areas based on resource
constraints alone.
After careful consideration of the
above comments, the Department has
decided to retain the provision as
proposed. As noted in the NPRM, the
Department intends for this provision to
codify existing practice, which allows
for surveys based on State, sub-State,
and, in some cases, regional areas.
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SWAs currently rely on modernized
agricultural wage reporting areas that
are consistent with principles in ETA
Handbook 385. This geographic area
does not necessarily coincide with the
AIE.62
In completing the updated Form
ETA–232, the SWA must explain how
the surveyor determined the geographic
area to survey. This final rule lists
factors that guide this selection, namely
available resources, the size of the
agricultural population covered by the
survey, and different wage structures in
the crop or agricultural activity within
the State. To use the ‘‘size of the
agricultural population’’ as an example,
this factor may affect the scope of the
surveyed area because of the need for
sufficient survey responses. A surveyor
may undertake a survey in one selected
area that yields an insufficient response.
In such cases, the surveyor can decide
to increase the survey area and either
make a reasonable, good faith effort to
contact all employers employing
workers in the crop or agricultural
activity in the expanded area, or contact
a new, randomly selected sample of
such employers in the expanded area.
In response to the agent’s comment,
the Department disagrees that this
provision would permit SWAs to survey
‘‘truncated’’ areas based only on
available resources. First, the
commenter did not explain what
constitutes a ‘‘truncated’’ area. Current
practice, as noted above, permits a SWA
to survey areas of different sizes based
on considerations such as available
resources.63 Second, this provision does
not permit a surveyor to base its
selection of the geographic area on only
one factor. Instead, the surveyor must
consider all three factors enumerated in
the provision. Third, the Department
will continue to review and approve
SWA survey plans under this final rule,
and the Department can work with
SWAs to accommodate resource
considerations while ensuring planned
surveys are as reliable as possible.
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x. Section 655.120(c)(1)(vii) Through
(ix)
The Department proposed that the
survey must include the wages of at
least 30 U.S. workers and five
employers, and the wages paid by a
single employer must represent no more
than 25 percent of the wages included
62 See 84 FR 36168, 36187 (NPRM noting that
while prevailing wages in the H–2B program are
generally set based on the AIE, H–2A prevailing
wage rates are generally set based on a larger
geographic area).
63 See also TEGL No. 21–20, Fiscal Year (FY)
2021 Foreign Labor Certification Grant Planning
Guidance, at III–10 (May 10, 2021).
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in the survey. The NPRM stated the 30worker standard is consistent with
minimum reporting numbers for the
OEWS and requirements for H–2B
PWDs.64 The requirement to include
wage data from at least five employers
is a change from ETA Handbook 385,
which does not have a minimum
number of employers that must be
included in the survey. The fiveemployer standard also exceeds the
number of employers (three) required to
establish prevailing wage rates under
the H–2B program. As explained in the
NPRM, prevailing wages in the H–2B
program based on the OEWS are
generally set based on the local AIE, but
H–2A prevailing wages are typically
determined based on a larger geographic
area, and this difference in geographic
area makes a higher number of employer
responses appropriate for the H–2A
program. Id.
The Department also proposed that
the wages paid by a single employer
represent no more than 25 percent of the
sampled wages so that the prevailing
wage is not unduly impacted by the
wages of a dominant employer. The
NPRM stated the five-employer and 25
percent dominance standards are
consistent with the ‘‘safety zone’’
standards for exchanges of employer
wage information established by the
Department of Justice (DOJ) and Federal
Trade Commission (FTC) in the antitrust
context. Specifically, absent
extraordinary circumstances, DOJ or
FTC will not challenge as a violation of
antitrust law the exchange of
information regarding employer wages
that meet the requirements for the safety
zone. Although created for a different
purpose, the safety zone standards
establish levels at which the DOJ and
FTC determined an exchange of wage
information is sufficiently anonymized
to prevent the wages of a single
employer from being identified because
the reported wage results too closely
track the wages paid by that employer.
The NPRM explained it is the
Department’s preliminary conclusion
that safety zone standards are consistent
with the Department’s aim of requiring
that the wages reported from a
prevailing wage survey be sufficiently
representative and that the wages of a
single employer not drive the wage
result. The Department solicited
comments on the proposed
requirements in § 655.120(c)(1)(vii)
through (ix), including whether the
64 84 FR 36168, 36187 (noting BLS requires wage
information from a minimum of 30 workers before
it deems data of sufficient quality to publish on its
website); § 655.10(f)(4)(ii) (employer-provided
surveys for the H–2B program must include wage
data from at least 30 workers and three employers).
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proposed sample size requirements, and
any recommended alternative
requirements, should apply to the
survey, overall, or to the prevailing unit
of pay. The Department also sought
comment on the proposed statistical
standards and any alternate standards
that might be used to meet the
Department’s goals of establishing
prevailing wage rates that are as reliable
as possible but still consistent with the
realities of a modern budget
environment. After full consideration of
the comments, the Department is
adopting the proposals in
§ 655.120(c)(1)(vii) through (ix) with
amendments to the regulatory text, as
explained below.
Several commenters representing
employers, agents, and trade
associations expressed concern that the
sample size requirements were too small
to be representative. For example, a
trade association said 30 workers from
five employers could set the prevailing
wage for ‘‘possibly thousands of workers
and hundreds of employers’’ and urged
the Department to expand the
thresholds to ‘‘a reasonable percentage
of workers and employers,’’ without
explanation of what might constitute a
reasonable percentage. Similarly, an
agent urged the Department to consider
a broader sample size while another
association recommended the use of a
statistically valid sample size, claiming
the ‘‘breadth and scope of agricultural
employment’’ exceeds the scope of
PWDs under the H–2B program. In
contrast, a commenter from academia
and a SWA supported smaller sample
sizes as a way to produce more PWDs.
The SWA also believed it would
eliminate the SWA’s responsibility to
estimate the universe of employers and
workers. A State agency association
asserted, without additional
explanation, that requiring specific
minimum response rates should
increase the validity of surveys.
The Department does not agree with
comments that claimed larger minimum
sample sizes are necessary to produce
accurate and representative PWDs. No
commenter asserted that the Handbook’s
much larger sample sizes were
necessary, and no commenter proposed
an alternative required worker or
employer sample size that would be
necessary to produce a reliable survey.
The NPRM explained that the proposed
sample size requirements were
consistent with the OEWS survey
requirements, as well as the ‘‘safety
zone’’ standards used by the DOJ and
FTC in the anti-trust context, points that
no commenter specifically refuted. As
stated in the NPRM, the Department has
used a baseline of three employers and
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30 workers for employer-provided wage
surveys in the H–2B program since the
2015 H–2B Final Rule (80 FR 24146). In
recognition that H–2A prevailing wage
rates are generally set based on a larger
geographic area than prevailing wages
in the H–2B program, the Department
proposed to increase the number of
employer responses from three under
the H–2B program to five under the H–
2A program. The Department also
proposed the 25 percent standard as an
additional safeguard to ensure
prevailing wages are as reliable as
possible. With regard to the SWA’s
comment, the surveyor must still
estimate the universe of relevant
employers and workers under this final
rule, as discussed in the preamble to
§ 655.120(c)(1)(iv).
A workers’ rights advocacy
organization stated it may be difficult
for SWAs to meet the minimum
thresholds for survey areas that are
smaller than the State level due to high
employer non-response rates. Another
workers’ rights advocacy organization
said random sampling of reforestation
and pine straw workers may be difficult
because such workers are hard to reach,
lists of relevant employers or
contractors are likely unavailable, and
employers are often reluctant to respond
to surveys. As explained elsewhere in
the preamble, the Department has
declined to adopt the proposal to
expand the definition of ‘‘agricultural
labor or services’’ under § 655.103(c) to
include reforestation and pine straw
activities. The comment related to
surveys of forestry worker wages is
therefore no longer applicable.
Moreover, the area surveyed may need
to be expanded if the surveyor is not
able to obtain wage results for at least
five employers and 30 workers. If the
estimated universe is less than five
employers or 30 workers, a surveyor
may use the alternative option described
below or expand the area surveyed as
needed.
The Department solicited, but did not
receive, comments on whether the
baseline standards should apply to
responses received for the survey
overall or the prevailing unit of pay.
However, after due consideration, the
Department has decided to clarify that
the baseline standards apply to survey
responses received for the unit of pay
that is used to compensate the largest
number of workers whose wages are
reported in the survey. Because the
prevailing wage is determined based
only on wage data within the prevailing
unit of pay, the baseline standards
should also apply to that unit of pay to
increase the reliability of the survey
findings as much as possible. Especially
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when there are multiple units of pay
and a small number of employers or
workers in the universe, this approach
could require surveyors to increase the
overall sample size and may result in
fewer survey findings than if the
baseline standards applied to the survey
overall. However, the Department
believes this approach best achieves its
goal of establishing prevailing wage
rates that are as reliable and accurate as
possible, while still encouraging more
prevailing wage surveys than under the
Handbook.
Based on the above comments and the
Department’s further assessment of past
prevailing wage surveys, the
Department recognizes the estimated
universe of employers or workers may
be very small for some crop or
agricultural activities and distinct work
task(s) in a geographic area. For
example, some distinct work tasks or
activities in a particular area may have
one or two employers in the estimated
universe. In such a situation, applying
the 25 percent or 5-employer standard
would mean there can never be a
prevailing wage finding for this task or
activity, unless the number of
employers in the estimated universe
increases. Similarly, the estimated
universe of workers employed to
perform particular distinct work tasks or
activities may be less than 30 in some
cases. Applying the 30-worker standard
would not result in a wage
determination, unless the number of
workers in the estimated universe
increased.
As such, the Department has decided
to revise the regulatory text to address
the limited situations where the
estimated universe of employers or
workers is less than the baseline
standards, while leaving the baseline
standards unchanged in other
situations. For example, where the
estimated universe of U.S. workers is at
least 30, the survey must include the
wages of at least 30 U.S. workers in the
unit of pay used to compensate the
largest number of U.S. workers whose
wages are reported in the survey. In
situations where the estimated universe
of U.S. workers is less than 30, the
survey must include the wages of all
such U.S. workers. Similarly, where the
estimated universe of employers is
fewer than five, this final rule requires
the survey to include wage data from all
employers in the estimated universe.
Finally, the 25 percent standard will
apply where the estimated universe of
employers is four or more, but will not
apply when the estimated number of
employers in the universe is less than
four. These revised requirements
encourage additional prevailing wage
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61699
findings and are consistent with the
Department’s goal of producing
prevailing wage survey results that are
as representative as possible by
requiring the PWD to be based on data
from all workers or employers where the
universe of workers or employers is
limited.
xi. Other Comments on § 655.120(c)(1)
Special Procedures for Sheep Shearing
and Reforestation Employers
Commenters including a trade
association urged the Department to
promulgate a provision allowing
regional or national prevailing wage
surveys for the sheep shearing industry
because ‘‘there are not enough shearers
in any one area’’ to establish a piece rate
wage through a valid survey. According
to the association, the survey instrument
used should be able to account for
differing types of shearing services in
different regions, which result in
separate wage rates. The association
stated some regions have a larger
number of ‘‘small flock’’ or ‘‘farm flock’’
sheep producers whose operations
typically have smaller numbers of sheep
than commercial producers, resulting in
a higher ‘‘per head’’ price and wage than
for a commercial producer.
The Department declines to adopt the
commenters’ suggestion because it does
not believe that a variance in the form
of a separate provision is needed for
prevailing wage surveys for the sheep
shearing industry. This is because the
commenters’ concerns can be addressed
through other requirements in this final
rule. As discussed in the preamble to
§ 655.120(c)(1)(iii) and (vi), this final
rule allows for regional prevailing wage
surveys that are able to capture distinct
work tasks as applicable. It is also
possible to obtain a prevailing wage for
activities with a small number of
estimated workers under circumstances
explained in the preamble to
§ 655.120(c)(1)(vii) through (ix). Lastly,
as noted in the preamble to
§ 655.120(c)(1)(iv), the surveyor has the
option to conduct a statistically valid
sampling or stratified random sampling
by employer size, though these
enhanced sampling methods are not
required.
A workers’ rights advocacy
organization recommended the
Department use the QCEW to set
prevailing wages for reforestation
workers in the short term on the basis
that this data source counts reforestation
workers more accurately than the OEWS
surveys. Because reforestation is not
covered in the H–2A program under this
final rule, the workers’ rights advocacy
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Rescission of ETA Handbook 385
An agent and a trade association
supported what they believed to be the
Department’s proposal to ‘‘rescind’’ ETA
Handbook 385. A State agency urged
DOL to update ETA Handbook 385 to
conform to the new regulations or
provide supplemental guidance. Two
other State agencies and a State agency
association supported replacing the
Handbook.
This final rule does not formally
rescind ETA Handbook 385, but SWAs
and other surveyors must follow the
methodological requirements in
§ 655.120(c) when conducting
prevailing wage surveys. In this way,
the survey standards in § 655.120(c)
replace the standards in ETA Handbook
385 for H–2A prevailing wage surveys.
This final rule clarifies, however, that
SWAs and other surveyors may refer to
the Handbook and other applicable
authorities for additional guidance on
issues related to the prevailing wage
survey methodology not explicitly
addressed in the Department’s
regulations at 20 CFR part 655, subpart
B, and 29 CFR part 501.
Data Collection Period
The NPRM did not propose a required
wage data collection period. In
particular, the Department did not
propose requiring or prohibiting SWAs
from capturing the wages paid to
workers during the ‘‘peak’’ period of a
crop or agricultural activity, rather than
the wages paid over a season or a year.
Several employers and trade
associations urged the Department to
require surveys cover a longer period
than a peak week. According to the
commenters, surveying a peak period
‘‘spike[s]’’ the results and does not
produce prevailing wage findings that
measure wages paid over a season or a
year.
After consideration of the comments,
the Department declines to adopt the
commenters’ suggestion. There is no
requirement that surveys cover a longer
time period to measure the wages paid
over a season or a year. While ETA
Handbook 385 directs SWAs to estimate
the beginning and end of the harvest for
each crop and the ‘‘period of peak
activity’’ for State grant plans, SWAs
need not include that information in
reporting prevailing wage rate results.
Recent guidance no longer direct SWAs
to identify the period of ‘‘peak activity,’’
65 Moreover, the Department has addressed the
use of the QCEW as a wage source for the H–2A
program above and in prior rulemaking. See 2020
H–2A AEWR Final Rule, 85 FR 70445, 70446 n.6.
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nor even the anticipated start and end
dates for the harvest of each crop, but
simply request SWAs provide an
anticipated timeframe for the prevailing
wage survey.66 The requirement
suggested by the commenters could
further deter employers from
responding to the survey, given the
length of a season or a year and the
possible number of unique wage rates
paid during that time that an employer
would have to report. It would also
likely increase the cost of survey
administration for SWAs or other State
surveyors, without a corresponding
compelling justification for such an
increase.
In response to the comments received,
this final rule clarifies that SWAs
continue to have discretion over when
to conduct wage surveys and the data
collection period. This is because SWAs
or other State entities are best
positioned to determine the most
effective data collection period. To the
extent it is helpful, the Department
recommends the use of a peak week or
peak period. A peak week is generally
defined as the week where a commodity
activity is the busiest. For harvesting, it
would be when an agricultural
employer is doing the most harvesting
for a given commodity. Some surveys
may gather data from a peak period of
time that is longer than a week. The use
of a peak week or period can afford
several advantages. It allows, for
example, the collection of data when the
most workers are working in order to
obtain the most robust amount of data.
However, the use of a peak period is not
required and may not be appropriate in
all cases. For instance, some activities
such as irrigation do not have a clearly
defined peak week.
Presumption of Validity
A workers’ rights advocacy
organization suggested that as long as
SWAs follow the defined procedures to
carry out a prevailing wage survey, the
findings should enjoy a presumption of
validity. After consideration, the
Department declines to adopt the
commenter’s suggestion. OFLC will
review the prevailing wage survey
documentation submitted by a SWA to
ensure that the survey satisfies the
enumerated requirements in
§ 655.120(c). If these requirements are
met, OFLC will issue a prevailing wage
for the crop or agricultural activity or
distinct work task(s) in question. Based
on this regulatory scheme—which
continues the Department’s current
66 See, e.g., TEGL No. 21–20, Fiscal Year (FY)
2021 Foreign Labor Certification Grant Planning
Guidance, at III–10 (May 10, 2021).
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practice—a presumption of validity is
not needed and would instead cut
against the comprehensive review
requested by other commenters.
Timelines for Prevailing Wage
Determinations
A SWA suggested adding a
requirement that OFLC issue a PWD
within 10 days of the SWA’s submission
of a survey to the Department. The SWA
also requested the Department add a
regulatory provision requiring OFLC to
notify the SWA of any irregularities or
deficiencies in the survey within the
same 10-day period so the SWA may
make corrections expeditiously. After
consideration of the SWA’s comments,
the Department declines to adopt these
recommendations. The Department did
not propose to set timeframes or solicit
comments on setting timeframes for the
prevailing wage survey review and
approval process and, therefore, the
SWA’s recommendations are beyond the
scope of this rulemaking. The
Department understands the importance
of timely review and communication
and it strives to review the surveys it
receives in an expeditious manner.
Imposition of a maximum period to
review prevailing wage surveys,
however, would undermine the
Department’s ability to conduct a
thorough review without a
corresponding compelling justification.
In particular, the SWA’s suggested
timeframe would create an impediment
to the type of comprehensive review
needed to ensure prevailing wage
surveys satisfy all methodological
requirements, especially in cases where
OFLC requests additional information
from SWAs in order to complete its
review.
Piece Rate and Wage Enforcement
Suggestions
Because § 655.120(c) discusses the use
of piece rates, some commenters took
the opportunity to suggest changes to
how piece rates are treated within the
H–2A program. A workers’ rights
advocacy organization recommended
the Department make explicit that the
employer must pay workers by the
piece, rather than by the hour or using
another method, if the prevailing wage
is a piece rate and payment of the
prevailing piece rate would yield a
higher average hourly rate than the
AEWR. A trade association stated the
Department does not include hourly
guarantees when reporting prevailing
wages by piece rates and asserted this is
contrary to standards in ETA Handbook
385. The association added that the
Department does not recognize that a
piece rate with an AEWR hourly
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guarantee (e.g., $25 bin rate with a
$16.34 per hour guarantee) differs from
a piece rate with a State minimum wage
hourly guarantee (e.g., $25 bin rate with
a $13.69 per hour guarantee).
The Department’s proposed changes
to the prevailing wage methodology
under revised § 655.120(c) did not
intend to change the prior application of
the offered wage provision at
§ 655.120(a) or the longstanding
procedures for the regulation of piece
rates. As such, the workers’ rights
advocacy organization’s suggestion that
the Department make explicit that an
employer must pay workers by the
piece, rather than by the hour or using
another method, if the prevailing wage
is a piece rate and payment of the
prevailing piece rate would yield a
higher average hourly rate than the
AEWR, is beyond the scope of the
Department’s proposal. The trade
association’s comment does not specify
if the reporting it references is the
Department’s posting of prevailing
wages to the Agricultural Online Wage
Library (AOWL). To the extent the
comment is referring to the posting of
prevailing wages on AOWL, the
Department reports piece rates that
contain an hourly guarantee for a crop
or agricultural activity or a distinct work
task(s) within this activity when such a
rate is reported by a SWA and validated
by the Department. These piece rates
with an hourly guarantee can represent
different units of pay under certain
circumstances, as discussed below.
Moreover, as relevant to both
comments, the Department posts
prevailing wage rates on AOWL, not
wage information from all applicable
sources an H–2A employer must
consider when evaluating whether its
wage offer meets H–2A requirements
under §§ 655.120(a) and 655.122(l).
When the prevailing wage rate is hourly,
an H–2A employer must compare this
hourly rate to the other wage sources
listed in § 655.120(a) to determine
which is the highest and ensure that its
wage offer is at least equal to the highest
applicable hourly rate. Similarly, in
limited situations where a prevailing
wage rate is a piece rate in combination
with an hourly guarantee (e.g., $25 bin
rate with a $16 per hour guarantee), the
H–2A employer must still engage in the
comparison of other wage sources and
ensure that it offers an hourly wage
guarantee that is at least equal to the
highest applicable hourly rate. As a
result, an H–2A employer may be
required to offer at least the prevailing
piece rate (e.g., $25 bin rate) and an
hourly wage guarantee (e.g., $16.34 per
hour guarantee, the applicable AEWR)
that is higher than the hourly guarantee
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listed in the PWD. To the extent either
commenter is suggesting the Department
add all or some other wage sources to
the AOWL, the Department declines to
adopt this suggestion, as it could
increase, rather than decrease,
confusion.
The same workers’ rights advocacy
organization proposed requiring the
employer to attest that neither U.S. nor
H–2A workers will be paid at a piece or
hourly wage that is less than the rate
that was paid for comparable work
performed at that location in the prior
season, or that is being offered by other
employers in the AIE. The organization
also requested that the regulations
clarify the Department will review and
require a change to the rate of pay after
certification if presented with worker
complaints or ‘‘clear, persuasive
evidence’’ that the H–2A employer is
paying less than the prevailing wage
based on information such as UI data
and job service listings.
The Department declines to adopt
these recommended changes. The
Department did not propose or solicit
comments on requiring an attestation
that wages are not less than those paid
for comparable work in the prior season.
In addition, the commenter’s suggestion
would add a wage source to those listed
in § 655.120(a), which is a change the
Department similarly did not propose in
the NPRM. This suggestion is therefore
outside the scope of the Department’s
rulemaking. This final rule requires that
H–2A employers pay H–2A workers and
workers in corresponding employment
the highest of wage sources listed in
§ 655.120(a)—in particular, the higher of
the AEWR and the prevailing wage rate
approved by OFLC, as applicable—and
thus already includes a prevailing wage
concept intended to ensure that H–2A
employers pay at least those wages
found to be prevailing in the area, where
applicable. While the specific change
requested by the commenter’s second
suggestion is unclear, the Department
notes that its program integrity
measures provide for review and
enforcement of H–2A wage
requirements. In the event of an audit,
OFLC reviews an employer’s payroll
information. When WHD conducts its
investigations, it will enforce the
appropriate wage rate for the work
performed even when an employer
misrepresented the duties on its
application or employed workers in
classifications not listed on its
application. In the event an audit or
investigation discovers substantial
violations, OFLC or WHD may pursue
debarment of the employer.
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xii. Section 655.120(c)(2)
The Department proposed that a
prevailing wage rate remain valid for 1
year after the wage is posted on the
OFLC website or until replaced with an
adjusted prevailing wage, whichever
comes first, except that if a prevailing
wage that was guaranteed on the job
order expires during the contract period,
the employer must continue to
guarantee at least the expired prevailing
wage rate. As the Department explained
in the NPRM, this proposal is generally
consistent with OFLC’s current practice.
See 84 FR 36168, 36188. The NPRM
solicited comments on this proposal,
including whether an alternate duration
for the validity of prevailing wage
surveys would better meet the
Department’s goals of basing prevailing
wage rates on the most recent data and
making prevailing wage findings
available where the prevailing wage rate
would be higher than the AEWR. The
NPRM also sought comment on whether
the Department should index prevailing
wage rates based on either the CPI or
Employment Cost Index (ECI) when the
OFLC Administrator issued a prevailing
wage rate in one year for a crop or
agricultural activity but a prevailing
wage finding is not available in a
subsequent year, and whether the
Department should set limits on the age
of the survey data. As discussed below,
paragraph (c)(2) is adopted without
change from the NPRM.
Commenters generally supported the
proposed 1-year validity period. A few
commenters including trade
associations recommended that a
prevailing wage ‘‘expire on its
anniversary,’’ without clarifying if
‘‘anniversary’’ referred to the date the
wage was posted by OFLC. Another
trade association stated, without
additional explanation, that the
Department should not use surveys that
include data older than 12 months.
Citing the current ‘‘dynamic’’ business
environment, other commenters
suggested the Department should not
use surveys that include data collected
more than 6 months prior to the wage
determination. One of these commenters
claimed, without additional
explanation, that such data should be
excluded due to a limited pool of
workers and variations in commodity
markets, weather changes, and other
variables.
Several of these commenters also
provided general suggestions regarding
indexing prevailing wage rates between
determinations. Some commenters
recommended that prevailing wage rates
not be indexed based on the CPI or ECI
when the prevailing wage finding is not
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the prevailing wages of similarly
employed workers. Without additional
information, it is not clear what existing
metric, if any, would reflect the
information the commenters believed
should be considered, and it is therefore
difficult to evaluate the feasibility or
desirability of this type of indexing for
SWA prevailing wage survey findings.
available, without explaining why
prevailing wages should not be indexed
based on these sources. Other
commenters suggested that if the
Department is considering indexing the
prevailing wage rate to any metric, it
should consider metrics that ‘‘reflect the
agricultural economy such as wholesale
or retail fruit and vegetable prices.’’
None of these commenters provided
additional explanation.
After consideration of these
comments, the Department has decided
to adopt the validity period provision as
proposed. Under this final rule, a
prevailing wage will expire either 1 year
after OFLC posts the wage or on the date
an adjusted prevailing wage is issued,
whichever is earliest. This change is
consistent with the specific comments
on the 1-year validity period, based on
the information provided in those
comments. The Department declines to
adopt the suggestion to exclude data
older than 6 months from prevailing
wage findings. The commenters did not
explain why survey findings must
exclude such data, beyond a general
reference to the ‘‘dynamic’’ business
environment and broad variables in that
environment. Nor did the commenters
provide evidence suggesting the
exclusion of data older than 6 months
is necessary for a survey to yield more
accurate results or otherwise be an
efficient use of a SWA’s limited
resources. Instead, the commenters’
suggestion could elevate form over
function—for example, excluding data
that are 61⁄2 months old—and may
unnecessarily preclude States from
producing a valid PWD. The
commenters’ suggestion is also at odds
with the Department’s intent to
establish survey results that are as
reliable as possible using standards that
are realistic for SWAs in a modern
budget environment. If adopted, the
commenters’ suggestion would impose
more onerous data requirements on
SWAs than those mandated by OFLC’s
prior guidance on prevailing wage
surveys and OFLC’s current
requirements for employer-provided
surveys under the H–2B program.67
The Department has decided not to
adopt the suggestion to index the
prevailing wage rate to address
subsequent years in which a prevailing
wage finding is not available. The
commenters either did not provide any
recommendation for index sources or
did not address why a particular index
would be sufficient to accurately reflect
The current regulation at § 655.120(b)
requires the employer to pay a higher
prevailing wage upon notice to the
employer by the Department.68 The
Department’s current practice is to
publish prevailing wage rates on its
website and directly contact employers
covered by a higher prevailing wage. In
the NPRM, the Department proposed to
continue this current practice of
notifying employers directly. The
Department also proposed that new
higher prevailing wage rates would
become effective 14 days after
notification, which paralleled the
Department’s proposal to codify current
practice of providing an adjustment
period of up to 14 days to start paying
a newly issued higher AEWR. Although
the January 2021 draft final rule would
have adopted the 14-day proposal for
prevailing wages, this final rule does not
adopt the proposal for the reasons
discussed below, but it otherwise adopts
the proposed language from the NPRM
with minor conforming changes.
An employer and trade association
stated a 14-day effective date is an
improvement over the current
requirement for prevailing wages. An
agent and another trade association
commented that 14 days do not allow
employers adequate time to plan for
costs, especially if there is a ‘‘significant
increase’’ in wages. A SWA opposed the
14-day proposal on the basis that
workers can be deprived of up to 2
weeks of pay to which they are entitled.
Instead, the SWA suggested that
employers should pay any increases
retroactively, such as in the pay period
after the new wage becomes effective, to
alleviate potential burdens associated
with adjusting wages mid-pay period.
In response to comments that even 14
days is not enough time for employers
to plan for costs, the H–2A regulations
already require the employer to pay a
higher wage if the prevailing wage rate
is adjusted during the work contract and
the new adjusted wage is higher than
the required wage at the time of
certification. The NPRM retained this
67 See 2015 H–2B Final Rule, 80 FR 24146, 24175
(requiring the wages reported in employer-provided
surveys in the H–2B program be no more than 24
months old).
68 This provision, codified at § 655.120(b) under
the 2010 H–2A Final Rule, was redesignated as
paragraph (c) in the 2020 H–2A AEWR Final Rule.
See 85 FR 70445, 70477.
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underlying requirement, which
employers have been able to follow
since 2010, while proposing to provide
employers a brief period to adjust to a
higher wage. When the Department
added the provision to account for an
increase in prevailing wages during a
contract period, it recognized these
wage adjustments may alter employer
budgets for the season. See 2010 H–2A
Final Rule, 75 FR 6884, 6901. As the
Department explained at that time, the
change is intended to ensure workers
are paid throughout the life of their
contracts at an appropriate wage, and
the Department encouraged employers
to include into their contingency
planning certain flexibility to account
for any possible wage adjustments. Id.
After further consideration of the
comments and in conformity with its
decision not to adopt a 14-day
adjustment period in connection with
the AEWR, the Department declines to
adopt the proposed delayed
implementation of a prevailing wage
update to workers’ pay. The 14-day
grace period proposal was intended to
help ensure workers are paid at an
appropriate wage throughout the life of
their contracts while giving employers a
brief window for updating their payroll
systems and to simplify the program
through the adoption of consistent
adjustment periods for wage-related
updates. The Department is sensitive
both to the worker protection concerns
the SWA raised and to adopting an
approach that could add complexity,
which is inconsistent with the
Department’s goals in this rulemaking to
enhance worker protections while
simplifying the program to facilitate
compliance and administration. As
such, the Department has decided
against adopting the proposed
adjustment period for prevailing wage
updates in this final rule. Not adopting
the proposal maintains current
prevailing wage adjustment
requirements, which help ensure
workers are paid at an appropriate wage
upon notification of a new, higher wage
obligation.
xiv. Section 655.120(c)(4)
The NPRM proposed that if the
prevailing wage is adjusted during the
contract period and is higher than the
previous certified offered wage rate, the
employer must pay the higher wage rate,
but may not lower the wage rate if OFLC
issues a prevailing wage that is lower
than the offered wage rate. This
proposed change discontinues the
current practice permitting employers to
include a clause in the job order stating
that it may reduce the offered wage rate
if an adjustment during the contract
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period reduces the highest wage rate
among all applicable wage sources. The
NPRM also proposed to remove
language from § 655.120(b) that requires
an employer to pay the wage ‘‘in effect
at the time work is performed’’ because
the presence of that reference may
create confusion about the existing
requirement to continue to pay a
previously offered wage if the new
‘‘effective’’ wage is lower. As discussed
below, this final rule adopts paragraph
(c)(4) as proposed in the NPRM except
for a minor conforming change.
The Department received comments
from various entities, including
employers, trade associations, and
agents, in response to this provision.
Many employer and trade associations
opposed the Department’s current
requirement mandating mid-contract
wage adjustments if a new prevailing
wage rate is higher than the required
wage at the time of certification.
Commenters explained, for example,
that mid-season increases make
planning impossible, are not fair to
employers, and the government should
not require employers to change a
contract after it has been ‘‘approved.’’ A
trade association stated it may not be
possible to verify the sources of the
wage data with no ability to challenge
these data under the final rule. An agent
and another trade association
commented there is no valid basis to
require payment of a higher wage that
is not the AEWR if the AEWR is
supposed to represent the exact wage
that protects U.S. workers at that time.
Other commenters offered four
alternatives to the Department’s
proposal, including (1) allowing
employers to pay the rate(s) listed in a
certified application for the duration of
the employment period (i.e., a fixed
wage with no upward adjustments); (2)
authorizing downward wage
adjustments; (3) permitting an annual
adjustment of prevailing wage rates on
a date certain; and (4) placing
limitations on in-season prevailing wage
increases, including a 10-percent cap.
One of these commenters recommended
the notice provided by the Department
to the employer regarding ‘‘changes in
wages be adequate to hand out to
workers to meet the disclosure
requirement.’’
Having carefully considered the
comments received, the Department has
decided to retain this provision with a
minor change to the regulatory text to
recognize that there may be a prevailing
wage for a distinct work task or tasks
within a crop or agricultural activity in
certain situations. This modification is a
technical, conforming change with other
portions of § 655.120(c). Under this
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provision, because the employer
advertised and offered the higher wage
rate, the wage cannot be reduced below
the wage already offered and agreed to
in the work contract. Accordingly, if a
prevailing wage for a geographic area
and crop activity or agricultural activity
and, if applicable, distinct work task(s)
is adjusted during the work contract,
and the new prevailing wage is lower
than the rate guaranteed on the job
order, the employer must continue to
pay at least the offered wage rate.
Employers who disagree with a wage
adjustment after their applications have
been certified can continue to challenge
the adjustment in Federal court.
The Department does not agree with
the comment claiming there is no valid
basis to require payment of a higher
wage when that wage is not the AEWR.
Employers participating in the H–2A
program must offer and pay the highest
of the AEWR, the prevailing wage, the
Federal or State minimum wage, or the
agreed-upon collectively bargained
wage rate, as applicable, for every hour
or portion worked during a pay period.
See §§ 655.120(a) (excluding certain
employment), 655.122(l). The wage
adjustment provisions are intended to
ensure that workers in the program
consistently receive at least the highest
of these applicable wages, whether that
wage be the AEWR, the prevailing wage,
or another wage source listed in
§ 655.120(a). Moreover, PWDs
determined by State-conducted
prevailing wage surveys for a particular
geographic area can serve as an
important additional protection for
workers in the United States in crop and
agricultural activities with piece rates or
higher hourly rates of pay than the
AEWR. In such instances, the wage
adjustment provisions ensure the wages
received by applicable workers reflect
the wage paid to similarly employed
workers in that area.
The Department declines to adopt the
suggested alternatives, as they are not
sufficient to ensure workers are paid at
an appropriate wage commensurate
with the baseline market value of their
services throughout the life of their
contracts. In addition, an annual
adjustment of prevailing wage rates on
a certain date each year is not in line
with current practice. States do not
conduct prevailing wage surveys at the
same time each year in all cases, and
consequently, OFLC validates PWDs
throughout the year. The NPRM did not
propose to change this practice. The
Department also declines to adopt
proposals to impose a 10-percent cap
and similar limitations on PWDs. The
Department establishes wages based on
data representing actual wages paid to
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workers, including prevailing wages
based on wages paid to U.S. workers in
a particular geographic area and crop or
agricultural activity and if applicable,
distinct work task(s). The commenter
did not provide a sufficient economic
rationale to impose a cap that is
unrelated to employer costs or wages
paid and such a cap would produce
wage stagnation, most significantly in
years when the wages of U.S. workers
are rising faster due to strong economic
and labor market circumstances.
The agent’s comment regarding the
use of notice(s) of wage adjustment to
satisfy ‘‘the disclosure requirement’’ did
not specify the disclosure requirement
to which the comment referred. To the
extent the comment refers to the MSPA
disclosure requirements under 29 U.S.C.
1821 and 1831 and 29 CFR 500.75 and
500.76, OFLC’s notice to the employer
of prevailing wage rate adjustment(s)
may be sufficient to satisfy the required
disclosure of wage rates under MSPA
(provided that, if multiple wage
adjustments are included in the notice,
it is clear which applies to the specific
worker), but will not satisfy the required
disclosure of other information, such as
the place or period of employment. See
29 U.S.C. 1821, 1831; 29 CFR 500.75,
500.76. Without additional information,
however, the Department cannot assess
the agent’s recommendation and,
therefore, is unable to adopt the
recommendation.
d. Section 655.120(d) Appeals
Although the Department employs the
same Notice of Deficiency (NOD) and
appeal framework regardless of the
deficiency noted in an Application for
Temporary Employment Certification,
the NPRM proposed to include an
appeal provision at paragraph (d) for
clarity. Specifically, if an employer does
not include an appropriate offered wage
on the H–2A application, the CO will
issue a NOD requiring the employer to
correct the wage offer. Such a situation
may occur, for example, when the
employer offers less than the highest of
the sources applicable to the job
opportunity under § 655.120(a) because
it selected an incorrect SOC code for the
job opportunity. If the employer
disagrees with the wage rate associated
with the SOC required by the CO and
does not correct the wage offer in its
response to the NOD, the application
will be denied, and the employer may
appeal the denial of its application on
this basis (and other bases noted in the
denial, as applicable) by following the
appeal procedures at § 655.171. As
discussed below, this provision remains
unchanged from the NPRM.
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The Department received several
comments on this proposal. An
employer expressed concern that an
employer who disagrees with the
required wage rate cannot appeal unless
its application is denied. A trade
association expressed concern that the
proposal adds inefficiencies to the
program and affects employers’ due
process rights, and it claimed that
applications would have to be denied
based on a factor other than the wage in
order to be appealed.
As the Department explains below in
the preamble to § 655.141, the removal
of the ability to appeal a NOD better
conforms with the statutory
requirements under the INA. This
change also helps to promote efficiency
by providing that all possible grounds
for denial are appealed at once, rather
than allowing for separate appeals of
multiple issues. The appeal process
continues to include an expedited
administrative review procedure, or an
expedited de novo hearing at the
employer’s request, in recognition of the
INA’s concern for prompt processing of
H–2A applications. Further, it is not
true that an employer’s application has
to be denied based on a factor other than
the wage in order for the employer to
challenge a wage rate required by the
CO. An employer that does not correct
a wage deficiency—or any other
deficiency—noted in a NOD, may
appeal a denial on that basis (and any
other bases noted in the denial, as
applicable).
A workers’ rights advocacy
organization noted SOC codes will be
critical to determining the AEWR and
the Department should allow the SWA
to determine the appropriate code
because SWAs, according to the
organization, are the most
knowledgeable about the different work
in a certain agricultural industry in a
geographic region. The organization
requested that § 655.120(d)(1) be revised
so that either the SWA or the CO can
issue a NOD requiring the employer to
correct the offered wage rate on its
application. This concern is misplaced.
The NPRM did not propose to change
the SWA’s role in reviewing the offered
wage rate and other information in an
employer’s job order for compliance
with 20 CFR part 653, subpart F, and 20
CFR part 655, subpart B. Compare
§ 655.121(b)(1) (2010 H–2A Final Rule)
with § 655.121(e)(2). Specifically, if the
SWA notes any deficiencies with the job
order, including with the offered wage
rate or SOC code, it must notify the
employer and offer the employer an
opportunity to respond. See id. Upon
receipt of a response, the SWA will
review the response and notify the
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employer of its acceptance or denial of
the job order. See id. After the employer
files its Application for Temporary
Employment Certification, whether
under the emergency filing procedures
at § 655.134 or the normal filing
procedures at § 655.130, the CO will
review the employer’s application. If the
CO determines the application contains
an incorrect offered wage rate, the CO
will issue a NOD under § 655.141 noting
the incorrect rate, SOC code, and any
other deficiencies that prevent
certification, as applicable. See id.;
§ 655.120(d)(1). As such, the
commenter’s concern is addressed
through the SWA’s authority to review
and respond to deficiencies in the job
order, which this final rule retains in
§§ 655.121(e)(2) and 655.134(c)(1).
An agent proposed ‘‘an appeal process
in connection with the prevailing
wages,’’ without additional explanation.
To the extent the commenter intended
to address an employer’s disagreement
with, and appeal of, the CO’s
application of a particular PWD to an
employer’s job opportunity, such
appeals are available in this final rule.
See §§ 655.120(d), 655.142(c). To the
extent the commenter intended to
suggest the Department implement an
appeals procedure for PWDs set or
adjusted in accordance with paragraph
(c), the Department respectfully
declines, as employers can continue to
challenge PWDs and post-certification
adjustments in Federal court.
After consideration of these
comments, the Department has retained
the provision as proposed. This
provision provides a process to appeal
the required offered wage rate for an
employer’s job opportunity, both the
CO’s application of the wage sources in
paragraph (a) and determination of
which is highest. This process is
consistent with other provisions in this
final rule that add express authority for
the CO to issue multiple NODs and to
eliminate appeals of NODs. See
§§ 655.142(a), 655.141.
2. Section 655.121, Job Order Filing
Requirements
In the NPRM, the Department
proposed amendments to this section to
modernize the process by which
employers submit job orders to the SWA
for review and clearance in order to test
the local labor market and determine the
availability of U.S. workers before filing
an Application for Temporary
Employment Certification. Specifically,
the Department proposed new standards
and procedures requiring employers,
unless a specific exemption applies, to
electronically submit job orders to the
NPC for processing; minor revisions to
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the timeframes and procedures under
which the SWA reviews and circulates
approved job orders for intrastate and
interstate clearance; and reorganization
of several existing provisions to provide
clarity and conform to other changes
proposed in the NPRM. The Department
received several comments on this
section, none of which necessitated
substantive changes to the regulatory
text. However, the Department’s
decision not to adopt the proposed
optional pre-filing positive recruitment
provision at § 655.123 necessitated the
removal of the proposed pre-filing
interstate job order circulation language
from paragraph (f). Therefore, as
discussed in detail below, the
provisions of § 655.121 remain
unchanged from the NPRM, except for
paragraph (f). The Department will
retain the parameters of pre-filing job
order circulation from the 2010 H–2A
Final Rule in paragraph (f), with minor
revisions to conform to the electronic
submission and transmission
procedures adopted in this final rule, as
discussed below.
a. Submission and Transmission of the
Job Order
The INA requires employers to engage
in the recruitment of U.S. workers
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. The Department
proposed to modernize and streamline
the process by which employers submit
job orders, H–2A Agricultural Clearance
Order (Form ETA–790/790A), to the
SWA for review and clearance to place
job orders into intrastate and interstate
clearance. Job orders are a required
component of testing the labor market
for the availability of U.S. workers
before filing an Application for
Temporary Employment Certification.
The Department proposed to require all
job orders, Form ETA–790/790A, be
signed with an electronic signature (i.e.,
an electronic (scanned) copy of the
original signature or a verifiable
electronic signature method, as directed
by the OFLC Administrator) and
submitted electronically to the NPC,
using the electronic method(s)
designated by the OFLC Administrator.
Currently, the Department’s FLAG
system, available at https://flag.dol.gov,
is the OFLC Administrator’s designated
electronic filing method. Only
employers the OFLC Administrator
authorizes to file by mail due to lack of
internet access or using a reasonable
accommodation due to a disability
under the proposed procedures in
§ 655.130(c) would be permitted to file
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using those other means. Upon receipt
in the electronic filing system, the NPC
would transmit Form ETA–790/790A to
the SWA serving the AIE for review. If
the job opportunity is located in more
than one State within the same AIE, the
NPC would transmit a copy of the
electronic job order, on behalf of the
employer, to one of the SWAs with
jurisdiction over the place(s) of
employment for review.
For job orders submitted to the NPC
in connection with a future master
application to be submitted under
§ 655.131(a), the Department proposed
the agricultural association would
continue to submit a single Form ETA–
790/790A in the name of the
agricultural association as a joint
employer. In the Form ETA–790A, as
well as in the future Application for
Temporary Employment Certification,
the agricultural association would
identify all employer-members by name.
Where two or more employers are
seeking to employ a worker or workers
jointly, as permitted by § 655.131(b)
(i.e., joint employers other than an
agricultural association and its
employer-members filing a master
application under § 655.131(a)), the
Department proposed that any one of
the employers may continue to submit
the Form ETA–790/790A as long as all
joint employers are named on the Form
ETA–790A and the future Application
for Temporary Employment
Certification.
Commenters generally expressed
strong support for the proposals to
modernize the job order filing process
by requiring job orders to be signed
electronically and submitted through
the Department’s electronic filing
system, absent authorization to file by
mail due to lack of internet access or
using a reasonable accommodation due
to a disability under the proposed
procedures in § 655.130(c). A SWA
viewed the proposal as a way to
improve program efficiency, eliminate
paper applications, reduce errors, and
streamline the job posting process, and
a workers’ rights advocacy organization
agreed it may streamline the process
and reduce paperwork burdens. The
workers’ rights advocacy organization
and a trade association recognized it as
a way to improve communication
between agencies involved in H–2A
processing and improve response times.
Several associations stated the ability to
submit the job order electronically and
to pre-populate certain information for
future job orders will help streamline
the application process, while the
utilization of standardized terms and
conditions of employment on the form
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and electronic data checks will enhance
the efficiency of the program for users.
However, some commenters opposed
the Department’s proposal to require
employers submit the Form ETA–790/
790A to the NPC, rather than to the
SWA directly. Some comments urged
the Department to maintain the existing
filing procedures and expressed concern
the proposed change would strain OFLC
resources, hinder the employer’s ability
to communicate directly with the
SWAs, and transfer primary
responsibility for job order review to the
CO or otherwise diminish the role of the
SWAs. Some commenters also asserted
the Department failed to explain why
this change was necessary and how it
would improve the program.
As explained in the NPRM, the
Department determined the proposed
changes, including submission to the
NPC in the Department’s electronic
filing system, will modernize the job
order filing process resulting in more
efficient use of SWA and Department
resources. The SWAs generally do not
have adequate capacity to provide for
the full electronic submission and
management of agricultural job orders in
the OMB-approved format, which may
create uncertainty for employers that
need to submit job orders within
regulatory timeframes. Further, given
that an employer must provide a copy
of the same job order to the NPC at the
time of filing the Application for
Temporary Employment Certification,
the current job order filing process
requires duplication of effort for
employers, especially those with
business operations covering large
geographic areas that need to coordinate
job order submissions with multiple
SWAs; a single electronic submission
location simplifies the application
process. For the Department and SWAs,
electronic submission of job orders to
the NPC will decrease data entry,
improve the speed with which job order
information can be retrieved and shared,
reduce staff time and storage costs, and
improve storage security. Since the new
Form ETA–790/790A will be stored
electronically, it also eliminates the
need for manual corrections of errors
and other deficiencies and improves the
efficiency of posting and maintaining
approved job orders on the
Department’s electronic job registry. The
Department therefore determined that
this process will result in more efficient
use of Department and SWA staff time.
The most common concern among
commenters with respect to the
requirement to submit job orders to the
NPC through the Department’s
electronic filing system, rather than to
the SWA directly, related to potential
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delay in the SWA’s receipt of the job
order. Commenters expressed concern
the proposal might not streamline the
job order filing and distribution
processes; rather, it might add a ‘‘layer
of bureaucracy,’’ with the NPC serving
as an unnecessary intermediary between
employers and the SWAs and causing
delays between NPC’s receipt of a job
order and its transmission of the job
order to the SWAs. Commenters noted
the NPRM did not impose deadlines by
which the CO would be required to
transmit the job orders to the SWAs, and
an agent and workers’ rights advocacy
organization stressed the need for the
SWA to receive the job order
immediately. A few commenters
specifically asked the Department to
clarify whether the SWA will receive
immediate notification and receipt of
the job order submission and whether
the employer will receive confirmation
when the SWA receives the job order.
One commenter urged the Department
to create a shared platform for electronic
submission of the job order that ensures
the SWAs have access to the job order
without requiring the NPC to provide
the SWA notice of the submission.
Several commenters also urged the
Department to ensure the FLAG
electronic filing and application
processing system provide notice to
employers when the SWA takes action
on a job order. A workers’ rights
advocacy organization requested the
Department provide an objectively
measurable deadline by when the NPC
must transmit job orders to SWAs,
rather than the term ‘‘promptly.’’ 69
Under this final rule, there will be no
duplication of processes and no delay
between an employer’s submission of a
job order to the NPC and the SWA’s
access to the job order. As noted in the
NPRM, the Department already provides
the SWAs with access to OFLC’s FLAG
system to electronically communicate
any deficiencies with job orders
associated with employer-filed H–2A
and H–2B applications and uploading
inspection reports of employer housing.
That access has been enhanced so the
SWA has access to the job order in the
FLAG system upon submission. As a
69 This comment expressed concern with the term
‘‘promptly’’ in relation to the Department’s proposal
in paragraph (f) to begin interstate clearance after
the SWA’s approval of the job order, which the
Department has not adopted, as discussed below.
Both the commenter’s underlying concern with the
term ‘‘promptly’’ and the Department’s response
apply to the NPC’s transmission of a job order to
a SWA, regardless of whether the transmission is
for initial review or related to interstate clearance,
and regardless of whether the transmission occurs
pre-filing under paragraph § 655.121(f) or post-filing
under § 655.150(a); therefore, the Department
acknowledges the comment here.
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result, ‘‘transmission’’ of the job order
from the NPC to the SWA in FLAG is
automatic and virtually instantaneous.
Once the employer submits the Form
ETA–790/790A in the FLAG system, the
FLAG system will notify the SWA of the
new job order available for its review
and will send the employer a
confirmation email that includes a
generated case number the employer
can use to track the submitted job order.
The SWA may also send email
correspondence to the filer as needed.
When the SWA issues a decision on the
job order, the case status in the filer’s
queue will change to reflect that
decision (e.g., NOD Issued, Job Order
Approved, or Job Order Denied). In
addition, if a job order is modified
during processing of the Application for
Temporary Employment Certification,
the CO will add a case note directed to
the SWA, advising the SWA an
amendment has been made to the job
order that both the NPC and SWA may
access.
The Department also received several
comments about § 655.121(e)(1) that
suggested a mistaken belief the
Department intended for the NPC to
choose which SWA would receive the
job order in cases where more than one
SWA has jurisdiction over the AIE,
rather than continuing to allow the
employer to make that selection. Agents
and agricultural associations urged the
Department to continue to permit
employers to choose the SWA, while a
workers’ rights advocacy organization
urged the Department to provide
specific criteria that the CO and
employer must use to determine the
SWA to receive the job order to guard
against employers using their freedom
of choice to avoid SWAs that have
identified deficiencies in their past
filings. The commenter recommended
the Department require the CO to send
the job order to the SWA with
jurisdiction over the first work location
under the contract, which it stated was
important because positive recruitment
is most likely to be effective in the State
where work begins.
Under this final rule, the employer
will continue to identify the SWA to
which its job order will be submitted for
review under § 655.121. When an
employer prepares and submits a job
order in the FLAG system, the employer
will be asked to identify the SWA to
receive the job order by selecting a SWA
from a drop-down list of SWAs with
jurisdiction over that job order. The
drop-down list will be consistent with
the parameters at § 655.121(e)(1): Where
only one SWA has jurisdiction over the
AIE, the drop-down list will include
only one option; where more than one
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SWA has jurisdiction over the AIE (i.e.,
the AIE crosses State lines), the dropdown list will include more than one
option. For employers permitted to file
by mail, the employer may identify the
SWA to receive the job order, consistent
with the parameters at § 655.121(e)(1),
in a cover letter attached to that job
order. Upon submission in the FLAG
system, the job order will be
electronically transmitted to the SWA
the employer identified.
The Department declines to revise
§ 655.121(e)(1) to restrict an employer’s
choice among the SWAs sharing
jurisdiction in an AIE that crosses State
lines by requiring the employer to select
the SWA with jurisdiction over the
place where work is expected to begin.
As a preliminary matter, these job
orders may not involve work that begins
in one State or another; work may begin
simultaneously throughout the AIE and
across State lines. Further, an
employer’s choice in this scenario is
limited; the employer has the option to
choose only among those SWAs that
share State lines in the AIE. In addition,
the difference in recruitment exposure
in each of the States involved is
minimal. As soon as the employerselected SWA approves the job order
and begins intrastate recruitment, it will
notify the NPC through the FLAG
system to transmit the job order in the
FLAG system to the other SWAs with
jurisdiction over the AIE, in accordance
with § 655.121(f). Adding the suggested
restriction to § 655.121(e)(1) would
increase the complexity of filings
without adding significant value.
However, the Department has clarified
the SWA selection criteria applicable to
a job opportunity that involves work in
multiple AIEs along a planned itinerary,
where there is a true beginning location
for the work to be performed under the
contract, in § 655.302.
b. SWA Review of the Job Order
The Department proposed minor
revisions to the timeframes and
procedures under which the SWA
performs a review of the employer’s job
order. Specifically, the Department
proposed that where the SWA issues a
notification of deficiencies, the
notification the SWA issues must state
the reason(s) the job order fails to meet
the applicable requirements and state
the modifications needed for the SWA
to accept the job order. In addition, the
Department proposed that the job order
be deemed abandoned if the employer’s
response to the SWA’s notification is
not received within 12 calendar days
after the SWA issues the notification.
Finally, the Department proposed that
any notice sent by the SWA to an
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employer must be sent using a method
guaranteeing next-day delivery,
including email or other electronic
methods, and must include a copy to
the employer’s representative, if
applicable.
Two commenters expressed concern
that the Department was diminishing
the role of the SWAs in the job order
review process. One commenter
believed the Department intended to
transfer authority for job order review
from the SWAs to OFLC, which the
commenter asserted would set a
‘‘dangerous precedent’’ that would
undermine the SWA’s role by
influencing how and when a SWA
receives the job order. Similarly, a
workers’ rights advocacy organization
believed the proposed changes would
diminish the SWA’s ability to promptly
recruit and advise U.S. workers of job
opportunities and compromise the
SWA’s ability to issue a notification of
deficiencies when the job order violates
State law or fails to conform to local
prevailing wages and practices. The
commenter emphasized the importance
of the SWAs in conducting review of job
orders, noting the SWAs have greater
knowledge than the CO of actual labor
needs, crop needs, and local practice
and, therefore, are more likely to
identify flaws or fraud in job orders.
This commenter further urged SWAs
not to accept job orders, and OFLC to
deny Applications for Temporary
Employment Certification, that do not
list use of crew leaders as a prevailing
practice or that do list qualifications or
requirements (e.g., experience
requirements, background checks, or
productivity standards), unless there
has been a determination as to ‘‘whether
or not these requirements are, in fact,
the prevailing practices of non-H–2A
employers in the industry and area.’’
Contrary to the concerns of the
commenters, the Department is not
changing the roles or responsibilities of
the SWAs with respect to review and
approval of job orders in this
rulemaking. The SWAs will continue
their traditional role in the recruitment
process and work with employers on the
specifics of the job order. Section
655.121(e)(2) in the NPRM and this final
rule retains the language from the 2010
H–2A Final Rule that explains the SWA
will review the contents of the job order
for compliance with the requirements
set forth in 20 CFR part 653 and this
subpart. As the Department has noted in
prior rulemaking, processing job orders
has been an essential function of the
SWAs since the inception of the H–2A
program, and posting job orders in the
employment service system and
referring individuals to those jobs is a
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core function of the SWAs that remains
at the State level in this rule. The
Department agrees the SWAs are
especially effective arbiters of the
acceptability of job orders due to their
experience in providing services to
farmworkers and their unique expertise
in assisting employers in preparing job
orders and making determinations
regarding their sufficiency. The
Department will continue to rely on the
SWAs to apply their broad, historical
experience in administering our nation’s
public workforce system and
understanding of the practical
application of program requirements to
the process of clearing job orders.
Further, this final rule continues the
CO’s existing authority and
responsibility with respect to review of
job orders after the Application for
Temporary Employment Certification
has been filed. Section 655.121(h) in
this final rule is substantively the same
as § 655.121(e) in the 2010 H–2A Final
Rule. As was the case under the 2010
H–2A Final Rule, § 655.121(h) of this
final rule explains that H–2A job orders
continue to be subject to CO review and
that the CO may require the employer to
make modifications to the job order
prior to certification. As the Department
explained in the 2010 H–2A Final Rule,
it has the ultimate authority to ensure
that a job order submitted in connection
with an Application for Temporary
Employment Certification satisfies
applicable requirements. COs have
always had the authority to review job
orders; SWA acceptance of a job order
has never obligated a CO to overlook
any apparent violations or deficiencies
the SWA may not have identified.
However, in the overwhelming majority
of cases, CO determinations about job
orders will be consistent with those of
the SWA, as is true of these
determinations under the 2010 H–2A
Final Rule.
Two commenters also asserted some
SWAs add an ever-growing and
unnecessary list of attestations and
assurances. One of the commenters
believed this is inconsistent with the
Department’s goal to streamline the
program and expressed concern that the
additional attestations may be
incompatible with the new streamlined
Forms ETA–790/790A and ETA–9142A.
The commenters did not cite specific
unduly burdensome requirements or
state specifically which attestation
requirements they consider
inappropriate or burdensome.
In the Department’s experience, some
disagreements about job order content
are attributable to differences in
experience with the local industries and
labor markets, and the resulting content
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requirements are legitimate outgrowths
of those differences. The Department
will continue to provide training and
ongoing guidance for the SWAs, as
necessary, to foster a clear
understanding of program and other
regulatory requirements and ensure
uniformity in the job order review and
determination processes. With the
newly designed Form ETA–790/790A,
the Department anticipates fewer
inconsistencies between SWA
determinations in various States.
However, should a disagreement
between the SWA and employer arise
regarding attestations, assurances, or
other job order content, which the SWA
and employer are unable to resolve, the
Department reminds employers that
they can submit an Application for
Temporary Employment Certification
pursuant to emergency filing procedures
contained in § 655.134. See
§ 655.121(e)(3).
Under this final rule, the SWA will
provide written notification to the
employer of any deficiencies within 7
calendar days from the date the NPC
transmitted the job order to the SWA.
The notification issued by the SWA,
which will be sent using a method
ensuring next-day delivery, including
email or other electronic methods, will
state the reasons the job order fails to
meet the applicable requirements and
state the modifications needed for the
SWA to accept the job order. The
employer will continue to have an
opportunity to respond to the
deficiencies within 5 calendar days
from the date the SWA issues the
notification, and the SWA will issue a
final notification to accept or deny the
job order within 3 calendar days from
the date the SWA receives the
employer’s response. To ensure a timely
disposition of all job orders, a job order
will be deemed abandoned if the
employer’s response to the notification
of deficiencies is not received within 12
calendar days after the SWA issues the
notification. In this situation, the SWA
will provide written notification and
direct the employer to submit a new job
order to the NPC that satisfies all the
requirements of this section. The 12calendar-day period provides an
employer a reasonable maximum period
within which to respond, given the
Department’s concern for timely
processing of the employer’s job order.
If the SWA does not respond to the
employer’s job order submission within
the stated timelines, or if after providing
responses to the deficiencies noted by
the SWA, the employer is not able to
resolve the deficiencies with the SWA,
the Department will continue to permit
the employer to file its Application for
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61707
Temporary Employment Certification
and job order to the NPC using the
emergency filing procedures contained
in § 655.134. The Department continues
to encourage employers to work with
the SWAs early in the process to ensure
their job orders meet applicable Statespecific laws and regulations and are
accepted in a timely manner for
intrastate and interstate clearance.
c. Clearance of Approved Job Orders
The 2010 H–2A Final Rule provided
for the SWA to review a job order and,
after determining the job order was
acceptable, to begin intrastate clearance
and, in multi-State AIEs, circulate the
job order to the SWAs in other States
with jurisdiction over the place of
employment. Under the 2010 H–2A
Final Rule, however, the SWA does not
begin interstate clearance until the CO
instructs it to do so through the Notice
of Acceptance (NOA). Upon receipt of
the NOA, the SWA transmits the job
order to SWAs in other States, following
the CO’s instructions.
In the NPRM, the Department
proposed changes to the job order
circulation process, in part, to bolster
the optional pre-filing recruitment
procedures proposed at § 655.123. The
Department proposed to expand job
order circulation to interstate clearance
upon SWA approval, rather than upon
CO issuance of the NOA. In addition,
consistent with the proposed electronic
transmission of job orders, the
Department proposed that the SWA
would notify the CO of the SWA’s
approval, after which the CO would
electronically transmit the job order to
other SWAs for interstate clearance.
Although the January 2021 draft final
rule would have adopted the pre-filing
interstate circulation of job orders, after
further consideration of comments that
addressed the Department’s pre-filing
recruitment proposal and the
Department’s resulting decision not to
adopt that proposal, as discussed in the
preamble regarding § 655.123, the
Department has determined not to
revise the timing of job order clearance
in this final rule. In particular, and
consistent with the Department’s
reasoning for not adopting the proposed
optional pre-filing recruitment
provision, the Department has
determined that the potential benefits of
pre-filing interstate circulation of the job
order are outweighed by the potential
for confusion regarding job offer details
and additional communication (e.g.,
between the CO and SWA or SWA and
farmworker) if the job order is modified
before the CO issues a NOA. Retaining
the 2010 H–2A Final Rule’s timing is
consistent with the Department’s goal of
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simplifying the program and is
responsive to comments indicating the
importance of clear, accurate, and fixed
job offer information for recruitment of
U.S. workers. As a result, this final rule
retains the 2010 H–2A Final Rule’s
timing for intrastate and interstate
clearance, with procedural
modifications to conform to the
electronic job order submission and
transmission proposals adopted in this
final rule. As revised, paragraph (f)
provides that the SWA will review a job
order and, if approved, will place the
job order in intrastate clearance to
commence recruitment of U.S. workers
within its jurisdiction. In addition, if
appropriate, the SWA will notify the
NPC that the job order must be
transmitted to other SWAs with
jurisdiction over the place of
employment (i.e., a place of
employment located in a multi-State
AIE) for intrastate clearance.
Subsequently, upon the CO’s review
and acceptance of the Application for
Temporary Employment Certification,
as provided in § 655.143, interstate
circulation of the job order will begin,
in accordance with § 655.150.
employer-requested modifications
would confuse and complicate the CO’s
analysis and ability to identify
deficiencies within 7 business days of
receipt or, alternatively, issue a NOA as
the first action.
Another individual commenter
suggested the Department allow
employers ‘‘to file 120 days from the
date of need,’’ which presumably refers
to the filing timeframe for submitting a
job order in § 655.121(b). As the
Department proposed no changes to the
filing timeframe, this suggestion is
outside the scope of this rulemaking.
3. Section 655.122, Contents of Job
Offers
a. Paragraph (a), Prohibition Against
Preferential Treatment of H–2A Workers
The Department’s current regulation
at § 655.122(a) prohibits the preferential
treatment of H–2A workers and requires
that an employer’s job offer must offer
to U.S. workers no less than the same
benefits, wages, and working conditions
that the employer is offering, intends to
offer, or will provide to H–2A workers.
Section 655.122(a) further prohibits job
offers from imposing on U.S. workers
d. Other Comments Related to § 655.121 any restrictions or obligations that will
not be imposed on the employer’s H–2A
To clarify procedures, and as a result
workers. The Department did not
of other proposed changes, the
propose any changes to or request
Department proposed reorganization of
comments on § 655.122(a) in the NPRM,
several components of § 655.121. In
but the Department received one
addition, the Department proposed a
comment on this section. An agent
technical correction in paragraph (g) of
requested that the Department ‘‘clarify’’
this section, changing ‘‘Application for
that the U.S. workers referenced in this
Temporary Employment Certification’’
section are those U.S. workers engaged
to ‘‘application’’ to reflect that the term
in corresponding employment because,
‘‘application’’ refers to a U.S. worker’s
it asserted, ‘‘U.S. workers not in
application for the employer’s job
opportunity during recruitment, not the corresponding employment are not, in
Application for Temporary Employment fact, entitled to the same H–2A wage
rate as this provision appears to
Certification.
suggest.’’ The commenter, however, is
The Department received a comment
from an agent suggesting an amendment incorrect because the requirements of
to § 655.121(h)(2) to allow employers to this section are not limited to U.S.
request a modification of the job order
workers in corresponding employment.
to the NPC after filing an Application for Under this section, for example, an H–
Temporary Employment Certification
2A employer may not impose on
and prior to receiving a NOA, rather
prospective U.S. workers applying for
than limiting employer-requested
the H–2A job opportunity a minimum
modifications to the period prior to
weight-lifting requirement that it will
filing the Application for Temporary
not and does not impose on H–2A
Employment Certification. The
workers. Therefore, this final rule
commenter believed its suggestion
retains the current regulatory language
would be consistent with the fact the
without change.
NPC may require the employer to
b. Paragraph (d), Housing
modify the job order during the review
Pursuant to the statute and the
process through a deficiency notice.
Department’s regulations, an employer
However, the Department did not
must provide housing at no cost to all
propose changes to this provision,
which appeared in the 2010 H–2A Final H–2A workers and to those non-H–2A
workers in corresponding employment
Rule at paragraph (e)(2) of this section;
who are not reasonably able to return to
therefore, the suggestion is beyond the
their residences within the same day.
scope of this rulemaking. Further,
See 8 U.S.C. 1188(c)(4); § 655.122(d)(1).
unlike CO-ordered modifications,
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Generally, an employer may meet its
housing obligations either by providing
its own housing that meets the
applicable Federal health and safety
standards, or by providing rental and/or
public accommodations that meet the
applicable local, State, or Federal
standards.70 The statute further requires
that the determination whether the
housing meets the applicable standards
must be made not later than 30 days
before the first date of need. See 8
U.S.C. 1188(c)(3)(A) and (4).
The NPRM proposed several
amendments to this section governing
housing inspections and certifications.
Specifically, the Department proposed
to reinforce the statutory requirement
that housing certification must be made
not later than 30 days prior to the first
date of need; clarify that other
appropriate local, State, or Federal
agencies may conduct inspections of
employer-provided housing on behalf of
the SWAs; and authorize the SWAs (or
other appropriate authorities) to inspect
and certify employer-provided housing
for a period of up to 24 months. The
Department received many comments
on the proposed amendments to these
sections. After carefully considering
these comments, the Department has
adopted with minor revisions some of
the regulatory text proposed in the
NPRM and decided not to adopt the
proposals that would have permitted a
24-month housing certification period
and employer self-certification of
housing, as discussed below.
Employer-Provided Housing
Preoccupancy inspections are a vital
step in determining whether employerprovided housing actually meets
applicable health and safety standards,
allowing the Department to ensure that
the housing is safe and sufficient for the
number of workers to be housed prior to
their arrival for the work contract
period. Under the current regulation,
employers are required to obtain
preoccupancy inspections of their
housing for every temporary agricultural
labor certification without exception.
This requirement can lead to delays in
the labor certification process, given the
high demand for preoccupancy
inspections and the SWAs’ finite
resources.
To address such delays, the
Department proposed to allow the
SWAs to inspect and certify employerprovided housing for a period of time
up to a maximum period of 24 months.
Under this proposal, the SWAs would
70 Housing for workers principally engaged in the
range production of livestock must meet the
minimum standards required by § 655.122(d)(2).
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be required to provide prior notice to
the Department of their intention to
certify employer-provided housing for
extended periods of time, up to 24
months, and develop their own criteria
for determining when such
certifications are appropriate. Although
the Department proposed to allow the
SWAs to develop their own criteria, in
recognition of their longstanding
expertise in conducting housing
inspections, the Department also
requested comments as to whether a
final rule should include specific
criteria that the SWAs must consider in
determining whether to certify
employer-provided housing for longer
time periods. The proposal also stated
that when an employer files a
subsequent Application for Temporary
Employment Certification during the
validity period of the official housing
certification previously received from
the SWA (or other appropriate
authority), the employer would have
been required to conduct its own
inspection of the housing and provide
the SWA and CO with a copy of the
still-valid housing certification, which
must be valid for the entire work
contract period, and a signed and dated
statement that the employer has
inspected the housing, that the housing
is available and sufficient to
accommodate the number of workers
requested, and that the housing meets
all applicable health and safety
standards. Additionally, the NPRM
proposed to add language reiterating the
statutory requirement that
determinations with respect to housing
must be made no later than 30 days
prior to the first date of need. The
NPRM also proposed to clarify that
other appropriate local, State, or Federal
agencies may conduct inspections of
employer-provided housing on behalf of
the SWAs, in accordance with the
regulatory provisions at § 653.501(b). As
discussed below, the Department has
decided to adopt with minor revisions
some of the regulatory provisions
proposed in the NPRM.
The Department received comments
from a range of stakeholders regarding
the proposed changes to the employerprovided housing inspection
requirements. Employers and employer
representatives expressed broad support
for the proposal to allow certifications
of employer-provided housing for a
period of up to 24 months with
employers self-inspecting their housing
for further applications during this
period. They indicated that this
proposed revision would reduce delays
in the application and certification
process that they say harm agricultural
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businesses and create uncertainty for
employers and workers. Some State
agencies also expressed support for this
proposal, indicating that it would
improve their ability to allocate their
resources for housing inspections.
However, many of these commenters
expressed concern that the SWAs would
have discretion to determine the criteria
for determining when such housing
certification periods would be
appropriate, indicating that the SWAs
should be precluded from continuing
inspections on an annual basis. Several
commenters indicated that the final rule
should require the SWAs to allow
agricultural employers to have their
housing certified for a period of 24
months, or at least provide incentives to
the SWAs to encourage them to certify
employer-provided housing for a 24month period as often as possible. Other
commenters stated that the Department
should require the SWAs to certify
employer-provided housing for a 24month period when previous
inspections of housing provided by that
employer had found that the housing
complied with all applicable standards.
Employers and their representatives
were more divided in their comments
regarding the proposed clarification that
other appropriate local, State, or Federal
agencies may conduct inspections of
employer-provided housing on behalf of
the SWAs. Several commenters stated
that allowing agencies other than the
SWAs to conduct housing inspections,
as is already done in some States,
reduces the logistical burden on the
SWAs. They also noted that in some
States, employer-provided housing is
already inspected by other agencies due
to State laws regarding migrant worker
housing. If those agencies also
conducted housing inspections for H–
2A housing certifications, it would
reduce the burden on employers for the
same agency to conduct both
inspections. Other employer
associations expressed concern over the
proposed language, particularly the
possibility that Federal agencies might
conduct housing inspections, as they
felt such inspections were more
appropriately conducted at the State or
local level.
In contrast, workers and workers’
rights advocacy organizations generally
opposed the proposal to allow the
SWAs to certify employer-provided
housing for a period of up to 24 months,
with employers conducting selfinspections of the housing for any
subsequent Applications for Temporary
Employment Certification filed during
that timeframe. Workers, workers’ rights
advocacy organizations, and some
government agencies stated that
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61709
employer-provided housing frequently
fails to meet applicable health and
safety standards even when inspected
annually under the current rule, and
that moving to a 24-month certification
period would thus increase the risk that
workers would be exposed to unsafe
housing conditions. Several commenters
also noted that housing conditions can
deteriorate significantly over the course
of a year, citing examples of housing
that passed inspection but was found to
have health or safety violations when
subsequently investigated during the
certification period, making it even less
appropriate to certify housing for a
longer time period. Workers’ rights
advocacy organizations also questioned
whether the employers’ self-inspection
of their housing during the 24-month
certification period would motivate
employers to ensure that their housing
continues to meet applicable health and
safety standards, given the high rate of
violations even when employers know
that their housing will be inspected by
a government agency annually. Some
commenters stated that if the
Department allows the SWAs to certify
employer-provided housing for a 24month period, the regulation should
include criteria that must be met for
employers to receive a longer
certification period, such as compliance
with Federal, State, or local housing
laws, age of the housing, and whether
the housing is in a populated, easily
accessible area. Two other commenters
suggested that if the SWAs were unable
to certify housing in a timely manner,
the Department itself should inspect the
housing.
After consideration of the comments
received, the Department has decided
not to adopt the proposal to permit
certifications of employer-provided
housing for a period of up to 24 months,
with employers self-inspecting their
housing for further applications during
this period. Although the Department
recognizes that preoccupancy housing
inspections must be conducted in a
timely manner, the Department
concludes that achieving greater
expediency in the certification process
must not come at the cost of reduced
housing compliance monitoring and
increased risk to worker health and
safety. As several commenters noted,
the Department frequently encounters
post-certification violations of the
housing safety and health requirements
even under the current rule; reducing
the frequency of housing inspections
would likely further exacerbate the
frequency and severity of such
violations. To do so would be
inconsistent with the statute’s
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requirement that worker housing meet
applicable safety and health standards.
And while the January 2021 draft final
rule would have accepted the proposal,
after further consideration of the
comments, and for the reasons
discussed above, the Department has
declined to do so.
The Department has also considered
the comments regarding the proposed
clarification that other appropriate local,
State, or Federal agencies may conduct
inspections of employer-provided
housing on behalf of the SWAs. As
stated above, the proposed language
merely reflected the existing regulatory
provisions of § 653.501(b)(3), which
already allow other appropriate agencies
to conduct preoccupancy housing
inspections on the SWAs’ behalf, and
are included with the other housing
provisions at § 655.122(d) for clarity and
convenience. Indeed, as several
commenters noted, preoccupancy
inspections are already carried out by
agencies other than the SWA in several
States. As the proposed language merely
reiterated the current regulatory
position that preoccupancy inspections
may be conducted by any appropriate
public agency, the Department did not
find that any change to this language
was warranted and therefore has
adopted the proposed language without
change in this final rule. Similarly, the
Department is adopting without change
the proposed language in paragraph
(6)(i) of this section, reiterating the
statutory requirement that the
determination as to whether housing
provided to workers meets the
applicable standards must be made not
later than 30 calendar days before the
first date of need identified in the
Application for Temporary Employment
Certification.
Rental and/or Public Accommodations
Where employers choose to meet their
H–2A housing obligations by providing
rental and/or public accommodations,
the statute explicitly states that the
accommodations must meet local
standards for rental and/or public
accommodations. In the absence of
applicable local standards, State
standards for rental or public
accommodations must be met, and in
the absence of applicable local or State
standards, Federal temporary labor
camp standards must be met. See 8
U.S.C. 1188(c)(4).71 The current
71 ‘‘The employer shall be permitted at the
employer’s option . . . to secure housing which
meets the local standards for rental and/or public
accommodations or other substantially similar class
of habitation: Provided, That in the absence of
applicable local standards, State standards for
rental and/or public accommodations or other
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regulations at 20 CFR 655.122(d)(1)(ii)
reflect the statutory language,
incorporating the Occupational Safety
and Health Administration’s (OSHA)
temporary labor camp standards at 29
CFR 1910.142, and additionally state
that ‘‘[t]he employer must document to
the satisfaction of the CO that the
housing complies with the local, State,
or Federal housing standards.’’
Currently, employers may meet that
requirement by several methods,
including, but not limited to, providing
a copy of a housing inspection report or
certification by the SWA, or another
local, State, or Federal agency, where
such an inspection is required by
applicable rental or public
accommodation standards, or by
providing a signed and dated written
statement confirming that the
accommodation complies with
applicable local, State, and/or Federal
standards.72
This patchwork of applicable
standards creates several challenges to
protecting the health and safety of H–2A
and corresponding workers housed in
rental and/or public accommodations,
such as hotels, motels, and other public
accommodations that are available to
the general public to rent for relatively
short-term stays. Under the current
regulations, in the absence of any local
or State standards applicable to rental
and/or public accommodations, the full
set of OSHA temporary labor camp
standards at § 1910.142 apply. However,
several of these standards address
health and safety concerns that
generally do not arise in rental and/or
public accommodations and thus are
impractical or infeasible to apply in this
context (for example, § 1910.142(a)(1),
which addresses drainage of camp
sites), leading to inconsistent
application and enforcement of the
standards overall. Conversely, where
any local or State standards applicable
to rental and/or public accommodations
do exist, those standards apply to the
complete exclusion of the OSHA
temporary labor camp standards. Even
where local and State standards for
rental and/or public accommodations
exist and address basic health and safety
concerns for the general population,
such as maximum occupancy, these
standards are often silent on health and
safety concerns unique to agricultural
substantially similar class of habitation shall be
met: Provided further, That in the absence of
applicable local or State standards, Federal
temporary labor camp standards shall apply.’’
72 See OFLC FAQ, What do I need to submit to
demonstrate the [rental and/or public
accommodations] complies with applicable housing
standards? (June 2017), https://www.foreignlabor
cert.doleta.gov/faqsanswers.cfm#q!917.
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worker housing that are otherwise
addressed in the OSHA temporary labor
camp standards at § 1910.142.
These gaps in protection can lead to
significant health and safety concerns.
In particular, overcrowding is one of the
most common problems the Department
encounters when inspecting hotels or
motels used to house H–2A and
corresponding workers. Workers have
been found to be required to share a
bed, sleep on the floor in a sleeping bag,
share a single room where as many as
eight people may be sleeping, or sleep
on mattresses on the ground in laundry
rooms or living rooms. In addition,
where workers have to cook their own
meals, hotels and motels may not have
sanitary facilities or adequate cooking
equipment, which can lead to worker
health issues, rodent or pest
infestations, and fire hazards. Workers
housed in hotels and motels also may
not have access to laundry facilities, a
serious concern for workers whose
clothing regularly comes into contact
with pesticides or herbicides. These
issues are all addressed in the OSHA
temporary labor camp standards but are
not frequently covered in local or State
standards for rental and/or public
accommodations.73
To address these concerns, the
Department proposed certain changes to
its regulations interpreting the statutory
requirements for rental and/or public
accommodations standards. The
Department identified specific OSHA
temporary labor camp standards that are
applicable to rental or public
accommodations, specifically:
§ 1910.142(b)(2) (‘‘[e]ach room used for
sleeping purposes shall contain at least
50 square feet of floor space for each
occupant’’), (b)(3) (‘‘[b]eds . . . shall be
provided in every room used for
sleeping purposes’’), (b)(9) (‘‘In a room
where workers cook, live, and sleep a
minimum of 100 square feet per person
shall be provided. Sanitary facilities
shall be provided for storing and
preparing food.’’), (b)(11) (heating,
cooking, and water heating equipment
installed properly), (c) (water supply);
(f) (laundry, handwashing, and bathing
facilities), and (j) (insect and rodent
control). Where local health and safety
standards for rental and/or public
73 Beginning on March 13, 2020, continued on
February 24, 2021, and again on February 18, 2022,
the President has declared a national emergency
concerning the novel coronavirus disease (COVID–
19) pandemic. The Department encourages H–2A
employers to regularly consult Federal, State, and
local guidance on the COVID–19. At the time of this
publication, OSHA’s regulations and guidance
relevant to COVID–19 are available at https://
www.osha.gov/coronavirus. OFLC’s guidance on
COVID–19 for H–2A employers is available at
https://www.dol.gov/agencies/eta/foreign-labor.
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accommodations exist, the local
standards apply in their entirety.
However, if the local standards do not
address one or more of the issues
addressed in the OSHA health and
safety standards listed in the regulation,
the relevant State standards on those
issues will apply. If both the local and
State standards are silent on one or
more of the issues addressed in the
OSHA health and safety standards listed
in the regulation, the relevant OSHA
health and safety standards will apply.
If there are no applicable local or State
standards at all, only the OSHA health
and safety standards listed in the
regulation will apply. OSHA temporary
labor camp standards that are not
specifically mentioned in 20 CFR
655.122(d)(1)(ii) will not be applicable
to rental or public accommodations.
The following is an example of how
local, State, and OSHA health and safety
standards would be applied to a specific
rental or public accommodation under
the regulation. An employer provides
housing for workers in a motel located
in a county with a local code that
includes health and safety standards for
public accommodations that address all
but one of the health and safety
standards in the listed OSHA standards,
i.e., a requirement for a minimum
number of square feet per occupant for
sleeping rooms, one of the applicable
OSHA health and safety standards listed
in the regulation. The existing local
code applies in its entirety to the motel,
but since the local code has no
applicable standard for a minimum
number of square feet per occupant for
sleeping rooms, the State standard for
the minimum number of square feet per
occupant for sleeping rooms, if any,
would be applicable to the housing as
well. If the State has no standard for the
minimum number of square feet per
occupant for sleeping rooms that is
applicable to public accommodations,
then the OSHA standard at 29 CFR
1910.142(b)(2), which states that
sleeping rooms must contain at least 50
square feet per occupant, will apply (or,
where cooking facilities are present,
§ 1910.142(b)(9), which requires 100
square feet per occupant in rooms where
occupants live, sleep, and cook, would
apply), in addition to other
requirements of the local code.
However, if the local standard (or State
standard, in the absence of any local
standard) contains a standard for the
minimum number of square feet per
occupant for sleeping rooms (or, where
cooking facilities are present, a standard
for the minimum feet per occupant for
rooms where occupants live, sleep, and
cook) that is applicable to public
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accommodations, that standard would
apply, regardless of whether that local
standard was more or less stringent than
the applicable OSHA standard, because
the listed OSHA standards apply only in
the absence of local or State standards
addressing those health and safety
issues. Similarly, a local or State
standard need not explicitly provide for
a minimum number of square feet per
occupant, provided the standard
addresses the relevant area required for
a given number of people. For example,
a local standard that provides a
maximum occupancy of three persons to
a room that measures 100 square feet
would constitute an applicable local
standard, as it provides for a minimum
area for each occupant. Alternatively, if
there were no local or State health and
safety codes applicable to the motel,
only the OSHA standards listed in 20
CFR 655.122(d)(1)(ii) would apply. Any
other OSHA standards listed at 29 CFR
1910.142 would not be applicable to the
motel, because only the OSHA
standards specifically listed in 20 CFR
655.122(d)(1)(ii) are applicable to rental
or public accommodations, and then
only when neither the locality nor the
State have applicable standards
addressing those issues.
The Department also proposed to
modify the current regulatory language,
which states that ‘‘[t]he employer must
document to the satisfaction of the CO
that the housing complies with the
local, State, or Federal housing
standards’’ (§ 655.122(d)(1)(ii)), to
specify how an employer must
document that the rental or public
accommodations meet local, State, or
Federal standards. The proposed
language states that an employer must
submit to the CO a signed, dated,
written statement, attesting that the
rental and/or public accommodations
meet all applicable standards and are
sufficient to accommodate the number
of workers requested. This statement
must include the number of beds and
rooms that the employer will secure for
the worker(s). The proposal language
further required that, where the
applicable local or State standards
under § 655.122(d)(1)(ii) require an
inspection, the employer also must
submit a copy of the inspection report
or other official documentation from the
relevant authority. Where no inspection
is required, the employer’s written
statement must confirm that no
inspection is required. The proposed
language generally reflects current
OFLC guidance as to how the employer
may document that applicable health
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and safety standards have been met,74
with the additional requirements that
employers submit a written statement
even if they are also submitting a copy
of an inspection report, where required,
and that the written statement must
contain the number of beds and rooms
that will be provided in the rental or
public accommodations. As discussed
below, the Department has decided to
adopt the regulatory provisions as
proposed in the NPRM, with a few
modifications.
Several employers and employer
associations opposed the proposed
changes. These commenters generally
stated that there is no basis for requiring
employers to ensure that rental or
public housing complies with any of the
OSHA temporary labor camp health and
safety standards, because standards
designed for temporary labor camps are
inappropriate for rental or public
accommodations. They commented that
requiring employers to find rental or
public accommodations that meet the
listed OSHA standards (in the absence
of local or State standards addressing
those issues) would be very difficult,
possibly even preventing H–2A
employers from using rental or public
accommodations. These employers
requested that the regulations no longer
require the application of OSHA
temporary labor camp standards. At
least one commenter stated that the
option to provide rental or public
accommodations was made available to
employers to give them the flexibility to
provide housing that does not comply
with OSHA health and safety standards
in areas where compliant housing may
be scarce. Some commenters expressed
further concern that employers should
be expected to attest to the compliance
of rental or public housing
accommodations provided to their
workers, as it would be too confusing
for them to determine which set of
standards should apply. One employer
association, while generally supportive
of the proposed changes, indicated that
employers are frequently unable to use
public accommodations because the
accommodations fail required
inspections for minor issues, such as
lack of window screens, and urged that
employers should have greater access to
public accommodation options.
In contrast, workers, workers’ rights
advocacy organizations, and at least one
State agency expressed support for the
proposed changes, indicating that
specifically requiring the application of
74 See OFLC FAQ, What do I need to submit to
demonstrate the [rental and/or public
accommodations] complies with applicable housing
standards? (June 2017), https://www.foreignlabor
cert.doleta.gov/faqsanswers.cfm#q!917.
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Federal OSHA health and safety
standards addressing important issues
such as overcrowding, or inadequate
sleeping, bathing, or laundry facilities,
in the absence of such local or State
standards, would result in modest
improvements to worker health and
safety. However, these commenters also
stated that these improvements would
not be sufficient without a strong
commitment to inspections and
enforcement of housing violations, with
one workers’ rights advocacy
organization further urging that Federal
OSHA should be required to inspect
rental or public accommodations in
areas where local or State laws do not
require such inspections. Another
workers’ rights advocacy organization
stated that the regulations should
require the employer to at least use a
more detailed self-inspection form, such
as Form ETA–338, and identify the
applicable standards for DOL or the
SWA to review prior to issuing a
temporary agricultural labor
certification. In addition, most of these
commenters expressed general support
for additional protections or standards
to be included in the regulations, but
did not identify specific standards for
inclusion. As addressed further below,
only one commenter suggested specific
additional standards for inclusion in the
regulation.
Having reviewed the comments on
these issues, the Department adopts the
proposals on rental and/or public
accommodations at § 655.122(d)(1)(ii)
and (d)(6)(iii), with a few modifications.
With respect to the concerns raised by
employers and employers’ associations
that requiring compliance with
applicable OSHA temporary labor camp
health and safety standards may reduce
the number of acceptable rental or
public housing options, particularly in
more rural areas, the Department notes
that the statute requires that rental or
public accommodations comply with
applicable Federal temporary labor
camp standards in the absence of
applicable local or State standards.
Thus, even under the Department’s
current regulations, in many instances,
rental and public accommodations must
comply with applicable OSHA
temporary labor camp standards if used
to satisfy an H–2A employer’s housing
obligations. The Department therefore
cannot, through regulation, remove
employers’ statutory obligations to
comply with applicable Federal
temporary labor camp standards in the
absence of applicable local or State
standards. The Department can,
however, identify which OSHA
temporary labor camp health and safety
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standards are applicable to rental or
public accommodations. Rental and
public accommodations are different
structures than temporary labor camps,
and some temporary labor camp
standards are not applicable to such
accommodations. However, rental and
public accommodations generally are
not designed to house groups of
unrelated adult agricultural workers for
an extended period of time, especially
not in only one or two rooms.
Accordingly, local or State standards
governing rental or public
accommodations may not address
serious health and safety issues that
arise in such worker housing. The
regulation thus identifies which OSHA
standards employers must meet in the
absence of applicable local or State
standards on those issues, to prevent
serious health and safety issues more
likely to occur where rental or public
housing is used to house H–2A and
corresponding workers, while
eliminating confusion about whether
such rental or public housing must
comply with other OSHA temporary
labor camp standards that are not
feasibly applied to hotels and motels
and other rental or public
accommodations.
Similarly, the Department notes that it
cannot ‘‘simply require that regardless
of local and state standards applicable
to public accommodations, the housing
must meet the basic minimum
standards’’ set forth in OSHA’s
temporary labor camp standards, as one
workers’ rights advocacy organization
suggested, because the statute permits
employers to secure housing that meets
applicable local or State standards for
rental and/or public accommodations.
As noted above, the Department also
asked for comment specifically as to
whether the regulation should identify
any additional health and safety
standards addressed in the DOL OSHA
standards at 29 CFR 1910.142 as
applicable to rental or public
accommodations. Only one commenter,
a workers’ rights advocacy organization,
provided examples of additional OSHA
temporary labor camp standards for
inclusion in the regulations.
Specifically, the commenter advocated
for the addition of § 1910.142(b)(7)
(‘‘[a]ll living quarters shall be provided
with windows’’), (b)(10) (‘‘stoves (in
ratio of one stove to 10 persons or one
stove to two families) shall be
provided’’), (d) (toilet facilities), (g)
(lighting), (h) (refuse disposal), and (i)
(construction and operation of kitchens,
dining, and feeding facilities).
The Department appreciates the
suggestions set forth in this comment.
The Department has decided to include
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some, but not all, of the suggested
OSHA standards in the list of applicable
OSHA temporary labor camp standards.
First, the commenter argued for the
inclusion of § 1910.142(b)(10), which
states that ‘‘[i]n camps where cooking
facilities are used in common, stoves (in
ratio of one stove to 10 persons or one
stove to two families) shall be provided
in an enclosed and screened shelter.
Sanitary facilities shall be provided for
storing and preparing food.’’ The
commenter argued that the inclusion of
this standard was necessary when
employers claim that they are providing
cooking and kitchen facilities to workers
housed in rental or public
accommodations, as rental or public
accommodations frequently have
inadequate cooking facilities that are
either lacking in stoves or have an
insufficient number for all workers to
have sufficient access to cook their own
food. The commenter further pointed
out that without sufficient access to
stoves, workers often must use
microwaves or hot plates for all of their
cooking needs, resulting in potential fire
hazards. The Department agrees. Where
employers choose to meet their meal
obligations by providing kitchen and
cooking facilities to workers, the
facilities must include, among other
things, working cooking appliances, an
obligation that is not met merely by the
provision of one or more electric hot
plates, microwaves, or outdoor
community grills. The failure to provide
adequate cooking appliances when
attempting to meet meal obligations
through the provision of cooking and
kitchen facilities would in itself be a
violation of 20 CFR 655.122(g), as was
discussed in the preamble to the NPRM
and is addressed further below.
Including this standard as an applicable
OSHA temporary labor camp standard
may help employers determine whether
rental or public accommodations have
adequate kitchen and cooking facilities
to enable employers to meet their meal
obligations. Moreover, local and State
codes applicable to rental or public
accommodations are not likely to
address this issue, since, in most
instances, this type of housing is not
generally intended to house groups of
people over an extended period of time
who need to be able to cook their own
meals. This standard has therefore been
included in the regulation as one of the
applicable OSHA temporary labor camp
standards, although it will be applicable
only where an employer has chosen to
meet its meal obligations by providing
kitchen and cooking facilities to workers
rather than by providing three meals per
day to workers.
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The commenter also advocated for the
inclusion of § 1910.142(g), ‘‘Lighting,’’
which provides that where electric
service is available:
• Each habitable room in a camp shall
be provided with at least one ceilingtype light fixture and at least one
separate floor- or wall-type convenience
outlet.
• Laundry and toilet rooms and
rooms where people congregate shall
contain at least one ceiling- or wall-type
fixture.
• Light levels in toilet and storage
rooms shall be at least 20 foot-candles
30 inches from the floor.
• Other rooms, including kitchens
and living quarters, shall be at least 30
foot-candles 30 inches from the floor.
The commenter stated that worker
health and safety requires at least one
light fixture and outlet in each sleeping
room, as well as adequate lighting in
other rooms. It is likely that this issue
will be addressed in applicable local or
State codes, as various building codes
published by the International Code
Council, including the International
Property Management Code, have
standards regarding the number of
electrical outlets and light fixtures
required in sleeping rooms and other
rooms, and these codes have been
adopted by most States and/or
localities.75 However, as this standard
does address a basic health and safety
need, and employers can fairly easily
determine whether the rental or public
accommodations they intend to use
meet this standard, the Department has
included § 1910.142(g) in the regulation
as one of the applicable OSHA
temporary labor camp standards that
will apply in the absence of any
applicable local or State standard
addressing this issue.
The commenter also recommended
that the entirety of § 1910.142(d),
containing various standards for toilet
facilities, should be included in the
regulation as one of the applicable
OSHA temporary labor camp standards,
arguing that requirements for a
minimum ratio of toilets per person, as
well as provisions for lighting, a supply
of toilet paper, and cleanliness, are
essential for workers’ health. The
Department agrees that having adequate
and sanitary toilet facilities is clearly
necessary for workers’ health, but
several of the standards included in this
section are impractical or less necessary
for many types of rental or public
accommodations, as the standards were
designed for temporary labor camp
75 See https://www.iccsafe.org/wp-content/
uploads/Master-I-Code-Adoption-Chart-DEC2021.pdf (last visited Dec. 14, 2021).
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facilities. For example, in hotels or
motels, it may not be practical or
necessary to require that toilet rooms be
accessible without passing through
sleeping rooms, as bathrooms in hotels
and motels tend to be accessed directly
off of the lone sleeping area and thus
there is no other way to access the
bathroom. Similarly, it may be
impractical to require that there be a
minimum of two toilets for every shared
facility, since one shared hotel room is
likely to have only one toilet. In
addition, some of the issues addressed
by this standard are covered by other
OSHA temporary labor camp standards
that are already specified in the
regulation. For instance,
§ 1910.142(d)(8), which requires that
each toilet room have natural or
artificial light available at all hours, is
not necessary when § 1910.142(g),
which is included in the regulation as
discussed above, requires all toilet
rooms to have at least one ceiling or
wall-type light fixture. However, some
of the standards in this section are more
feasibly implemented in rental or public
accommodations, are more within the
employer’s ability to control, and are
key to maintaining a sanitary bathroom
environment. Section 1910.142(d)(1),
which states that ‘‘[t]oilet facilities
adequate for the capacity of the camp
shall be provided,’’ would be sufficient
to require employers to ensure that the
rental or public accommodation has
sufficient toilets for the number of
workers housed, without specifying a
layout that may be impractical for rental
or public accommodations. Section
1910.142(d)(9), requiring that an
adequate supply of toilet paper be
provided for each toilet, clearly serves a
critical sanitary purpose. Section
1910.142(d)(10), requiring toilet rooms
to be kept in a clean and sanitary
condition and cleaned daily, also
ensures that toilet facilities are
maintained in a manner adequate for
worker health and safety, and employers
can ensure that this standard is followed
in almost all types of rental or public
accommodations. Accordingly, the
Department has incorporated
§ 1910.142(d)(1), (9), and (10) into this
final rule as applicable OSHA
temporary labor camp standards.
However, the Department declines to
include in this final rule all of the other
OSHA temporary labor camp standards
recommended by the workers’ rights
advocacy organization (§ 1910.142(b)(7)
(ventilation), (h) (refuse disposal), and
(i) (kitchens, dining halls, and feeding
facilities)). First, § 1910.142(b)(7) states
that ‘‘[a]ll living quarters shall be
provided with windows the total of
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61713
which shall be not less than one-tenth
of the floor area. At least one-half of
each window shall be so constructed
that it can be opened for purposes of
ventilation.’’ The commenter claimed
that this standard should be
incorporated because rental and public
accommodations may otherwise not
have sufficient ventilation to combat a
damp indoor environment, which can
lead to serious health and safety issues
such as mold, cockroach infestations,
and rodent infestations. Although the
Department certainly acknowledges the
importance of ventilation in housing,
this standard may be too restrictive for
rental and public accommodations. In
many instances, rental or public
accommodations will have mechanical
ventilation through a heating,
ventilation, and air conditioning system
or by other mechanical ventilation,
which can provide ventilation at least as
adequate as the ventilation provided by
windows. An employer is unlikely to be
able to require that hotels and motels
additionally provide for windows that
open. The U.S. Environmental
Protection Agency has stated that
mechanical ventilation is preferable to
ventilation through windows or other
openings,76 making it even less
appropriate to require windows that can
be opened when the rental or public
facility has other adequate means of
ventilation. In addition, because
windows (natural light) and ventilation
are addressed by the various model
building, residential, and maintenance
codes published by the International
Code Council, which have been
incorporated by the majority of States,77
State and local codes are likely to have
provisions addressing this standard.
Moreover, if a lack of adequate
ventilation leads to damp conditions
that foster pest infestations or similar
unhealthy conditions, the rental or
public accommodations would not meet
the requirement of § 1910.142(j), already
included in this final rule, which states
that effective measures shall be taken to
prevent infestation by and harborage of
animal or insect vectors or pests.
Second, § 1910.142(h)(1) requires flyand rodent-tight containers for the
storage of garbage, and that at least one
container be provided within 100 feet of
each ‘‘family shelter.’’ Section
1910.142(h)(2) requires that garbage
containers be kept clean, and
§ 1910.142(h)(3) requires that garbage be
76 See Mechanical Ventilation: Breathe Easy with
Fresh Air in the Home, https://www.energystar.gov/
ia/new_homes/features/MechVent_062906.pdf (last
visited Dec. 14, 2021).
77 See https://www.iccsafe.org/wp-content/
uploads/Master-I-Code-Adoption-Chart-DEC2021.pdf (last visited Dec. 14, 2021).
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emptied when full, but at least twice a
week. The workers’ rights advocacy
organization argued that this standard
should be included to prevent rodents
and insect infestation, stating that the
inclusion of § 1910.142(j) regarding
rodent and insect control is undercut by
the failure to incorporate this standard.
While adequate facilities for containing
and disposing of garbage are important
to maintaining a healthy living
environment, the Department does not
believe that the requirements of this
standard are always practical in the
context of rental or public
accommodation, where refuse collection
for the worker housing may be
conducted very differently than for a
temporary labor camp but in a safe and
sanitary manner. For example, where
workers are housed in several rooms in
a hotel, trash may be collected from
their rooms along with trash from other
rooms and placed into the hotel
dumpsters. Although there might not be
at least one dumpster for each worker
shelter and the dumpster may not be
within 100 feet of the shelter, such a
system could nevertheless adequately
deal with the garbage in a safe and
sanitary manner. Moreover, the
Department does not agree that the
inclusion of § 1910.142(j) regarding
rodent and insect control is undercut by
the failure to incorporate all elements of
this standard, particularly in the context
of rental and public accommodations.
On the contrary, if accumulating garbage
encourages rodents or insects, the
employer would not be ensuring that
‘‘[e]ffective measures shall be taken to
prevent infestation by and harborage of
animal or insect vectors or pests,’’ and
would be in violation of § 1910.142(j).
However, upon further consideration,
the Department concludes that certain
aspects of § 1910.142(h), specifically
paragraphs (h)(2) and (3) requiring that
garbage cans be kept clean and be
emptied regularly, address significant
safety and health concerns aside from
the potential for rodent of insect
infestation, and that these standards are
easily implemented even in the context
of hotels and motels, and are within an
employer’s control to ensure
compliance. Accordingly, the
Department has included
§ 1910.142(h)(2) and (3) in the
regulation as two of the applicable
OSHA temporary labor camp standards
that will apply in the absence of any
applicable local or State standard
addressing these issues. Though the
Department did not include this
standard in the January 2021 draft final
rule, upon further consideration of the
rulemaking record and for the reasons
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stated above, the Department has
concluded it is appropriate to do so
here.
Finally, § 1910.142(i) establishes
certain standards for central dining halls
or multiple family feeding operations
and food handling facilities in
temporary labor camps. The workers’
rights advocacy organization
commented that this standard should be
applicable to public and rental
accommodations because these
accommodations often do not have
adequate cooking and kitchen facilities.
Moreover, even where rental or public
accommodations have cooking and
kitchen facilities, the commenter alleged
that the facilities often have improper
refrigerator temperatures, pest
infestations, or contaminated water.
However, the Department does not agree
that the inclusion of § 1910.142(i) as an
applicable OSHA temporary labor camp
standard is necessary to ensure that
workers have adequate and safe cooking
facilities when housed in rental or
public accommodations. As explained
in the preamble discussion of 20 CFR
655.122(g) the Department has
addressed the issues that arise when
kitchen and cooking facilities in rental
or public accommodations are
insufficient. The inclusion of
§ 1910.142(i) would incorporate
standards that were designed primarily
for larger centralized cooking and
dining facilities, such as a large labor
camp where an employer has a
centralized dining hall and employs
people to cook for the workers, and are
therefore not appropriate for many
rental or public accommodation
situations. For example, even when a
hotel room or suite has adequate kitchen
or cooking facilities, it would not be
practical to require that there be no
opening from the kitchen into the living
or sleeping quarters, as would be
required by § 1910.142(i)(2). Moreover,
several of the potential harmful
conditions mentioned by the commenter
are either sufficiently addressed in the
context of rental or public
accommodations by other standards that
were already included in the proposed
provisions, such as § 1910.142(b)(9)
(‘‘[s]anitary facilities shall be provided
for storing and preparing food’’ in rooms
where workers cook), (c) (‘‘[a]n adequate
and convenient water supply, approved
by the appropriate health authority,
shall be provided in each camp for
drinking, cooking, bathing, and laundry
purposes’’), or (j) (‘‘[e]ffective measures
shall be taken to prevent infestation by
and harborage of animal or insect
vectors or pests’’), or would be further
addressed by the additional
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incorporation of § 1910.142(b)(10), as
discussed above.
The Department has made additional
minor, nonsubstantive revisions to 20
CFR 655.122(d)(1)(ii) to better describe
the applicable OSHA temporary labor
camp standards.
With respect to employers’ concerns
regarding self-attestation under
§ 655.122(d)(6)(iii) that the rental or
public accommodations they furnish to
workers comply with applicable local,
State, or OSHA standards,78 the
Department notes that under both the
statute and the current regulations,
employers are responsible for ensuring
that if they choose to use rental or
public accommodations to meet their
housing obligations, those rental or
public accommodations must meet
applicable standards, and for
documenting to the CO that these
standards have been met during the
application process. By requiring
employers to provide a signed and dated
statement attesting that the rental and/
or public accommodations meet all
applicable standards and are sufficient
to accommodate the number of workers
requested, specifically noting the
number of rooms and beds to be
provided for the workers, along with
any required inspection reports, the
proposed changes merely attempt to
ensure that employers have considered
the applicable standards and verified
that the rental or public
accommodations comply with the
standards prior to workers’ arrival.
However, the Department will not
require that employers use a particular
self-inspection form in providing the
required statement because doing so
would be impracticable. The applicable
standards will vary depending upon the
locality or State in which the rental or
public accommodations are located.
Housing for Workers Covered by 20 CFR
655.200 Through 655.235
The Department is making clarifying
edits to paragraph (d)(2) to reflect that
§§ 655.230 and 655.235 establish the
housing requirements for workers
employed in herding and range
production of livestock occupations
under §§ 655.200 through 655.235. The
Department has established separate
requirements for these workers due to
the unique nature of the work
performed. The Department is also
making a technical, conforming edit to
paragraph (d)(2) to reflect that § 655.304
78 To the extent that commenters had concerns
related to inspections of rental or public housing by
SWAs or other agencies, it should be noted that
those inspections are not required by these
regulations, but by State or local laws, with their
own requirements.
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establishes the housing standards
applicable to mobile housing for
workers engaged in itinerant animal
shearing or custom combining, as
defined and specified under §§ 655.300
through 655.304.
c. Paragraph (g), Meals
The Department did not propose any
changes to the current regulation at
§ 655.122(g), which requires an
employer to provide each worker three
meals a day or furnish free and
convenient cooking and kitchen
facilities so that the worker can prepare
meals, and further states that where an
employer provides the meals, the job
offer must state the charge, if any, to the
worker for such meals. However, due to
the high incidence of violations of this
provision, the Department provided
additional clarification of these
requirements in the preamble to the
NPRM. The Department adopts that
guidance in the preamble to this final
rule, with some additional clarifications
in response to comments received. In
addition, as explained below, the
Department has revised § 655.122(g) in
this final rule to reiterate certain
requirements in § 655.173 regarding
meal charges.
Specifically, the NPRM clarified that
kitchen facilities provided in lieu of
meals must include clean space for food
preparation, working cooking and
refrigeration appliances, and
dishwashing facilities. Although no
specific cooking appliances are
required, the appliances provided must
be sufficient to allow workers to safely
prepare three meals per day, a
requirement that is not met if the
employer merely provides an electric
hot plate, a microwave, or an outdoor
community grill, or if workers are
required to purchase cooking appliances
or accessories, such as portable burners,
charcoal, propane, or lighter fluid. The
Department adopts that guidance here.
In addition, the Department noted
that public accommodations such as
hotels or motels frequently do not have
adequate cooking facilities to satisfy an
employer’s obligations under this
section, and, in those instances,
employers must provide three meals a
day to workers to meet their obligations
under § 655.122(g). The Department
further explained that, where workers
are housed in rental or public
accommodations that provide meals, the
provision of such meals may be
sufficient to satisfy part of the
employer’s obligations under
§ 655.122(g). However, upon further
consideration of the fact that such meals
are unlikely to be sufficient to satisfy
the employer’s obligations under
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§ 655.122(g), the Department is further
clarifying this guidance. Some public
accommodations may provide
complimentary breakfast (e.g.,
continental breakfast, buffet, etc.) during
a specific allotted time, such as 6 a.m.
to 10 a.m. Such complimentary
breakfast will generally not satisfy one
of the three required daily meals since
the daily start time for the workday will
frequently preclude the workers from
having meaningful access to the meal
prior to departing the public
accommodation for the place of
employment. In addition, and as noted
below, the employer should consider
whether the meal is nutritionally and
calorically adequate given the work
performed and the weather conditions.
For example, simply providing a muffin
or cold cereal for breakfast would not be
sufficient to meet an employer’s
obligation to provide a nutritionally
adequate meal. Therefore, the employer
may only consider such complimentary
breakfast to meet its obligation to
provide meals when the breakfast is
readily accessible to the workers and is
nutritionally adequate.
The Department further explained in
the NPRM that where an employer
elects to provide meals, the meals must
be provided in a timely and sanitary
fashion. For example, prepared meals
requiring refrigeration that are delivered
hours before an anticipated mealtime
would not meet the employer’s meal
obligation. In addition, providing access
to third-party vendors but not paying
the vendors directly for the workers’
meals does not constitute compliance
with the requirement to provide meals
or facilities, even if the employer
provides a meal stipend.79 An employer
who wishes to use a third-party vendor
to provide meals may instead arrange
for a third-party vendor and pay for the
workers’ meals or use a voucher or
ticket system where the employer
initially purchases the meals and
distributes vouchers or tickets to
workers to obtain the meals from the
third-party vendor. For such
arrangements, the employer may deduct
the corresponding allowable meal
charge only if previously disclosed and
in compliance with the procedures
described under proposed § 655.173.
The Department further emphasized
that an employer may only deduct meal
charges actually incurred up to the
79 See Wickstrum Harvesting, LLC, 2018–TLC–
00018 (May 3, 2018) (affirming an ETA
determination denying temporary agricultural labor
certifications based on the employer’s practice of
providing workers with a stipend for meals instead
of providing meals or furnishing free and
convenient cooking facilities).
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amount permitted under § 655.173. The
Department adopts that guidance here.
As the Department did not propose
any changes to this section, it received
comparatively few comments. Several
workers’ rights advocacy organizations
and one State government agency
pointed out that employers frequently
provide insufficient meals or overcharge
workers for those meals. In response to
these concerns, the State agency
suggested that the Department adopt
additional standards to ensure that
meals provide adequate nutrition and
caloric intake. One workers’ rights
advocacy organization also suggested
that the Department amend § 655.122(g)
to include a statement that meal charges
remain subject to limitations imposed
by the FLSA and to require employers
to retain records demonstrating the
actual cost of providing meals. One
agent 80 commented that employers
should be permitted to provide a meal
stipend for workers to purchase their
own meals, in lieu of providing the
meals themselves, particularly if that is
the workers’ own preference.
After further reviewing these
comments, the Department agrees with
the workers’ rights advocacy
organization that the job order should
explicitly state the existing
requirements in § 655.173 that any meal
charges remain subject to limitations
and recordkeeping obligations imposed
by the FLSA. Although these
substantive requirements are not new,
as § 655.173 already includes language
explaining that meal charges are subject
to the FLSA and incorporates the
recordkeeping requirements at 29 CFR
516.27, the Department concludes that
explicitly reiterating these requirements
in the job order will better inform
workers of the full terms and conditions
of any meal plan offered by the
employer. Accordingly, this final rule
revises § 655.122(g) to reiterate
§ 655.173’s requirement that when a
charge or deduction for the cost of meals
would bring the employee’s wage below
the minimum wage set by the FLSA at
29 U.S.C. 206, the charge or deduction
must meet the requirements of the FLSA
at 29 U.S.C. 203(m), including the
recordkeeping requirements found at 29
CFR 516.27.
In addition, the Department agrees
that where an employer chooses to meet
80 The Department received many comments from
employers in the reforestation industry noting that
the remote, mobile nature of the work makes it
difficult to access kitchen facilities or caterers, and
that this was one reason why they felt it was
inappropriate to include reforestation in the H–2A
program. Those comments were reviewed earlier in
this document, in the section discussing
reforestation.
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its meal obligations by providing three
meals per day to workers, those meals
must be calorically and nutritionally
adequate. An employer’s determination
as to the adequacy of the meals must be
reasonable—merely providing snacks
such as chips or crackers, for example,
would not meet an employer’s meal
obligations. The Department has
declined to adopt any particular
standard for nutritional balance and
caloric sufficiency at this time but
encourages employers to consult the
USDA, National Institutes of Health, or
other credible sources of nutrition and
caloric intake guidelines.
In addition, the Department believes
that providing employers with examples
of established guidelines for ensuring
that meals are calorically and
nutritionally adequate will offer
employers greater certainty when
developing meal plans that such plans
comply with the requirements of
§ 655.122(g). For example, the USDA’s
Dietary Guidelines for Americans 2020–
2025 provide estimated calorie needs
per day by age, sex, and physical
activity level. They also suggest daily
and weekly amounts of food groups,
subgroups, and components, which may
assist employers in the development of
an adequate meal plan. Since the
provision of adequate meals is essential
to workers’ health, employers must
exercise care in preparing meal plans.
The Department encourages employers
to consult workers, when practical,
about their own preferences for such
plans. The Department further notes
that sanctions and remedies for an
employer’s failure to provide sufficient
meals may include, as appropriate, the
recovery of back wages, the assessment
of civil money penalties, and where
warranted, debarment and/or
revocation.
Finally, in response to the comments
received regarding meal stipends, the
Department notes that, as stated above,
the provision of a meal stipend is not
sufficient to meet an employer’s meal
obligations. The meal requirement is
intended to ensure that workers receive
adequate meals and contemplates the
cost-effective preparation of such meals
by the worker in their own kitchen or
by an employer cooking or providing for
a group. Workers who receive a stipend
rather than three meals per day and do
not have kitchen and cooking facilities
will generally not be able to obtain
equivalent meals, as they will not be
able to purchase their individual meals
with similar cost-effectiveness,
exacerbating the problem of inadequate
meals. This problem is even more acute
when workers are working or living in
more remote or rural locations, as is
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frequently the case, particularly where
they are without transportation to
procure their own meals, or where they
do not have time during the workday to
easily reach shops or restaurants from
their worksite.
The Department notes that the
January 2021 draft final rule would have
left § 655.122(g) unchanged. However,
after further consideration of the
comments received, and for the reasons
discussed above, the Department has
revised § 655.122(g) to reiterate certain
requirements of § 655.173 regarding
meal charges.
d. Paragraph (h), Transportation; Daily
Subsistence
i. Paragraph (h)(1), Transportation to
Place of Employment
The Department’s current regulation
at § 655.122(h)(1) requires, in part, that
if the employer has not previously
advanced transportation and
subsistence costs to the worker or
otherwise provided such transportation
or subsistence directly to the worker by
other means, and if the worker
completes 50 percent of the work
contract period, the employer must
reimburse the worker for the reasonable
transportation and subsistence costs
incurred from the ‘‘place from which
the worker has come to work for the
employer’’ to the place of
employment.81 The Department
currently interprets the ‘‘place from
which the worker has come to work for
the employer’’ to mean the ‘‘place of
recruitment.’’ This is frequently the
worker’s home,82 but as H–2A workers
are often referred and recruited
informally, the place of recruitment
varies. Additionally, for a worker who
completes the work contract period or is
terminated without cause, and who does
not have immediate subsequent H–2A
81 Section 655.122(h)(1) further requires that,
when it is the prevailing practice among non-H–2A
employers in the area to do so, or when offered to
H–2A workers, the employer must advance
transportation and subsistence costs to workers in
corresponding employment. Section 655.122(h)(1)
also places employers on notice that they may be
subject to the FLSA, which operates independently
of the H–2A program and imposes independent
requirements relating to deductions from wages.
See also § 655.122(p). The Department did not
propose any changes to these requirements and this
final rule does not affect an FLSA-covered
employer’s obligations under the FLSA.
82 See, e.g., 2009 H–2A NPRM, 74 FR 45906,
45915 (‘‘[T]his Proposed Rule requires the employer
to pay the costs of transportation and subsistence
from the worker’s home to and from the place of
employment.’’); OFLC FAQ (Sept. 15, 2010)
(subsistence costs must be paid for costs incurred
‘‘during the worker’s inbound trip from the point
of recruitment to the employer’s worksite . . . and
during the worker’s outbound trip from the
employer’s worksite to the worker’s home or
subsequent employment’’).
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employment, § 655.122(h)(2) requires
the employer to provide or pay for
return transportation and subsistence
costs to the place of departure (i.e.,
recruitment).83
The NPRM generally kept the
requirements of § 655.122(h)(1) and (2)
without change. However, the
Department sought to promote the
efficiency of the H–2A program by
establishing a consistent location and
method for calculating a worker’s travel
and subsistence costs from and to the
place of employment. Specifically, the
Department proposed to revise
§ 655.122(h)(1) and (2) to require an
employer to provide or pay for inbound
and return transportation and
subsistence costs (where otherwise
required by the regulation) from and to
the place from which the worker
departed to the employer’s place of
employment. For an H–2A worker
departing from a location outside of the
United States who must obtain a visa,
the Department proposed that the place
from which the worker ‘‘departed’’
would mean the ‘‘appropriate’’ U.S.
embassy or consulate. The Department
proposed to define the ‘‘appropriate’’
U.S. embassy or consulate as the U.S.
embassy or consulate that issued the
visa but sought comment on other
definitions of ‘‘appropriate’’ U.S.
embassy or consulate, given the
differences in visa processing
procedures among overseas posts. The
Department further sought comment on
the place of ‘‘departure’’ for those H–2A
workers who do not require a visa to
obtain H–2A status.84 See 8 CFR
212.1(a); 22 CFR 41.2. The Department
did not propose any changes to the
place of departure (i.e., the place of
recruitment) for corresponding workers
and those H–2A workers departing from
locations inside the United States.
The Department received significant
comments on this proposal. Employers,
83 Section 655.122(h)(2) further provides that, for
those workers who do have immediate subsequent
H–2A employment, the initial or subsequent
employer must provide or cover the costs of
transportation and subsistence for the travel
between the initial and subsequent worksites. The
obligation to provide or pay for such costs remains
with the initial H–2A employer if the subsequent
H–2A employer has not contractually agreed to
provide or pay for such travel. This section also
places employers on notice that they are not
relieved of their obligation to provide or pay for
return transportation and subsistence if an H–2A
worker is displaced as a result of an employer’s
compliance with the recruitment period described
in § 655.135(d). The Department did not propose
any changes to these requirements.
84 Pursuant to DHS regulations, H–2A workers
from certain localities need not obtain a visa to be
admitted to the United States, including citizens of
Bermuda and Canada, Bahamian nationals, and
British subjects residing in certain islands. See 8
CFR 212.1(a).
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associations, and their representatives
largely supported the proposal, stating
that it would greatly simplify
reimbursement calculations to be able to
use a single, consistent place of
departure. Several employers also
commented that it is more logical to
calculate transportation and subsistence
from the U.S. embassy or consulate that
issues the worker’s visa, because only at
that point is the worker’s travel for the
employer’s benefit, since workers who
are not able to obtain a visa cannot be
employed by the H–2A employer. In
addition, some employers mentioned
that the FLSA requires reimbursement
of travel expenses (to the extent that
those travel expenses bring employees
below the applicable minimum wage) in
the employee’s first pay period, and
stated that the Department should
require that the requisite travel
reimbursement be made at 50 percent of
the work contract period, to reduce the
likelihood that a worker would take
advantage of travel reimbursement at an
earlier point to come into the country
and then abandon the H–2A
employment. Some employers also
suggested that the Department consider
revising the regulation to allow the
employer to share the transportation
costs with the employee, as the work in
the United States is mutually beneficial
to both the employee and employer.
In contrast, workers, workers’ rights
advocacy organizations, and other
government agencies generally opposed
this change, arguing that the cost of
workers’ transportation from their home
to/from the embassy/consulate should
be borne by the employer. They stated
that transferring this cost to workers
would place an undue burden on
workers who frequently incur costs to
obtain these job opportunities, thus
increasing their vulnerability to debt
and trafficking. Several commenters also
noted that this change would
disproportionately affect indigenous
workers in rural communities, who live
far from any U.S. embassy or consulate.
Similarly, a couple of commenters
pointed out that this change would
encourage employers to either hire
workers from countries with embassies
that are comparatively close to the
United States, such as Mexico, or to
require workers to obtain their visas
from U.S. consulates or embassies that
are closer to the U.S. border. Some
workers’ rights advocacy organizations
and government entities also
commented that shifting this cost to
workers will disadvantage and thus
adversely affect U.S. workers by
artificially reducing the cost of
employing H–2A workers. A couple of
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commenters also stated that the
proposed change would cause
confusion, as employers would still be
liable to reimburse workers for the cost
of transportation from their home to the
U.S. embassy or consulate under the
FLSA. However, one workers’ rights
advocacy organization commented
favorably on the Department’s
clarification that the employer is
required to reimburse employees for all
reasonable subsistence costs (including
lodging) that arise from the time at
which the worker first arrives in the
embassy/consulate city, while workers
are following the necessary procedures
to obtain their visas.
The Department did not receive any
comments on how to define the
‘‘appropriate’’ consulate for those
workers who must obtain a visa, nor did
it receive any comments on the place of
departure for those H–2A workers who
need not obtain a visa, despite its
requests for comments on both points.
After carefully considering all of the
comments received, the Department has
decided to retain the requirements of
the 2010 H–2A Final Rule requiring
employers to provide, pay, or reimburse
employees for their travel and
subsistence to and from the place of
recruitment, which in many cases will
be the worker’s home. See
§ 655.122(h)(1), (2). Both commenters
who supported the proposed change
and those who opposed it recognized
that the resulting cost allocation change
would be significant to both workers
and employers. The Department agrees
with the several commenters that noted
implementation of the proposed
changes in the NPRM would impose an
undue burden on workers, many of
whom are already vulnerable to
exploitation, and many of whom live in
remote rural areas and incur
considerable expenses traveling to the
embassy/consulate city. The cost of the
worker’s inbound and outbound travel
and subsistence is the employer’s
obligation, as such travel is primarily for
the benefit and convenience of the
employer, who would not have
sufficient workers to perform necessary
work without this travel due to the lack
of willing and qualified local workers.
The use of an administratively
consistent and efficient point of
departure to calculate the extent of such
obligations, as proposed in the NPRM,
did not alter this analysis. The
Department concludes that the proposed
changes in the NPRM would improperly
shift to workers a significant portion of
this obligation that must instead be
borne fully by the employer.
The Department also believes that the
Department and employers should be
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able to ascertain a worker’s place of
recruitment without significant
difficulty; indeed, such a standard has
now been in place, with only a brief
interruption, for more than 34 years.
The recruitment information needed for
the current rule generally is not difficult
to obtain, and the employer has ready
access to its own employees and to the
recruiter it hired to acquire this
information. To the extent it is difficult
in any instance to ascertain the place of
recruitment, the Department believes
that any such difficulty cannot outweigh
the significant burden that would be
imposed on the worker by shifting the
costs of transportation and subsistence
from the place of recruitment to the
embassy/consulate city. Moreover, the
Department notes that the Department
of State (DOS) has, at least temporarily,
waived consular interviews for many
nonimmigrant visa applicants, thus
making it more difficult to determine
the appropriate embassy or consulate
under the proposal and thereby
undermining the desired efficiencies of
that proposed standard.85 In addition,
the Department believes it is unlikely
that any administrative efficiencies
would be achieved through the changes
proposed in the NPRM, as the changes
would constitute a break with
longstanding procedures that are well
understood by employers. And even if
any such efficiencies might be achieved,
the Department believes that they would
be minimal in comparison to the
additional financial burden shifted onto
H–2A workers. In sum, the Department
has now determined that, as a matter of
policy, any benefits of the proposal set
forth in the NPRM are outweighed by
the substantial costs imposed upon
workers.
Finally, in response to comments
regarding the timing of reimbursement
for inbound travel costs, the Department
notes that the current H–2A regulation
requires that inbound transportation
and daily subsistence costs must be
reimbursed when the worker has
completed 50 percent of the work
contract period, if reimbursement has
not already been made. This
requirement remains unchanged.
However, the Department reiterates that
the FLSA applies independently of the
H–2A program’s requirements and thus
the Department cannot relieve
employers of their obligations under the
FLSA in this rulemaking. Where an
employer has obligations under
multiple laws, the employer must
comply with the more worker-protective
of those obligations. Accordingly, to the
85 See https://www.state.gov/expanded-interviewwaivers-for-certain-nonimmigrant-visa-applicants/.
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extent that a worker’s transportation and
subsistence costs bring the worker’s pay
below the applicable minimum wage
during the first pay period of
employment, employers will remain
responsible under the FLSA for
reimbursing workers to that extent
during the first pay period. However,
relatedly, the Department does not agree
with commenters who stated that the
proposed regulation would cause greater
confusion for employers regarding their
FLSA obligations because even under
the current regulation, H–2A employers
that are also subject to the FLSA must
comply with both laws, despite any
differences in the amount or timing of
any required reimbursements.86
ii. Paragraph (h)(4), Employer-Provided
Transportation
The Department proposed to clarify
the minimum safety standards required
for employer-provided transportation in
the H–2A program. The Department’s
current regulation at 20 CFR
655.122(h)(4) provides that employerprovided transportation must comply
with applicable Federal, State, or local
laws and regulations and must provide,
at a minimum, the same transportation
safety standards, driver licensure, and
vehicle insurance required under MSPA
at 29 U.S.C. 1841, 29 CFR 500.105, and
29 CFR 500.120 through 500.128.
However, sec. 1841 of MSPA provides
that employers must comply with
transportation safety regulations
promulgated by the Secretary, which
include not only 29 CFR 500.105,
providing transportation safety
standards for vehicles other than
passenger automobiles and station
wagons used to transport workers over
75 miles or in day-haul operations, but
also 29 CFR 500.104, which provides
transportation safety standards
applicable to passenger automobiles or
station wagons, or other vehicles, for
trips of 75 miles or less, not including
day-haul operations. The proposed rule
therefore slightly modified the language
of current 20 CFR 655.122(h)(4) by
adding a citation to 29 CFR 500.104, to
clarify that either § 500.104 or § 500.105
is applicable, depending upon the type
of vehicle that is being used to transport
workers, the distance of the trip, and
whether the vehicle is being used for a
day-haul operation. The Department
also sought comments about additional
provisions that might help prevent
86 The Department notes that the January 2021
draft final rule would have accepted the NPRM
proposal, with some modifications. However, after
further consideration of the comments received,
and for the reasons discussed above, the
Department declines to adopt the proposed
changes.
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driver fatigue and other unsafe driving
conditions in order to improve safety in
the transportation of H–2A and
corresponding workers. As discussed
below, this final rule adopts paragraph
(h)(4) from the NPRM with minor
clarifying changes.
Several commenters indicated that
they supported the clarification that
both §§ 500.104 and 500.105 are
applicable to employer-provided
transportation, depending on the type of
vehicle being used to transport workers.
One commenter asked for additional
clarification that both standards would
not apply simultaneously, but that only
the appropriate standard would apply
depending on the type of vehicle used
to provide worker transportation, i.e.,
either § 500.104 or § 500.105. This
commenter also requested that the
language at 20 CFR 655.122(h)(3), which
requires the employer to ‘‘provide
transportation between housing
provided or secured by the employer
and the employer’s worksite at no cost
to the worker’’ (and to which the
Department did not propose any
changes), be revised to state that
employers are required to provide
transportation to and from the job site
only to those workers for whom the
employer must provide housing. One
commenter stated that it would be better
to have 29 CFR 500.105 apply to all
types of vehicles used to provide
transportation to workers, rather than
having §§ 500.104 and 500.105 apply
depending upon the type of vehicle
used, indicating that this would be less
confusing for employers and more
beneficial to workers, as § 500.105
incorporates additional safety standards.
Another commenter opposed the
application of § 500.104, stating that
transportation safety is the concern of
the Federal Motor Carrier Safety
Administration, and also expressing
concern that employers would be
responsible for ensuring that these
safety standards are met by workers’
personal vehicles, when workers choose
to use their own vehicles in lieu of
employer-provided transportation.
Some commenters also provided
feedback on the Department’s request
for comments about additional
provisions that might help prevent
driver fatigue and other unsafe driving
conditions. Although one commenter
indicated that driver fatigue was not a
common or serious problem, most
commenters acknowledged that driver
fatigue and associated accidents can be
a serious problem. However, several of
these commenters stated that education
and outreach would be more helpful
than additional regulations on
transportation safety. One commenter
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suggested that H–2A drivers have rest
period requirements similar to bus
drivers and other commercial driver’s
license drivers. Another commenter did
not address fatigue specifically but
recommended that the regulation
require vehicles used to transport H–2A
workers to be equipped with seatbelts,
as well as certain changes to prevent
gaps in insurance coverage where
employers rely on workers’
compensation policies to meet the
regulation’s vehicle insurance
requirements. Specifically, this
commenter recommended employers be
required to identify during the
application process the types of
transportation that will be provided to
the H–2A workers (such as inbound
transportation from abroad to the U.S.
job site, daily transportation between
the lodging and worksite, transportation
to allow the workers to perform
personal errands, transportation
between different job sites in different
States, and outbound transportation at
the conclusion of the contract period).
In addition, the commenter
recommended that if the employer
proposes to satisfy the insurance
requirements through a workers’
compensation policy, it must provide
evidence that the policy covers all of the
kinds of transportation identified. If the
employer cannot do so, the commenter
stated that the employer should be
required to purchase liability insurance
or provide a liability bond in the
amount specified by the MSPA
regulations.
After a careful review of the
comments, the Department is adopting
the regulatory text as proposed, with
two minor changes for clarification, as
suggested by commenters. The proposed
regulatory text stated that all employerprovided transportation ‘‘must provide,
at a minimum, the same transportation
safety standards, driver licensure, and
vehicle insurance as required under 29
U.S.C. 1841, 29 CFR 500.104 through
500.105, and 29 CFR 500.120 through
500.128.’’ (Emphasis added.) At least
one commenter was concerned that this
language could be read as requiring both
§§ 500.104 and 500.105 to apply to all
vehicles, as discussed above. However,
pursuant to § 500.102, § 500.105 applies
to ‘‘[a]ny vehicle, other than a passenger
automobile or station wagon’’ used for
any trip of a distance greater than 75
miles, or pursuant to a day-haul
operation, or in any manner not
otherwise specified in § 500.102(a), (b),
or (c), while § 500.104 applies to ‘‘[a]ny
passenger automobile or station wagon’’
used to transport workers. Therefore, to
clarify that §§ 500.104 and 500.105 do
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not both apply simultaneously to all
vehicles, but apply alternatively
depending upon the type of vehicle
used, the distance of the trip, and
whether the vehicle is being used for a
day-haul operation, this final rule
provides that all employer-provided
transportation ‘‘must provide, at a
minimum, the same transportation
safety standards, driver licensure, and
vehicle insurance as required under 29
U.S.C. 1841, 29 CFR 500.104 or 500.105,
and 29 CFR 500.120 through 500.128.’’
(Emphasis added.) The Department has
also made a conforming change to 20
CFR 655.132(e)(2), with respect to the
requirements for H–2ALCs.
In addition, the prior H–2A job order
form (i.e., Form ETA–790A) provided
text fields in which employers must
describe the employer’s transportation
plans for workers: (a) to the place of
employment from the place from which
the worker has come to work for the
employer (i.e., inbound); (b) from the
place of employment to the place from
which the worker has come to work for
the employer (i.e., outbound); and (c)
daily, between the employer-provided
housing and the places where work is
performed. In response to a
commenter’s suggestion, the Department
has added a clarification to 20 CFR
655.122(h)(4) to reflect the requirement
that employers identify in the job order
the mode(s) of transportation (e.g., vans,
buses) that will be used for daily
transportation and, if known, for
inbound and outbound transportation.
The Department has also added
language to this section of the regulation
to require an employer to identify in the
job order the mode(s) of transportation
that will be used, if any and if known,
for other purposes, such as to allow the
workers to run personal errands. In
addition to apprising workers of the
transportation the employer will
provide, the Department concludes that
this information will improve
compliance with applicable
transportation safety standards,
including those related to vehicle
insurance requirements.
In response to a commenter’s concern
that these standards would apply to
workers’ personal vehicles when
workers choose to use their own
vehicles in lieu of employer-provided
transportation, the Department notes
that the regulation specifically states
that all employer-provided
transportation must meet these
transportation safety standards.
§ 655.122(h)(4). If the employer provides
transportation that meets all of the
requirements, and one or more
employees voluntarily choose to use an
employee’s personal vehicle instead,
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without being directed or requested to
do so by the employer, the employer
would not be responsible for ensuring
that the employee’s personal vehicle
meets the transportation safety
standards. Therefore, no revision to the
regulatory language is necessary to
clarify this issue. Similarly, the
Department declines to adopt another
commenter’s suggestion to modify the
regulatory language at § 655.122(h)(3) to
state that employers are only required to
provide transportation to and from the
employer-provided housing and the job
site to those workers for whom the
employer must provide housing and
clarifies here that the transportation to
and from the employer-provided or
secured housing and job site need only
be provided to workers who actually
live in the housing.
The Department has chosen not to
adopt any additional regulatory
provisions to address driver fatigue or
other safety conditions at this time.
Although one commenter suggested that
the Department apply to H–2A drivers
rest period requirements similar to those
applicable to bus drivers and other
commercial driver’s license drivers,
such requirements do not adequately
address the broad variety of
circumstances in which H–2A drivers
transport workers, as many trips are
short in both duration and distance.
Moreover, the Department did not
receive any specific suggestions or
information concerning ways in which
a rest period requirement could be
tailored to address the varied
circumstances in which H–2A drivers
transport workers, and the public has
not had an opportunity to comment on
a proposal tailored to H–2A drivers.
While the Department did not receive
many comments on the issue of driver
fatigue, several commenters indicated
that additional education and outreach
could help address driver fatigue, as
discussed above. Accordingly, the
Department recently published a
farmworker transportation safety web
page that includes tips and best
practices from the U.S. Department of
Transportation’s Federal Motor Carrier
Safety Administration related to driver
fatigue, unsafe driving practices, and
driver distractions, available at https://
www.dol.gov/agencies/whd/agriculture/
transportation-safety, and will further
consider how it can address this issue.
Although the Department has
carefully considered the suggestion that
seatbelt requirements should be
specifically added to the transportation
safety standards, the Department notes
that the issue is generally addressed by
applicable State and local laws and
regulations. The Department reminds
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employers that the current
transportation safety standards already
require compliance with all applicable
Federal, State, or local laws and
regulations, including applicable State
or local seatbelt requirements.
Currently, every State except one (New
Hampshire) has an applicable seatbelt
law, and the majority of States require
adults to wear seatbelts in all seats,
subject to certain exceptions. See
Governors Highway Safety Association,
State Laws by Issue: Seat Belts (last
visited Dec. 14, 2021), https://
www.ghsa.org/state-laws/issues/
seat%20belts. Accordingly, seatbelt
regulations will not be issued at this
time. The Department also appreciates
the insightful analysis of the potential
problems that can arise when employers
rely on workers’ compensation policies
to meet their liability insurance
obligations, and the possible regulatory
revisions that might address those
problems. However, the Department did
not propose any changes to the
regulation regarding the sufficiency of
workers’ compensation to cover vehicle
transportation in lieu of vehicle
insurance. Many parties who would be
affected by any change in these
longstanding requirements therefore had
no reason to anticipate any such
changes or to provide comment or
propose alternatives. Accordingly, the
Department declines to adopt any
regulatory changes to these provisions
in this rulemaking.
However, the Department reminds
employers that workers’ compensation
insurance provides specific coverage
that varies from State to State and may
not cover all circumstances in which the
workers are transported. For instance,
transportation for a non-work-related
purpose, such as a visit to the grocery
store or laundromat, may not be covered
under the State policy. Additionally,
State workers’ compensation coverage
may not apply to travel outside the
State, or in some States, it may not
apply to travel to and from work. If
using a State workers’ compensation
policy to meet the insurance
requirements, it is important to be aware
of precisely what type of travel is
covered by the State policy and, if
necessary, procure additional coverage
through a liability insurance policy or
liability bond for transportation not
covered by the State law. An employer’s
failure to maintain required insurance
coverage for vehicles used to transport
H–2A workers or workers in
corresponding employment may result
in the assessment of civil money
penalties. A violation of the
transportation safety requirements may
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also serve as the basis for debarment or
for revocation of the temporary
agricultural labor certification.
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e. Paragraph (i), Three-Fourths
Guarantee
Although the Department did not
propose, and in this final rule does not
adopt, any revisions to § 655.122(i), a
few employers and employer
representatives provided feedback
regarding changes that they would like
to see incorporated into this section.
Three commenters stated that due to the
variability inherent in agriculture based
on factors beyond the employer’s
control, which can make it difficult to
predict the amount of work that will
need to be performed in a given season,
the three-fourths guarantee should be
based on the 35-hour per workweek
required minimum rather than on the
number of hours in a workday as stated
in the job order. Another commenter
requested the removal of the language in
§ 655.122(i)(1)(iv) stating that the
worker cannot be required to work for
more than the number of hours
specified in the job order for a workday,
or on the worker’s Sabbath or on Federal
holidays.
The Department has carefully
considered these comments. However,
the Department did not propose any
changes to this section in the NPRM and
did not ask for comments regarding any
possible modifications of the threefourths guarantee. Accordingly, many
affected parties did not provide any
comments on the topic of the threefourths guarantee, and the Department
declines to make any significant
changes to this provision in the absence
of input from the regulated community
as a whole.
f. Paragraph (j), Earning Records
The NPRM proposed minor
amendments to this provision to clarify
current regulatory requirements at
§ 655.122(j)(1), requiring an employer to
maintain a worker’s home address,
among other information. The
Department proposed that an employer
maintain the worker’s actual permanent
home address, which is usually in the
worker’s country of origin. Having the
worker’s permanent addresses would
permit the Department to contact a
worker in the case of an investigation or
litigation, or to distribute back wages. In
its effort to enhance enforcement and
modernize the H–2A program, the
Department also requested comments on
whether to require an employer to
maintain records of a worker’s email
address and phone number(s) in the
worker’s home country, when available.
As discussed below, the Department is
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adopting the proposed changes to
paragraph (j)(1), as well as a
requirement that the employer maintain
records of a worker’s email address and
phone number(s) in the worker’s home
country, when available.
The Department received very few
comments in response to its proposal
and request for comments on this
section. Three commenters opposed the
proposal, expressing concern about an
employer’s ability to verify the accuracy
of the workers’ permanent addresses,
phone numbers, or email addresses,
with one commenter also noting that
many H–2A workers may consider that
information to be private. Another
commenter noted that DHS should
already have H–2A workers’ permanent
addresses and suggested that the
Department obtain that information
from them. Conversely, another
commenter supported the Department’s
proposal, commenting that it was a
useful clarification and suggesting that
an employer maintain records of its
H–2A workers’ landlines if a cellphone
number is not available.
Other commenters requested that
employers no longer be required to
maintain a record of hours offered (as
opposed to merely hours worked), as
such information is difficult to track and
not needed unless the employer wishes
to use it towards the three-fourths
guarantee. These comments are outside
the scope of the Department’s proposal
and, as such, were not considered at this
time.
After consideration of the comments,
the Department adopts paragraph (j)(1)
as proposed with two modifications.
Specifically, paragraph (j)(1) in this final
rule requires employers to maintain
records of a worker’s permanent home
address and, when available, the
worker’s permanent email address and
phone number(s). As with the worker’s
permanent home address, the worker’s
permanent email address and phone
number(s) will usually mean the
worker’s contact information, usually in
the worker’s country of origin. Based on
its enforcement experience, the
Department concludes that maintaining
this information, when available, will
further enhance the efficiency of the
Department’s enforcement efforts by
providing multiple points of contact for
workers once the workers have left the
employer’s place of employment. And
while the Department acknowledges
that employers may not have the ability
to verify the accuracy of all contact
information provided by their workers,
which may occasionally result in the
Department attempting to contact a
worker at an incorrect address, or that
some workers may decline to share this
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information with an employer, the
benefits of maintaining this information
outweigh these potential concerns.
Finally, the Department notes that the
January 2021 draft final rule would have
left the regulatory text unchanged from
the 2010 H–2A Final Rule. However,
upon further consideration of the
comments and in light of the substantial
benefit that the collection of this
information would confer to the
Department in its enforcement efforts,
the Department adopts the abovedescribed changes in this final rule.
g. Paragraph (l), Rates of Pay
In the NPRM, the Department
proposed to remove the statement ‘‘[i]f
the worker is paid by the hour’’ and
replace it with ‘‘[e]xcept for occupations
covered by §§ 655.200 through
655.235.’’ As explained in the NPRM,
this revision clarifies that the highest
applicable wage requirement applies,
regardless of the unit of pay, for all
employers except those employing
workers primarily engaged in the
herding or production of livestock on
the range (i.e., occupations covered by
§§ 655.200 through 655.235), which are
the only occupations subject to a
different wage methodology. If an
employer is certified for a monthly
salary because, for example, the
prevailing wage rate is a monthly rate,
the requirement to pay the highest
applicable wage means that the
employer must pay the hourly AEWR
for all hours worked in a given month,
if paying the hourly AEWR for all hours
worked in that month would result in a
higher wage than the certified monthly
salary. The Department did not receive
comments on this specific proposal, and
therefore adopts the language as
proposed.
Additionally, the Department
proposed to make corresponding
changes to align this paragraph with the
proposed changes to § 655.120(a). Those
changes, as well as related comments,
are discussed in more detail in the
preamble to § 655.120(a). For the
reasons stated in that section, the
Department adopts the language in the
NPRM with minor revisions to align
with language regarding prevailing
wages at § 655.120(c). As discussed
further in the preamble to
§ 655.120(c)(1)(iii), the revised language
in this paragraph recognizes that there
may be a prevailing wage for a distinct
work task or tasks within a crop or
agricultural activity in certain
situations.
The Department also received
comments urging the Department to
revise productivity standards for
workers paid by the piece. One of these
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commenters suggested the Department
exercise more flexibility in its review of
productivity standards, while another
commenter suggested a more rigorous
review. Because the Department did not
propose changes to productivity
standards, these comments are beyond
the scope of this rulemaking.
h. Paragraph (n), Abandonment of
Employment or Termination for Cause
The Department’s current regulation
at § 655.122(n) states that if a worker
voluntarily abandons employment or is
terminated for cause, and the employer
notifies the NPC (and DHS if the worker
is an H–2A worker), then the employer
is not responsible for paying or
providing for the worker’s subsequent
transportation and subsistence
expenses, and that worker is not entitled
to the three-fourths guarantee described
in § 655.122(i). Under the Department’s
changes related to § 655.153, discussed
below, timely notice to the NPC of such
abandonment or termination will also
relieve the employer from its otherwise
applicable obligation to contact those
U.S. workers it employed in the
previous year who abandoned or were
terminated for cause to solicit their
return to the job. As discussed below,
current § 655.153 does not require the
employer to have provided the NPC
with such notice in order to be relieved
of the duty to contact former U.S.
workers who abandoned the worksite or
were dismissed for cause. The
Department also proposed to revise
§ 655.122(n) to require an employer to
maintain records of the notification to
the NPC detailed in the same section,
including records related to U.S.
workers’ abandonment of employment
or termination for cause during the
previous year, for not less than 3 years
from the date of the temporary
agricultural labor certification. As
discussed below, this final rule adopts
paragraph (n) from the NPRM with
minor clarifying changes.
The Department received comments
from employers, agents, and trade
associations addressing this section.
Most of these comments suggested that
employers should not be required to
notify the NPC of the abandonment or
termination of U.S. workers. These
commenters stated that, although it may
be important to notify DHS that H–2A
workers are out-of-status, DOL does not
similarly need to know the status of U.S.
workers, making it unfair to penalize
employers for not making such a report,
particularly as it is not required under
other programs. Commenters also
suggested that if the notification
requirement for U.S. workers was
maintained in the final rule, employers
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should not be required to maintain a
record of that notification, as that
additional recordkeeping burden is an
inefficient use of the employer’s
resources, particularly as the employer
will generally have other records of
some kind demonstrating that the
workers abandoned their employment
or were terminated for cause. One
commenter also asked the Department
to clarify that these notification and
recordkeeping requirements apply only
to U.S. workers in corresponding
employment and suggested that the
requirement be even further limited to
full-time workers hired during the
recruitment period pursuant to the job
order, due to the fluid and migratory
nature of the agricultural workforce.
Another commenter suggested that
abandonment, which under the current
regulation is deemed to begin after a
worker fails to report for work at the
regularly scheduled time for 5
consecutive working days without the
consent of the employer, instead be
deemed to begin after a worker fails to
report for work at the regularly
scheduled time for 3 consecutive
working days without the consent of the
employer, as workers may need to be
replaced quickly due to the perishable
nature of agricultural goods.
The Department has reviewed the
comments suggesting that employers not
be required to notify the NPC of the
abandonment or termination for cause
of U.S. workers. As an initial matter, the
Department notes the requirement to
notify the NPC of such U.S. worker
abandonment or termination for cause is
not new; the current regulations require
employers to provide such notice in
order to be relieved of the otherwise
applicable contractual obligations
relating to outbound transportation and
the three-fourths guarantee. The
Department proposed no changes to the
notification requirements currently in
place to relieve employers of their
transportation and three-fourths
guarantee contractual obligations and,
accordingly, declines to adopt any
changes to those existing requirements
as beyond the scope of this rulemaking.
As discussed further below, the
Department has adopted its proposal
providing that such notification to the
NPC is required to relieve the employer
from its obligation to contact these U.S.
workers in the subsequent year under
§ 655.153. Accordingly, the Department
has revised proposed § 655.122(n) in
this final rule to clarify such relief by
explicitly referencing the employer’s
obligations under § 655.153. Providing
notification to the NPC of the
abandonment or termination of U.S.
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workers is not a penalty for the
employer. On the contrary, it is an
opportunity for the employer to cancel
its existing obligations to pay for
outbound travel and subsistence; ensure
that the employer has met the threefourths guarantee; and to contact former
U.S. workers during recruitment, as
discussed in reference to § 655.153
below. Requiring notification to the NPC
also ensures that the Department is on
notice that the employer considers these
obligations to be inapplicable to specific
workers. This notification also helps the
employer establish that a worker
abandoned the job or was terminated for
cause.
Similarly, the Department has also
decided to retain the proposed
requirement that the employer must
maintain a record of its notification of
abandonment or termination for cause
to the NPC to be relieved of their further
contractual obligations to such U.S.
workers. Once the employer has
provided the required notification to the
NPC for these workers, maintaining a
record of such notifications with the
employer’s other records relating to the
workers’ abandonment or termination
for cause will not substantially increase
the employer’s recordkeeping burden. In
contrast, maintaining these records
could greatly assist employers and the
Department in establishing that the
employer is no longer required to
provide outbound travel and
subsistence, the three-fourths guarantee,
or recruitment contact for such workers.
In response to one commenter’s request
for clarification, the Department
confirms that the requirements for
notification of abandonment or
termination for cause of U.S. workers,
including the recordkeeping
requirement, are applicable only when
the employer wishes to be relieved of
further contractual obligations toward
those workers; if the employer does not
have any contractual obligation to
provide outbound travel and
subsistence, pay the three-fourths
guarantee, or contact that worker for
recruitment, the employer need not
make such a notification for that worker.
The Department has considered the
comment suggesting that the
abandonment be deemed to have
occurred after a worker fails to report for
work at the regularly scheduled time for
3 consecutive working days without the
consent of the employer, as opposed to
5 consecutive working days, but has
decided to retain the current regulatory
language. As the Department did not
propose any changes to, or request
comments on, the length of time that a
worker must fail to report to work before
the worker is deemed to have
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abandoned their employment, the
affected parties had no reason to
anticipate that the Department
contemplated a change to this provision,
or to provide their input as to the
appropriate length of time that should
elapse before an absence should be
considered abandonment and what
factors should be considered. Therefore,
the Department finds it is not
appropriate to adopt such a change at
this time.
i. Paragraph (o), Contract Impossibility
The NPRM proposed to retain the
contract impossibility provision at
paragraph (o) without change. Although
the Department did not propose changes
to, or invite comments regarding, this
paragraph, the Department received
comments from agents, trade
associations, and a State government
agency that addressed the contract
impossibility provision. As discussed
below, this provision remains
unchanged from the NPRM. All of the
commenters supported inclusion of the
contract impossibility provision in the
final rule. Three commenters suggested
that the Department modify the
provision. One of the commenters
requested the Department add a
specified timeframe for the CO’s
determination, such as within 48 hours
of receipt. The second commenter
requested the Department remove the
employer’s obligation to make efforts to
transfer H–2A workers to comparable
work and retain the obligation for U.S.
workers only. The third commenter
requested the Department revise this
provision to clarify that an employer’s
request for a contract impossibility
determination may involve some, but
not all, of its workers, depending on the
nature of the Act of God involved.
Revisions to paragraph (o) are beyond
the scope of this rulemaking and are
therefore not being made. A revision to
paragraph (o) is not necessary, however,
to address the commenter’s concern
about Acts of God that reduce, but do
not eliminate, an employer’s need for
temporary workers. This provision
involves permissible termination of the
work contract between the employer
and individual workers in the event that
an Act of God renders the planned
contract inviable. In the interest of
striking an appropriate balance between
ensuring fairness to workers and
minimizing work contract disruptions,
the Department does not require that
requests for relief under the contract
impossibility provision end the
contracts with the entirety of an
employer’s workforce. Rather,
employers are encouraged to request
reductions in the quantity of workers
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needed as best fits their particular
circumstances.
j. Paragraph (p), Deductions
The Department’s current regulation
at § 655.122(p) prohibits unauthorized
deductions. An employer must disclose
any deductions not required by law in
the job offer. The Department noted,
however, that employers often fail to
disclose deductions by improperly
withholding Federal Insurance
Contributions Act (FICA) taxes.
Alternatively, employers sometimes
properly disclose and withhold Federal
income tax at the worker’s request but
fail to remit the withholding to the
proper agencies. These actions, even if
inadvertent, constitute violations of the
H–2A statute and regulations.
The Department did not propose any
change to the regulation at § 655.122(p),
but clarified in the preamble to the
NPRM that according to the IRS, an
employer may not withhold FICA taxes
from an H–2A worker’s paycheck, and
that an employer generally is not
required to withhold Federal income tax
from an H–2A worker’s paycheck. In
some situations, employers may even be
prohibited from withholding Federal
income tax under the H–2A program.
The Department received no comments
in response to this section of the NPRM
and has made no changes to the
regulation in this final rule.
k. Paragraph (q), Disclosure of Work
Contract
The Department’s current regulation
at § 655.122(q) requires an employer to
disclose a copy of the work contract
between the employer and the worker in
a language understood by the worker as
necessary or reasonable. At a minimum,
the work contract must contain all of the
provisions required by § 655.122. In the
absence of a separate, written work
contract entered into between the
employer and the worker, the required
terms of the job order and the certified
Application for Temporary Employment
Certification will be the work contract.
The time by which the work contract
must be provided depends on whether
the worker is entering the United States
to commence employment or is already
present in the United States; however,
for most H–2A workers, this must occur
by the time the worker applies for a
visa. The Department proposed to retain
the current disclosure requirements
with one minor revision to specify that
the work contract must be disclosed to
those H–2A workers who do not require
a visa to enter the United States under
8 CFR 212.1(a)(1) not later than the time
of an offer of employment. This is the
same point at which H–2A workers who
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are already in the United States because
they are moving between H–2A
employers receive the work contract.
The Department did not receive any
comments on this proposed change and
therefore retains the language as
proposed.
4. Section 655.123, Optional Pre-Filing
Positive Recruitment of U.S. Workers
In the NPRM, the Department
proposed to add a new provision at
§ 655.123 to permit an employer to
begin to conduct its positive recruitment
efforts earlier in the H–2A application
process.87 Specifically, the Department
proposed new standards and procedures
establishing a ‘‘pre-filing’’ positive
recruitment option that would allow an
employer to either begin positive
recruitment activities after the SWA’s
acceptance of the job order for clearance
under § 655.121 and before submission
of the Application for Temporary
Employment Certification to the NPC
(i.e., pre-filing), or wait for the CO’s
NOA, consistent with current practice.
After considering the comments
received in response to the NPRM, and
the subsequent impact of the
Department’s decisions in the 2019 H–
2A Recruitment Final Rule (effective
October 21, 2019) on the proposed
optional pre-filing positive recruitment
provision, the Department has decided
not to adopt § 655.123 in this final rule
for the reasons discussed below.
The INA requires the Secretary to
deny a temporary agricultural labor
certification if ‘‘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.’’
See 8 U.S.C. 1188(b)(4). The
requirement for employers to engage in
positive recruitment is in addition to,
and occurs within the same time period
as, the circulation of the job order
through the interstate clearance system
maintained by the SWAs. Id. Under the
2010 H–2A Final Rule, employers begin
to conduct required positive recruitment
steps after the CO reviews an H–2A
application and issues a NOA
authorizing such recruitment of U.S.
workers to commence.
87 At the time the NPRM was published, an
employer’s positive recruitment requirements
included the activities set forth in §§ 655.151
through 655.154 of the 2010 H–2A Final Rule.
Subsequently, the Department rescinded §§ 655.151
and 655.152 via the 2019 H–2A Recruitment Final
Rule to modernize the method(s) used to advertise
H–2A job opportunities. 84 FR 49439.
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As explained in the NPRM, the
Department engaged in the 2019 H–2A
Recruitment Final Rule
contemporaneously with this
rulemaking to modernize the method(s)
used to advertise H–2A job
opportunities for compliance with the
positive recruitment requirements of the
2010 H–2A Final Rule. On September
20, 2019, shortly before the public
comment period for this NPRM closed
on September 24, 2019, the Department
published the 2019 H–2A Recruitment
Final Rule, which became effective
October 21, 2019. The 2019 H–2A
Recruitment Final Rule rescinded
§§ 655.151 and 655.152; in lieu of
employer-placed print advertisements
in a newspaper of general circulation in
the AIE, the Department leverages its
enhanced electronic job registry,
SeasonalJobs.dol.gov, to advertise H–2A
job opportunities electronically on the
employer’s behalf. This change in the
recruitment process reduced the
employer’s mandatory positive
recruitment activities, while increasing
post-acceptance job order exposure
through the Department’s electronic job
registry. Moving forward, an employer’s
mandatory positive recruitment
activities include contacting former U.S.
workers, as required under § 655.153,
and following the CO’s instructions
regarding additional positive
recruitment activities for the job
opportunity, as applicable under
§ 655.154. However, the 2019 H–2A
Recruitment Final Rule did not change
the existing timeframe for an employer’s
positive recruitment activities. As a
result, effective October 21, 2019, the
CO instructs employers in the NOA to
begin positive recruitment of U.S.
workers under §§ 655.153 and 655.154
and, contemporaneously, the CO posts
the job opportunity on the Department’s
electronic job registry.
Applying the changes implemented in
the 2019 H–2A Recruitment Final Rule
to the optional pre-filing positive
recruitment procedures proposed in the
NPRM at § 655.123, an employer would
have begun positive recruitment
activities contained in §§ 655.153
(contact with former employees) and
655.154 (statutorily required
recruitment in a multi-State region of
traditional or expected labor supply, as
designated by the Secretary), as
applicable, within 7 days of SWA job
order acceptance. Then, no more than
50 calendar days before its first date of
need, the employer would have
submitted an initial recruitment report
to the CO with its H–2A application. If
the employer complied with the
procedures described in § 655.123 and
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its H–2A application met all
requirements for certification at the time
of submission, the CO would have been
able to issue the temporary labor
certification as the CO’s first action after
review. An employer choosing not to
begin positive recruitment early,
following the proposed procedures at
§ 655.123, would have waited for the CO
to issue the NOA and then begun
positive recruitment in compliance with
§§ 655.153 and 655.154.
Proposed § 655.123 would not have
changed an employer’s obligation to
consider and hire able, willing, and
qualified U.S. workers who will be
available at the time and place needed
to perform the labor or services involved
in the application. Likewise, the
proposed provision would not have
changed the methods of contacting or
recruiting U.S. workers an employer
must use before hiring H–2A workers, or
the duration of the recruitment period
specified in § 655.135(d). Rather,
§ 655.123 would have allowed the
employer to start compliance with its
positive recruitment obligations earlier
in the labor certification process and to
engage in active recruitment of U.S.
workers over a longer period of time
before certification. In addition,
§ 655.123 would have streamlined the
certification process for employers who
demonstrated compliance with prefiling recruitment obligations and met
all other conditions of certification by
permitting the CO to issue a certification
determination as the first action.
The Department received several
comments from employers, employer
associations, agents, and trade
associations that generally supported
the optional pre-filing positive
recruitment concept proposed. They
viewed the option to begin positive
recruitment activities earlier than
current procedures allow, and thereby
potentially receive a temporary labor
certification as the CO’s first action, as
a way to reduce paperwork and burdens
associated with this step, increase
efficiency, and help prevent delays in
workers’ arrival, without undermining
the program’s integrity. A few also
believed that the Department’s
certification determination would be
better informed. A farm owner, for
example, opined that beginning the
recruitment period earlier would
improve notice and access to these job
opportunities for U.S. workers.
Commenters employed as farmworkers
generally noted the importance of notice
and access to job opportunities, both in
advance for planning purposes and after
the work may have begun.
Two workers’ rights advocacy
organizations opposed the adoption of
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the proposed § 655.123. One asserted
the proposal would weaken the
requirement that employers first try to
diligently recruit and hire U.S. workers
before hiring H–2A workers. The other
expressed concern that positive
recruitment activities too far in advance
(e.g., 50 days) would waste employer
resources and be ineffective because
workers are engaged in other work, in
other places; if the employer’s positive
recruitment activities occur earlier than
the current regulatory timeline, the
intended audience of the recruitment
will not ‘‘[be] around to hear it.’’ The
commenter urged the Department to
retain the ‘‘traditional systems of
recruitment already in place.’’
Within the proposed pre-filing
recruitment provision, two agents, a
farm owner, and a workers’ rights
advocacy organization objected to the
proposed timing requirement for
submission of the initial pre-filing
recruitment report. The agents
considered the proposed timeframe
requirement artificial and unnecessary
due to the requirements that employers
continue hiring throughout the
recruitment period, update the
recruitment report as necessary, and
retain a final recruitment report with an
account of all applicants and referrals
received. In addition, one saw the
timeframe requirement as potentially
creating delays, for example, if the CO
questioned discrepancies between the
SWA referral database and the
employer’s initial recruitment report.
The farm owner asserted that in ‘‘most
years’’ there are no applicants or
referrals. The workers’ rights advocacy
organization objected on the grounds
insufficient recruitment would have
taken place before the employer
submitted the initial pre-filing
recruitment report to the CO.
At least one commenter found the
combination of optional procedures and
mandatory obligations in proposed
§ 655.123 confusing and concerning. For
example, the commenter feared
employers might incorrectly interpret
paragraphs (d) and (e) of proposed
§ 655.123, relating to interviews and
consideration and hiring of U.S.
workers, as applicable only to pre-filing
recruitment, not to all H–2A program
recruitment. The commenter urged the
Department to return the interview
requirements provision to § 655.152(j);
however, the Department rescinded
§ 655.152 in the 2019 H–2A Recruitment
Final Rule. Another commenter urged
the Department to integrate regulatory
changes implemented through the 2019
H–2A Recruitment Final Rule when
considering comments under this
rulemaking process.
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The January 2021 draft final rule
would have adopted the Department’s
pre-filing recruitment proposal at
§ 655.123, with clarifying modifications.
For example, in that draft final rule the
Department recognized the necessity of
clarifying that the proposed pre-filing
recruitment was an optional process. In
addition, in the January 2021 draft final
rule, the Department sought to clarify
that those employers who opted to use
the process remained subject to the
program’s recruitment obligations. After
further considering the comments
received and the Department’s changes
to the recruitment process in the 2019
H–2A Recruitment Final Rule, the
Department has decided not to adopt
the pre-filing recruitment provision and
will not include proposed § 655.123 in
this final rule. However, the Department
has decided to retain but relocate to
§ 655.135(c) the mandatory recruitment
obligation provisions proposed at
paragraphs (d) and (e) of § 655.123. The
Department recognizes the comments
that highlighted potential benefits of the
proposed provision but is sensitive to
the potential confusion that could result
from adoption of the proposed
provision. In light of the concerns
raised, the Department considers
retaining the current system beneficial,
as explained below. Therefore, this final
rule retains the positive recruitment
process and timing of the 2010 H–2A
Final Rule, as modified by the 2019
H–2A Recruitment Final Rule. As the
Department is not adopting the
proposed optional pre-filing recruitment
provision, this final rule does not
include minor revisions to other
sections, like §§ 655.144 and 655.150,
that were included in the January 2021
draft final rule to conform those sections
to the optional pre-filing recruitment
process.
Comments on both this proposal and
the proposed recruitment period
changes at § 655.135(d) expressed the
importance of aligning the timing of the
employer’s recruitment activities, such
as contact with former U.S. workers,
with the time periods during which U.S.
workers are accustomed to such contact
and most likely to be looking for
agricultural job opportunities (e.g., close
to or after the start date of work). In
addition, employers may not be certain
whether a potential pool of workers the
OFLC Administrator identified through
the labor supply State designation
process proposed at § 655.154(d), and
the related information posted regarding
recruitment of that pool of workers,
applies to its Application for Temporary
Employment Certification. Furthermore,
specific information about reaching the
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workers (e.g., organization point of
contact information) may change
between the OFLC Administrator’s
annual posting of traditional or
expected labor supply State
determinations, which would hinder
employers’ pre-filing recruitment
efforts. In contrast, in a case-specific
NOA, the CO can provide current,
accurate information regarding
additional positive recruitment required
to recruit a pool of workers relevant to
the employer’s job opportunity.
The Department believes that
retaining the longstanding requirement
that employers contact former U.S.
workers and conduct additional positive
recruitment activities, as applicable,
following the CO’s instructions in the
NOA, in combination with the
Department’s decision to retain the
requirement that employers continue to
hire qualified U.S. workers through 50
percent of the contract period (as
discussed in the preamble to
§ 655.135(d) below) will more
effectively ensure U.S. worker access to
H–2A job opportunities advertised
through positive recruitment activities
than the optional pre-filing recruitment
proposed in the NPRM. This will also
avoid the potential for confusion among
U.S. job seekers or employers cited
above. Specifically, the Department
believes that this final rule will ensure
that: (1) recruitment of U.S. workers
occurs for a sufficient period of time
before and after the first date of need; (2)
active employer recruitment occurs
during a period of time that is most
consistent with the common job seeking
practices of U.S. agricultural workers;
and, (3) where appropriate, employers
receive specific instructions in the NOA
regarding the additional positive
recruitment activity required and the
documentation to retain as evidence of
compliance. As discussed above and
based on the Department’s past
experience administering the existing
positive recruitment procedures and
requirements, the Department believes
these provisions effectively provide
notice of available job opportunities to
U.S. workers.
As a result, through this final rule, the
Department retains the positive
recruitment timing required in the 2010
H–2A Final Rule. An employer will
continue to file a job order no fewer
than 60 calendar days before the
employer’s first date of need, except
where the employer files the application
under the emergency situations
provision at § 655.134, and, upon SWA
approval of the job order, intrastate
recruitment will begin. Recruitment
through the active job order will expand
to interstate clearance with the CO’s
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issuance of a NOA and continue
throughout the 50 percent period. When
issuing the NOA, the CO will post the
job opportunity on the Department’s
electronic job registry, which will
broadcast the job offer information
through the Department’s enhanced
electronic job registry at
SeasonalJobs.dol.gov and ensure the job
opportunity posting is continuously
accessible to prospective applicants,
regardless of their location, until the
recruitment period at § 655.135(d) ends.
In addition, upon receipt of the NOA,
the employer will follow the CO’s
instructions and begin to conduct
positive recruitment activities by
contacting former employees to
determine their willingness to accept
the employer’s job opportunity, as
discussed further in the preamble to
§ 655.153 below, and conducting
additional positive recruitment based on
the OFLC Administrator’s determination
that there are a significant number of
qualified U.S. workers who, if recruited,
would be willing to make themselves
available for work at the time and place
needed, as discussed in the preamble to
§§ 655.143 and 655.154.
In addition to the comments
addressed above, some commenters
offered opinions about matters that had
been open for public notice and
comment through the 2019 H–2A
Recruitment Final Rule; those
comments are outside the scope of this
rulemaking. Other commenters
expressed general concerns about
employers’ methods of contact,
interview procedures, consideration of
applicants or referrals, and
documentation retention, which are
matters that are also outside the scope
of the optional pre-filing positive
recruitment timing proposed in the
NPRM.
5. Section 655.124, Withdrawal of a Job
Order
The NPRM proposed to reorganize all
withdrawal provisions so that, for
example, the procedure for withdrawing
the Application for Temporary
Employment Certification and job order
is located in the section of the rule
where an employer at that stage of the
labor certification process would look
for such a provision. Accordingly, the
NPRM proposed revisions to move the
job order withdrawal provisions at
§ 655.172(a) of the 2010 H–2A Final
Rule to this new section, and to conform
with other proposed changes in the
NPRM. The Department received a few
comments on this provision, none of
which necessitated substantive changes
to the regulatory text. Therefore, as
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discussed below, this provision remains
unchanged from the NPRM.
In the 2010 H–2A Final Rule, all
withdrawal provisions were found at
§ 655.172, in the ‘‘Post-Certification’’
section of the regulations, regardless of
the stage of processing to which they
applied. For example, at § 655.172(a),
the 2010 H–2A Final Rule addressed the
conditions under which an employer
could withdraw a job order before it
submitted the related Application for
Temporary Employment Certification.
To make the rule better organized and
more user-friendly, the Department
proposed to reorganize the withdrawal
provisions, in part, by moving the
content of § 655.172(a) of the 2010
H–2A Final Rule to the ‘‘Pre-Filing
Procedures’’ section of the regulations,
in a new proposed § 655.124. This
change would place the job order
withdrawal provision in a more logical
location within the regulations—in the
‘‘Pre-Filing Procedures’’ section with
the job order filing and review
procedures, and before the ‘‘Application
for Temporary Employment
Certification Filing Procedures’’ section
that begins at § 655.130.
In addition to the proposal to relocate
the job order withdrawal provision to
§ 655.124, the Department proposed
minor revisions for both clarity and
consistency with other proposed
changes. In proposed § 655.124(a), the
Department continued the 2010 H–2A
Final Rule’s reminder in § 655.172(a)
that ‘‘withdrawal of a job order does not
nullify existing obligations to those
workers recruited in connection with
the placement of a job order pursuant to
this subpart’’ with greater simplicity. In
proposed § 655.124(b), consistent with
the proposal employers submit their job
orders to the NPC, the Department
proposed to establish the NPC as the
recipient of job order withdrawal
requests.
The Department received no
comments objecting to the proposed
reorganization of the job order
withdrawal provision from § 655.172(a)
to § 655.124. However, an agent voiced
concerns about establishing the NPC as
the recipient of job order withdrawal
requests, and that agent and a few other
commenters remarked on an employer’s
continuing obligations after the job
order’s withdrawal.
Regarding the Department’s proposal
to establish the NPC as the recipient of
job order withdrawal requests, the
commenter argued that the Department
did not consider the costs and benefits
of this particular change, particularly
that it would result in undue delays in
processing, and also that it lacks the
authority to perform what the
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commenter considers an inherently
State function. The Department
respectfully disagrees. The costs and
benefits of establishing the NPC as the
conduit through which job orders are
received and transmitted to the SWAs,
including technological efficiencies
gained in the processing of job orders
through the Department’s electronic
filing system, are addressed in
connection with § 655.121. Those costs
and benefits encompass receipt and
transmission of job order withdrawal
requests. In addition, the Department
addressed similar concerns about
possible delays in the preamble to
§ 655.121. The NPC will transmit an
employer’s request for withdrawal of a
job order within the FLAG system to all
SWAs actively recruiting under the job
order. The SWAs that received the job
order in accordance with § 655.121(e)(1)
and, if applicable, § 655.121(f) will
receive notice simultaneously and
without delay. Further, the SWAs, not
the NPC, will initiate procedures to
close withdrawn job orders in the
clearance system, as appropriate. As
with its transmission of the initial job
order submission to the SWA for review
under § 655.121(e)(1) and transmission
of the approved job order to other SWAs
for clearance under § 655.121(f), the
procedural role proposed in § 655.124
does not exceed the NPC’s authority.
The same agent and a few other
commenters objected to employers
being ‘‘obligated to comply with the
terms and conditions of employment
contained in the job order with respect
to all workers recruited in connection
with that job order’’ after withdrawal of
the job order. Two suggested an
employer should be required to honor
the terms of a job order only if the
employer has filed an Application for
Temporary Employment Certification
with the NPC, with one citing
emergency circumstances beyond an
employer’s control that may prevent the
employer from continuing with the
H–2A process. The other two
commenters objected to continuing
obligations beyond withdrawal of the
job order, apparently without regard to
when the job order is withdrawn.
However, these comments overstate the
Department’s proposed changes and
conflict with the underlying obligation
that was continued from § 655.172 of
the 2010 H–2A Final Rule.
Although the Department proposed
clearer language to express an
employer’s continuing obligations to a
worker recruited in connection with the
job order it seeks to withdraw, the
Department proposed no change to the
underlying requirement. If an employer
successfully recruits workers through
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SWA referrals, the employer is bound
by the terms and conditions of
employment offered in the job order
with respect to those workers, including
but not limited to wages, housing, and
transportation. See § 653.501(c)(3)(viii).
As stated in the NPRM, and the 2010
H–2A Final Rule, these obligations
attach at recruitment and continue after
withdrawal. As a result, these comments
recommend changes that are beyond the
scope of this rulemaking.
C. Applications for Temporary
Employment Certification Filing
Procedures
1. Section 655.130, Application Filing
Requirements
a. Paragraphs (a), What To File; (c),
Location and Method of Filing; and (d),
Original Signature
The NPRM proposed minor
amendments to these sections to clarify
the minimum content requirements of a
complete Application for Temporary
Employment Certification; modernize
the application process by requiring that
employers, unless a specific exemption
applies, electronically submit the
Application for Temporary Employment
Certification and all required supporting
documentation; and permit the use of
electronic signatures by the employer
and, if applicable, the employer’s
authorized attorney, agent, or surety.
The Department received many
comments on the proposed amendments
to these sections, none of which
necessitated substantive changes to the
regulatory text. Therefore, as discussed
below, this provision remains
unchanged from the NPRM.
The Department proposed language
under paragraph (a) to clarify that the
content of a complete Application for
Temporary Employment Certification
for submission to the Department must
include a completed Application for
Temporary Employment Certification;
all supporting documentation and
information required at the time of filing
under §§ 655.131 through 655.135; and,
unless a specific exemption applies, a
copy of Form ETA–790/790A, submitted
as set forth in § 655.121(a). The
employer’s valid FEIN, a valid place of
business (physical location) in the
United States, and a means by which
the employer may be contacted for
employment must be included in the
employer’s submission.
As discussed in the NPRM, OFLC’s
FLAG system will assist employers and
their representatives in preparing
complete submissions, as it will not
permit an employer to submit an
Application for Temporary Employment
Certification until the employer
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completes all required fields on the
forms and uploads and saves to the
pending application an electronic copy
of all documentation and information
required at the time of filing, including
a copy of the job order submitted in
accordance with § 655.121. For
applications permitted to be filed by
mail pursuant to the procedures
discussed below, if an employer submits
an application that is incomplete or
contains errors, the Department will
issue a NOD identifying any
deficiencies, and the employer will be
required to mail back a revised
application, thus requiring a timely
back-and-forth to complete the
application.
The Department proposed language
under paragraph (c) to require an
employer to submit the Application for
Temporary Employment Certification
and all required supporting
documentation using an electronic
method(s) designated by the OFLC
Administrator. The Department also
proposed procedures that would permit
employers lacking adequate access to efiling to file by mail and would permit
employers that are unable or limited in
their ability to use or access the
electronic application due to a disability
to request an accommodation to allow
them to access and file the application
through other means. Under proposed
paragraph (c)(2), employers could
request an accommodation if they are
limited in their ability to use, or are
unable to access, electronic forms or
communication due to a disability.
Unless the employer requested an
accommodation due to a disability or
inadequate access to e-filing, the NPC
would return, without review, any
Application for Temporary Employment
Certification submitted using a method
other than the electronic method(s)
designated by the OFLC Administrator.
Finally, proposed paragraph (d) of this
section adopted the use of electronic
signatures as a valid form of the
employer’s original signature and, if
applicable, the original signature of the
employer’s authorized attorney, agent,
or surety.
The Department received many
comments expressing strong support for
the e-filing proposals as a way to
improve the quality and accuracy of
documents the Department receives and
reduce processing times and paperwork
burdens for employers, the Department,
and SWAs. Some of these commenters
noted employers in rural and remote
areas may not have access to the means
to file electronically, and they urged the
Department to retain in the final rule
proposed paragraphs (c)(2) and (3) of
this section that permit filing by mail,
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provided the employer submits, in
writing, a request for reasonable
accommodation. In response to these
comments, the Department agrees and
has retained these provisions in this
final rule.
Commenters also generally supported
the proposal to require electronic
signatures for all electronically filed
applications, though several
commenters stated they would not
support any provision requiring the filer
to electronically sign documents within
the FLAG system or prohibiting the filer
from using copies of a ‘‘wet’’ signature.
One commenter also expressed concern
DHS might not accept the electronic
signatures required under this final rule.
This final rule does not require
employers to sign documents within the
FLAG system, and it does not prohibit
handwritten ‘‘wet’’ signatures, which
filers electronically copy (scan) and
upload into the electronic filing system,
while retaining the original in the
employer’s document retention file.
Under this provision, in addition to
accepting electronic (scanned) copies of
‘‘wet’’ signatures, the OFLC
Administrator will permit an employer,
agent, or attorney to sign or certify a
document required under this subpart
using a valid electronic signature
method. Consistent with the
Government Paperwork Elimination Act
(GPEA) 88 and Electronic Signatures in
Global and National Commerce Act
(E–SIGN Act),89 the Department is
adopting a ‘‘technology neutral’’ policy
with respect to the requirements for
electronic signatures. That is, the
employer, agent, or attorney can apply
a required electronic signature on a
document using any available
technology that can meet the five
signing requirements in OMB
guidelines: (1) the signer must use an
acceptable electronic form of signature;
(2) the electronic form of signature must
be executed or adopted by the signer
with the intent to sign the electronic
record; (3) the electronic form of
signature must be attached to or
associated with the electronic record
being signed; (4) there must be a means
to identify and authenticate a particular
person as the signer; and (5) there must
be a means to preserve the integrity of
the signed record.90 The OFLC
Administrator will accept electronic
signatures affixed to required
88 Public Law 105–277, Title XVII (Secs. 1701–
1710), 112 Stat. 2681–749 (Oct. 21, 1998), 44 U.S.C.
3504.
89 Public Law 106–229, 114 Stat. 464 (June 30,
2000), 15 U.S.C. 7001 et seq.
90 Federal Chief Information Council, Use of
Electronic Signatures in Federal Organization
Transactions, Version 1.0 (Jan. 25, 2013).
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documents using any available
technology that meets the five signing
requirements above. DHS will accept
electronic signatures that have been
accepted by the Department. As noted
in the NPRM, the GPEA specifically
states electronic records and their
related electronic signatures are not to
be denied legal effect, validity, or
enforceability merely because they are
in electronic form, and encourages
Federal Government use of a range of
electronic signature alternatives. See
secs. 1704 and 1707 of the GPEA. In
addition, this approach is consistent
with the Department’s conclusion in an
earlier rulemaking that these standards
for accepting electronic signatures are
reasonable and accepted by Federal
agencies.91
Finally, one SWA that supported the
e-filing proposal also urged the
Department to use the e-filing process to
collect demographic information,
including information identifying areas
with a high concentration of certified
workers and a detailed breakdown of
the number of workers certified by
occupation. The commenter stated this
information is often requested of SWAs
and enhanced collection of the
information would allow SWAs to better
assess farm labor trends and address
regional employment needs. The
Department agrees it is important to
collect H–2A program information and
make it available to the public. The
Department will continue to collect
detailed program information, including
information about work locations and
certification numbers by occupation,
and publish this information on the
OFLC website and in periodic reports
produced by the agency.
b. Paragraph (e), Scope of Applications
The NPRM proposed amendments to
this section to clarify the geographic
scope of all Applications for Temporary
Employment Certification submitted by
employers to the NPC and permit the
filing of only one Application for
Temporary Employment Certification
for place(s) of employment covering the
same geographic scope, period of
employment, and occupation or
comparable work. The Department
received many comments on the
proposed amendments to these sections.
After carefully considering these
comments, the Department has decided
to largely adopt the regulatory text
proposed in the NPRM, with several
revisions discussed below.
91 See Interim Final Rule, Labor Certification
Process for Temporary Employment in the
Commonwealth of the Northern Mariana Islands
(CW–1 Workers), 84 FR 12380, 12393 (Apr. 1, 2019).
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The Department proposed a new
paragraph (e) to clarify that each
Application for Temporary Employment
Certification must be limited to places
of employment within a single AIE,
except where otherwise permitted by
the subpart (e.g., under § 655.131(a)(2)),
a master application may include places
of employment within two contiguous
States). This proposal addressed the
overall lack of clarity in the 2010 H–2A
Final Rule regarding whether an
application could include places of
employment that span more than one
AIE, and ambiguity created by its
revisions to § 655.132(a), which
specifically limited only H–2ALC
applications to places of employment
within a single AIE. As stated in the
NPRM, limiting the geographic scope of
H–2A program job opportunities is an
essential component of the labor market
test necessary to determine both the
availability of U.S. workers for the job
opportunity and to ensure that U.S.
workers in the local or regional area
have an opportunity to apply for those
job opportunities located within normal
commuting distance of their permanent
residences. The Department noted that
qualified U.S. workers may be
discouraged from applying for these job
opportunities if required to perform
work at places of employment both
within and outside the normal
commuting area or where assignment to
places of employment outside normal
commuting distance was possible,
despite the availability of closer work.
Furthermore, the Department stated that
monitoring program compliance
becomes more difficult and the potential
for violations increases when workers
employed under a single Application for
Temporary Employment Certification
are dispersed across more than one AIE.
After considering the comments
received, the Department has decided to
adopt this provision, with two
modifications. First, the Department
split this section into two parts;
paragraph (e)(1) addresses the
geographic scope limitation, while
paragraph (e)(2) maintains the
administrative limitation that an
employer may file only one Application
for Temporary Employment
Certification covering the same AIE,
period of employment, and occupation
or comparable work to be performed.
Second, as discussed below, the
Department modified paragraph (e)(1) to
address job opportunities that involve
mobility within the workday, after the
workday begins.
Employers, agents, and trade
associations generally objected to a
single AIE limit on fixed-site employer
applications. Two commenters viewed
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it as a limit on the size of farm that can
be included on an Application for
Temporary Employment Certification,
explaining that it is not uncommon for
a farm to consist of multiple locations
(e.g., fields or packing facilities) that
may be in close proximity or may be
located more broadly throughout a
particular growing region of the State.
These commenters argued that
incidental travel during the regular paid
workday in employer-provided vehicles,
for example to pick up or deliver crops,
move workers between farm locations,
etc., should not be a factor in
determining the geographic scope of an
Application for Temporary Employment
Certification. In addition, one
commenter added that there should be
no limit to distances on travel ‘‘as the
first worksite location or the employer’s
pick-up location are clearly defined and
transportation between worksites is
provided and paid by the employer.’’
Other commenters explained that
restricting an H–2ALC Application for
Temporary Employment Certification to
one AIE may be justified for monitoring
purposes, as such employers provide
labor services to various fixed-site
growers in different areas according to
contracts, unlike a fixed-site grower,
which has a known fixed location where
the Department can go to perform its
monitoring process. One of them
objected to what it viewed as a
significant change that would apply a
restriction reasonable for H–2ALCs but
not for fixed-site growers. The
commenter urged the Department,
without explanation, to retain the single
AIE restriction for H–2ALCs only.
Farmworkers and interested private
citizens emphasized the importance of
local work for farmworkers and
generally agreed with the Department’s
concern that job opportunities with
worksites outside the local commuting
area discourage U.S. applicants. These
commenters provided examples of the
difficulties in getting to job
opportunities that are not local, whether
due to challenges in arranging rides to
work or problems with work-life
balance when the commute is too long.
A workers’ rights advocacy organization
explained that broad determinations of
AIE (i.e., ‘‘normal commute’’ to the job)
are misused to refuse housing—and
related transportation to worksites—to
U.S. workers who reside within large
AIE.92
The Department sought to strike an
appropriate balance between the
domestic labor market interests served
92 The Department also addressed these
comments in connection with the definition of AIE
at § 655.103(b).
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by a single AIE geographic limitation on
an Application for Temporary
Employment Certification and the
geographic flexibility growers need
within a particular workday for certain
job opportunities (e.g., truck drivers
who deliver crops to market), which do
not impact workers’ commute time or
distance. To that end, in this final rule,
the Department revised proposed
paragraph (e)(1) to clarify that where a
job opportunity involves work at
multiple places of employment after the
workday begins, the Application for
Temporary Employment Certification
may include places of employment
outside a single AIE. First, this language
ensures that any travel outside the AIE
occurs during the workday and thus is
compensable time.93 Second, the
revised language limits such withinworkday mobility to only those job
opportunities where it is necessary to
perform the duties specified in the
Application for Temporary Employment
Certification. Last, the revised language
specifies that this expanded geographic
area (i.e., places of employment beyond
the AIE after the workday begins) is
permitted only if workers can
reasonably return to their residence or
employer-provided housing within the
same workday. This parameter ensures
that Applications for Temporary
Employment Certification, subject to
paragraph (e), include places of
employment outside a single AIE only
where there is no impact to the
reasonable, normal, and safe daily
commute for all of the employer’s
workers who reside within the AIE,
whether at their own residence or in
employer-provided housing.
Accordingly, the additional language
in paragraph (e)(1) accommodates the
types of job opportunities commenters
described (e.g., truck drivers delivering
their employer’s crop to market or
storage) as unreasonably limited by a
single AIE limitation, without negative
impact to workers or the underlying
labor market test. This text is consistent
with the definitions of AIE and place of
employment in § 655.103(b), and with
93 As the INA does not define ‘‘hours worked,’’
the Department has concluded that it is beneficial
for workers, employers, agents, and WHD to ground
enforcement of INA program obligations in its
decades of experience enforcing the FLSA, which
applies to H–2A workers. See 2015 H–2B IFR, 80
FR 24042, 24062. The FLSA clarifies that, unlike
normal home-to-work travel, which need not be
compensated, time spent by an employee in travel
as part of their principal activity, such as travel
from job site to job site during the workday, must
be counted as hours worked. See 29 CFR 785.38.
The Department also discusses the relationship
between the INA and FLSA hours worked
principles in its response to public comments on 20
CFR 655.300.
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the comments discussed in the
preamble for those definitions.
Regarding paragraph (e)(2), as
explained in the NPRM, this provision
prevents the Department from receiving
and processing duplicate applications
and reduces duplicative efforts by
preventing an employer from filing a
new application for the same job
opportunity while an appeal is pending.
Paragraph (e)(2) also clarifies that filing
more than one Application for
Temporary Employment Certification is
necessary only when an employer needs
workers to perform full-time job
opportunities that do not involve the
same occupation or comparable work, or
when workers perform the same fulltime work but in a different AIE or with
different starting and ending dates (e.g.,
staggered start dates while ramping up).
With respect to this provision, the
Department did not receive any
comments; accordingly, the Department
is adopting this portion of the proposed
regulatory text into clause (e)(2) without
further change.
c. Paragraph (f), Staggered Entry of H–
2A Workers
Current regulations require an
employer to file separate Applications
for Temporary Employment
Certification for each sequential start
date of work for each group of job
opportunities. The NPRM proposed to
add a new paragraph (f) at § 655.130 to
allow an employer with an H–2A
certification and an approved H–2A
Petition to bring H–2A workers into the
United States at any time during the
120-day period that follows the first
date of need identified on the certified
Application for Temporary Employment
Certification (i.e., staggered entry of
H–2A workers for up to 120 days),
under certain conditions.
The Department received various
comments on the proposed staggered
entry provision. Many commenters—
including trade associations, employers,
agents, individual commenters, two
State government agencies, and a State
elected official—expressed general
support for the Department’s proposal to
allow the staggered entry of H–2A
workers under a single Application for
Temporary Employment Certification.
The Department also received multiple
comments on this proposal from public
policy organizations, workers’ rights
advocacy organizations, immigration
advocacy organizations, trade
associations, individual commenters, a
commenter from academia, two State
government agencies, and two U.S.
Senators. These comments highlighted a
need for substantial revision of the
proposal, both for clarification and to
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better maintain program integrity. After
considering these comments, the
Department has decided not to adopt
the proposed staggered entry provision
in this final rule, for the reasons
discussed below.
Commenters who expressed support
for the staggered entry proposal
generally viewed it as a beneficial
simplification of the H–2A program,
particularly where an employer has
labor-need phases within a season or
growing cycle and currently files
multiple, separate Applications for
Temporary Employment Certification
for each sequential start date. A few
commenters explained, for example,
that farmers rarely need their entire
workforce at the beginning of a season,
but instead need a steadily increasing
number of workers as the harvest
intensifies. An agent asserted that there
is no law or regulation that prohibits
staggered entry and urged the
Department to retain this option in the
final rule to enable employers to
account for gradual changes to their
labor needs through a single H–2A
certification. Other commenters viewed
staggered entry as a practical method of
accommodating unpredictable factors,
such as weather, that may change the
exact timing of an employer’s labor need
within the season. A State elected
official said staggered entry would help
producers remain in compliance with
regulations, while adapting to changing
needs and conditions. Some
commenters stated that the proposal
would support efficient use of farm
resources, reduce costs and paperwork
burdens, both at the border and on the
farm, and create efficiencies for the
Department by reducing application
processing workload. Some commenters
remarked that the proposal would also
benefit U.S. workers, who could apply
for job opportunities during the
extended staggered entry recruitment
period.
Some of the commenters that
supported the proposal urged the
Department to provide additional
flexibility for employers within the
proposed staggered entry provision. For
instance, some employers, trade
associations, and agents urged the
Department to add the word
‘‘anticipated’’ before ‘‘latest date on
which such workers will enter’’ in
paragraph (f), explaining employers may
not know the exact dates when filing
requests because of the unpredictable
influence of weather on agricultural
employers’ labor needs. Another
commenter urged the Department to
extend the staggered entry provision
beyond the proposed 120 days to
accommodate potential delays while
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recruiting workers abroad, without
suggesting an alternative end date. As
the Department is not adopting the
proposed staggered entry provision in
this final rule, these suggestions are
moot.
Among commenters opposed to the
proposal, the primary concern was that
permitting staggered entry of H–2A
workers at any time up to 120 days after
the advertised date of need would
undermine the labor market test and
negatively impact U.S. worker access to
job opportunities. In addition to
concerns about a reduced recruitment
period, these commenters expressed
concern that U.S. workers would lack
clear, accurate information about job
opportunities, such as start dates and
when jobs are available. Two U.S.
Senators stated the staggered entry
proposal would introduce instability
into domestic and foreign labor markets
due to the lack of notification around
reliable dates of employment. Workers’
rights advocacy organizations expressed
concern that U.S. workers would be
disadvantaged because staggering would
make it more difficult for them to learn
of and apply for job opportunities. One
of these commenters explained that
having accurate, fixed information on
dates, locations, and numbers of
workers is essential to the labor market
test, and staggered entry of H–2A
workers would invalidate labor market
determinations because the key
information on which those
determinations are based would change.
One of the comment submissions
consolidated many comments from
agricultural workers who described the
importance of knowing when seasonal
work will begin and expressed concern
over the staggered entry provision. A
State agency expressed concern the
proposal would complicate the
recruitment efforts of SWAs. The two
U.S. Senators and three State
government agencies recognized the
benefits of staggered entry for
employers, but did not see benefits for
workers, other than, perhaps, for those
workers who could not commit to the
full duration of employment but could
commit to a later start date. The
Senators and one of the State agencies
asserted that extending the recruitment
period for employers who chose to
stagger entry of H–2A workers would
not sufficiently remedy the harm
resulting from the provision.
Another commenter urged the
Department to continue to require a
separate application if an employer
decides to bring in more H–2A workers
at a later date in a particular harvesting
season, asserting that this is an
important safeguard for U.S. workers, as
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it provides U.S. workers a new, distinct
opportunity to apply when H–2A
recruitment activity for each subsequent
start date commences, particularly in
situations where a U.S. worker is not
aware of the recruitment for the first
start date of need, or is not available on
the employer’s first date of need. This
commenter questioned how a U.S.
worker would know whether the
employer is still accepting applications
for the job opportunity. A commenter
from academia suggested that, if the
Department were to adopt a staggered
entry provision, then the Department
should consider imposing additional
recruitment requirements on employers,
such as requiring employers to provide
additional notice to SWAs that
coincides with each phase of staggered
entry.
Some commenters who opposed the
staggered entry provision expressed
concern about the potential for misuse.
A workers’ rights advocacy organization
asserted the staggered entry proposal
would provide a disincentive for
employers to hire U.S. workers for the
gradual start of the season and would
make it easier for employers to fire
workers (both U.S. and H–2A workers)
who are not working up to productivity
requirements and replace them with
new H–2A workers throughout the
staggering period. This commenter also
envisioned employers establishing early
start dates as a method of thwarting the
recruitment of domestic workers.
Another workers’ rights advocacy
organization noted many agricultural
workers ‘‘alter their migration patterns
depending on the terms and conditions
of employment’’ and expressed concern
that the staggered entry option would
allow employers to ‘‘manipulate
traditional labor and recruitment
patterns through massive applications
covering multiple start dates and areas
of employment’’ and refuse employment
to U.S. workers after the recruitment
period ends. One of the State
government commenters expressed
concern that employers would use the
ability to update the terms of
employment to bring in foreign workers
according to evolving need, which it
asserted would violate MSPA’s
disclosure requirements and limit the
ability of U.S. workers to obtain
agricultural jobs. Another State
government commenter expressed
concern about the potential for the
unlawful movement of workers,
thinking that staggered entry could
increase the difficulty in tracking and
identifying such movement.
A few State agencies suggested that
aspects of the proposed provision could
be revised for clarity and efficiency.
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Specifically, one State agency noted the
proposal did not set a limit on the
number of times an employer may
notify the NPC of its intent to stagger
entry of H–2A workers and expressed
the concern that an employer could
submit multiple notices identifying
different staffing plans. The commenter
was concerned that multiple notices
would result in increased
communication between the
Department, the SWA, and field staff,
and would offset any efficiencies
potentially gained by the staggered entry
provision. Another State agency
expressed the concern that allowing
employers to opt into using the
staggered entry up to 14 days after the
first date of need could complicate the
process of obtaining an H–2A visa,
which could lead to unreimbursed
travel and subsistence costs between the
workers’ home and the U.S. embassy or
consulate.
In addition, the Department received
other comments indicating a need for
clarification of the proposal to permit
staggered entry, if the Department were
to adopt such a provision in this final
rule. For instance, a few commenters
sought confirmation that employers
would not be prohibited from filing
multiple, separate applications for
sequential needs, rather than opting to
use staggered entry. An association
mistakenly understood that the
proposed language indicated
associations filing joint master
applications would not be permitted to
stagger the entry of H–2A workers or
would have less flexibility than other
joint employers. Another commenter
mistakenly believed that the staggered
entry option could be used by livestock
employers to have workers arrive
whenever needed; for example, to gather
livestock in advance of a major storm
event, which may occur outside the
employer’s seasonal need period or
more than 120 days after its first date of
need. Two U.S. Senators expressed
concern that the staggered entry
proposal could complicate compliance
with the three-fourths guarantee that
dictates the minimum number of hours
an employer must offer to workers. Two
State government agencies and a State
elected official thought the proposal
would increase SWA burdens and
complicate their provision of services to
workers, without an increase in funding,
while another State government agency
and an individual commenter requested
guidance on how the staggered entry
provision would affect completed
certified housing inspections. One of the
commenters explained that in some
States, such as Oregon, SWA staff
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61729
conduct site visits at the beginning of
each H–2A contract, in part, to provide
information to arriving workers about its
services and workers’ rights. The
commenter believed that if workers
were to arrive on multiple start dates,
the SWA would be required to conduct
multiple site visits per contract to
provide the same services, rather than
one per contract. Further, the
commenter expressed concern that some
arriving workers might not receive
information through a site visit, as the
SWA may not be informed when new
workers arrive during the staggering
period.
Commenters disagreed as to when the
employer’s obligation to hire U.S.
workers should end (i.e., how long the
recruitment period under
§ 655.135(d)(2) should be) if the
employer opted to use staggered entry.
Some agreed with the Department’s
proposal to require the employer to hire
U.S. workers through the employer’s
identified last date for staggering, or 30
days after the first start date, whichever
is later. Some commenters clarified that
they did not support attempts to extend
the proposed hiring period beyond
those proposed parameters. One argued
that anything beyond 30 days after the
last H–2A worker has entered the
United States is overregulation,
asserting there is no statutory
prohibition against staggered entry.
However, other commenters generally
objected to any reduction in the period
during which an employer is required to
hire U.S. workers. A workers’ rights
advocacy organization objected to not
including any recruitment obligations
past the last date of staggered entry and
two commenters suggested the
employer’s hiring obligation should be
tied to the last entry of staggered
workers. They urged the Department, for
example, to extend an employer’s
obligation to hire U.S. workers to 30
days after the last H–2A foreign worker
enters the United States or 30 days after
each sequential staggered start date. In
addition, some commenters expressed
concern that the combination of
proposals in this rulemaking, including
staggered entry, would undermine the
legitimacy of the labor market test,
including the commenter from
academia, who asserted the Department
failed to evaluate the impact of the
provision on the labor market test and
urged the Department to evaluate the
impact.
The Department also received a few
comments addressing issues beyond the
scope of the staggered entry proposal. A
trade association and an employer
involved in the apple production
industry discussed the impact of
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weather on predicting end dates for
employers, and suggested the proposal
should allow employers the flexibility
to retain workers for an additional
period after the anticipated end date of
the work order without needing to file
an extension. However, the staggered
entry proposal involved only start date
variability. End date flexibility, as the
commenter noted, is already addressed
through the extension provision at
§ 655.170. In addition, a workers’ rights
advocacy organization suggested the
Department should revise the
regulations to require a minimum
training period in which workers may
not be fired for failing to comply with
productivity standards, so that
employers would not terminate workers
who do not initially meet productivity
requirements and replace them with
staggered workers. However, this
suggestion is beyond the scope of this
rulemaking.
The Department appreciates the many
comments it received on the proposed
staggered entry provision. The
Department recognizes that in
administering the H–2A program, it
must strike an appropriate balance
between the need to provide U.S.
workers notice of available agricultural
job opportunities, including clarity
regarding the terms and conditions
offered, and the opportunity to apply for
those job opportunities, and, where
insufficient U.S. workers are available to
satisfy an employer’s temporary
agricultural labor need, the need to
provide employers access to a pool of
foreign labor through effective
administration of the H–2A program.
The Department is sensitive to
comments indicating that the staggered
entry provision proposed in the NPRM
did not successfully strike this balance
and, if adopted without revision, would
have weakened the integrity of the labor
market test and effective compliance
monitoring and enforcement of program
obligations, which was not the
Department’s intent. The Department
recognizes that concerns expressed by
commenters would require substantial
revisions to address the significant
limitations of the staggered entry
proposal set forth in the NPRM: to
address confusing aspects of the
proposal; to ensure effective recruitment
of U.S. workers for job opportunities,
particularly where multiple or midseason start dates are available; and to
include parameters that balance
flexibility, efficiency, and notice to
prospective applicants, such as a single
pre-certification opportunity to submit
notice of intent to stagger entry. The
Department agrees that additional
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guidance would be necessary to clarify
how the provision would effectively
operate in practice and to clarify the
standards for enforcing program
compliance.
The Department appreciates the
concerns of workers’ rights and
immigration advocacy organizations,
U.S. Senators, agricultural workers, and
others that the proposed provision
could make it more difficult for U.S.
workers to learn of available H–2A job
opportunities. For example, the
Department is sensitive to commenters’
concerns regarding the information
provided to U.S. workers during the
recruitment period and agrees that
substantial revisions to the proposed
provision would be required to ensure
that sufficient information is collected
and made available to prospective U.S.
worker applicants in the job order and
other recruitment. The provision of such
information is critical so that U.S.
workers may, for example, apply for
their preferred start date within the
employer’s staggered entry plan.
Additional disclosure requirements
could better apprise U.S. workers of
available job opportunities and start
date options, which would, in turn,
address concerns about agricultural
workers’ ability to plan their migration
routes.
The Department also is sensitive to
the concerns of commenters, including
State agencies, that applications with
multiple start dates of need may raise
administrative challenges that merit
further consideration and may increase,
rather than reduce, administrative
burdens and complicate SWA
recruitment efforts. For example,
applications with multiple start dates of
need may require additional
communication between the CO and
SWA related to modifications to job
orders that are active in the SWA
clearance system and the Department’s
electronic job registry, as necessary to
ensure prospective applicants receive
clear information about available start
dates. Additional parameters on the
number and timing of such
modifications could minimize the
administrative impact of such
modifications, while simultaneously
supporting clearer information
disclosure to prospective applicants.
Although the Department believes
that a staggered entry provision may
provide beneficial employer flexibilities
and program administration efficiencies,
the commenters correctly identified
many areas in which the proposal
would need to be substantially changed
in order to properly balance employer
and U.S. worker interests. At this time,
the Department declines to adopt the
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proposed staggered entry provision,
even with substantial revisions
considered in the January 2021 draft
final rule, as it may present significant
drawbacks and unintended
consequences.94 If the Department
determines it is appropriate to propose
a similar provision in the future that
better strikes a balance between the
need to provide U.S. workers notice of
available agricultural job
opportunities—including clarity
regarding the terms and conditions
offered, and the opportunity to apply for
those job opportunities—and the need
to provide employers access to a pool of
foreign labor through effective
administration of the H–2A program, it
will do so via the notice and comment
rulemaking process, providing the
public an opportunity to comment on
any such proposal. Accordingly, under
this final rule, an employer who
anticipates a need for different groups of
workers to begin work on sequential
start dates must continue to file separate
Applications for Temporary
Employment Certification, each
reflecting a distinct start date within the
employer’s temporary or seasonal need
for labor, and engage in recruitment tied
to each of those start dates, as provided
in the 2010 H–2A Final Rule.
d. Paragraph (f), Information
Dissemination
The Department proposed minor
amendments to newly designated
paragraph (f) (formerly paragraph (e)) in
the 2010 H–2A Final Rule and proposed
at paragraph (g) in the NPRM) to clarify
that OFLC may provide information
received in the course of processing
Applications for Temporary
Employment Certification, or in the
course of conducting program integrity
measures, not only to the WHD, but to
any other Federal agency with authority
94 In the January 2021 draft final rule, the
Department considered adopting the proposal with
significant revisions to address the many
commenter concerns, such as administrative and
enforcement challenges, including revisions
clarifying limits on the number of notifications an
employer might submit to the CO regarding its
staggered entry plan, revising the timeframe in
which an employer could submit its single
notification of intent to stagger entry, expanding the
collection of information regarding the employer’s
staggered entry plan and corresponding start dates
offered to prospective applicants, and bolstering
disclosure of information to farmworkers regarding
start date options. However, even with these
changes, the Department believes the January 2021
draft final rule did not sufficiently address
confusing aspects of the proposal; ensure effective
recruitment of U.S. workers for job opportunities,
particularly where multiple or mid-season start
dates are available; and balance flexibility,
efficiency, and notice to prospective applicants,
such as a single pre-certification opportunity to
submit notice of intent to stagger entry.
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to enforce compliance with program
requirements and combat fraud and
abuse. The Department received one
comment on this provision, which did
not necessitate substantive changes to
the regulatory text. Therefore, this
provision remains unchanged from the
NPRM.
An agent objected to OFLC sharing
information with ‘‘any other Federal
agency’’ if the information sharing could
lead to adverse action, as it could have
a ‘‘significant chilling effect on
workers’’ and could exceed the
Department’s statutory authority. The
Department appreciates these concerns;
however the administration of the H–2A
visa program involves multiple
agencies. Information sharing between
the agencies is used only as necessary
to ensure the integrity of the program.
As explained in the 2010 H–2A Final
Rule, in this regard, the Department
affirmatively shares information with
DHS and other agencies, within defined
limits, when necessary for those
agencies to take action within their
jurisdiction. For example, the
Department may refer certain
discrimination complaints to DOJ,
under § 655.185, or refer information
related to debarred employers or to
employers’ fraudulent or willful
misrepresentations to DHS, under
§§ 655.182 and 655.184. Further, this
provision aligns with current language
in WHD regulations at 29 CFR 501.2,
which provides ‘‘[i]nformation received
in the course of processing applications,
program integrity measures, or
enforcement actions may be shared
between OFLC and WHD or, where
applicable to employer enforcement
under the H–2A program, other agencies
as appropriate, including the
Department of State (DOS) and DHS.’’
Therefore, under § 655.130(g) in this
final rule, the Department will share
information when it is necessary and
appropriate to do so. In all cases, the
Department shares only the specific
information the agency requires and
ensures that all information sharing
complies with the Privacy Act of 1974,
Public Law 93–579, 88 Stat. 1896 (5
U.S.C. 552a et seq.) (Dec. 31, 1974).
2. Section 655.131, Agricultural
Association and Joint Employer Filing
Requirements
The NPRM proposed amendments to
this section to: (1) retain current
requirements governing the submission
of Applications for Temporary
Employment Certification by an
agricultural association on behalf of its
employer-members; and (2) codify
current standards and procedures
governing the submission of
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Applications for Temporary
Employment Certification by two or
more individual employers seeking to
jointly employ workers to perform
agricultural labor or services. The
Department received many comments
on the proposed amendments to this
section. After carefully considering
these comments, the Department has
decided to largely adopt the regulatory
text proposed in the NPRM, with several
revisions, as discussed below.
employment, rather than the procedural
provisions in paragraph (a); these
comments are discussed in relation to
the definitions at § 655.103(b).
Accordingly, this final rule adopts
paragraph (a) without change and, as
such, continues to permit an
agricultural association to file an
application as a sole employer, joint
employer, or agent, as contemplated in
the INA. See 8 U.S.C. 1188(c)(3)(B)(iv)
and (d).
a. Paragraph (a), Agricultural
Association Filing Requirements
The Department proposed minor
revisions to paragraph (a) to clarify the
application filing procedures for
agricultural associations and to conform
with other proposed changes in the
NPRM, such as the definition of master
application in § 655.103 and the
modernization provisions that revise the
procedures for issuance of temporary
agricultural labor certifications in
§ 655.162. The Department also
proposed to reorganize the procedural
provisions applicable to agricultural
associations that file Applications for
Temporary Employment Certification so
that paragraph (a)(1) addresses the
requirement for an agricultural
association to identify the nature of its
role in each application it files and
retain documentation of its role.
Paragraph (a)(2) addresses master
application filings; paragraph (a)(3)
addresses employer signatures on
applications that an agricultural
association files; and paragraph (a)(4)
addresses certification issuance. As
discussed below, the Department is
adopting paragraph (a) without change
from the NPRM.
An association expressed concern
about the interaction of the proposed
staggered entry provision at § 655.130(f)
and master application filing procedures
at § 655.131(a)(2), thinking that
agricultural associations that file master
applications could not stagger entry of
H–2A workers or would have less
flexibility than other joint employers.
As the Department has decided not to
adopt the proposed staggered entry
provision, for the reasons discussed in
the preamble to § 655.130(f), the
concern is moot.
A workers’ rights advocacy
organization supported the
Department’s proposal to add explicit
language in paragraph (a)(3) regarding
signature requirements in applications
filed by agricultural associations, while
a State agency expressed support for
electronic signatures, including those
required under this section. Other
commenters raised liability concerns
related to master applications and joint
b. Paragraph (b), Joint Employer Filing
Requirements
The Department proposed a new
paragraph (b) to codify its longstanding
practice of permitting two or more
individual employers to file a single
Application for Temporary Employment
Certification as joint employers. These
filing requirements would apply when
two or more individual employers
operating in the same AIE have a shared
need for workers to perform the same
agricultural labor or services during the
same period of employment, but each
employer cannot guarantee full-time
employment for the workers during
each workweek. This provision is
intended to allow smaller employers
that do not have full-time work for an
H–2A worker and lack access to an
employer association to use the H–2A
program. In these situations, small
employers have established an
arrangement to share or interchange the
services of the workers to provide fulltime employment during each
workweek and guarantee all the terms
and conditions of employment under
the job order or work contract.
The application filing procedures for
two or more employers under proposed
§ 655.131(b) are different from the
procedures for a master application filed
by an agricultural association as a joint
employer in several ways. First, unlike
the master application provision, the
employers filing a single Application for
Temporary Employment Certification
under proposed paragraph (b) would not
be joint employers with an agricultural
association of which they may be
employer-members. Thus, if an
agricultural association assists one or
more of its employer-members in filing
an Application for Temporary
Employment Certification under
proposed paragraph (b), the agricultural
association would be filing as an agent
for its employer-members. Second, all
employers filing an Application for
Temporary Employment Certification
under proposed paragraph (b) must have
the same first date of need and require
the agricultural labor or services of the
workers requested during the same
period of employment in order to offer
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and provide full-time employment
during each workweek. In contrast, in a
master application filed by an
agricultural association, each employermember would offer and provide fulltime employment to a distinct number
of workers during a period of
employment that may have first dates of
need differing by up to 14 calendar
days. Unlike a master application where
the places of employment for the
employer-members could cover
multiple AIEs within no more than two
contiguous States, the employers filing
a single application as joint employers
under proposed paragraph (b) would
have to identify places of employment
within a single AIE. Finally, under
proposed paragraph (b) all joint
employers would be jointly and
severally liable for violations by any
joint employer for the entire period of
need. As previously explained, and
codified in § 655.103, while an
agricultural association that files a
master application is always an
employer, a grower that is an employermember of the agricultural association
that filed a master application is only in
joint employment with the agricultural
association when it is employing the
pertinent H–2A workers.
Under proposed paragraph (b)(1)(i),
any one of the employers could file the
Application for Temporary Employment
Certification with the NPC, so long as
the names, addresses, and the crops and
agricultural labor or services to be
performed are identified for each
employer seeking to jointly employ the
workers. Consistent with longstanding
practice, any applications filed by two
or more employers would continue to be
limited to places of employment within
a single AIE covering the same
occupation or comparable work during
the same period of employment for all
joint employers, as required by
§ 655.130(e). As the NPRM noted, the
proposal would typically allow
neighboring farmers with similar needs
to use the program, though they do not,
by themselves, have a need for a fulltime worker under § 655.135(f).
Per proposed paragraph (b)(1)(ii), each
joint employer would be required to
employ each H–2A worker the
equivalent of at least 1 workday (i.e., a
7-hour day) each workweek. This
proposed requirement aimed to fulfill
the purpose of the filing model, which
is to allow smaller employers in the
same area and in need of part-time
workers performing the same work
under the job order to join together on
a single application, making the H–2A
program accessible to these employers.
The proposed requirement also
provided an additional limiting
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principle intended to ensure that
individual employers with full-time
needs would use the established
application process for individual
employers, that association members
would use the statutory process
provided for associations, and that joint
applications would be restricted to
small employers with a simultaneous
need for workers that cannot support
the full-time employment of an H–2A
worker. In this way, the Department
could carry out the statutory
requirements applicable to individual
employers and to associations. The
Department invited comments on the 1workday requirement in the NPRM, and
also sought comments on how to best
effectuate the purposes of joint
employer applications.
The NPRM additionally noted that
each employer seeking to employ the
workers jointly under the Application
for Temporary Employment
Certification would have to comply with
all the assurances, guarantees, and other
requirements contained in this subpart
and in part 653, subpart F. Therefore,
proposed § 655.131(b)(1)(iii) would
require each joint employer to sign and
date the Application for Temporary
Employment Certification. By signing
the application, each joint employer
would attest to the conditions of
employment required of an employer
participating in the H–2A program and
would assume full responsibility for the
accuracy of the representations made in
the application and job order, and for all
of the assurances, guarantees, and
requirements of an employer in the H–
2A program. The Department noted in
the NPRM that, in the event of a
violation, all of the employers named in
the Application for Temporary
Employment Certification are liable for
the violation and may be held jointly or
individually responsible for remedying
the violation(s) and for attendant
penalties.
Finally, the NPRM observed that
where the CO grants temporary
agricultural labor certification to joint
employers, proposed § 655.131(b)(2)
would provide that the joint employer
that filed the Application for Temporary
Employment Certification would receive
the Final Determination correspondence
on behalf of the other joint employers in
accordance with the procedures
proposed in § 655.162. As discussed
below, the Department is adopting
paragraph (b) from the NPRM with some
changes.
The Department received many
comments related to its proposal to
include § 655.131(b) in its implementing
regulations. The employer comments
related to § 655.131(b) all supported the
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proposal to permit joint employer
applications. However, those employers
that commented on § 655.131(b)
uniformly criticized the provision’s
requirement that all joint employers
employ the pertinent H–2A workers at
least 1 day per workweek. At least four
commenters noted that the proposal
would unduly complicate joint
employer arrangements in which
sponsored H–2A workers move from
full-time employment at one applicant’s
farm to full-time employment at another
applicant’s farm based on growing
conditions at the respective farms.
Various commenters noted that the
proposal would preclude joint
applications by growers that need
distinct numbers of H–2A workers by
compelling a grower that has a lesser
need to employ all the workers needed
by a grower with a greater need. Some
commenters asserted that the
requirement would unduly reduce the
‘‘flexibility’’ of farms that wish to use
the joint employer application process.
Still other commenters asserted that the
proposal is unduly restrictive,
unworkable, or serves no discernible
policy objective.
Four commenters each offered what
would amount to a ‘‘less stringent
restriction’’ than the 1-day-per-week
requirement. Three of the commenters
specifically suggested the Department
might use other ‘‘metrics[,] includ[ing]
percentage of hours or days per
contract,’’ in lieu of the 1-day-per-week
requirement. Another commenter
similarly suggested that the Department
might ‘‘establish a ‘minimum’ amount of
time’’ that each joint employer must
employ the pertinent H–2A workers
during the entire period of employment.
A workers’ rights advocacy
organization supported holding all
entities that file a joint employer
application under § 655.131(b)
accountable for any violation committed
by one. It suggested that the Department
provide greater clarity that all named
employers are accountable as joint
employers for any violations committed
by one during the period of employment
listed on the job order, ‘‘not just the
dates in which H–2A workers
completed work owned or operated by
a particular employer.’’ As explained
above, the liability of named joint
employers is not dependent on the dates
on which H–2A workers complete work
for a particular named joint employer.
The Department declines to adopt
some commenters’ recommendation to
place no limits on the number of hours
each joint employer filing an
application under § 655.131(b) may
employ H–2A workers sponsored under
such an application. The purpose of the
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Department’s proposal in § 655.131(b),
which it is electing to retain in this final
rule, is to permit small growers that
have a need for H–2A workers but
cannot guarantee full-time employment
on their own to join together to meet the
full-time-job requirement for hiring H–
2A workers. Placing no limits on the
number of hours each joint employer
filing an application under § 655.131(b)
may employ H–2A workers sponsored
under such an application would
undercut this purpose by permitting
employers that, individually, can
guarantee full-time employment to use
§ 655.131(b).
Some commenters specifically
requested that the Department modify
§ 655.131(b) to expressly allow use of
the provision by joint employers that
would provide sequential full-time
employment to H–2A workers. As the
Department noted in the NPRM,
individual employers that can provide
full-time employment to H–2A workers
can file an individual application under
§ 655.130 for the individual employer’s
period of need. In such a case, a joint
employment relationship is unnecessary
because the employer may file an
application for the period of time for
which full-time employment is offered.
The Department accordingly has
concluded that it is appropriate to limit
applications under § 655.131(b) to those
instances in which no co-applicant can
provide full-time employment to H–2A
workers. Therefore, the Department
declines to adopt the commenters’
recommendation to place no limits on
the number of hours each joint
employer filing an application under
§ 655.131(b) may employ H–2A workers
sponsored under such an application.
While the Department has decided to
place numerical limits on the number of
hours H–2A workers under a
§ 655.131(b) application can work for a
joint employer, it has closely considered
many commenters’ suggestion that the
proposed 1 day per workweek
requirement unduly restricts employer
flexibility. It has accordingly sought to
determine if there is another less rigid
metric that would provide employers
greater flexibility and at the same time
preserve § 655.131(b)’s purpose to
accommodate small growers that cannot
alone guarantee full-time employment
but wish to use the program. With that
dual purpose in mind, the Department
has modified § 655.131(b), as proposed
in the NPRM, to eliminate the
requirement that all H–2A workers must
work for each employer for at least 7
hours in each workweek. This final rule
allows employers to schedule H–2A
workers at their discretion, so long as no
single joint employer obtains more than
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a total of 34 hours of work in any
workweek from all of the H–2A
employees it employs. This provision
provides maximum flexibility to joint
employers in assigning H–2A employees
under the rule, while helping to ensure
that only employers that cannot provide
full-time employment, defined in
§ 655.135(f) as 35 hours a week, will file
under this provision. By limiting the
total number of hours of employment of
all H–2A workers to no more than 34
hours of work per week for each joint
employer, the rule limits the use of this
provision to those employers that have
a need for part-time work. Employers
with a need for 35 hours of work a week
or more will be able to guarantee fulltime work and will be able to file under
the standard process. Those employers
that are able to guarantee full-time work
will have no need to use this provision,
which, as noted above, is designed for
applicants that are unable to provide
full-time work, and without this
provision would be ineligible for the H–
2A program.
Finally, the Department notes that the
January 2021 draft final rule would have
adopted § 655.131(b) as proposed in the
NPRM, with the addition of a new
§ 655.131(b)(1)(ii) and (iii), which
would have provided that no employer
would employ any H–2A worker for
fewer than 7 hours in a pay period and
more than 28 hours in any workweek.
The January 2021 draft final rule also
would have adopted a new
§ 655.131(b)(1)(iv), which would have
provided that the employer, together
with its co-applicants, would employ
each H–2A worker for at least 70 hours
in each 2-week pay period. However,
those provisions would have added
unnecessary restrictions on the
scheduling of H–2A workers while
failing to limit joint employment under
this provision to employers with a parttime need. Accordingly, and for the
reasons discussed above, those
provisions were not adopted in this
final rule.
3. Section 655.132, H–2A Labor
Contractor Filing Requirements; and 29
CFR 501.9, Enforcement of Surety Bond
The NPRM proposed amendments to
these sections to clarify and enhance
requirements governing the submission
of Applications for Temporary
Employment Certification by employers
operating as H–2ALCs, including
substantive revisions to the standards by
which these employers must
demonstrate proof of their ability to
discharge their financial obligations in
the form of a surety bond. The
Department received many comments
on the proposed amendments to this
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section. After carefully considering
these comments, the Department has
decided to largely adopt the regulatory
text proposed in the NPRM, with several
revisions, as discussed below.
Because the Department added a
provision at § 655.130(e) to address the
geographic scope of Applications for
Temporary Employment Certification,
generally, language addressing that
topic was no longer necessary in
§ 655.132 and retaining it in this section
could create confusion. An H–2ALC
application and job order continue to be
limited to places of employment within
a single AIE, except as otherwise
permitted by this subpart (e.g.,
§ 655.215(b)(1)). However, by moving
the language to § 655.130(e), the
Department’s proposal clarified that this
same limitation applies to all
applications and job orders, absent an
explicit exception in this subpart. As a
result, the Department proposed to
eliminate paragraph (a) and redesignate
the contents of paragraph (b) of the 2010
H–2A Final Rule, which list the
enhanced documentation requirements
for H–2ALCs, as paragraphs (a) through
(e).
As explained in the NPRM, the
Department has determined the
enhanced documentation requirements
for H–2ALCs continue to be necessary
in order to protect the safety and
security of workers and ensure basic
program requirements are met,
particularly given the increased use of
the H–2A program by H–2ALCs and the
relatively complex and transient nature
of their business operations.95 In
proposed paragraph (e)(1), the
Department maintained the current
rule’s requirement that an H–2ALC
provide proof that any housing used by
workers and owned, operated, or
secured by the fixed-site agricultural
business complies with the applicable
standards as set forth in § 655.122(d)
and is certified by the SWA. In
proposed paragraph (e)(2), the
Department proposed to replace the
term ‘‘the worksite’’ with ‘‘all place(s) of
employment’’ to clarify that
transportation provided by the fixed-site
agricultural business between the
workers’ living quarters and all
95 Based on an analysis of Applications for
Temporary Employment Certification processed for
FY 2014 and 2017, the number of applications filed
by H–2ALCs more than doubled from 660 (FY 2014)
to 1,410 (FY 2017), and the number of worker
positions certified for H–2ALCs nearly tripled from
approximately 24,900 (FY 2014) to 72,400 (FY
2017). Between FY 2014 and 2017, the average
annual increase in H–2ALC applications requesting
temporary labor certification was 29 percent,
compared to only 18 percent for agricultural
associations and 11 percent for individual farms
and ranches.
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locations where work is performed must
comply with the requirements of this
section. Additionally, the Department
corrected the reference for workers’
compensation coverage of transportation
from § 655.125(h) to § 655.122(h).
The Department has adopted
paragraphs (e)(1) and (2) as proposed,
with minor changes to paragraph (e)(2)
for clarification. As discussed above in
the preamble to § 655.122(h), the
Department has made a minor revision
to § 655.132(e)(2) to clarify that 29 CFR
500.104 and 500.105 do not both apply
simultaneously to all vehicles. Instead,
29 CFR 500.104 and 500.105 apply
alternatively depending upon the type
of vehicle used, the distance of the trip,
and whether the vehicle is being used
for a day-haul operation. Accordingly,
under this paragraph, H–2ALCs will
continue to include in or with their
Applications for Temporary
Employment Certification, at the time of
filing, the information and
documentation listed in redesignated
paragraphs (a) through (e) to
demonstrate compliance with regulatory
requirements.
Many commenters addressed the
presence of H–2ALCs in the H–2A
program, rather than the Department’s
proposed amendments to § 655.132.
Immigration, public policy, and
workers’ rights advocacy organizations,
trade associations, and an international
recruiter raised concerns about H–
2ALCs’ lack of transparency and about
farmers using H–2ALCs as a shield to
escape responsibility and maintain
lower wages. A workers’ rights advocacy
organization and numerous farmworkers
asserted H–2ALCs offer lower wages,
provide reduced or nonexistent benefits,
more frequently present challenging or
unsafe working conditions, make travel
difficult, and provide less certainty
regarding work start dates. One farm
owner pointed out there is a critical
need for H–2ALCs, especially when a
crop’s harvest or hauling season is very
short. These comments provide context
for suggestions in this section and
others. In addition, the Department will
continue to examine the role of H–
2ALCs in the H–2A program to
determine whether further regulation of
H–2ALCs beyond these filing
requirements and surety bond
requirement (discussed below) is
necessary to protect H–2A and U.S.
farmworkers.
One commenter mistakenly thought
the Department proposed to remove
paragraph (a) of the 2010 H–2A Final
Rule from this subpart; the commenter
expressed concern H–2ALCs would no
longer be limited to places of
employment within one AIE on a single
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Application for Temporary Labor
Certification, in most cases. The
Department repeats that this
requirement was moved to § 655.130(e),
not removed from the subpart entirely.
A workers’ rights advocacy
organization expressed support for the
revisions to paragraph (e)(2), and it
agreed that the changes proposed by the
Department are helpful and clarify
regulatory requirements.
Although the Department did not
propose changes to any of the H–2ALC
documentation requirements listed in
this section except the surety bond
requirement, which is addressed below,
a few commenters suggested revisions to
the MSPA FLC registration paragraph
and process, content requirements for
an H–2ALC’s work contracts with fixedsite growers, and other additional
documentation requirements. An agent
requested the Department incorporate
the enumerated exceptions to MSPA
registration listed at 29 CFR 500.0
through 500.271 in paragraph (b) of this
section, a revision the commenter
asserted would clarify who qualifies for
an exception under MSPA and would
ensure proper application of the MSPA
registration requirement. Also related to
MSPA and FLC registration, an
employer recommended that the
Department create an online system for
employers. The Department respectfully
declines. Repetition of MSPA
registration exceptions is not warranted
and could create confusion, as these
exceptions, and any clarification of
these exceptions, fall outside this
subpart. Similarly, creation of a MSPA
registration online system is outside the
scope of this rulemaking.
A workers’ rights advocacy
organization suggested the Department
require fixed-site growers to
acknowledge their understanding of
program and legal requirements when
signing work contracts with an H–2ALC,
while a trade association suggested the
Department require H–2ALCs to provide
a signed joint liability agreement for
every farm to which they will supply
labor. The Department appreciates these
suggestions but declines to add these
documentation requirements at
§ 655.132. Except when an agricultural
association signs on behalf of its
employer-members that are named in a
master Application for Temporary
Employment Certification, each
employer of the workers sought must
review and sign declarations attesting to
the accuracy of the job information and
compliance with applicable laws and
regulations. To the extent these
suggestions raise issues of joint
employment and joint liability, those
issues are addressed in the Department’s
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discussion of proposed revisions to the
definition of joint employment at
§ 655.103. Finally, such additional
documentation requirements were not
presented for public notice and
comment and, therefore, are beyond the
scope of this rulemaking.
However, with regard to the
information H–2ALCs provide on the
Form ETA–790A to identify their clients
(i.e., the growers who contract with the
H–2ALC to provide labor or services for
their agricultural operations), the
Department clarifies that an H–2ALC
must identify each fixed-site
agricultural business to which it will
provide labor or services, as provided in
§ 655.132(a) of this final rule and
collected in an addendum to the Form
ETA–790A, by providing the
agricultural business’s full legal name
and full trade names or ‘‘Doing Business
As’’ names (DBAs) (if applicable). Full
disclosure of legal and trade names or
DBAs is consistent with the
Department’s requirements for employer
and agricultural association names on
the Form ETA–790A. In addition, full
disclosure of business names both
apprises prospective applicants of the
work to be performed and supports the
Department’s efforts to protect workers.
The workers’ rights advocacy
organization also suggested the
Department require additional
recruitment-related documentation of
H–2ALCs, such as evidence the H–2ALC
recruited all U.S. workers, FLCs, and
crew leaders employed directly by the
fixed-site grower in the prior year. In
response to the comment, the
Department addressed this issue in the
discussion of an employer’s contact
with former U.S. workers under
§ 655.153, and in relation to the
definition of joint employment at
§ 655.103.
In proposed paragraph (c), the
Department retained the requirement
that an H–2ALC submit with its
Application for Temporary Employment
Certification proof of its ability to
discharge its financial obligations in the
form of a surety bond. This bonding
requirement, which became effective in
2009, was created because the
Department’s experience indicated that
H–2ALCs can be transient and
undercapitalized, thus making it
difficult to recover the wages and
benefits owed to their workers when
violations are found.96 By ensuring that
96 See 2008 H–2A Final Rule, 73 FR 77110, 77163;
see also 2010 H–2A Final Rule, 75 FR 6884, 6941
(‘‘The Department’s enforcement experience has
found that agricultural labor contractors are more
often in violation of applicable labor standards than
fixed-site employers. They are also less likely to
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these employers can meet their payroll
and other program obligations, the
Department is better able to prevent
program abuse and limit any adverse
effect on U.S. workers. See 20 CFR
655.132(b)(3); 29 CFR 501.9. Following
a final finding of violation, the WHD
Administrator may make a claim to the
surety for payment of wages and
benefits owed to H–2A workers, workers
in corresponding employment, and U.S.
workers improperly rejected from
employment, laid off, or displaced, up
to the face amount of the bond. 29 CFR
501.9(b).
Based on its experience implementing
the bonding requirement and
enforcement experience with H–2ALCs,
the Department proposed revisions
intended to clarify and streamline the
existing requirements and strengthen
the Department’s ability to collect on
such bonds. To address the large
proportion of the surety bonds
submitted by H–2ALCs that do not meet
the requirements of 29 CFR 501.9, the
Department proposed moving the
substantive requirements governing the
content of H–2ALC surety bonds to 20
CFR 655.132(c) so that these
requirements can be found in the same
section as other requirements for the
Application for Temporary Employment
Certification. The Department also
proposed to expand the capabilities of
the online application system
(historically the iCERT Visa Portal
System (iCERT) and now the FLAG
system) to permit electronic execution
and delivery of surety bonds both as a
means to address the issue of
noncompliant bonds and to streamline
its review of bond submissions. Under
this proposal, electronic surety bonds
will eventually be required for all H–
2ALCs subject to the Department’s
mandatory e-filing requirement.
However, until such time as the
Department’s proposed process for
accepting electronic surety bonds is
operational, the Department will accept
the submission of an electronic (i.e.,
scanned) copy of the surety bond with
the application, provided that the
original bond is received within 30 days
of the date that the temporary
agricultural labor certification is issued.
To ensure that the original bond is
received during this time period, the
Department proposed to revise
§ 655.182 to specify that failure to
timely submit a compliant, original
surety bond constitutes a substantial
violation, providing grounds for
debarment or revocation of the
meet their obligations to their workers than fixedsite employers.’’).
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temporary agricultural labor
certification.
To further improve compliance with
the bonding requirement and streamline
its review, the Department proposed to
adopt a bond form with standardized
language. Currently, the bonds received
by the Department vary in wording and
form, making it difficult to ensure that
the bonds are sufficient and resulting in
confusion regarding the legal
requirements. The language used in the
Department’s proposed bond form,
ETA–9142A—Appendix B, which was
included in the Paperwork Reduction
Act (PRA) package of the NPRM, largely
incorporated the existing bond
requirements with certain clarifications
for the regulated community and minor
changes. For example, the proposed
bond language clarified that the wages
and benefits owed to workers may
include the assessment of interest.
Similarly, the proposal clarified the
time period during which liability on
the bond accrues (‘‘liability period’’), as
distinguished from the time period in
which the Department may seek
payment from the surety under the bond
(‘‘claims period’’). The Department
proposed changing the bond
requirement to cover not only liability
incurred during the period of the
temporary agricultural labor
certification, but also liability incurred
during any extension of the temporary
agricultural labor certification, thus
eliminating the need for H–2ALCs to
amend the applicable bond or seek an
additional bond (i.e., automatically
extending the liability period to reflect
any extension of the temporary
agricultural labor certification).
Additionally, the Department proposed
extending and simplifying the claims
period from ‘‘no less than 2 years’’ to 3
years. Because this standardized
language provides more specificity as to
the length of the claims period, the
Department proposed omitting language
permitting the cancellation or
termination of the claims period with 45
days’ written notice. The Department
explained that some sureties have
mistakenly interpreted this language as
permitting the early termination of
bonds during the period in which
liability accrues.
Additionally, the Department
proposed adjustments to the required
bond amounts because current bond
amounts, which range from $5,000 to
$75,000 depending on the number of H–
2A workers to be employed under the
applicable temporary agricultural labor
certification, often are insufficient to
cover the wages and benefits owed by
labor contractors. The Department
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proposed two distinct changes to the
required bond amount computation.
First, it proposed adjusting the
required bond amounts annually to
account for wage growth as measured by
increases in the AEWR. Specifically, the
Department proposed adjusting the
existing required bond amounts
proportionally on an annual basis to the
degree that a nationwide average AEWR
exceeds $9.25, the wage rate used to
establish new bond amounts in the
Department’s 2009–2010 rulemaking.
2009 H–2A NPRM, 74 FR 45906, 45925;
2010 H–2A Final Rule, 75 FR 6884,
6941. The ‘‘average AEWR’’ used in this
adjustment would be calculated and
published when the Department
calculates and publishes the AEWR by
State in accordance with § 655.120(b).
Second, in response to dramatic
increases in the crew sizes certified in
the last decade, the Department
proposed increasing the required bond
amounts for temporary agricultural
labor certifications covering a
significant number of H–2A workers.
Currently, the highest bond amount,
$75,000, applies to temporary
agricultural labor certifications covering
100 or more H–2A workers. Under the
proposal, the bond amount applicable to
temporary agricultural labor
certifications covering 100 or more H–
2A workers (determined by adjusting
$75,000 to account for wage growth, as
discussed above) is used as a starting
point and is increased for each
additional set of 50 H–2A workers. The
interval by which the bond amount
increases is based on an approximation
of wages earned by 50 workers over a 2week period, also updated annually to
reflect increases in the AEWR. The
NPRM included examples
demonstrating this calculation. 84 FR
36168, 36204–36205.97
The Department received only one
comment addressing its proposal to
move the substantive requirements
governing the content of H–2ALC surety
bonds to § 655.132(c). A coalition of
workers’ rights advocacy organizations
supported this proposal characterizing it
as ‘‘a helpful, clarifying change.’’
Likewise, those who commented on the
Department’s proposal to permit the
electronic execution and delivery of
surety bonds supported this proposal.
97 In addition, the Department noted that under
its proposal to expand the definition of agriculture
in § 655.103 to include reforestation and pine straw
activities, employers in these industries may have
qualified as H–2ALCs and been required to comply
with the surety bond requirements. Because the
Department declines to adopt this proposal, as
discussed supra, comments addressing the
application of the bonding requirement to the
reforestation and pine straw industries are not
discussed herein.
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The Department hereby adopts these
two proposals without modification. As
the Department is in the process of
developing a functional capability for
accepting electronic surety bonds, it
reminds the regulated community that
until such time as the OFLC
Administrator directs the use of
electronic surety bonds, employers may,
pursuant to § 655.132(c)(3)(ii), submit
an electronic (i.e., scanned) copy of the
surety bond with the application,
provided that the original bond is
received within 30 days of the date that
the temporary agricultural labor
certification is issued. Failure to timely
submit a compliant, original surety
bond has been added to § 655.182(d)
and will constitute a violation that may
provide grounds for debarment or
revocation of the temporary agricultural
labor certification. Further, the
Department clarifies that it will
generally consider such a failure as
demonstrating a lack of good faith under
§ 655.182(e)(4), making such a violation,
by itself, a substantial violation meriting
debarment or revocation.
With respect to the Department’s
proposal to require the use of a bond
form with standardized language,
namely the proposed Form ETA–
9142A—Appendix B, a coalition of
workers’ rights advocacy organizations
supported the proposal, explaining that
it would ‘‘promote efficiency during the
review process and greater compliance
with surety bond requirements.’’ An
employers’ agent similarly supported
this proposal. This agent, as well as a
trade association representing the surety
industry, noted that insurers and
sureties should have the opportunity to
review the Department’s proposed
standardized bond language. However,
another employers’ agent opposed the
‘‘one size fits all approach’’ of using
standardized bond language, arguing
that ‘‘parties to the instrument, as
private parties engaging in an arm’s
length transaction, should have the
contractual freedom to include
additional protections, in amount or
subject matter than called for under the
regulations within one instrument.’’
This commenter did not express specific
concerns relating to the provisions of
proposed Form ETA–9142A—Appendix
B.
After considering these comments, the
Department adopts its proposal to
require the use of a standardized bond
form. The Department notes that the
language in the Department’s proposed
bond form, Form ETA–9142A—
Appendix B, was included in the PRA
package of the NPRM. Further, to the
extent that this proposed language
differs in substance from the current
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bond requirements at 29 CFR 501.9,
these differences were detailed in the
NPRM. See 84 FR 36168, 36203–36205.
An H–2ALC surety bond is a contract
governed by Federal regulation between
three parties: the H–2ALC, the surety,
and the Department. As such, private
parties to such a contract should not
expect unfettered contractual freedom.
The use of standardized bond language
is necessary for the Department to
ensure that the bonds submitted by H–
2ALCs comply with the regulatory
requirements and will facilitate
processing efficiency as the Department
will not be required to review bonds
that vary considerably in wording and
form. This is no different from the
Department’s use of other standardized
forms that make up the Application for
Temporary Employment Certification
and which become binding on the H–2A
employer. Further, the use of a standard
bond form does not prevent the H–2ALC
and surety from entering into a separate
contract, provided, of course, that such
contract does not alter the parties’
obligations vis-a`-vis the Department,
limit in any way the Department’s
ability to collect on a bond, or
undermine the purposes of the bonding
requirement and/or H–2A requirements
generally.
The Department also received
comments addressing the specific
language and/or requirements proposed
in the NPRM and incorporated into the
proposed Form ETA–9142A—Appendix
B. For example, the Department’s
proposed bond language retained the
requirement that a surety pay sums for
wages and benefits owed to H–2A
workers, workers in corresponding
employment, and U.S. workers
improperly rejected from employment,
laid off, or displaced based on a final
decision finding a violation or
violations of 20 CFR part 655, subpart
B, or 29 CFR part 501, but clarified that
the wages and benefits owed may
include the assessment of interest. In
response, an employers’ agent stated
that it ‘‘disagreed with interest being
attached to the scope of coverage
without quantification.’’ The
Department notes that an assessment of
interest may be required to make an
employee whole, and both WHD and the
Department’s administrative tribunals
permit, and in some cases require, the
assessment of interest on back wages.
The required rate of interest is
determined by law and is specified in
WHD’s determination letters and final
orders, as well as administrative case
law.98 Further, a surety’s liability on any
98 Interest assessed by WHD is governed by 31
U.S.C. 3717. Interest assessed by the Department’s
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particular bond is capped at the face
value of that bond; thus, any assessment
of interest included for wages and
benefits will not increase the potential
liability of the surety. Accordingly, the
Department adopts this proposed
language as written.
The Department received several
comments addressing its proposals to
clarify the time period during which
liability on the bond accrues (‘‘liability
period’’), as distinguished from the time
in which the Department may bring a
claim (‘‘claims period’’); to
automatically include in the liability
period any extensions of the applicable
temporary agricultural labor
certification; to extend the claims period
for filing a claim; and to omit the
provision permitting a surety to cancel
a bond with 45 days’ written notice. A
coalition of workers’ rights advocacy
organizations supported the proposals
noting that these would promote
efficiency. Two trade associations and
one employer opposed the proposal to
extend and simplify the time period in
which a claim can be filed against a
surety from the current claims period of
‘‘no less than 2 years’’ to 3 years, based
on the mistaken understanding that this
will increase a surety’s total liability to
three times the face value of the bond.
This confusion articulated in the
comments is precisely why the
Department sought to clarify and further
distinguish the time period in which
liability on the bond accrues from the
time period in which the Department
may bring a claim. As explained in the
NPRM, extending the claims period to 3
years (tolled by the commencement of
any enforcement action) does not extend
the accrual of liability. 84 FR 36168,
36204. Instead, it merely allows the
Department more time to complete its
investigations while retaining the ability
to seek recovery from the surety. The
surety’s liability for a particular bond is
still limited to the face value of that
bond.
A trade association representing the
surety industry opposed the proposal to
eliminate language permitting sureties
to cancel a bond with 45 days’ written
notice, stating that this will increase the
surety’s risk in writing the bond and
make it more difficult for employers to
qualify for such a bond. It explained
that ‘‘[i]t is critically important for a
surety to maintain the ability to cancel
bond coverage if the bonded employer
is found to be in violation of the terms
of its agreement with the surety or if the
administrative tribunals is governed by Doyle v.
Hydro Nuclear Servs., Nos. 99–041, 99–042, and
00–012, 2000 WL 694384, at *16–17 (ARB May 17,
2000).
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bonded employer’s ability to perform
the bonded obligations has materially
changed and the surety is no longer able
to offer security.’’
The Department appreciates this
concern; however, as explained in the
NPRM, this provision was never
intended to permit a surety to cancel the
bond during the liability period while
the temporary agricultural labor
certification is still in effect. Instead, it
was intended as a means of ending the
open-ended period in which claims
could be filed by the Department. 84 FR
36168, 36204. Because the Department
now extends and simplifies the claims
period from ‘‘no less than 2 years’’ to 3
years (tolled by any enforcement
action), there is no longer a need for this
provision. Consistent with § 501.9(d),
currently, WHD does not permit the
cancellation of bonds prior to 2 years
from the expiration of the temporary
agricultural labor certification (tolled by
any enforcement action). Moreover,
during the tenure of this requirement,
the Department has received few, if any,
requests from sureties seeking to cancel
a bond while the temporary agricultural
labor certification was still in effect. The
surety bond is an essential component
of an H–2ALC’s Application for
Temporary Employment Certification,
necessary to demonstrate an applicant’s
ability to discharge its financial
obligations under the H–2A program.
Accordingly, the Department believes
that it is appropriate for the bond
submitted with the Application for
Temporary Employment Certification to
cover liability accrued during the
entirety of the temporary agricultural
labor certification and declines to add a
mechanism by which sureties can
terminate the accrual of liability during
this period.
After carefully considering these
comments, the Department adopts its
proposals to clarify and distinguish the
liability and claims periods, to
automatically include in the liability
period any extensions of the applicable
temporary agricultural labor
certification, to extend the claims
limitations period to 3 years, and to
omit as unnecessary the provision
permitting a surety to cancel a bond
with 45 days’ written notice, as
proposed in the NPRM.
Numerous comments from workers’
rights advocacy organizations noted that
improvements are needed to help
victimized workers access surety bond
funds. Specifically, a joint comment of
42 workers’ rights advocacy
organizations suggested that the
Department revise the language of
proposed § 655.132(c) to make bonds
payable either to the WHD
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Administrator or to workers who have
received a judgment against the H–
2ALC for violations of the temporary
agricultural labor certification and job
order, either through private litigation
or State agency action, on the grounds
that WHD does not have adequate
resources to enforce all actions against
H–2A employers. The Department
declines to adopt this suggestion in this
final rule. Permitting individual
claimants to make demands on the
bonds could lead to circumstances in
which bond funds are depleted before
the WHD Administrator completes an
investigation and are not distributed
proportionally among affected workers.
The vast majority of bond-related
comments focused on the Department’s
proposed adjustments to the required
bond amounts to account for wage
growth, as measured by increases in the
AEWR, and to reflect dramatic increases
in the crew sizes being certified. In
general, workers’ rights advocacy
organizations supported the proposed
adjustments, characterizing the proposal
as a ‘‘modest improvement[,] . . .
important because H–2ALCs are often
undercapitalized and unable to pay back
workers for labor violations.’’ Numerous
workers’ rights advocacy organizations
supported the proposal but described
the increases as insufficient. A coalition
of 42 workers’ rights advocacy
organizations submitted a joint
comment explaining that surety bond
amounts are often insufficient to cover
even unreimbursed inbound
transportation expenses, let alone
unpaid wages and other costs
impermissibly borne by workers, and
cited as support several prominent
investigations in which WHD found that
workers were entitled to wages and
benefits exceeding the required surety
bond amounts. This coalition supported
increases to account for wage growth
and increasingly large temporary
agricultural labor certifications, but
stated that, at a minimum, bond
amounts should be sufficient to cover
the costs of inbound and outbound
transportation. Similarly, a commenter
from academia supported these
increases.
In contrast, employers, employers’
agents, and trade associations typically
opposed these increases to the required
bond amounts. For instance, an
employers’ agent urged the Department
to maintain the existing bond amounts
stating that these amounts are sufficient
to ensure that H–2ALCs are able to
discharge their financial obligations. A
trade association stated that the
proposed increases are ‘‘unnecessary
and punitive’’ and would have the effect
of harming the larger and better-
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61737
capitalized labor contractors. These
commenters also stated that the
Department failed to demonstrate the
insufficiency of current bond amounts
through data. Rather than adjust
required bond amounts based on
increases in the average AEWR and to
account for temporary agricultural labor
certifications covering 150 or more
workers, this commenter suggested
making across-the-board increases of 30
percent to the required bond amounts.
Two trade associations and an employer
stated that the surety bonds are more
akin to bail bonds than insurance
policies because bonding companies do
not rely on the reinsurance market to
mitigate losses and instead scrutinize an
applicant’s assets when evaluating the
potential risk associated with a bond;
they recommended proceeding with
caution until a market emerges in which
a surety can better mitigate its risk.
Several commenters stated that
increases in bond amounts may make it
impossible for some H–2ALCs to obtain
bonds. Others stated that the
methodology for calculating the
required bond amounts is
‘‘unnecessarily complex.’’ A public
policy organization recommended that
the Department reduce the bond
amounts required of H–2ALCs for which
the Department has not submitted a
surety bond claim in the previous 5
years.
Commenters with ties to the shearing
industry, including a State agency, trade
associations, several employers, and an
agent, stated that the increased bond
amounts would prove difficult for the
industry as it tends to operate with very
small crew sizes. For example, several
commenters explained employers in
this industry may employ fewer than 25
H–2A workers in a given year, but
because these workers are employed
under multiple temporary agricultural
labor certifications, these employers are
required to obtain significantly more in
total bonds than those who employ the
same number of workers under a single
temporary agricultural labor
certification. These commenters also
stated that some sureties are hesitant to
issue multiple bonds for the same
employer and suggested allowing
employers to maintain a single bond for
multiple temporary agricultural labor
certifications filed over the course of a
year.
A trade association representing the
surety industry concurred in the
Department’s proposal to increase bond
amounts as needed to accurately reflect
the risk associated with wage
requirements but noted that this may
make it difficult for certain employers to
obtain these bonds. This commenter
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explained that employers may need to
provide more detailed financial
disclosures, tax returns, and/or credit
scores to qualify for higher bond
amounts and, in some cases, collateral
may be required.
Finally, an insurance provider and an
employer both noted that the
Department’s proposed methodology
does not account for differences in the
length of time H–2A workers will be
employed and proposed that required
bond amounts be set at five percent of
an employer’s estimated gross payroll
for its H–2A workers. As an alternative,
the insurance provider suggested that
back wages could be paid from an
employer-funded trust administered by
the Department.
After carefully considering comments
pertaining to the appropriate amount of
surety to be required of H–2ALCs, the
Department adopts the methodology for
determining required bond amounts
detailed in the NPRM, with one
modification. Under the proposal in the
NPRM, to calculate the required bond
amount for a temporary agricultural
labor certification, the Department
would start with a base bond amount
(equal to the amount of the bond
required under the 2010 H–2A Final
Rule) and adjust proportionally on an
annual basis to the degree that a
nationwide average AEWR exceeds
$9.25, i.e., by multiplying the base by
the average AEWR and dividing that
number by $9.25. The Department
stated that, until the Department
published an average AEWR, it would
use a simple average of the 2018
AEWRs, which it calculated to be
$12.20. However, given the increase in
the AEWR since the publication of the
NPRM, the Department has concluded
that, until the Department publishes a
different average AEWR, bond amounts
will initially be calculated using an
average AEWR of $14.28, based on the
simple average of the 2021 AEWRs. The
average AEWR will be adjusted when
the underlying AEWRs are adjusted.
Thus, for a temporary agricultural labor
certification covering 100 H–2A
workers, the Department will calculate
the required bond amount according to
the following formula:
$75,000 (base amount) × $14.28 ÷ $9.25
= $115,784 (updated bond amount).
The Department has determined that
further modification of the NPRM’s
methodology for determining required
bond amounts is unwarranted at this
time. The Department declines to adopt
a commenter’s suggestion that it use an
across-the-board increase, rather than
requiring additional incremental surety
amounts for temporary agricultural
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labor certifications covering 150 or more
H–2A workers, as an across-the-board
increase would not fairly account for the
proportionally greater back wage
liability associated with larger crew
sizes. As the Department noted in the
NPRM, the current bond framework,
which the commenter’s suggestion
would perpetuate, ‘‘disproportionately
advantages larger H–2ALCs while
providing diminishing levels of
protection for employees of such
contractors.’’ See 84 FR 36168, 36205.
Likewise, the Department disagrees
with commenters arguing that bond
amounts should not be increased. Based
on the Department’s enforcement
experience, bond amounts are often
insufficient to cover the amount of
wages and benefits owed by H–2ALCs,
limiting the Department’s ability to seek
back wages for workers. Id. at 36204.
Indeed, as bond amounts have remained
the same since 2010, these amounts do
not reflect subsequent wage growth or
the dramatic increase in the number of
workers covered by temporary
agricultural labor certifications. Id. at
36204–36205. The Department believes
that requiring additional surety for such
temporary agricultural labor
certifications is not punitive but rather
necessary to ensure fairness among
labor contractors and for workers. The
Department recognizes that some H–
2ALCs may not have sufficient financial
resources and/or creditworthiness to
obtain the higher required surety bond
amounts and, as a result, will be unable
to employ 150 or more H–2A workers
under a single temporary agricultural
labor certification. The Department
notes that the purpose of the surety
bond requirement is to ensure that labor
contractors will be able to discharge
their financial responsibilities,
including meeting their payroll and
other program obligations. To the extent
that some labor contractors lack the
financial resources and/or
creditworthiness to obtain the requisite
bonds, it may be appropriate for these
contractors to hire fewer workers.99
Accordingly, this final rule adopts the
Department’s proposal under which the
bond amount applicable to temporary
agricultural labor certifications covering
100 or more H–2A workers is used as a
starting point and is increased for each
additional set of 50 H–2A workers. The
interval by which the bond amount
increases will be based on the amount
99 Several commenters, though not those from the
surety or insurance industries, stated that bonding
companies do not rely on the reinsurance market
and thus have no way in which to mitigate losses.
While some sureties may choose not to rely on
reinsurance, the Department notes this is by no
means uniform in the industry.
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of wages earned by 50 workers over a 2week period and, in its initial
implementation, will be calculated
using an average AEWR of $14.28 as
demonstrated:
$14.28 (Average AEWR) × 80 hours × 50
workers = $57,120 in additional
bond for each additional 50 H–2A
workers over 100.
Thus, under this final rule, a
temporary agricultural labor
certification covering a crew of 275 H–
2A workers will require additional
surety of $171,360. This amount is
calculated by determining the number
of additional full sets of 50 workers
beyond the first 100 workers covered by
the temporary agricultural labor
certification and then multiplying this
number by the amount of additional
surety required per each set of
additional 50 workers (275¥100 = 175;
175÷50 = 3.5; this is three additional
sets of 50 workers; 3 × $57,120 =
$171,360). This additional surety will be
added to the bond amount required for
temporary agricultural labor
certifications of 100 or more H–2A
workers resulting in a required bond
amount of $287,144 ($115,784 required
for temporary agricultural labor
certifications of 100 or more H–2A
workers + $171,360 in additional
surety).
The Department declines proposals to
consider additional variables, such as
the costs of inbound and outbound
transportation or estimated gross
payroll, or to replace the average AEWR
with another measure of wages in its
methodology for determining required
bond amounts. While these proposals
may in some instances permit the
required bond amounts to more closely
account for the potential back wage
liability for particular temporary
agricultural labor certifications, these
would unduly complicate the
calculation and review of the required
bond amounts and slow the
Department’s processing of H–2A
applications. The Department believes
at this time that the methodology
included in the final rule is sufficient to
address most monetary violations,
including those stemming from a failure
to provide inbound and outbound
transportation, and thus to limit
program abuse and any resulting
adverse effect on U.S. workers. The
Department will continue to monitor the
efficacy of the surety bond requirements
and will propose revisions to these
requirements as needed to assure that
bond amounts are sufficient.
Likewise, the Department declines the
proposal from commenters with ties to
the shearing industry to allow such
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employers to maintain a single bond
covering all temporary agricultural labor
certifications in a given year, as doing
so would require the Department, when
reviewing applications from H–2ALCs,
to check all prior applications filed
during the year to ensure that the bond
is sufficient to cover both the current
application and prior applications,
potentially slowing down the approval
of such applications.100
The Department also declines to
replace the surety bond requirement
with an employer-funded trust. Unlike
the bonding requirement, which helps
to ensure that an H–2ALC is in
compliance with its program
obligations, see 2008 H–2A Final Rule,
73 FR 77110, 77163 (citing 8 U.S.C.
1188(g)(2)), the payment of back wages
from an employer-funded trust would
distribute responsibility for an H–
2ALC’s noncompliance among all
contributing employers, including those
who meet their program obligations, and
may not provide as robust a deterrent
against individual noncompliance as
surety bonds. Further, the creation of
such a trust would require considerable
initial funding, as well as Department
resources, which could undermine the
recovery of back wages in the shortterm.
Finally, the Department declines to
offer discounted bond amounts for those
H–2ALCs for which the Department has
not submitted surety bond claims in the
previous 5-year period. Because WHD
investigates only a fraction of the H–
2ALCs that operate in a given year, the
fact that WHD has not pursued an H–
2ALC’s surety for the collection of
unpaid back wages or found violations
in the previous 5 years is not an
indication of compliance or decreased
potential liability. The length of the
Department’s administrative appeals
process and any ensuing Federal court
litigation means that a noncompliant
employer could litigate a back wage
award for years to avoid losing such a
discount, potentially incentivizing
appeals. Further, the surety may
consider an H–2ALC’s record of
compliance when determining the
premiums to be charged.
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100 While
the January 2021 draft final rule would
have responded to these concerns by creating a
lower tier of bonds with a proportionally lower
bond amount for temporary agricultural labor
certifications covering fewer than 10 workers, after
further review, the Department has decided against
creating a separate bond tier for temporary
agricultural labor certifications covering fewer than
10 H–2A workers because doing so would create a
risk that workers employed under such temporary
agricultural labor certifications will be left without
sufficient recompense in the event that their H–
2ALC employers fail to satisfy their financial
obligations.
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4. Section 655.133, Requirements for
Agents
The NPRM did not propose changes
to the requirements for agents to
provide, at the time of filing, a copy of
the agent agreement or other document
demonstrating the agent’s authority to
represent the employer as well as a copy
of the agent’s MSPA FLC Certificate of
Registration, if required under MSPA at
29 U.S.C. 1801 et seq., that identifies the
specific farm labor contracting activities
the agent is authorized to perform.
Therefore, this final rule retains the
current requirements without change.
5. Section 655.134, Emergency
Situations
The NPRM proposed minor
amendments to this section to clarify
procedures for accepting an emergency
Application for Temporary Employment
Certification filed by employers and to
conform with other procedural changes
proposed in the NPRM and adopted in
this final rule. The Department received
some comments on this provision, none
of which necessitated substantive
changes to the regulatory text.
Therefore, as discussed below, this
provision remains unchanged from the
NPRM, except for technical corrections
for clarity.
Paragraph (a) of § 655.134 addresses
the function of the emergency situations
provision, while paragraph (b) addresses
what an employer must submit to the
NPC when filing an Application for
Temporary Employment Certification
and requesting a waiver of the filing
timeframe due to an emergency
situation. To better focus paragraphs (a)
and (b) by topic, the Department
proposed to move a parenthetical
example of ‘‘good and substantial
cause’’ from paragraph (a) to paragraph
(b), where the regulation provides a
nonexclusive list of factors that may
constitute good and substantial cause. In
addition, the Department proposed to
expand the nonexclusive list of factors
to include additional examples, such as
the substantial loss of U.S. workers due
to Acts of God or a similar unforeseeable
man-made catastrophic event (such as a
hazardous materials emergency or
government-controlled flooding).
One commenter noted the list of
required documents in paragraph (b)
was unclear and suggested the
Department revise the wording or
punctuation to avoid confusion about
whether the Department meant to
exclude only the first item in the list
after the word ‘‘except’’ (i.e., evidence of
a job order submitted pursuant to
§ 655.121) or all of the items after the
word ‘‘except.’’ The Department
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appreciates this suggestion and has
revised the punctuation of this list of
required documents to clarify that the
only evidence excepted is a job order
submitted pursuant to § 655.121. Under
most circumstances, an employer using
the emergency situations procedures
would not need to submit a job order in
advance of its Application for
Temporary Employment Certification;
therefore, there would not be evidence
of a pre-filing job order. However, all
other documentation required at the
time of filing under § 655.130(a) is
required at the time of filing under
§ 655.134. In addition, an employer’s
emergency waiver request submission
must include a completed job order on
the Form ETA–790/790A, including all
required addenda, and a statement
justifying the request for a waiver of the
normal filing timeframe requirement.
In paragraph (c), the Department also
proposed changes to simplify the
emergency application filing process for
employers, provide greater clarity with
respect to the procedures for handling
such applications, and conform to other
changes proposed in this rulemaking.
For example, the Department proposed
to eliminate the language referring to
concurrent submission of the emergency
situations filing to the NPC and SWA,
as under this final rule employers
submit job orders to the NPC and the
NPC electronically transmits them to the
SWA; the same process applies to
emergency situations job orders.
Further, the Department proposed
language to clarify the transmittal and
review procedures. The CO will
promptly transmit a copy of the job
order to the SWA serving the AIE for
review. The SWA will review the job
order for compliance with the
requirements set forth in 20 CFR part
653, subpart F,101 and § 655.122, and,
within 5 calendar days of receiving the
job order from the CO, the SWA will
inform the CO of any deficiencies
found. Based on the information
provided by the SWA and the CO’s own
concurrent review, the CO will make a
decision to issue a NOD under § 655.141
or a NOA under § 655.143; and, then,
the CO will make a final determination
101 In the proposed regulatory text, the
Department inadvertently referenced only the job
order content review at § 653.501(c), rather than 20
CFR part 653, subpart F, in its entirety. To ensure
SWA review of job orders submitted through the
emergency situations provision is complete (e.g.,
includes a nondiscrimination content check under
§ 653.501(d)(3)) and consistent with review of job
orders under § 655.121, as intended, paragraph
(c)(1) has been revised to conform with
§ 655.121(c)(3). See 84 FR 36168, 36205 (NPRM
noting proposed change to paragraph (c) ‘‘makes the
process for filing job orders in emergency situations
consistent with the process for filing job orders
under proposed § 655.121’’).
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in accordance with §§ 655.160 through
655.167.
Finally, if the employer’s submission
did not justify waiver of the filing
timeframe and/or the CO determined
there is not sufficient time to undertake
an expedited test of the labor market,
the CO’s NOD would include the
reason(s) why the waiver request cannot
be granted and provide the employer
with an opportunity to submit a
modified job order that brings the
requested workers’ start date into
compliance with the non-emergency
filing timeframe requirement at
§ 655.121(b) (i.e., first date of need must
be no less than 60 days from the
submission date).
A workers’ rights advocacy
organization objected to the existence of
the emergency situations waiver, on
principle, and to the extent it is
continued in this final rule, urged the
Department to limit its use. The
workers’ rights advocacy organization
expressed concern the emergency
situations waiver request process
undermines the SWA’s ability to
evaluate job orders and assess U.S.
worker availability, thereby
undermining the Department’s statutory
obligation. The Department appreciates
the commenter’s concern and recognizes
that a correction to paragraph (c)(1) is
necessary to ensure SWA review of job
orders submitted through the emergency
situations provision is complete (e.g.,
includes a nondiscrimination content
check under § 653.501(d)(3)) and
consistent with review of job orders
under § 655.121, as intended. Therefore,
paragraph (c)(1) has been revised in this
final rule to clarify that the SWA’s
review encompasses 20 CFR part 653,
subpart F, in its entirety, rather than
only the job order content requirements
at § 653.501(c). The revisions adopted in
this final rule make the SWA’s
involvement in reviewing the job order
clear. See § 655.134(c)(1). Further, even
where an employer justifies its request
as a qualifying emergency situation, if
the CO determines there is insufficient
time to appropriately test the domestic
labor market on an expedited basis and
satisfy the Department’s statutory
obligation, the CO will not approve the
employer’s emergency situations waiver
request.
Commenters, including trade
associations and agents, generally
supported the proposed revisions to
§ 655.134. A trade association expressed
appreciation for the Department’s
simplification and clarification of
emergency situations waiver request
procedures, noting that time is critical
in emergency situations. This
commenter specifically expressed
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support for the inclusion of an
opportunity for the employer to modify
its application or job order to bring it
into compliance with non-emergency
timeframe requirements in lieu of
denial.
Among commenters who generally
supported the proposed revisions to
§ 655.134, a couple objected to
replacement of the term ‘‘unforeseen’’
with ‘‘unforeseeable,’’ which they
viewed as a possible change in the
standard of review and a higher
threshold for employers to meet.
However, the Department did not intend
to create any material change in the
regulatory standard though the use of
the term ‘‘unforeseeable.’’ Rather, the
revision is necessary to establish greater
consistency—and avoid potential
misunderstanding—between the H–2A
standard for emergency situation
waivers and a similar provision
contained in the 2015 H–2B IFR at
§ 655.17; the Department does not have
a different foreseeability standard in H–
2A than H–2B and using different terms
could suggest that possibility.102
A workers’ rights advocacy
organization expressed concern
‘‘unforeseeable changes in market
conditions’’ and ‘‘similar conditions
that are wholly outside of the
employer’s control’’ are terms that are
‘‘too broad and too vague and might
encompass situations which would not
warrant . . . a waiver’’ of the normal
timeframe and the resulting abbreviated
U.S. worker recruitment period. For
example, this commenter worried that
normal but unpredictable market
fluctuations could qualify as an
emergency situation. However, normal
market fluctuations, despite being
individually unpredictable, are a
foreseeable aspect of conducting
business. As demonstrated in the
nonexclusive list of situations that
might justify an emergency situations
waiver, the Department envisions
circumstances which are unforeseeable
and wholly outside of the employer’s
control.
102 Pursuant to § 655.17(b), the employer may
request a waiver of the required time period(s) for
filing an H–2B Application for Temporary
Employment Certification based on good and
substantial cause that ‘‘may include, but is not
limited to, the substantial loss of U.S. workers due
to Acts of God, or a similar unforeseeable manmade catastrophic event (such as an oil spill or
controlled flooding) that is wholly outside of the
employer’s control, unforeseeable changes in
market conditions, or pandemic health issues.’’
2015 H–2B IFR, 80 FR 24042, 24116–24117.
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6. Section 655.135, Assurances and
Obligations of H–2A Employers
a. Paragraph (c), Recruitment
Requirements
Although the Department proposed
no changes to paragraph (c) in the
NPRM, the Department is revising it in
this final rule, as necessary, to
reorganize the mandatory recruitment
obligation provisions. As previously
discussed in this preamble, commenters
expressed concern about the placement
of mandatory recruitment obligations in
the proposed optional pre-filing
recruitment provision at § 655.123. In
addition, after considering comments,
the Department decided not to adopt the
proposed pre-filing recruitment
provision, as explained above. To retain
the mandatory recruitment obligation
provisions and clarify their applicability
to all employers engaged in recruitment
under this subpart, the Department
relocated the mandatory recruitment
obligations paragraphs proposed at
§ 655.123(d) and (e) to § 655.135(c). In
this final rule, proposed paragraph (c) of
§ 655.135 is now paragraph (c)(1), and
proposed paragraphs § 655.123(d) and
(e) are now paragraphs § 655.135(c)(2)
and (3). This reorganization retains the
requirement that an employer, in all
cases, must accept and hire all qualified,
available U.S. worker applicants
through the end of the recruitment
period set forth in § 655.135(d) and, if
an employer requires interviews, the
employer must conduct those
interviews in a way that imposes little
or no cost on U.S. worker applicants
and ensures no less favorable treatment
than that offered to H–2A workers.
b. Paragraph (d), 30-Day Rule
Under the 2010 H–2A Final Rule,
employers of H–2A workers are required
to hire any qualified, eligible U.S.
worker who applies for the employer’s
job opportunities during the first 50
percent of the work contract period (‘‘50
percent rule’’), unless an exemption for
certain small employers applies. In the
NPRM, the Department proposed to
replace the 50 percent rule with a 30day rule. The proposed 30-day rule
would have required employers to
provide employment to any qualified,
eligible U.S. worker who applied for the
job opportunity until 30 calendar days
from the employer’s first date of need on
the certified Application for Temporary
Employment Certification, including
any approved modifications. For those
employers who would have chosen to
stagger the entry of H–2A workers into
the United States under proposed
§ 655.130(f), the Department proposed
to extend the mandatory hiring period
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through the last date on which the
employer expected a foreign worker to
enter the country, or apply the 30-day
period, if longer. The proposed change
to the mandatory hiring period was
intended to strike an appropriate
balance between the need to ensure U.S.
workers’ access to H–2A job
opportunities and employer burdens
and operational disruptions caused by
hiring U.S. workers mid-season. As
explained in the NPRM, the 30-day rule
proposal was based on the Department’s
analysis of hiring practices indicating
relatively few U.S. workers applied or
were referred for job opportunities after
the initial 30-day period. The
Department determined that this
finding, in conjunction with other
proposed changes, such as the proposed
staggered entry provision and related
mandatory hiring period, justified a
change from the 50 percent rule to
reduce administrative and employer
burdens. See 84 FR 36168, 36207. The
Department invited stakeholders to
comment with data illustrating the costs
and benefits of the 50 percent rule,
particularly by providing
comprehensive studies of the frequency
with which H–2A employers hire U.S.
workers pursuant to the 50 percent rule.
However, the comments received, both
in support of and in opposition to the
proposal, were largely anecdotal.
After consideration of all comments,
the Department has decided, for the
reasons explained below, not to adopt
the proposed 30-day rule and, instead,
will retain the 50 percent rule from the
2010 H–2A Final Rule, as discussed
below.
The Department received several
comments strongly opposing the
proposed 30-day rule and elimination of
the 50 percent rule, including comments
from many workers’ rights and
immigration advocacy organizations,
several State employment agencies, two
U.S. Senators, a U.S. Representative, a
public policy organization, a labor
union, a trade association, an
international recruiting company, and a
commenter from academia. The
commenters’ primary concern was that
the proposal would reduce employers’
obligations to recruit and hire U.S.
workers, thus reducing U.S. workers’
access to these jobs. A U.S.
Representative asserted the proposal
would ‘‘undermine[ ] long-standing
protections that help ensure employers
are not incentivized to hire guest
workers, who are vulnerable to
exploitation and abuse due to their
temporary immigration status, over
domestic workers.’’ Quoting a district
court decision, a workers’ rights
advocacy organization opposed to the
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proposal noted that the 50 percent rule
is a vital ‘‘safety net to protect the jobs
of citizens’’ that ensures protections for
‘‘small groups of available domestic
employees who might not be known to
[the Department] at the time of the
initial certification . . . .’’
Several commenters emphasized the
importance of the 50 percent rule to
U.S. agricultural workers who seek
employment in a job opportunity more
than 30 days after the start date for
various reasons related to unexpected
events, migratory labor patterns,
differing dates of seasonal need, and
interest in improved pay and benefits. A
workers’ rights advocacy organization
noted that ‘‘uncertainty of agriculture
caused by unexpected severe weather
conditions’’ causes hardships for
agricultural workers and asserted that
under the proposed shortened
recruitment period, workers displaced
by crop loss would ‘‘have fewer
alternative options,’’ and workers
displaced after a natural disaster would
have greater difficulty finding substitute
employment. Another workers’ rights
advocacy organization stated that the 50
percent rule would protect U.S. worker
job opportunities in the event an
employer’s worker(s) leaves the job
early, but after 30 days have elapsed,
‘‘due to being injured, getting ill, having
a family emergency, or any other
eventuality.’’ A third workers’ rights
advocacy organization stated that
elimination of the 50 percent rule
‘‘would make it difficult for [workers]
. . . to change places of employment in
cases of employer abuse.’’ A workers’
rights advocacy organization stated that
the presence of U.S. workers at a
worksite forces an H–2A employer to
compete with other employers and
makes it more likely that abusive H–2A
employers will be exposed. Another
advocacy organization expressed
concern that the shortened recruitment
period would reduce the period of time
during which a U.S. worker may leave
current employment to accept an H–2A
job that pays a ‘‘higher wage and
provides free transportation and
housing if applicable . . . instead of
settling for a non-H–2A job that may
have lower pay and no legal
requirement to provide transportation,
housing, or other protections such as
workers compensation.’’ One
commenter asserted the proposal would
make it easier for agricultural employers
to avoid their obligations to U.S.
farmworkers, including unionized
farmworkers, by engaging in
intentionally ‘‘ineffective recruitment’’
and ‘‘refus[ing] to hire qualified U.S.
workers.’’ Other commenters stated that
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the proposal would increase recruitment
efforts within a reduced window for
Migrant Services Outreach Workers and
asserted the longer recruitment period
allows workers to overcome employer
attempts to discourage domestic
farmworkers from applying or shut them
out entirely.
Several workers’ rights and
immigration advocacy organizations and
a labor union noted that ‘‘[o]n many
farms, hiring continues beyond the first
day of work before the peak of the
harvest season.’’ One of these
commenters stated that ‘‘[s]ome U.S.
workers work in agricultural jobs for
part of the year, work in other industries
such as construction and retail for a
certain period of the year, and then
return to agricultural jobs.’’ The
commenter added that ‘‘[s]ome local
areas of employment and migrant
streams involve contiguous states’’ and
agricultural workers ‘‘alter their
migration patterns depending on the
terms and conditions of employment.’’
A State employment agency asserted
that ‘‘limiting the availability of the job
order to 30 days after the Date of Need
(DON) will effectively limit the ability
of U.S. workers to follow the crops as
in the past.’’ A workers’ rights advocacy
organization noted that ‘‘[i]n areas
where migration is typical, crews are
called to work in stages,’’ with the
number of crews ‘‘increas[ing] at peak
season,’’ and reduction in the postcertification recruitment period would
displace ‘‘[w]orkers who have reported
for and worked in these jobs for years’’
by permitting employers ‘‘to reject U.S.
workers who report to work on the exact
date they had begun work the year
before, which could be after the 30-day
deadline.’’
Some commenters who opposed the
proposal took issue with the hiring
practices data the Department cited in
the NPRM. A workers’ rights advocacy
organization also commented that the
Department’s data assume that the
SWAs are properly implementing the 50
percent rule, but there are multiple
instances where the SWAs miscalculate
the 50 percent rule period and shorten
the recruitment period. Other
commenters generally emphasized the
continuing importance of the SWA
referral process. One of these
commenters cited a 2018 monitor
advocate report indicating SWAs
referred more than 35,000 U.S. workers
for H–2A job opportunities in 2015. A
State employment agency asserted the
data on which the Department relied
were insufficient to justify elimination
of the 50 percent rule because it
examined ‘‘only 20 percent of the
selected H–2A applications audited.’’ A
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workers’ rights advocacy organization
asserted the decision to eliminate the 50
percent rule was arbitrary and
capricious because the Department
failed ‘‘to present any evidence of
disruption caused by the 50 [percent]
rule’’ and failed to account for
employers discouraging U.S. workers
from applying for jobs. Two U.S.
Senators expressed concern that the
‘‘lack of any data in the NPRM reflecting
the lengths of work contracts’’
prevented the public from ‘‘sufficiently
respond[ing] to the potential effects of
the Department’s proposal’’ and
‘‘exacerbates the concern . . . that
eliminating the 50 percent rule will
harm U.S. workers.’’
The Senators also asserted ‘‘the
Department fail[ed] to provide any
quantitative analysis and offer[ed]
generalized assertions to support its
claim that the employer costs of
compliance with the 50 percent rule
outweigh the benefit to U.S. workers.’’
Similarly, a State agency that urged the
Department to maintain the 50 percent
rule noted the requirement is
longstanding and ‘‘the data shows there
have been minimal disruptions to
agricultural employers.’’ Some
commenters said that the rationale for
eliminating the 50 percent rule was
faulty because if the number of workers
applying during the 50 percent rule
period are low, then the cost to
employers is negligible. Many workers’
rights advocacy organizations agreed
and cited to the early congressional
study indicating the 50 percent rule not
only provides an important protection
for U.S. workers but does so with
minimal burden to employers. Several
of these commenters noted the report’s
conclusion that ‘‘[i]n comparing the
tangible benefits and costs alone, the
benefits of the 50 Percent Rule outweigh
the costs’’ and that ‘‘the costs of the 50
Percent Rule have been minimal and
that the Rule has not had any particular
negative impacts on either growers or
U.S. workers.’’ Other commenters
pointed to the Department’s 2010 H–2A
Final Rule, which concluded that the 50
percent rule’s benefits to workers
outweighed the costs to employers, and
that there was a lack of definitive data
cutting in either direction.
In contrast, many commenters,
including trade associations, employers,
agents, individual commenters, a State
agency, and a public policy
organization, expressed support for the
proposal. Some stated that few workers
apply beyond the first 30 days, so the
impact on U.S. workers would be
minimal. Others stated that the proposal
also would provide employers with
more certainty and reduced costs.
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Another stated that it was difficult to
train workers who are hired months
after the season starts, and others said
the proposal would reduce workplace
disruptions caused by hiring new
workers later in the contract period.
Some stated that it was very difficult for
agricultural employers to find domestic
workers for these jobs. A State agency
commented that the proposal would
allow States to conduct concentrated
recruitment of domestic workers at the
beginning of the period of need. Some
commenters added that the proposal
provides a clear, bright-line rule as to
employers’ hiring obligations. An
employer commented that once harvest
begins, workers change location every
30 to 45 days, and most U.S. workers
hired under the rule refuse to travel, so
their employment is short term. Another
commenter said that the proposal would
be beneficial to H–2A workers who may
be displaced by domestic workers well
into the contract.
Some commenters who expressed
support for the proposal to replace the
50 percent rule also suggested that the
Department should further reduce the
period during which employers must
hire U.S. workers. Commenters
suggested that the Department require
employers to hire U.S. workers during a
set period, pre-season, ending no later
than when the H–2A workers depart
from their home country to travel to the
United States (i.e., coinciding with the
end of the employer’s positive
recruitment period under
§ 655.143(b)(3)). Other commenters
suggested that the Department adopt the
H–2B rule that requires recruitment
until 21 days before the first date of the
need (§ 655.40(c)). Alternatively, one
commenter suggested that, given the
shorter time period involved in the H–
2A filing process, the Department could
adopt a modified version of the H–2B
rule’s recruitment period by reducing
the recruitment period to as little as 7
to 10 days before the first date of need.
An agent commented that the job order
should stay open for the entire
recruitment period unless the employer
notifies the Department that all jobs
have been filled, at which time, the job
order should be closed. The commenter
also suggested that the job order should
be reopened if workers are needed at
any time during the contract period.
An agent also objected to the proposal
insofar as it eliminated the ‘‘small
employer exemption’’ to the rule, which
excused certain small businesses from
any hiring obligation after the end of the
positive recruitment period and
encouraged the Department to retain the
existing small employer exemption
framework with the proposed 30-day
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rule. The commenter stated that it was
unreasonable to require a small
employer to continue recruiting U.S.
workers even 30 days into the season,
because smaller operations do not enjoy
the same margins for error and cannot
easily absorb workforce disruptions
during the season. Additionally, the
commenter stated that the Department
failed to explain why the exemption
should be removed from the regulations.
Another commenter stated that the
small employer exemption was
important to maintain.
The Department takes seriously its
obligation to protect workers in the
United States from potential adverse
impact resulting from the employment
of H–2A workers and appreciates the
many comments it received on the
proposed change to the postcertification mandatory hiring period.
After careful consideration of all
comments, and in light of the
substantial concerns expressed by
immigration and workers’ rights
advocacy organizations, U.S. Senators
and Representatives, State employment
agencies, and others, the Department
has decided not to adopt the proposed
30-day rule. Instead, the Department
will retain the 50 percent rule it has
applied nearly continuously for
decades.
The Department notes, first, that in
reaching its decision to retain the
longstanding 50 percent rule, it was not
persuaded by the congressionally
required study to which several
commenters referred, as that study was
commissioned by the Secretary of Labor
in 1990 and focused on the impact of
the 50 percent rule in only two States—
Virginia and Idaho. See 2008 H–2A
NPRM, 73 FR 8538, 8553. The research
firm that produced the study
interviewed only 66 growers,
constituting only 0.1 percent of Virginia
and Idaho’s 64,346 farms at the time of
the study. The study’s age and small
size render it an unreliable measure of
the current impact of the 50 percent
rule. The reasoning in the 2010 H–2A
Final Rule also was similarly not
determinative here—in that rule, the
Department reinstated the 50 percent
rule because of a lack of definitive data.
2010 H–2A Final Rule, 75 FR 6884,
6922.
Since then, the Department has
conducted its own analysis of hiring
practices, as noted in the NPRM. Based
on a small set of recruitment reports
obtained through the audit examination
process, the hiring practices data cited
in the NPRM demonstrate that most U.S.
workers who apply for agricultural jobs
do so before the start of the work
contract. Based on these data, the
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Department considered adopting the
reduced recruitment period in the
January 2021 draft final rule but
acknowledged that some U.S. workers
apply for these jobs after the employer’s
first date of need. Specifically, the
Department’s analysis of certified H–2A
applications covering more than 33,510
jobs indicated that 3,392 U.S. workers
applied for the available job
opportunities at some point from the
beginning of the employer’s H–2A
recruitment efforts through 50 percent
of the work contract period and 16
percent of these U.S. workers applied
and/or were hired more than 30 days
after the start date of work.
Although the vast majority of workers
who apply after the start date of work
apply during the first 30 days of a work
contract, the Department acknowledges
that the analysis is based on a limited
set of data available from employer
recruitment reports selected for audit
examination. After further consideration
of comments and the available data, the
Department agrees with commenters
who note the burden the 50 percent rule
imposes on employers in those limited
cases where U.S workers apply beyond
the proposed 30-day period is minimal
and outweighed by the interests of the
hundreds or potentially thousands of
domestic migrant and seasonal
farmworkers who may want to apply for
the job opportunity more than 30 days
after the first date of need. The 50
percent rule was initially a creation of
the INA and designed to enhance
domestic worker access to job
opportunities for which H–2A workers
were recruited. The Department believes
any burden on employers as a result of
the 50 percent rule is outweighed by the
interests of the Department in ensuring
U.S. workers are provided fair notice of
H–2A job opportunities and are not
denied employment if they are qualified
and available within an adequate period
of time after the employer’s start date.
Additionally, the Department shares
the concerns of commenters that
changing the hiring period through this
final rule could reduce U.S. workers’
ability to access temporary and seasonal
job opportunities and would raise the
prospect of adverse impact resulting
from the employment of H–2A workers.
Furthermore, as several commenters
pointed out, due to the nature of
agricultural work, U.S. workers may
need to seek new employment because
of crop loss, or may need flexibility to
follow crops as one work contract ends
and another begins. These comments are
consistent with comments from
employers and associations that noted
agricultural employers rarely need their
entire workforce at the beginning of the
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season, but instead need a steadily
increasing number of workers as the
harvest intensifies. Both the proposed
30-day rule and the longstanding 50
percent rule weigh the same factors: on
the one hand, ensuring U.S. worker
applicants have a fair opportunity to
apply for job opportunities so that they
are not displaced by foreign workers;
and on the other, recognizing the
practical realities of agricultural work
and the need to administer the INA in
a way that is fair and reasonable for all
affected parties, including employers.
After considering the merits of the
proposal and the significant number of
comments expressing substantial
concerns with a shorter hiring period,
the Department has concluded that
retaining the 50 percent rule best
balances the objectives of ensuring the
H–2A program operates in a way that is
fair to all parties and provides adequate
protections for U.S. workers, consistent
with the Department’s statutory
mandate.
The Department is sensitive to the
concerns regarding the impact on small
businesses and appreciates the agent’s
comment regarding the small employer
exemption. In light of the Department’s
decision to retain the 50 percent rule,
and further consideration of the
regulatory history, the Department has
decided to retain the small employer
exemption in this final rule.103 In 1986,
the IRCA added the 50 percent rule to
the INA as a temporary 3-year statutory
requirement, which included an
exemption for employers who, among
other requirements, ‘‘did not, during
any calendar quarter during the
preceding calendar year, use more than
500 man-days of agricultural labor, as
defined in section 203(u) of title 29.’’ 8
U.S.C. 1188(c)(3)(B)(iii). That exemption
was included in the Department’s 1987
H–2A IFR. 52 FR 20496, 20520.
Although the statutory 50 percent rule
and exemption were temporary, the
corresponding requirements in the 1987
regulations had no expiration date. See
55 FR 29356, 29357 (July 19, 1990). In
1990, ETA published an IFR to continue
the 50 percent rule, and included the
small employer exemption. Id. at 29358.
In 2008, the Department eliminated the
50 percent rule and created a 5-year
transitional period during which
employers were required to hire U.S.
workers for 30 days after the employer’s
first date of need. 2008 H–2A Final
Rule, 73 FR 77110, 77128. The 30-day
103 The January 2021 draft final rule would have
eliminated the small employer exemption because
the mandatory hiring period under the 30-day rule
would have been shorter than under the 50 percent
rule.
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requirement did not include an
exemption for small businesses, and the
final rule offered no explanation for the
omission. In 2010, the Department
reinstated the 50 percent rule, including
the small employer exemption, stating
that the exemption ‘‘minimize[s] the
adverse effect on those operations least
able to absorb additional workers.’’ 2009
H–2A NPRM, 74 FR 45906, 45917. In
light of the Department’s decision to
retain the longstanding 50 percent rule,
the Department also is retaining the
small employer exemption in this final
rule.
In addition to the comments
addressed above, the Department also
received a few comments addressing
issues beyond the scope of the proposal
to replace the 50 percent rule with the
30-day rule. One commenter said that
worker referrals preceding the date of
need should not automatically reduce
the number of H–2A workers certified in
the application, and the employer
should have the discretion to either
reduce the number of H–2A positions or
hire both domestic referrals and H–2A
workers. Another commenter suggested
that to mitigate the inconvenience of
hiring U.S. workers after the start of the
contract, the Department should
facilitate the placement of displaced H–
2A workers in immediate, subsequent
H–2A employment elsewhere. Another
suggested treating H–2A workers in the
country the same as U.S. workers for
purposes of recruitment, which would
require employers to prove that no H–
2A workers already in the country are
available to fill the positions. However,
these suggestions are beyond the scope
of this rulemaking.
The Department also invited
comments on the proposed recruitment
period for employers who chose to
stagger the entry of H–2A workers.
However, as the Department has
decided not to adopt the proposed
staggered entry provision, the issue of
the related recruitment period is moot.
Accordingly, under this final rule,
unless the small employer exemption
applies, an employer granted temporary
agricultural labor certification must
continue to provide employment to any
qualified, eligible U.S. worker who
applies until 50 percent of the period of
the work contract has elapsed, and an
employer must update the recruitment
report for each U.S. worker who applies
through the entire recruitment period.
c. Paragraph (k), Contracts With Third
Parties Comply With Prohibitions
The Department received a few
comments regarding this provision of
the NPRM, which the Department
considered. The Department now adopts
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the language proposed without change.
The current regulation requires
employers to contractually forbid any
engaged foreign labor contractor or
recruiter (or their agents) from seeking
or receiving payments or other
compensation from prospective
workers; the employer must provide
documentation of the prohibition upon
request. In the NPRM, the Department
proposed to amend § 655.135(k) to
clarify that employers engaging any
foreign labor contractor or recruiter
‘‘must contractually prohibit in writing’’
the foreign labor contractor or recruiter,
or any agent of such contractor or
recruiter, from seeking or receiving
payments from prospective employees.
As explained in the NPRM, the
Department has specified the
contractual language that employers
must use to satisfy this requirement for
employers’ convenience and to facilitate
consistent and uniform compliance. 84
FR 36168, 36208.
The revision makes it clear that
foreign labor contractors or recruiters
and their agents are not to receive
remuneration from prospective
employees recruited in exchange for
access to a job opportunity or any
activity related to obtaining H–2A labor
certification. To help monitor
compliance with this prohibition, the
Department has retained the
requirement that employers make these
written contracts or agreements
available upon request by the CO or
another Federal party.
A farmer and agent opposed the
proposal because they believed the
existing regulation was sufficient and
that employers should be able to draft
their own language prohibiting fees. The
agent argued further that requiring
specific contractual language could
expose employers to a nonsubstantive
violation, and furthermore that the
Department had not provided a reason
that the existing regulation was
problematic. The Department
understands employers’ interest in
drafting their own contractual language.
However, the Department nonetheless
has determined that it is necessary to
require the specific language set forth in
this provision to facilitate uniform
application and compliance with the
regulatory requirement. The previous
regulatory requirement left room for
employers to write language that may
not have been clear or may not have
conveyed the prohibition correctly. The
language adopted in § 655.135(k) should
serve to remove any doubt concerning
contractual parties’ obligations under
§ 655.135(k), and it makes it easier for
employers to comply with the
regulation.
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An international recruitment
company, trade associations, and
advocacy organizations explained that
the Department has failed to prevent
recruitment fees from being charged to
foreign workers in the past, and that this
has caused such foreign workers to be
vulnerable to unlawful conduct and
debts. One of the advocacy
organizations opposed any changes that
would lower wages or reduce worker
protections or reduce Department
oversight. The Department, in requiring
the addition of this specific language
under § 655.135(k) clarifies the existing
legal requirements. The Department
acknowledges that, while organizations
or people have nonetheless collected
recruitment fees in violation of existing
law, the change adopted in this final
rule relates only to the addition of
specific language in order to facilitate
consistent and uniform compliance.
Furthermore, the Department’s
processes and procedures meant to
enforce this requirement are still in
place.
While noting that it approved of the
additional contractual language
proposed, one of the workers’ rights
advocacy organizations went on to
explain that this prohibition for third
parties causes employers to
intentionally remain ignorant of the
recruitment process. It argued that
workers are discouraged from coming
forward for fear they will be denied a
visa and fear of retaliation or
blacklisting from recruiters and
employers. The organization explained
that unlawful conduct surrounding
recruitment leads to debt for workers
and human trafficking, and then
detailed numerous examples from case
law to support the assertion that
recruiters are not abiding by the current
regulations and are abusing foreign
workers. The organization put forth
numerous suggestions relating to
increased enforcement and transparency
regarding the recruitment process and
increased worker protections. The
Department appreciates the concerns
the workers’ rights advocacy
organization has raised regarding the
treatment of workers. Although several
of the suggestions are beyond the scope
of this rulemaking, the Department has
addressed related concerns in other
relevant sections of this final rule. For
example, the Department has retained
the current regulations’ anti-retaliation
provision and has added debarment of
agents and attorneys for their own
misconduct in this final rule. See 20
CFR 655.135(h) and 655.182; 29 CFR
501.20. The Department also believes
the addition of the required contractual
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language is an important step toward
ensuring that employers do not remain
ignorant of the prohibitions and that any
agreement with a third party clearly
articulates the prohibitions.
An agent suggested the regulation be
revised further and argued that the
employer’s inclusion of this contractual
language should be a ‘‘legal safe harbor’’
to any claim brought against it to
recover recruitment fees unless there is
clear and convincing evidence that the
employer knew or participated in the
prohibited fees being requested.
Through the proposed language in
§ 655.135(k), the Department did not
propose such a ‘‘legal safe harbor,’’ and
was not attempting to affect the legal
rights parties may have in any private
civil claims. To the contrary, as the
Department has previously made clear
in both the 2008 and 2010 prior
rulemakings, these contractual terms
must be bona fide. 75 FR 6926. Creating
a ‘‘legal safe harbor’’ could potentially
undermine an employer’s incentive to
assure the bona fides of the contractual
provisions, thereby undermining these
important worker protections.
Accordingly, the Department declines to
incorporate such a provision.
7. Section 655.136, Withdrawal of an
Application for Temporary Employment
Certification and Job Order
As discussed earlier in this preamble
under § 655.124, the Department
proposed to reorganize all withdrawal
provisions so that, for example, the
procedure for withdrawing the
Application for Temporary Employment
Certification and job order is located in
the section of the rule where an
employer at that stage of the labor
certification process would look for
such a provision. Accordingly, the
NPRM proposed revisions to move the
withdrawal provisions at § 655.172(b) of
the 2010 H–2A Final Rule to this new
section, and to clarify the timeframe and
procedures by which an employer may
request withdrawal. The Department
received a few comments on this
provision, none of which necessitated
substantive changes to the regulatory
text. Therefore, as discussed below, this
provision remains unchanged from the
NPRM.
The Department proposed to move the
content of § 655.172(b) of the 2010 H–
2A Final Rule to a new provision at
§ 655.136 located in the ‘‘Application
for Temporary Employment
Certification Filing Procedures’’ portion
of the regulation, which begins at
§ 655.130. As a result of this relocation,
the withdrawal provisions relating to an
Application for Temporary Employment
Certification that is in process at the
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NPC and the associated job order would
be located in a section of the rule where
the regulated community would be
more readily able to locate and
understand the actions required for
withdrawal at that stage of processing.
In addition, the Department proposed
to remove language limiting withdrawal
to the period after formal acceptance
and expand this period to any time
before the CO makes a final
determination. This revision would
allow employers to notify the NPC at
any time after submitting an
Application for Temporary Employment
Certification of their desire to end
processing of the application and job
order. Finally, the Department proposed
under § 655.136(b) to clarify that
employers must submit withdrawal
requests in writing to the NPC,
identifying the Application for
Temporary Employment Certification
and job order to be withdrawn and
stating the reason(s) for requesting
withdrawal; however, the Department
did not change the employer’s
obligations to workers recruited in
connection with the Application for
Temporary Employment Certification
and associated job order, as these
obligations attach at recruitment and
continue after withdrawal.
The Department received no
comments objecting to the proposed
reorganization of the job order
withdrawal provision from § 655.172(b)
to § 655.136. One trade association
supported a proposal to permit
withdrawal any time after submission
and up to the point of the CO’s final
determination. Two commenters
objected to requiring employers to
comply with their obligations under the
Application for Temporary Employment
Certification and related job order after
withdrawal, apparently without regard
to the timing of withdrawal. Consistent
with discussion in the preamble for
§ 655.124, these comments objecting to
an employer’s continuing obligations
after withdrawal are outside of the
scope of the proposed change at
§ 655.136. The Department’s proposal
was limited only to reorganizing the
existing withdrawal provision from
§ 655.172(b) to § 655.136 and minor
clarifying edits, such as adding ‘‘and job
order’’ to the statement of the
employer’s continuing obligation to
comply with the terms and conditions
of employment after withdrawal with
respect to all workers recruited in
connection with that Application for
Temporary Employment Certification,
which includes the related job order.
Accordingly, the Department is
adopting § 655.136, as proposed,
without change.
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D. Processing of Applications for
Temporary Employment Certification
1. Section 655.140, Review of
Applications
The NPRM proposed minor
amendments to this section to conform
existing procedures to other proposed
changes, such as changes involving
electronic filing and expansion of the
first actions available to the CO after
initial review of the Application for
Temporary Employment Certification,
job order, and any supplementary
documentation necessary to issuance of
a Final Determination. The Department
received a few comments on this
provision. After reviewing these
comments, the Department has decided
to adopt this provision as proposed in
the NPRM, although first actions
available to the CO will not include
certification, as a result of the
Department’s decision not to adopt the
pre-filing positive recruitment proposal
at § 655.123, as discussed below.
In paragraph (a), the Department
proposed to expand the first actions
available to the CO after initial review
of the Application for Temporary
Employment Certification, job order,
and any necessary supplementary
documentation for compliance with all
requirements under the subpart. In
addition to the two first action options
available to the CO under the 2010 H–
2A Final Rule (i.e., issuance of a NOA
under § 655.143, if the application
meets acceptance requirements, or
issuance of a NOD under § 655.141, if
the application contained deficiencies),
the Department proposed that the CO
could issue a Final Determination under
§ 655.160 as the first action. As
explained in the NPRM, in combination
with the pre-filing positive recruitment
proposal at § 655.123, the proposed
revision to § 655.140(a) would permit
the CO to either certify or deny an
Application for Temporary Employment
Certification as the first action. The CO
could issue a temporary agricultural
labor certification as the first action if
the employer satisfied all criteria for
certification at the time of the CO’s
initial review, which could be possible
for an employer who engaged in the
proposed pre-filing recruitment option
at § 655.123. Or, the CO could issue a
denial as the first action if an
application was incurably deficient at
the time of filing, such as an application
filed by a debarred employer.
The Department received a comment
from a trade association that expressed
support for the proposal, stating the
ability to issue a Final Determination
would expedite the application process
in certain situations. An employer made
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a general comment expressing concern
about the Department’s requirement that
employers cure deficiencies through the
NOD process before the CO accepts an
application for further processing,
asserting that inconsistent identification
of deficiencies could create processing
delays for some applications. The
Department appreciates the
commenter’s concern; however, the
Department did not propose to change
the criteria for the CO’s decision to issue
a NOD. The CO makes every effort to
identify and address deficiencies
consistently across applications and
cannot accept an application for further
processing and recruitment until all
deficiencies related to effective
recruitment of U.S. workers are
resolved. The Department intended to
expand the range of actions available to
a CO by adding the option to issue a
Final Determination under § 655.160 as
the first action; the criteria for the CO’s
decision to issue a NOD remains
unchanged.
This final rule adopts proposed
paragraph (a) without change. Although
the Department’s decision not to adopt
optional pre-filing recruitment removes
certification as a possible first action, a
Final Determination remains an
available option for the CO’s first action
because the CO may deny an
Application for Temporary Employment
Certification as the first action if the
application is incurably deficient.
Alternatively, the CO may issue a NOD
that provides the employer with an
opportunity to cure deficiencies in the
application or a NOA that accepts the
application for further processing and
recruitment.
The Department also proposed minor
revisions to paragraph (b) explicitly
addressing electronic communication,
both to permit the CO to send electronic
notices and requests to the employer
and to permit the employer to send
electronic responses to these notices
and requests. The Department proposed
to retain the option to use traditional
methods that ensure next-day delivery
because these methods will remain
necessary in limited cases, such as
when the employer is unable to file or
communicate electronically. The same
trade association expressed support for
this proposed revision, stating that
electronic submissions are more
efficient. Therefore, this final rule
adopts proposed paragraph (b) without
change.
2. Section 655.141, Notice of Deficiency
The NPRM proposed amendments to
this section to remove the option for
employers to request expedited
administrative review or a de novo
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hearing of a NOD, and to clarify that an
employer may submit a modified job
order in response to a NOD and may
appeal a denial issued by the CO of a
modified application. The Department
received some comments on this
provision. After carefully reviewing
these comments, the Department has
decided not to make any changes to the
proposed regulatory text. Therefore, as
discussed below, this provision remains
unchanged from the NPRM.
The Department proposed removing
language from paragraph (b) to conform
to the language of the INA, which
requires expedited administrative
review, or a de novo hearing at the
employer’s request, only for a denial of
certification or a revocation of such
certification. See 8 U.S.C. 1188(e)(1).
Because a NOD is not a denial or
revocation of certification and is,
instead, an opportunity for employers to
provide information or cure deficiencies
before the CO makes a final
determination, the Department’s
proposal better aligns with the statutory
requirements under the INA. 84 FR
36168, 36209.
Some commenters expressed general
opposition to the proposed changes to
paragraph (b) without further
explanation. A commenter stated the
proposal would complicate the program
and make it more costly but did not
explain why this would be the case. The
Department disagrees with these
assertions. As noted below, the
Department believes that this change
will simplify and streamline the
temporary agricultural labor
certification process. One commenter
mistakenly believed the Department had
justified this proposal on the basis of
consistency with the H–2B program, but
this was not a stated reason for the
proposal. Other commenters believed
they would not be able to fix errors in
their filings or alert the CO to an
addendum mistakenly not included in
their original filing without the ability
to appeal a NOD. However, the ability
to appeal a NOD to BALCA is not
required to address these issues. The
employer can instead respond to the
NOD with the necessary modification(s),
correction(s), or omitted document(s).
Specifically, under § 655.141, the
employer retains the opportunity to
respond to the NOD with additional
information or documentation,
including an amended job order, to
address the identified deficiency or
deficiencies in its application.
Another set of commenters claimed
removing the option to appeal a NOD to
BALCA could delay the temporary
agricultural labor certification process.
Many commenters did not explain why
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they believed that delays would occur
as a result of the Department’s proposed
change. Two employers, however,
provided more specific information.
One employer stated the failure to
include a document listing their
proposed worksites as an attachment to
a prior application delayed the arrival of
their workers under the Department’s
subsequent certification. The other
employer noted that their agent quickly
resolved previous NODs and asserted
that losing the ability to request NOD
review would slow the process because
they would have to produce a ‘‘new and
amended’’ job order. Neither commenter
explained how the ability to appeal a
NOD to BALCA would prevent delay,
especially when the opportunity to
correct deficient applications continues
to be available pursuant to § 655.141
and employers still must produce
documentation, such as job orders, that
meet all regulatory requirements.
Some commenters stated they would
be unable to expeditiously defend their
application when a NOD is issued and
would have to comply with the NOD or
wait to appeal after a denial, risking
extra expenses or a potential delay in
worker arrivals. One of these
commenters suggested the ability to
appeal both NODs and denials is a more
efficient use of the employer’s and the
Department’s time. However, employers
do not need to appeal a NOD in order
to submit additional documents or
otherwise address the identified
deficiencies. As explained above,
employers can provide these documents
in their response to the NOD. In fact, the
Department anticipates that the changes
in this final rule will expedite
resolution of the majority of
applications and decrease expenses by
providing one clear, singular route for
resolving information and
documentation issues that prevent
acceptance and certification of
Applications for Temporary
Employment Certification or job orders.
Based on OFLC’s experience
administering the H–2A program, the
appeal of a NOD to BALCA tends to add
more time to case processing than a
CO’s efforts to resolve remaining issues
in a NOD response through mechanisms
such as subsequent NODs or other
communication that this final rule
explicitly authorizes in § 655.142(a).
Under this final rule, the Department
preserves the enhanced need for
timeliness in agriculture by simplifying
the steps in the adjudication of H–2A
applications. Rather than allowing an
appeal of a NOD to BALCA, which, even
if successful, could lead to subsequent
NODs, appeal of those NODs, and then
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a CO’s denial and an appeal of that
denial (i.e., separate appeals of multiple
issues), this final rule consolidates
consideration of remaining issues or
deficiencies into one appeal of the CO’s
determination. Notably, as explained in
the NPRM, this approach provides the
CO and employer more opportunities to
resolve deficiencies that prevent
acceptance or certification of
Applications for Temporary
Employment Certification or job orders
and better ensures that only those issues
that the CO and employer cannot
resolve are subject to appeal before
BALCA. See 84 FR 36168, 36209. The
appeal process continues to include an
expedited administrative review
procedure, or an expedited de novo
hearing at the employer’s request, of the
denial in recognition of the INA’s
concern for prompt processing of H–2A
applications.
An agent stated no data were
provided on the rate of certifications
following appeals of NODs that
underwent BALCA review and
suggested these data be used to
determine whether to adopt the
proposal. OFLC does not produce data
on this rate. Moreover, the Department
does not believe these data would be
instructive of whether to adopt its
proposal. Regardless of whether an
application receives a NOA after an
appeal of a NOD or after resolution with
the CO, the post-NOA requirements that
must be met for certification, such as
recruitment requirements, are the same.
These post-NOA requirements for
certification do not typically relate to
the deficiencies that would be raised in
a NOD, thus the rate at which an
application is certified following the
appeal of a NOD is irrelevant. Another
commenter claimed that, based on the
small number of BALCA decisions out
of the total number of H–2A
applications filed each year, the current
process should be preserved. This
comment is unclear because the figures
provided by the commenter do not
distinguish between appeals from a
NOD versus appeals from a denial of an
application. To the extent the
commenter is asserting an appeal of a
NOD should be preserved because of the
limited number of BALCA rulings
related to these appeals, there could be
several reasons for this number that are
unrelated to the ability to appeal a NOD,
including that many employers receive
a NOA in the first instance or choose to
respond to the NOD instead of
appealing.
Some commenters suggested the
change may eliminate an opportunity
for dialogue between the Department
and the employer prior to a final
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determination. However, as explained
above, the appeal of a NOD is not the
only opportunity for the employer to
engage in dialogue with the Department
prior to a final determination.
Employers have the option of
responding to the NOD and working
with the CO to resolve the deficiencies
identified in the NOD. Several
commenters believed the proposal
would limit employers’ due process or
result in undesired outcomes due to
errors by the agency. The Department
believes the proposed change continues
to guard against the latter because
employers can still request review
before an administrative tribunal of a
CO’s denial of an application.
Employers also continue to decide
whether they wish to seek review in the
form of administrative review or a de
novo hearing. In this way, the proposed
change retains the due process
protections afforded employers under
sec. 218(e)(1) of the INA and better
conforms with these statutory
requirements. See 8 U.S.C. 1188(e)(1)
(noting the regulations must provide for
expedited administrative review, or, at
the employer’s request, a de novo
hearing, of a denial of certification or a
revocation of such certification). And, as
is the case now, employers may appeal
this administrative decision or seek
other appropriate relief in Federal court.
An agent suggested that, in cases
where the CO believes the employer
will likely agree to the modification
requirements, the NOD should provide
the employer the option to accept the
proposed changes by checking a box in
iCERT or its successor (FLAG) instead of
filing a formal NOD response. While
there are circumstances when OFLC
may address certain minor issues
without the issuance of a formal NOD
and response, the Department declines
to adopt the agent’s suggestion to create
this separate procedure for two reasons.
First, it would necessitate judgment
calls on whether the employer is likely
to consent to the required modifications.
Second, the Department’s electronic
filing system is designed to prevent
submission of obviously deficient,
incomplete applications, which should
reduce the need for the CO to issue
nonsubstantive NODs.104
The NPRM also proposed adding
language to § 655.141(b)(3) to clarify
that the employer may submit a
modified job order in response to a
NOD. This proposal conforms paragraph
(b)(3) with other paragraphs in
104 See 84 FR 36168, 36198 (noting OFLC’s
technology system will not permit electronic
submissions where required fields and
documentation have not been completed or
uploaded and saved).
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§ 655.141, which allow the CO to issue
a NOD for job order deficiencies and
provide the employer an opportunity to
submit a modified job order to cure
these deficiencies. A commenter
suggested that where the CO is unable
to make a determination at least 30 days
before an employer’s date of need,
paragraph (b)(3) should include
language requiring the Department to
notify the employer or agent of the
reason. However, this comment is
beyond the scope of the Department’s
proposal and cannot be implemented
through this rulemaking. Because no
commenter raised issues with the
proposed language in paragraph (b)(3),
the Department adopts this paragraph
without change.
Lastly, the NPRM proposed to remove
language in § 655.141(b)(5) that purports
to prohibit the employer from appealing
the denial of a modified application.105
This clarification aligns § 655.141 with
§ 655.142(c), which permits the appeal
from a denial of a modified application.
The Department received two
comments, both supporting the
proposal. This final rule therefore
adopts paragraph (b)(5) as proposed.
3. Section 655.142, Submission of
Modified Applications
The NPRM proposed to amend this
section to clarify the standards and
procedures that govern the employer’s
submission of a modified Application
for Temporary Employment
Certification or job order. The
Department received one comment on
this provision; after reviewing this
comment, the Department has decided
not to make any changes to the
regulatory text. Therefore, as discussed
below, this provision remains
unchanged from the NPRM.
The provisions in this section govern
the employer’s response to a NOD
issued pursuant to § 655.141. The
Department proposed revisions to
paragraph (a) to clarify that an employer
may submit a modified job order in
response to a NOD, not only a modified
Application for Temporary Employment
Certification. This change conforms this
section to the provisions at § 655.141
that permit the CO to issue a NOD for
Application for Temporary Employment
Certification and/or job order
deficiencies. In addition, the
105 The purpose of § 655.141(b)(5) in the current
regulations is to address situations where the
employer fails to respond to the NOD or appeal and,
accordingly, ‘‘abandons’’ the application. The
Department has retained the relevant language in
what will now be § 655.141(b)(4): ‘‘if the employer
does not comply with the requirements of
§ 655.142, the CO will deny the Application for
Temporary Employment Certification.’’ 84 FR
36168, 36276.
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Department proposed to revise
paragraph (a) to explicitly authorize the
CO to issue multiple NODs, if necessary,
to provide the CO with additional
flexibility to resolve deficiencies that
would otherwise prevent acceptance of
an Application for Temporary
Employment Certification and job
order.106 For example, this may be
necessary if the CO discovers a
deficiency while reviewing submissions
by the employer, such as an employer’s
response to a NOD that raises other
issues that require the CO to request
additional modifications.
In paragraph (b), the Department
proposed clarifying revisions to explain
the circumstances under which the CO
will deny an Application for Temporary
Employment Certification after
reviewing an employer’s NOD
response(s). If the modified Application
for Temporary Employment
Certification or job order does not cure
the deficiencies the CO identified or
otherwise fails to satisfy the criteria
required for certification, the CO will
issue a denial following the procedure
outlined in § 655.164.
Otherwise, the Department retained
without change the provisions in
paragraph (a) that allowed the CO to
postpone issuing a final determination
for 1 calendar day (up to a maximum of
5 calendar days) for each day an
employer fails to submit a timely
response to a NOD and, if the employer
fails to submit a response within 12
calendar days after the NOD was issued,
to deem the Application for Temporary
Employment Certification abandoned.
The Department also retained without
change the provisions in paragraph (c)
describing the opportunity to appeal the
CO’s denial of a modified Application
for Temporary Employment
Certification.
The Department did not receive
comments opposed to the proposed
changes in this section. One trade
association expressed support for the
changes, stating that they would reduce
the burden on employers to resolve
problems with the job order and would
expedite application processing once
problems are resolved. Therefore, the
Department has adopted § 655.142 as
proposed, without change.
4. Section 655.143, Notice of
Acceptance
The NPRM proposed to amend this
section to clarify current policy and
ensure the NOA content requirements
and timeline for issuance conforms to
106 The Department also explained that this
revision mirrors language included at § 655.32(a) of
the 2015 H–2B IFR. See 80 FR 24042, 24122.
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other changed proposed in the NPRM,
such as labor supply State
determinations and requiring the CO to
transmit the job order to the SWAs for
interstate circulation. The Department
received some comments on the changes
proposed to this provision. As discussed
below, in this final rule, the Department
has made additional revisions to further
clarify the NOA content requirements
and conform this section both to
regulatory changes adopted in the 2019
H–2A Recruitment Final Rule and the
Department’s decision not to adopt the
pre-filing positive recruitment options
proposed at § 655.123.
The Department proposed no
substantive changes to the notification
timeline in paragraph (a). The proposed
regulatory language included a technical
revision to remove ‘‘are complete and’’
for clarity and to conform the language
with the Department’s proposal in
paragraph (b) to codify the current
practice under which the CO issues a
NOA when an Application for
Temporary Employment Certification
and job order is complete and compliant
for recruitment purposes, even though
requirements for certification that are
unrelated to recruitment (e.g., final
housing approval) may not have been
completed yet. In addition, the
Department proposed to revise the list
of NOA content requirements to
conform to other proposed changes in
the NPRM. After considering comments
on the Department’s proposals, and to
conform this section to changes made
through the 2019 H–2A Recruitment
Final Rule, the Department has retained
paragraph (a) without change but further
revised paragraph (b) of this section, as
discussed below.
To avoid making unnecessary changes
from the 2010 H–2A Final Rule, the
Department has further reorganized the
content of paragraph (b). Paragraphs
(b)(1) through (3) now correspond to
topics addressed in those paragraphs in
the 2010 H–2A Final Rule: paragraph
(b)(1) addresses interstate clearance of
the job order, with revisions to conform
with the NPC’s electronic transmission
of the job order to the SWAs; paragraph
(b)(2) addresses the employer’s positive
recruitment and recruitment report
obligations, with revisions to conform
with the Department’s decisions
discussed in §§ 655.123 and 655.154 of
this preamble (i.e., not to adopt the
proposed optional positive pre-filing
recruitment provision and to require the
NOA to provide instructions to the
employer regarding additional positive
recruitment requirements, if any, and
related documentation retention
requirements) and changes
implemented through the 2019 H–2A
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Recruitment Final Rule; and paragraph
(b)(3) addresses the positive recruitment
period, with a proposed technical
revision to cite to § 655.158 rather than
repeat its content. In addition, the
Department has redesignated the
remaining paragraphs listed under
paragraph (b). Paragraph (b)(4), which
appeared as paragraph (b)(3) in the
NPRM, requires the NOA to list
outstanding documents and assurances
required for certification. Paragraph
(b)(5), which appeared as proposed
paragraph (b)(4) in the NPRM, requires
the NOA to notify the employer of the
timeline for the CO’s final
determination and adopts the proposed
allowance for the CO to hold final
determination inside the 30 days before
the employer’s start date if the
application is not certifiable by the 30day mark but is expected to be certified
before the employer’s first date of need.
Finally, this final rule adds a new
paragraph (b)(6) to accommodate a new
provision added by the 2019 H–2A
Recruitment Final Rule at paragraph
(b)(5), effective October 21, 2019. Under
paragraph (b)(6), the NOA will direct
the SWA to provide written notice of
the job opportunity to organizations that
provide employment and training
services to workers likely to apply for
the job and/or to place written notice of
the job opportunity in other physical
locations where such workers are likely
to gather, when appropriate to the job
opportunity and AIE.
A workers’ rights advocacy
organization expressed concern about
the CO issuing a NOA where the
employer’s application is complete and
compliant for recruitment purposes but
the employer has not submitted all
documentation required for
certification. The Department believes
the commenter may have
misunderstood the provision and
thought the CO’s issuance of a NOA in
such circumstances would result in a
temporary agricultural labor
certification despite the employer’s
failure to submit all required
documentation. In fact, what was
proposed is effectively how the current
process works. The CO’s issuance of a
NOA does not guarantee the employer
will receive labor certification and does
not absolve the employer of any
recruitment requirements or
documentation requirements in these
cases. However, issuance of a NOA
allows positive recruitment of U.S.
workers to begin as early as possible—
as soon as the application is complete
and compliant for recruitment purposes.
For example, positive recruitment may
begin while the employer is making a
housing repair the SWA identified
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during inspection. The employer can
only receive certification after it has
submitted all documentation and
assurances necessary for certification,
including the SWA’s housing
certification. Therefore, in this final
rule, paragraph (b)(4) allows the CO to
issue a NOA listing any documentation
or assurances that the CO has not yet
received and without which
certification will not be issued.
An employer and a trade association
generally supported the Department’s
proposal to include an allowance for the
CO not to issue a final determination 30
days before the employer’s first date of
need under one additional
circumstance—when an Application for
Temporary Employment Certification
does not meet the requirements for
certification on the 30th day before the
first date of need but is expected to meet
such requirements before the first date
of need. The commenters asked the
Department to clearly indicate this
exception is limited to circumstances
where CO must place a hold on an
application that otherwise would be
denied in order to afford the employer
additional time to satisfy certification
requirements. The Department
appreciates the comment, which reflects
the Department’s intent as discussed in
the NPRM, but does not believe it is
necessary to revise this section further.
The proposed language, which is
adopted in this final rule at paragraph
(b)(5), clearly limits the CO’s authority
to issue a Final Determination within 30
days of an employer’s first date of need
to the two scenarios specified: an
employer’s untimely modification under
§ 655.142 and when the CO holds an
application that cannot be certified at
the 30-day mark but is expected to be
certifiable before the employer’s first
date of need.
5. Section 655.144, Electronic Job
Registry
The NPRM proposed minor
amendments to this section to ensure
the standards and procedures for
posting the approved job order on the
electronic job registry conforms with
other changes proposed in the NPRM
and is consistent with the Department’s
current practices. The Department
received a few comments on this
provision; after reviewing these
comments, the Department has decided
not to make any substantive changes to
the regulatory text proposed in the
NPRM. Therefore, as discussed below,
the Department is adopting this
provision as proposed in the NPRM.
In paragraph (a), the Department is
deleting an obsolete sentence that stated
job orders would be posted on the
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electronic job registry after the
Department initiated operation of the
electronic job registry; as the electronic
job registry is now fully operational, this
sentence is no longer necessary. The
Department is making two minor
revisions to paragraph (b). First, rather
than retaining both a detailed
description of the period during which
a job order will be posted on the
electronic job registry and a reference to
the regulatory provision where the
primary description of that recruitment
period is found (§ 655.135(d)), the
Department is retaining only the
reference to § 655.135(d). This approach
is consistent with other similar
revisions to simplify the regulation as a
whole. Second, the Department
proposed to add the phrase ‘‘in active
status’’ to clarify job orders must remain
in active status on the electronic job
registry until the end of the recruitment
period set forth in § 655.135(d). As
discussed in the preamble to the NPRM
as well as in the preamble to the 2019
H–2A Recruitment Final Rule, after the
job order has served as an electronic
recruitment tool on the electronic job
registry during the recruitment period at
§ 655.135(d), the job order’s status on
the electronic job registry will change to
‘‘inactive’’ so that the information on
the job order will still be available for
public research and access. See 84 FR
36168, 36210; 2019 H–2A Recruitment
Final Rule, 84 FR 49439, 49444.
The Department received two
comments on this section regarding the
collection and public availability of
information related to H–2A job
opportunities. A State government
agency suggested the Department
leverage the electronic job registry to
collect additional demographic
information, including the work
location of foreign workers and the
concentration of certified applications
and workers. A workers’ rights advocacy
organization urged the Department to
expand and enhance publicly available
information for a variety of purposes,
including increasing transparency and
effective monitoring and enforcement.
The commenter asked the Department to
make all job and employer information,
across all forms and in supporting
documentation, publicly available and
accessible, in particular, to potential
workers and their advocates. The
commenter expressed concern about the
speed with which the Department
would post job orders to the electronic
job registry and potential difficulties
with public access to older job orders,
in particular, as the result of the
Department’s transition between
electronic systems.
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The Department agrees it is important
to collect H–2A program information
and make it available to the public,
which it currently accomplishes
through the Disclosure Data section of
the OFLC website. The Department will
continue to collect detailed program
information, including information
about work locations and certification
statistics sortable by occupation, and
publish this information on the OFLC
website. In early 2020, the Department
significantly expanded the scope of
labor certification decision data
available to the public through the
Disclosure Data section of the OFLC
website. However, the Department
declines to collect additional
demographic information beyond that
already required for program purposes
because the labor certification stage of
the immigration process involves the
prospective recruitment of unnamed
U.S. or foreign workers by an employer
for often large numbers of job vacancies.
Further, the intended use of the
information published on the
Department’s electronic job registry
differs from the intended use of OFLC’s
Disclosure Data. The electronic job
registry is a recruitment tool designed
for broad dissemination of available
temporary or seasonal job opportunities
to U.S. workers. As such, the electronic
job registry provides information for job
seekers, including work locations,
duties to be performed, qualifications
required, and dates of employment.
As of December 27, 2019, the
Department has transitioned the
electronic job registry to a new webbased platform, SeasonalJobs.dol.gov.
SeasonalJobs.dol.gov is a mobilefriendly online portal that leverages the
latest technologies to automate the
electronic advertising of H–2A job
opportunities and ensures copies of H–
2A job orders are promptly available for
public examination. The portal is
designed to help U.S. workers identify
and apply for open seasonal and
temporary job opportunities using
robust and personalized search
capabilities. In addition, the portal
makes it easier to integrate employment
postings with third-party job search
websites to make the posted job order
information more accessible to job
seekers. As a publicly available
resource, any interested party may
search and review posted job
opportunities.
6. Section 655.145, Amendments to
Applications for Temporary Labor
Certification
The NPRM proposed minor
amendments to this section that
contains the standards and procedures
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61749
by which an employer may submit a
written request to the CO to amend its
Application for Temporary Employment
Certification in order to increase the
number of workers or make minor
changes to the period of employment.
Specifically, paragraph (b) contained
technical corrections to replace
references to the terms ‘‘job site’’ or
‘‘place of work’’ with the proposed term
‘‘place of employment’’ as defined
under proposed revisions to § 655.103.
The Department received a few
comments on this provision, none of
which necessitated changes to the
regulatory text. Therefore, as discussed
below, this provision remains
unchanged from the NPRM.
The Department received a few
comments that presented situations in
which an employer might want to
correct typographical errors or make
other changes to its application to
respond to changes in market conditions
after submission. As discussed in the
preamble for § 655.121(e)(2), allowing
applicants to request corrections to
applications without restrictions would
run counter to the Department’s efforts
to modernize the temporary agricultural
labor certification process. The 2010 H–
2A Final Rule at § 655.145, to which
changes have not been proposed, allows
an applicant to request amendments to
increase the number of workers or to
make minor changes to the period of
employment, which could be due to
changes in market conditions or for
other reasons. In addition, an employer
may request modifications to its job
order under § 655.121(e)(2) before
submitting its Application for
Temporary Employment Certification.
Should an employer want to make
changes to its application other than
those permitted under these amendment
provisions, the employer will need to
file a new Application for Temporary
Employment Certification to
accommodate the changes needed.
Depending on the circumstances, the
new application may qualify as an
emergency situation filing under
§ 655.134, which allows for waiver of
the normal filing timeframe
requirements for reasons including
‘‘good and substantial cause (which may
include unforeseen changes in market
conditions).’’
As for typographical errors, the
Department reminds applicants to
thoroughly review each application
prior to submission, as they alone are
responsible for ensuring an application
is complete and accurate at the time of
submission; the CO is not responsible
for correcting an employer’s
typographical errors. While some
typographical errors may not impact the
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CO’s final determination, if a
typographical error creates a substantive
issue that is apparent to the CO (e.g., an
offered wage that is lower than
required), the CO will issue a NOD
requiring the employer to modify the
application to address the deficiency. In
situations where a typographical error
mischaracterizes or misrepresents the
job opportunity available in a way that
does not create a regulatory deficiency
that would trigger a NOD and the
deficiency cannot be corrected during
processing, the employer would be
required to file a new Application for
Temporary Employment Certification to
accurately reflect the job opportunity for
which it requests temporary labor
certification to employ H–2A workers.
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E. Post-Acceptance Requirements
1. Section 655.150, Interstate Clearance
of Job Order
The Department proposed to retain
this section authorizing the interstate
clearance of an employer’s approved job
order with three minor amendments to
conform with changes proposed to other
provisions in the NPRM. After
considering the comments it received in
connection with this provision, the
Department has adopted as final the
proposed revised § 655.150 with one
technical amendment, which is
discussed below. Related comments,
such as those regarding the NPC’s role
in transmitting job orders to SWAs and
electronic transmission of those job
orders, are addressed in the preamble
discussion of § 655.121. Similarly,
comments regarding the Department’s
proposal to revise the recruitment
period at § 655.135(d) are addressed in
the preamble discussion of § 655.135(d),
and comments regarding the
Department’s proposed process through
which the OFLC Administrator will
designate labor supply States or
suggested additional changes to positive
recruitment obligations are discussed in
the preamble to § 655.154.
As established under the 2010 H–2A
Final Rule, after receiving the CO’s NOA
under § 655.143, the SWA transmits the
job order beyond the AIE and intrastate
clearance, as directed in the NOA, at
minimum, to all other States listed in
the job order as anticipated worksites.
Each SWA that receives the job order
must keep the job order on its active file
until the end of the recruitment period
at § 655.135(d) and refer each qualified
U.S. worker who applied during that
period to the employer.
In the NPRM, the Department first
proposed that the NPC, rather than the
SWA, would transmit the employer’s
job order to each additional SWA under
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§ 655.150, consistent with the
Department’s proposed revisions to
§ 655.121. Second, the Department
proposed to add language specifying
that the NPC will transmit the approved
job order to each State that the OFLC
Administrator designates as labor
supply State(s), if applicable, consistent
with the Department’s proposal at
§ 655.154(d). Finally, consistent with
proposed revisions to other sections of
the regulatory text, the Department
proposed to simplify the language in
paragraph § 655.150(b) by including a
citation to the recruitment period at
§ 655.135(d), rather than restating the
language in the regulatory text under
this paragraph.
Two State government commenters
suggested that the Department require
employers to input job order
information into SWAs’ online labor
exchanges and/or other online
recruitment tools, which they viewed as
consistent with the Department’s
adoption of electronic filing and
sensitive to State resources and system
investments. One of these commenters
further asked the Department to clarify
that employer identity information is
not suppressed (i.e., withheld) in H–2A
job orders, unlike non-H–2A job orders
subject to § 653.501; the commenter
thought such clarification would relieve
SWAs of the task of manually entering
that information in job order postings in
the State labor exchange system.
The Department is sensitive to SWA
resource concerns, but the Department
declines to impose a duplicative job
order data entry requirement on
employers. Such a requirement is
inconsistent with the Department’s
goals stated in the NPRM to eliminate
redundancies, reduce or avoid
duplication of burden on employers,
and ensure a single point of entry for
employers to access the H–2A program.
Under this final rule, the employer will
enter the job order information into the
Department’s centralized electronic
system, to which the SWAs have access
and from which the SWAs can retrieve
the entirety of the job order data—
including employer identity
information—for use in processing the
job order and posting on their State
labor exchange systems for intrastate
clearance. To the extent these comments
suggest the Department should require
employers to conduct additional
positive recruitment or post jobs
electronically in SWA recruitment tools
beyond the State labor exchange system,
the Department respectfully declines to
make any changes in response. The
topic of employers’ electronic
advertising obligations was addressed in
the Department’s 2019 H–2A
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Recruitment Final Rule and is outside
the scope of this rulemaking. As
explained in the 2019 H–2A
Recruitment Final Rule, the Department
intended for the NPC’s posting of the job
order in the Department’s enhanced
electronic job registry system, as
required under § 655.144, to facilitate
broad electronic dissemination of the
approved job opportunity. The
electronic job registry system makes a
standard set of job data available to
third-party job search websites, which
could include SWA online resources,
allowing those job listing websites ‘‘to
execute web-scraping protocols that
extract new H–2A job opportunities
from SeasonalJobs.dol.gov and index
them for advertising to U.S. workers.’’
2019 H–2A Recruitment Final Rule, 84
FR 49439, 49445.
After consideration of these
comments, the Department is adopting
the proposed revisions to § 655.150,
with one correction. The Department
decided to revise paragraph (a) in this
final rule to retain the phrase ‘‘at
minimum’’ from the 2010 H–2A Final
Rule’s paragraph (a). This phrase was
inadvertently removed in the proposed
paragraph. Reinserting this phrase is
necessary to avoid an unintended and
inappropriate gap in job order
circulation. For example, a job
opportunity may be located in an AIE
that crosses State lines; however, all
places of employment the employer
listed are located in only one of the
States in the AIE. To appropriately test
the domestic labor market, the job order
must be circulated to all SWAs with
jurisdiction over the AIE, not only the
one SWA with jurisdiction over the
places of employment listed. Retaining
‘‘at minimum’’ provides clarity and the
necessary flexibility for the NPC and
SWAs to ensure appropriate recruitment
through the labor exchange system and
does so without added burden to the
employer. As a result, under this final
rule, ‘‘at minimum,’’ the CO will
transmit the job order for interstate
clearance to the SWA in each State
listed in the job order as an anticipated
place of employment and the SWA in
each State designated by the OFLC
Administrator as a State of traditional or
expected labor supply for job
opportunity under § 655.154(d).
2. Section 655.153, Contact With Former
U.S. Workers
The NPRM proposed minor
amendments to this section containing
the standards and procedures by which
employers contact U.S. workers they
employed in the occupation at the place
of employment during the previous year
to solicit their return to the job. See
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2010 H–2A Final Rule, 75 FR 6884,
6929. This obligation aims to ensure
that these U.S. workers, who likely have
an interest in these job opportunities,
receive notice of the job opportunities.
The obligation also aims to prevent the
employer from effectively displacing
qualified and available U.S. workers by
seeking H–2A workers. An employer,
however, need not contact those U.S.
workers it dismissed for cause or those
who abandoned the worksite. The
Department received some comments on
this provision, none of which
necessitated substantive changes to the
regulatory text from the NPRM.
Therefore, this final rule retains this
section from the NPRM without change.
Section 655.153 requires an employer
to contact, by mail or other effective
means (e.g., phone or email), U.S.
workers it employed in the occupation
at the place of employment during the
previous year to solicit their return to
the job. See 2010 H–2A Final Rule, 75
FR 6884, 6929. This obligation aims to
ensure that these U.S. workers, who
likely have an interest in these job
opportunities, receive notice of the job
opportunities. It additionally aims to
prevent the employer from effectively
displacing qualified and available U.S.
workers by seeking H–2A workers. An
employer, however, need not contact
those U.S. workers it dismissed for
cause or those who abandoned the
worksite.
The Department proposed in the
NPRM to add language to § 655.153
requiring an employer to provide the
notice described in § 655.122(n) 107 to
the NPC with respect to a U.S. worker
who abandoned employment or was
terminated for cause in the previous
year. The proposal also required an
employer to provide the notice in a
manner consistent with the NPC
Federal Register notice issued under
§ 655.122(n).108 The Department
intended the proposal to ensure that
there would be virtually
contemporaneous documentation to
support an employer asserting that a
U.S. worker abandoned employment or
that it terminated the U.S. worker for
107 Under § 655.122(n), a worker’s abandonment
of employment or termination for cause relieves an
employer of responsibility for subsequent
transportation and subsistence costs and the
obligation to meet the three-fourths guarantee for
that worker, and, in the case of a U.S. worker, to
contact that worker under § 655.153, if the
employer provides notice to the ETA NPC of the
abandonment or termination. In the case of an H–
2A worker, notification to DHS is also required
pursuant to 8 CFR 214.2(h)(5)(vi)(B)(1).
108 See Notice, Information about the DOL
Notification Process for Worker Abandonment, or
Termination for Cause for H–2A Temporary
Agricultural Labor Certifications, 76 FR 21041 (Apr.
14, 2011).
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cause. Under the proposal, the employer
would have to contact former U.S.
workers who abandoned employment or
were terminated for cause if, while
subject to H–2A program requirements,
it failed to provide notice in the
required manner.
The Department may not certify an
application unless the prospective
employer has engaged in positive
recruitment efforts of able, willing, and
qualified U.S. workers available to
perform the work. See 8 U.S.C.
1188(b)(4). The prospective employer’s
positive recruitment obligation is
distinct from, and in addition to, its
obligation to circulate the job through
the SWA system. Id. E.O. 13788 requires
the Department, consistent with
applicable law, to protect the economic
interests of U.S. workers. See 82 FR
18837 (Apr. 21, 2017), secs. 2(b) and 5.
The requirement to notify the
Department of abandonment and
termination for cause protects the
interests of able, willing, and qualified
U.S. workers who might be available to
perform the agricultural work,
consistent with the INA. In addition, the
notice could assist growers in the event
U.S. workers who have abandoned
employment or been terminated for
cause later assert the employer failed to
contact them as required by § 655.153.
As the Department provided in the
NPRM, the notice obligation should not
increase the existing regulatory burden.
Section 655.122(n) currently permits an
employer to avoid the responsibility to
satisfy the three-fourths guarantee as
well as its return transportation and
subsistence payment obligations when a
U.S. worker voluntarily abandons
employment or the employer terminates
the worker for cause if the employer
notifies the NPC not later than 2
working days after the abandonment or
termination. Employers already have a
strong financial incentive to submit this
notice to avoid responsibility for the
three-fourths guarantee and return
transportation and subsistence costs.
The requirement to submit the notice to
avoid § 655.153’s contact obligation is
thus unlikely to change the current
regulatory burden on employers.
As noted above, § 655.153 currently
permits employers to contact U.S.
workers by mail or other effective
means. In the NPRM, the Department
reaffirmed that phone and email contact
continue to be effective means to
contact U.S. workers. The Department
received no comments that suggested
that permitting employers to contact
U.S. workers by phone or email would
be inconsistent with program
requirements or undermine the interests
of U.S. workers. Thus, the Department
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again reaffirms that contact by phone or
email is permissible.
In the NPRM, the Department
observed that employers that are new to
the program have employed U.S.
workers in the occupation at the place
of employment during the previous
year. Further, there may be instances in
which a regular user of the H–2A
program might employ U.S. workers in
the pertinent occupation at the place of
employment to provide agricultural
services and use the H–2A program
again in the succeeding year.
The NPRM clarified that in each of
these instances, § 655.153 requires these
employers to contact the U.S. workers
employed in the previous year. This
obligation applies to entities that
employed U.S. workers in the previous
year under the common law definition
of employer incorporated in
§ 655.103(b). The NPRM included the
following example to demonstrate an
instance in which a grower that
employed U.S. workers under the
common law in the previous year would
assume an obligation to contact those
U.S. workers under § 655.153 in the
current year. Assume a grower used
FLCs to provide U.S. workers during the
previous year and then applied to
employ H–2A workers in the following
year. If the grower employed the U.S.
workers under the common law of
agency as a joint employer with a FLC
in the previous year, then § 655.153
would require the employer to contact
those U.S. workers in the following
year.
The Department received numerous
comments concerning this clarification,
particularly related to a possible
employer’s obligation to contact workers
that an H–2ALC or FLC employed in the
previous year. Multiple institutional
commenters, as well as individual
commenters, opposed the application of
§ 655.153’s contact obligation to U.S.
workers an H–2ALC or FLC employed
in the previous year. It appears,
however, that these commenters
misunderstood the scope of the
Department’s clarification. These
commenters thought the clarification
included an obligation to contact the
U.S. workers who an H–2ALC or FLC
employed at a grower’s worksite in the
previous year even when the grower did
not (jointly) employ such U.S. workers
under the common law definition of
employer. The Department hereby
reaffirms, consistent with the language
of the existing regulation and the
preamble in the NPRM, that its proposal
in the NPRM did not require U.S.
worker contact when the grower had no
employment relationship under the
common law definition of employer
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with the U.S. worker in the previous
year. Thus, if the H–2ALC or FLC with
whom the grower contracted in the
previous year was the only employer of
the U.S. workers that worked at the
grower’s farm, the grower has no contact
obligation under § 655.153 in the
subsequent year. The Department’s
proposal merely clarified that when the
grower jointly employed the U.S.
workers in the previous year, it must
contact those U.S. workers it jointly
employed.
These commenters also contended
that the contracts between growers and
H–2ALCs/FLCs regularly contain
provisions prohibiting growers from
‘‘poaching’’ the labor contractors’
workers. They accordingly submitted
that the clarification will disrupt the
parties’ contractual relations. One
commenter submitted that farmers ‘‘will
increasingly be unable to find FLCs
willing to work for them because the
[FLC] will want to avoid having his
workers poached by his clients,’’ and
that growers will not use labor
contractors because ‘‘they will be
concerned about breach of contract
liability resulting from their required
attempts to poach the [FLCs’]
employees.’’ Another commenter
remarked that the proposed requirement
should be clarified such that contact
with former workers must only occur in
situations when a written agreement
exists between a farmer and a contractor
that specifies joint employment status,
to avoid the perception of ‘‘poaching.’’
A few commenters that opposed the
clarification appear to evince a clearer
understanding that its scope only
includes growers that employed U.S.
workers in the previous year. A joint
comment contended that the
clarification ‘‘appears to be the first
instance’’ in which the Department is
applying § 655.153 to workers employed
by labor contractors. The commenters
interpreted the provision to apply only
to ‘‘former [workers]’’ and not to ‘‘joint
[workers employed by] the H–2A
applicant and [FLCs]. If the Agency
intended for joint employees to be
contacted, it would have included
specific language identifying joint
[workers] within the regulation’’
(emphasis in original). Another
comment provided that § 655.153 does
not reference workers employed jointly
by a grower and FLC, adding that the
clarification would ‘‘require applicants
to do more than is required by statute
and regulations.’’
Similar to the other commenters, the
joint comment also explained that the
proposal would seriously disrupt the
relationship between growers and FLCs,
particularly the requirement that
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growers seek, in the joint comment’s
words, to ‘‘steal’’ labor contractors’
workers.
Finally, one commenter reiterated the
concerns of the commenters described
above, adding that application of the
proposal is likely to result in labor
contractors relying more frequently on
H–2A workers rather than U.S. workers.
The commenter also proposed ‘‘at a
minimum’’ that the regulatory language
be ‘‘revise[d] . . . to state explicitly that
the obligation to contact former
employees only extends to the
employer’s own employees, not the
employees of an FLC utilized by the
employer, unless the FLC operates as a
joint employer with the employer.’’
This commenter’s description
captures precisely what the Department
proposed in the NPRM. An employer’s
obligation to contact U.S. workers
employed in the previous year extends
solely to U.S. workers the employer
itself employed in the previous year.
Thus, if the employer jointly employed
the U.S. workers on its farm in the same
occupation with an FLC in the previous
year, then § 655.153, as currently
written, requires the employer to
contact the U.S workers. However, the
contact obligation does not apply to U.S.
workers an FLC alone employed in the
previous year, using the common law
definition of employer, even if the FLC
employed the U.S. workers to perform
services on the grower’s farm. The
Department does not believe, as a
commenter has suggested, that it is
necessary to add language to § 655.153
specifying that an employer must
contact U.S. workers it jointly employed
in the previous year. An entity that
jointly employs workers is the
‘‘employer’’ of such workers. The
current language of § 655.153
accordingly compels an H–2A employer
that jointly employed U.S. workers in
the occupation at the place of
employment in the previous year to
contact such workers.
The Department is therefore not
adopting the broader request of some
commenters to exempt entirely an
employer from § 655.153’s contact
obligation when the employer jointly
employed the pertinent U.S. workers
with an FLC/H–2ALC in the previous
year. Adoption of the commenters’
request would be inconsistent with the
current language of § 655.153, which
ensures that a prospective H–2A
employer must contact all U.S. workers
it employed in the job in the previous
year before hiring H–2A workers to
perform such work in the current year.
Requiring employers to contact their
own U.S. workers effectuates the
statutory obligation of prospective H–2A
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employers to engage in ‘‘positive
recruitment efforts’’ for qualified U.S.
workers (8 U.S.C. 1188(b)(4)), provides
job opportunities to specific U.S.
workers who have recently performed
the job at the pertinent location for the
employer, and helps fulfill the
Department’s obligation to certify an
application only when there are not
sufficient qualified workers to perform
the agricultural work. See 8 U.S.C.
1188(a)(1)(A).
As mentioned above, multiple
commenters objected to the proposal
based on the potential for interference
with the contractual obligation growers
have historically assumed to refrain
from hiring workers employed by their
FLCs/H–2ALCs. However, as noted
below, this is not a new requirement
and the Department’s prior enforcement
has not resulted in the kinds of
problems envisioned by the
commenters. This is likely because, as
previously stated, the Department’s
clarification does not require
prospective H–2A employers to contact
workers the employers did not employ
in the previous year. Moreover,
Congress clearly intended to ensure
prospective employers recruit qualified,
available U.S workers to perform the
work prior to the employment of H–2A
workers. This clarification helps to
fulfill that intent.
The commenters that suggested that
this is the first time the Department is
seeking to hold a grower responsible to
contact U.S. workers it jointly employed
in the previous year with a labor
contractor are incorrect. The
Department has pursued this approach
successfully in Federal litigation.109
As the Department noted in the
NPRM, in the event that the grower has
not kept payroll records for such U.S.
workers, the regulations implementing
MSPA require FLCs to furnish the
grower with a copy of all payroll
records, including the workers’ names
and permanent addresses. Growers must
maintain these records for 3 years. See
29 CFR 500.80(a) and (c). These records
should provide the employer with
contact information for the pertinent
U.S. workers.
The Department noted in the NPRM
that it would not require employers that
did not participate in the H–2A program
in the previous year to provide the NPC
the notice described in § 655.122(n) (in
order to avoid the obligation to contact
U.S. workers the employer terminated
109 See Scalia v. Munger Bros., Case No. 2:19–cv–
02320 (E.D.CA. Nov. 19, 2019) (Consent Judgment
and Order in which Defendants agreed to ‘‘contact
and offer employment to all U.S. workers that
worked for Defendants the previous year, including
those hired through FLCs’’).
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for cause in the previous year or who
abandoned the employment in the
previous year). The Department
received no comments warranting the
reversal of this position. The
Department accordingly adopts it.
Another commenter suggested that
the threshold for determining
abandonment based on failure to report
should be a ‘‘more reasonable’’ 3 days,
not the ‘‘excessive’’ 5 days proposed,
because 3 days is ‘‘a standard in the
agricultural industry’’ and a longer
period without a replacement worker
could put perishable commodities at
risk. The Department, however, did not
propose and thus declines to make any
change to its longstanding standard for
determining whether a worker has
abandoned employment.
Finally, the proposed rule clarified
that the employer’s contact with former
U.S. workers must occur during the
positive recruitment period (i.e., while
the employer’s job order is circulating
with the SWAs in the interstate
clearance system and terminating on the
date workers depart for the place of
employment, as determined under
§ 655.158) by including a reference to
§ 655.158. The Department received no
comments warranting the reversal of
this proposal. The Department
accordingly adopts it.
3. Section 655.154, Additional Positive
Recruitment
In the NPRM, the Department
proposed amendments to this section to
clarify the standards and procedures by
which the Department identifies States
of traditional or expected labor supply
for recruiting U.S. workers. The
Department received some comments on
this section, a few of which necessitated
additional revisions in this final rule to
clearly describe the traditional or
expected labor supply State
determination process and the
recruitment required, both on the
employer’s behalf and through employer
action, as well as a minor change to
paragraph (a), consistent with changes
to recruitment methods in the 2019 H–
2A Recruitment Final Rule that
impacted this section. These revisions
are discussed below.
The INA requires employers to engage
in positive recruitment of U.S. workers
within a multi-State region of traditional
or expected labor supply where the
Secretary finds that there are a
significant number of qualified U.S.
workers who, if recruited, would be
willing to make themselves available for
work at the time and place needed. See
8 U.S.C. 1188(b)(4). The Department
satisfies this statutory requirement and
the broader statutory obligation
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regarding U.S. worker availability
through a combination of recruitment
activities, including posting the job
opportunity on an electronic job registry
(§ 655.144), interstate clearance of the
job order through the SWAs (§ 655.150),
employer contact with former U.S.
workers (§ 655.153), and additional
positive recruitment (§ 655.154). The
additional positive recruitment required
of the employer under § 655.154 is
discrete from, but occurs concurrently
with, the multi-State recruitment the
Department and SWAs conduct on
behalf of the employer (i.e., electronic
recruitment under § 655.144 and
interstate employment service system
recruitment under § 655.150).
At the NPRM stage of this rulemaking,
the Department was separately engaged
in rulemaking that sought to modernize
positive recruitment requirements,
which culminated in the 2019 H–2A
Recruitment Final Rule that became
effective after the NPRM was published.
That rulemaking addressed an
employer’s statutory requirement to
engage in positive recruitment of U.S.
workers, generally, and resulted in the
rescission of §§ 655.151 and 655.152,
which involved print newspaper
advertisements, and the enhancement of
the Department’s electronic job registry
and related electronic recruitment on
the employer’s behalf. As explained in
the 2019 H–2A Recruitment Final Rule,
the Department determined that
advertisement of the employer’s job
opportunity through the Department’s
electronic job registry under § 655.144
will be sufficient, in most cases, to
satisfy the employer’s multi-State
recruitment obligations under § 655.154.
However, in that rulemaking, the
Department did not revise the
additional positive recruitment
obligations provision at § 655.154 or
propose to codify the underlying
process for designating labor supply
States where the job order must be
circulated and, within designated labor
supply States, areas in which additional
employer-conducted positive
recruitment would be appropriate for
the CO to order, as a means of reaching
qualified U.S. workers who would make
themselves available for job
opportunities like the employer’s.
The NPRM proposed amendments to
this section to clarify the standards and
procedures by which the Department
identifies States of traditional or
expected labor supply for recruiting
U.S. workers. By proposing to add a
new paragraph (d), the Department
sought to provide more public
transparency in the process for
designating traditional or expected labor
supply States and for determining
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whether and what additional positive
recruitment should be required in those
States as a condition of granting
temporary agricultural labor
certification. Specifically, the
Department proposed to shift the
responsibility for designating traditional
or expected labor supply States and
determining the particular methods of
positive recruitment required within
those States, if any, from the CO to the
OFLC Administrator. Further, the OFLC
Administrator would base traditional or
expected labor supply State
determinations primarily on
information received from SWAs within
the preceding 120 days and provide
public notice by posting the
determinations annually on OFLC’s
public website. In addition to providing
more public transparency, advance
notice of labor supply State designations
provides greater predictability for
employers in advance of receiving
instructions from the CO in the NOA.
Given both the 2019 H–2A
Recruitment Final Rule’s changes to
positive recruitment requirements and
the Department’s consideration of
comments submitted in response to the
NPRM, the Department has further
revised § 655.154 in this final rule to
clearly describe the traditional or
expected labor supply State
determination process and the
recruitment required—both on the
employer’s behalf and through employer
action—to ensure an adequate test of the
domestic labor market for the job
opportunity. For example, the
Department removed redundant
language in paragraph (a) that described
the nature of traditional or expected
labor supply States and added a
reference in that paragraph to the labor
supply State determination process
provision at paragraph (d). The resulting
language clarifies that an employer’s
positive recruitment obligations under
§ 655.154 will be satisfied, in most
cases, through the Department’s broad
dissemination of job information
through the Department’s electronic job
registry. In addition, the Department
revised paragraphs (c) and (d) to clarify
the information included in the labor
supply State determination that the
OFLC Administrator will post on
OFLC’s website and its use. The
Department has considered whether
OFLC Administrator’s annual
determination should provide advance,
public notice of additional positive
recruitment requirements on OFLC’s
website, including instructions on the
precise nature of the additional
recruitment, in order to accommodate
employers that chose to begin
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recruitment prior to receiving the NOA
under proposed § 655.123. After careful
consideration, this final rule provides
that the OFLC Administrator’s annual
determination under revised paragraph
(d) identifies both designated labor
supply State(s) where the job order must
be transmitted under § 655.150(a) for
interstate clearance and area(s) of labor
supply within a designated State, if any,
where an employer may be required to
conduct additional positive recruitment
to reach qualified U.S. workers who
would make themselves available for
the job opportunity. Consistent with the
Department’s decision not to adopt the
proposed optional pre-filing recruitment
provision, this final rule does not
require the Administrator’s annual
determination to specify the precise
nature of additional positive
recruitment and the documentation or
other supporting evidence that must be
maintained by the employer. Instead,
revised paragraph (c) of this final rule
clarifies that the employer will receive
instructions in the CO’s NOA regarding
any additional positive recruitment
requirements applicable to its job
opportunity, which conforms with
revisions at § 655.143(b)(2) and is
consistent with the process in the 2010
H–2A Final Rule.
Several commenters supported the
proposal as a means of enhancing the
transparency and consistency of
traditional or expected labor supply
State determinations. Other commenters
expressed concern regarding particular
aspects of the proposal, as discussed
below. One commenter urged the
Department to eliminate the traditional
or expected labor supply State
designation process and related
recruitment requirements entirely or use
the State determination approach in the
2008 H–2A Final Rule. The Department
appreciates the comments but is unable
to eliminate a requirement that is
mandated by statute. Regarding the
comment to adopt the determination
approach in the 2008 H–2A Final Rule,
the commenter did not fully explain
their understanding of that labor supply
State designation process and the
reasoning for re-instituting those
recruitment requirements; however, in
the preamble to the 2008 H–2A Final
Rule, the Department discussed
requiring affirmative employer action in
labor supply States only where the
Department had made a factual
determination that information it
received justified a particular type of
additional recruitment in a particular
area. See 2008 H–2A Final Rule, 73 FR
77110, 77132. The Department believes
the commenter’s suggestion is addressed
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in this final rule, which requires
affirmative action by the employer only
where the OFLC Administrator
identifies a particular area within a
State based on specific, credible
information about the availability of
qualified U.S. workers and appropriate
means of recruiting those workers. In
addition, as discussed in the 2019 H–2A
Recruitment Final Rule, ‘‘[§ ] 655.154
does not afford the CO unlimited
discretion; rather, it authorizes the CO
to order the recruitment necessary to
ensure an adequate test of the domestic
labor market for the employer’s job
opportunity, after taking into account
the location and characteristics of the
position.’’ 84 FR 49439, 49450.
Two workers’ rights advocacy
organizations noted that the
Department’s proposal placing the labor
supply State determination process at
paragraph (d) effectively replaced the
Proof of Recruitment provision at
§ 655.154(d) in the 2010 H–2A Final
Rule and expressed concern the
Department had not retained the Proof
of Recruitment provision in a different
location. The commenters believed
removing this provision would hinder
the Department’s ability to enforce the
H–2A regulations because it would
eliminate the CO’s authority to specify
the documentation or supporting
evidence an employer must retain to
prove compliance with the additional
positive recruitment requirements.
Although the document retention
provision at § 655.167 already requires
employers to retain evidence of
compliance with § 655.154, the
Department agrees with the commenters
that the rule should address the type of
evidence an employer is required to
retain to show compliance with
particular recruitment efforts required
in designated traditional or expected
labor supply States. The Department has
determined that including such a
provision provides greater clarity and
predictability to employers, who want
to properly document compliance, and
facilitates its effective and consistent
enforcement of this regulatory
requirement. Therefore, the Department
has revised paragraph § 655.143(b)(2) in
this final rule to provide that the CO’s
NOA will specify the documentation or
other supporting evidence to be
maintained by the employer to
demonstrate compliance with positive
recruitment requirements.
One workers’ rights advocacy
organization expressed concern and
opposed the proposed traditional or
expected labor supply State designation
process because it would diminish the
role of the SWAs because assigning the
responsibility of making these State
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determinations to the OFLC
Administrator would allow the OFLC
Administrator to consider information
from sources other than the SWA. The
commenter was also concerned the
proposed regulatory language would
reduce the period of labor market
information considered from 6 months
to 120 days, and also expressed the
language was vague and did not specify
the sources of information the OFLC
Administrator may consider or the
weight given to the information from
sources other than the SWA.
The Department believes the
commenter’s concerns are unwarranted.
As is the case under the 2010 H–2A
Final Rule, the Department anticipates
the SWAs will continue to be the
primary source of information regarding
traditional or expected labor supply
States based on their knowledge and
expertise in local labor markets. The
proposed determination process was not
intended to diminish the role of the
SWAs or substantively change the
nature of information upon which
traditional or expected labor supply
designations will be based. Under the
2010 H–2A Final Rule, the CO’s
determination is based primarily on
information about labor supply trends
and information regarding interstate
referral activities observed by the SWAs.
The Department intended to formalize
the existing communication between
SWAs and OFLC, while making the
process more transparent and
predictable to employers seeking to
employ H–2A workers.
In the 2010 H–2A Final Rule, the
Department also explained that it
continues to welcome information on
labor supply from SWAs, employers,
and workers’ rights advocacy
organizations to assist in its decisions
on the best sources of labor and related
recruitment activities to be required of
employers. See 75 FR 6884, 6930; see
also 2019 H–2A Recruitment Final Rule,
84 FR 49439, 49450 (explaining the
Department most often obtains
information from the SWAs, but
‘‘continues . . . to invite stakeholders to
submit information on areas of
traditional or expected labor supply and
effective means of recruiting U.S.
workers in those areas’’). The NPRM
and this final rule merely reiterate the
Department’s longstanding policy to
consider reliable information from
appropriate sources that may be helpful
in determining States of traditional or
expected labor supply. Appropriate
sources may include, for example,
information from other State or Federal
agencies or information the Department
receives from other relevant
stakeholders, such as organizations that
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provide employment and training
services to workers who are likely to
apply for agricultural job opportunities.
Similarly, the proposal in the NPRM
stated the OFLC Administrator’s
determination would be based primarily
upon information provided within 120
calendar days preceding the
determination.
The Department’s decision to base
traditional or expected labor supply
State determinations primarily on
information provided within 120
calendar days preceding the
determination reflects that although,
based on the Department’s experience,
these designations have not changed
significantly from year to year because
the information the Department receives
does not change significantly from year
to year, the designations should be
informed by the most current
information available. Notably, this
provision does not limit the collection
of information to the 120-day period
preceding the OFLC Administrator’s
determination. For example,
information gathered over a 6- or 9month period and submitted to the
OFLC Administrator within the 120-day
period before the OFLC Administrator’s
determination can reflect current labor
market activities across a wide range of
seasonal agricultural production cycles
and appropriately inform the annual
determination process. This process
prioritizes current information, without
excluding older information that is
relevant to the determination.
The Department anticipates the
majority of the information published in
the OFLC Administrator’s annual
determination will inform the CO’s
transmission of the job order for
interstate clearance under § 655.150,
rather than impose additional employerconducted recruitment requirements
under § 655.154. For example, if the
Georgia SWA informs the OFLC
Administrator that it receives interstate
referrals, generally, from the Florida
SWA, the OFLC Administrator would
designate Florida as a labor supply State
for Georgia in the labor supply State
determination posted on OFLC’s
website; however, this information,
alone, would not support additional
employer-conducted recruitment
requirements in Florida without greater
specificity from either SWA regarding
the appropriate and effective means of
recruiting qualified U.S. workers.
Accordingly, when applying the posted
labor supply State determination during
application processing, the CO would
transmit all job orders involving places
of employment in Georgia to the Florida
SWA for posting on its intrastate public
job listing system; the CO would not
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instruct the employer to conduct
additional positive recruitment
activities in Florida. However, if the
OFLC Administrator received more
specific, credible information about
effective recruitment methods, such as
information specific as to the type of
qualified workers available (e.g., tomato
harvest workers), the area within the
State where the workers may be found
(e.g., Immokalee, Florida), and the
methods for apprising the workers of a
job opportunity (e.g., posting with a
particular community organization
engaged with those workers), the OFLC
Administrator’s annual determination of
labor supply States would identify this
area and type of worker for additional
recruitment and the CO’s NOA would
include specific recruitment
instructions and document retention
information applicable to employers in
Georgia that are seeking tomato harvest
workers.
The additional positive recruitment
requirement will be effective on the date
of publication for any employer that has
not yet commenced positive
recruitment. As the Department decided
not to adopt the proposed optional prefiling positive recruitment provision,
discussed in the preamble to § 655.123,
this means that, once published, the
additional positive recruitment
requirements posted are in effect for any
employer to whom the NPC has not yet
issued a NOA in accordance with
§ 655.143. One commenter remarked on
the provision retained from the 2010 H–
2A Final Rule at paragraph (b) that
requires an employer’s additional
positive recruitment efforts be no less
than the kind and degree of recruitment
efforts the employer ‘‘made’’ to obtain
foreign workers. The commenter
recommended the Department change
the word ‘‘made’’ to the future tense
‘‘makes’’ to avoid suggesting that foreign
labor recruitment precedes U.S. worker
recruitment. The Department has
revised this provision to ‘‘may make’’ to
clarify that the nature of the employer’s
foreign worker recruitment efforts, not
the timing of those efforts, is the subject
of this provision.
One workers’ rights advocacy
organization reiterated its comment,
submitted in connection with an H–2B
program rulemaking, in which it urged
the Department to require employers to
conduct positive recruitment in labor
surplus areas designated by the
Department. As with comments
discussed in §§ 655.151 and 655.152,
this comment relates to a topic
addressed in the 2019 H–2A
Recruitment Final Rule and, therefore, it
is outside the scope of the current
rulemaking. However, as discussed in
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61755
the 2019 H–2A Recruitment Final Rule,
by requiring the CO to post H–2A job
orders on the Department’s electronic
job registry at SeasonalJobs.dol.gov,
each H–2A job opportunity will be
advertised broadly and disseminated to
U.S. workers, including those in labor
surplus areas. Further, to the extent a
labor surplus in a particular State
results in a trend of labor referrals to
other States or submission of specific
information provided to the OFLC
Administrator regarding workers in a
particular area who, if apprised, would
make themselves available for work
elsewhere, the labor supply State
designation process will provide for
additional recruitment in that State.
The Department also received
comments from a State governor and an
individual commenter suggesting the
Department expand H–2A program
recruitment requirements to include an
H–2ALC’s clients (i.e., the growers who
contract with the H–2ALC to provide
labor or services for their agricultural
operations). One of these commenters
explained that local workers would
respond to recruitment for employment
with a local grower but not for
employment with an unfamiliar H–
2ALC. The other commenter expressed
concern with growers contracting with
out-of-State H–2ALCs, who will bring
H–2A workers into the State, rather than
in-State FLCs, who employ local
workers. These commenters urged the
Department to expand an H–2ALC’s
recruitment obligations to include
recruitment requirements for its client
growers. One suggested the Department
require an H–2ALC to demonstrate that
its client grower unsuccessfully
solicited bids from contractors that do
not use H–2A workers before
contracting with an H–2ALC seeking a
temporary labor certification, while the
other suggested the Department require
both the client grower and the H–2ALC
to satisfy H–2A recruitment
requirements.
The Department declines to expand
H–2A recruitment requirements to
parties other than an employer filing an
Application for Temporary Employment
Certification or impose additional
positive recruitment requirements on
out-of-State H–2ALCs generally. The
Department believes that an employer’s
satisfaction of the several methods of
recruitment required in the H–2A
regulations will ensure an effective test
of the labor market. The Department
requires all employers to conduct
recruitment through SWA circulation of
job orders, a process that encompasses
various SWA recruitment activities, and
through advertisements posted on the
Department’s electronic job registry,
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which broadly disseminates job
opportunity information on the internet.
In addition, the H–2A regulations
permit the CO to order specific
additional positive recruitment
activities, on a case-by-case basis, if the
Department receives information that
indicates these activities are necessary
to effectively disseminate information
about the job opportunity to U.S.
workers.
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4. Section 655.155, Referrals of U.S.
Workers
The NPRM did not propose
amendments to this section containing
the standards by which SWAs refer
qualified, able, willing, and available
U.S. workers for employment in the H–
2A program. The Department received
some comments on this provision, none
of which necessitated substantive
changes to the regulatory text from the
NPRM. Therefore, this final rule retains
this section from the NPRM without
change.
The comments received on this
section generally urged the Department
to require additional SWA screening of
the workers referred to employers
through the employment services
system. They suggested, for example,
SWAs ‘‘vet’’ self-referring applicants
and refer only U.S. workers who
specifically request agricultural work.
One stated that few referred workers are
actually interested in the jobs to which
they have been referred and considering
uninterested workers is time consuming
and costly for employers. In addition,
these commenters suggested that SWAs
verify the employment eligibility of
each worker and confirm the worker is
available for the entire period of
employment before referring the worker
to the employer.
The Department respectfully declines
to revise this section. Not only are these
suggestions outside the scope of this
rulemaking, but the Department
discussed suggestions like these at
length in the preamble to the 2010 H–
2A Final Rule when declining to adopt
them in that rulemaking. See 75 FR
6884, 6905–6906. The Department’s
position in this rulemaking remains the
same as in 2010. Accordingly, the
Department has decided to maintain
§ 655.155 in this final rule without
change.
5. Section 655.156, Recruitment Report
The NPRM proposed amendments to
this section to simplify the regulatory
text related to an employer’s obligation
to report on its efforts to recruit U.S.
workers, conform the regulatory text to
other changes proposed in the NPRM,
and clarify the content requirements for
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the recruitment report. The Department
received a few comments on this
provision, none of which necessitated
substantive changes to the regulatory
text from the NPRM. However, in
response to a comment related to
paragraph (b) of this section, the
Department has made revisions to
clarify that an employer must produce
its updated recruitment report to the
Department and not to any other Federal
agency that might request it without
independent investigative or other
authority to do so. The Department also
made clarifying edits to paragraph (a), as
discussed below. Finally, the
Department also revised this section to
conform to the Department’s decision
not to adopt the proposed staggered
entry and optional pre-filing
recruitment provisions in this final rule,
and made minor technical edits to
conform to the terminology used in
§ 655.153. Otherwise, this final rule
adopts the proposed changes from the
NPRM.
In the NPRM, the Department
proposed to remove language in
paragraph (a) related to the timing of the
employer’s initial recruitment report
submission, as this timing requirement
was addressed at proposed § 655.123(d)
for those employers who engage in
optional pre-filing positive recruitment
and at § 655.143(b)(2) for those
employers who receive a NOA, which
will contain instructions regarding precertification recruitment report
submission. Consistent with the
Department’s decision not to adopt
proposed § 655.123, as discussed above,
paragraph (a) in this final rule retains
the 2010 H–2A Final Rule language
requiring employers to submit the
recruitment report on a date specified
by the CO in the NOA. In addition, the
Department has made a technical
correction to paragraph (a) so that this
paragraph refers to the NOA provisions
at § 655.143, rather than the NOD
provisions at § 655.141.
In addition, the Department proposed
to add language in paragraphs (a)(1) and
(3) to make explicit the required content
of a recruitment report. A recruitment
report describes a particular recruitment
activity clearly when it identifies the
specific, proper name of the recruitment
source—rather than only the general
type of recruitment source (e.g., ‘‘web
page’’ or ‘‘online job board’’)—and
provides the date(s) of advertisement for
that recruitment source. In addition, a
recruitment report clearly describes the
employer’s satisfaction of its obligation
under § 655.153 to contact former U.S.
workers when it either (1) affirmatively
states the employer has no former U.S.
workers to contact; or (2) states that,
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before submitting the recruitment
report, the employer contacted former
U.S. workers and describes the means
the employer used to make that contact.
In this final rule, the Department has
made clarifying revisions to paragraphs
(a)(1) and (3). In paragraph (a)(1), the
Department revised ‘‘date’’ to ‘‘date(s),’’
to clarify that the recruitment report
must identify the date—or range of
dates—of each recruitment activity,
which may be different for each
recruitment activity. In addition, the
Department revised paragraph (a)(3) to
clarify that an employer’s statement in
its recruitment report about contacting
former U.S. workers must identify the
date(s) of contact, as well as the means
of contact, when describing the
employer’s contact with such workers.
Two workers’ rights advocacy
organizations suggested the Department
add to the recruitment report content
requirements in paragraph (a). One
suggested the Department align the H–
2A and H–2B regulations by requiring
H–2A recruitment reports to confirm (1)
community-based organization(s)
designated by the CO were contacted, if
applicable; (2) additional recruitment
was conducted, as directed by the CO;
and (3) the bargaining representative
was contacted, if applicable, and by
what means, or that the employer
posted the availability of the job
opportunity to all employees in the job
classification and area in which the
work will be performed by the foreign
workers. The other commenter thought
the recruitment report should include a
description of the employer’s
recruitment of H–2A workers, including
the resources expended in such efforts;
a description of the recruitment
activities of non-H–2A employers in the
AIE for the occupation; and information
about how the employer checks worker
qualifications, if applicable. Paragraph
(a)(1) already requires the employer to
identify in the recruitment report each
recruitment source used and the date(s)
of recruitment using that source. This
recruitment report content requirement
encompasses all recruitment activities
the CO identifies in the NOA. The
Department appreciates the opportunity
to clarify that paragraph (a)(1) requires
an employer’s recruitment report to
confirm contact with a communitybased organization or any other
additional recruitment activity directed
in the NOA, if applicable. However, the
Department declines to revise paragraph
(a)(1) further at this time.
The Department declines to add in
this rulemaking the suggested H–2B
recruitment and recruitment report
content requirements, or the additional
content related to recruitment efforts
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outside of the employer’s own efforts to
recruit and hire U.S. workers. Neither
adopting the H–2B program’s general
requirement to contact a bargaining
representative or post notice at the place
of employment, nor including content
in the recruitment report beyond the
employer’s own efforts to recruit and
hire U.S. workers during the H–2A
recruitment period were proposed for
public comment. As such, expanding
the recruitment report content
requirements in the manner suggested is
outside the scope of this rulemaking.
One of these commenters also urged
the Department to make significant
additional changes to the recruitment
requirements and recruitment report
procedures, beyond those the
Department proposed for public
comment. For example, the commenter
suggested the Department require
employers to submit a recruitment
report before certification is granted
and, again, on the first date of need. In
addition, the commenter suggested that
the Department transmit the recruitment
report to the SWA to solicit the case-bycase analysis of the employer’s
recruitment efforts, as compared with
those of non-H–2A employers in the
area, and the location of historical and/
or current labor supply patterns to
inform additional positive recruitment
activities under § 655.154(b). This
commenter also suggested the
Department ask the SWA to provide a
list of all U.S. worker referrals to each
job so the Department can review both
the SWA’s list and the employer’s list
and contact all listed workers to verify
the accuracy of the employer’s report.
The commenter further suggested a
website portal be created to allow
workers to report unlawful rejections.
These suggestions also are beyond the
scope of this rulemaking and would
require public notice and solicitation of
comments. However, the Department
reminds concerned parties that workers
may call WHD’s hotline at (466) 487–
9243 (this is not a toll-free number) or
1 (866) 4US–WAGE (toll-free number)
and/or contact their local district WHD
office to file a complaint if they believe
they have been unlawfully rejected. In
addition, workers may call other federal
agencies that enforce antidiscrimination laws if they believe an
H–2A employer has unlawfully rejected
them. For example, workers can call the
Immigrant and Employee Rights Section
of DOJ’s Civil Rights Division at 1 (800)
255–7688 if they believe an H–2A
employer rejected them or fired them
because of their citizenship,
immigration status, or national origin.
The Department also proposed
revisions to paragraph (b), the provision
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addressing the employer’s obligation to
update its recruitment report throughout
the positive recruitment period at
§ 655.135(d) and submit it for review, if
requested. An agent remarked on the
revised language that would expand an
employer’s obligation to produce its
recruitment report, beyond the
Department, to ‘‘any other Federal
agency.’’ The commenter expressed
concern such information sharing could
have a ‘‘significant chilling effect on
workers’’ and is beyond the
Department’s statutory authority. The
Department has determined that further
revision to paragraph (b) is necessary to
more clearly reflect the Department’s
intent. The Department intended to
retain the requirement for an employer
to produce its recruitment report to the
Department, upon the Department’s
request, not to any Federal agency that
might request it without independent
authority to do so. In addition, the
Department’s intention was to clarify
that the information sharing provision at
§ 655.130(f) in this final rule applies to
recruitment reports the Department may
share with other Federal agencies with
authority to enforce compliance with
program requirements as appropriate for
investigative and enforcement purposes.
The Department agrees the proposed
language in paragraph (b) was overbroad
and could be misunderstood or
misused, resulting in the sharing of an
employer’s recruitment report with a
Federal agency not involved in H–2A
program enforcement and integrity
activities or for purposes other than
program-related investigative or
enforcement purposes. The
Department’s rationale for revising both
§§ 655.130(f) and 655.156(b) to more
clearly address intergovernmental
information sharing, and the parameters
for such sharing, along with this
commenter’s related concerns, are
discussed in the preamble to
§ 655.130(f). Accordingly, the
Department has revised paragraph (b) to
require employers to produce
recruitment reports only to the
Department (e.g., OFLC or WHD) and
only upon the Department’s request,
and to clarify that the same scope of
information sharing applies to
recruitment reports as applies to
information received in the course of
processing Applications for Temporary
Employment Certification or in the
course of conducting program integrity
measures such as audits. Otherwise, the
Department has adopted this section as
proposed in the NPRM, without change.
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6. Sections 655.157, Withholding of U.S.
Workers Prohibited, and 655.158,
Duration of Positive Recruitment
The NPRM proposed minor
amendments to these sections in the
form of technical corrections for
conformity within the subpart. The
Department received no comments
related to the prohibition of withholding
U.S. workers at § 655.157 and only one
comment expressing general support
regarding the duration of positive
recruitment at § 655.158, which the
Department had retained from the 2010
H–2A Final Rule. Therefore, this final
rule adopts the proposed changes to
these sections from the NPRM without
change.
F. Labor Certification Determinations
1. Section 655.161, Criteria for
Certification
The NPRM proposed minor
amendments to this section to clarify
existing rules and procedures. In
paragraph (a), the Department proposed
to use a clear statement that the
employer must comply with all
applicable requirements of 20 CFR parts
653 and 654 and all requirements of 20
CFR part 655, subpart B, that are
necessary for certification, without the
nonexclusive list of those requirements
that appeared in the 2010 H–2A Final
Rule. Similarly, the Department’s
proposed revisions to paragraph (b)
simplified regulatory language to more
clearly state that the CO will count as
available any U.S. worker whom the
employer must consider and whom the
employer has not rejected for a lawful,
job-related reason. The Department
received no comments on the proposed
amendments to the regulatory text.
Therefore, this final rule adopts the
proposed changes from the NPRM
without change.
2. Section 655.162, Approved
Certification
The NPRM proposed minor
amendments to this section to
modernize and simplify the
Department’s issuance of temporary
agricultural labor certifications to
employers and the delivery of those
certifications to USCIS, while
maintaining program integrity. The
Department received a few supportive
comments on this provision, none of
which necessitated changes to the
regulatory text. Therefore, as discussed
below, this provision remains
unchanged from the NPRM.
Under this final rule, the Department
will issue temporary agricultural labor
certifications electronically using a
Final Determination notice that
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confirms certification and contains
succinct, essential information about the
certified application. The CO will send
the Final Determination notice, as well
as a copy of the certified Application for
Temporary Employment Certification
and job order, both to the employer and
USCIS using an electronic method
designated by the OFLC
Administrator.110 In cases where an
employer is permitted to file by mail as
set forth in § 655.130(c), the Department
will deliver certification documentation
to the employer using a method that
normally assures next-day delivery. The
Department will send the same
information to USCIS, using the same
electronic method used to transmit the
temporary agricultural labor
certification to the employer, regardless
of the employer’s method of filing.
Finally, consistent with current
practice, the Department will send a
copy of the certification documentation
to the employer and, if applicable, to the
employer’s agent or attorney.
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3. Section 655.164, Denied Certification
The NPRM proposed minor
amendments to this section to
modernize the Department’s issuance of
Final Determination notices that deny
temporary agricultural labor
certifications and to simplify the
regulatory text by replacing details
about the procedure for appealing a
Final Determination with references to
§ 655.171, the section of the regulation
containing the standards and
procedures for appeals. The Department
received a few supportive comments on
this provision, none of which
necessitated changes to the regulatory
text. Therefore, this provision remains
unchanged from the NPRM.
4. Section 655.165, Partial Certification
The NPRM proposed minor
amendments to this section to
modernize the Department’s issuance of
partial temporary agricultural labor
certifications to employers and the
delivery of those certifications to USCIS,
in addition to other amendments
conforming to proposed changes in
other sections of the regulation. The
Department received a few comments
on this provision, none of which
necessitated changes to the regulatory
text. Therefore, as discussed below, this
provision remains unchanged from the
NPRM.
The Department received no
comments expressing opposition to the
110 When an employer submits the petition to
USCIS, it must comply with DHS regulations and
USCIS petition form instructions, which may
include printing and submitting a copy of the
temporary agricultural labor certification.
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proposed changes, but it did receive
comments from two employers and an
agent expressing opposition to the
general practice of issuing partial
temporary agricultural labor
certifications. Two of these commenters
stated that the Department should not
reduce a temporary agricultural labor
certification by the number of U.S.
workers hired if the employer attests
that it still has a need for the full
number of requested H–2A workers,
notwithstanding the hiring of any U.S.
workers. The commenters believed this
approach would be helpful to employers
where conditions change and would not
adversely affect the wages or working
conditions of U.S. workers, as the
employer’s obligation to hire qualified
and available U.S. workers and displace
an H–2A worker to accommodate the
hiring of a U.S. worker, if necessary,
would continue throughout the
recruitment period. One of these
commenters acknowledged that
§ 655.166 permits a redetermination
based on unavailability of U.S. workers
but asserted that process is time
consuming and costs the employer
additional filing fees to submit amended
petitions with USCIS. This commenter
suggested that it would be more
effective and efficient to discontinue
issuing partial temporary agricultural
labor certifications and rely on the
employer’s attestation to continue hiring
any qualified and available U.S.
workers.
The Department appreciates the
commenter’s suggestion, but the
Department did not propose such a
change, nor suggest it was open to
considering comments on this issue in
the NPRM. Therefore, this comment is
beyond the scope of this rulemaking and
the Department has adopted the
proposed changes to § 655.165 without
amendment.
5. Section 655.166, Requests for
Determinations Based on
Nonavailability of U.S. Workers
The NPRM proposed minor
amendments to this section to
modernize the Department’s receipt and
issuance of redetermination decisions,
consistent with the electronic filing and
certification procedures proposed in
§§ 655.130 and 655.162, in addition to
other technical amendments to simplify
the provision generally. The Department
received no comments on the proposed
amendments to the regulatory text.
Therefore, this final rule adopts the
proposed changes from the NPRM
without change.
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6. Section 655.167, Document Retention
Requirements of H–2A Employers
The NPRM proposed minor
amendments to this section to clarify
under paragraph (c)(1) that employers
must document compliance with each
recruitment step applicable to the
Application for Temporary Employment
Certification. The Department also
proposed to add a new paragraph at
(c)(7) clarifying that if a worker
voluntarily abandons employment
before the end of the contract period, or
is terminated for cause, as set forth in
§ 655.122(n), employers must retain
records demonstrating they notified the
NPC and DHS. The Department received
a few comments on this provision, none
of which necessitated changes to the
regulatory text. However, as discussed
below, the Department believes it is
necessary to make minor conforming
amendments due to prior revisions
currently in effect based on the
Department’s 2019 H–2A Recruitment
Final Rule and one technical revision.
The Department received two
comments objecting to the requirement
that employers retain records associated
with notifying the NPC and DHS of
workers who abandon employment or
are terminated for cause. These
commenters asserted such a
requirement created an unnecessary
burden because the three-fourths
guarantee and return transportation
obligations already provide an adequate
incentive for employers to provide
timely notice to the Department. One of
the commenters also asserted the
Department lacked authority to impose
the requirement, as proposed, and that
USCIS must engage in its own
rulemaking if it wishes to require
employers to retain this documentation.
The Department appreciates the
comments received, but respectfully
disagrees. As explained below and in
the preamble for §§ 655.122(n), 655.141,
and 655.153, the requirement to retain
documentation demonstrating the
employer provided notice of
abandonment or termination is
necessary for the Department’s
administration and enforcement of the
temporary agricultural labor
certification program; thus, the
imposition of such recordkeeping
obligations is within the Department’s
authority under the INA. As stated in
the NPRM, the Department encounters
H–2A employers that claim to have
properly notified the NPC regarding
workers who have abandoned
employment or have been terminated
for cause, but the employers frequently
cannot produce records of such
notification when requested. Requiring
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each employer to maintain records of
the notification to the NPC, and to DHS
in the case of a worker in H–2A
nonimmigrant status, supports the
Department’s enforcement policy of
investigating claims of abandonment or
termination. Further, retention of these
records also may benefit the employer.
For example, in the event a U.S. worker
who abandoned employment or whom
the employer terminated for cause later
claims the employer failed to make
contact to solicit their return to work,
the employer’s retained record of its
contemporaneous notice to the NPC
could demonstrate that the employer
was not required to contact that
particular U.S. worker under § 655.153.
In addition, the Department is not
imposing a record retention requirement
on behalf of DHS; DHS already has a
record retention obligation in this
context. See, 8 CFR 214.2(h)(5)(vi)(B)(2).
In addition, the Department does not
believe the requirement will impose a
significant burden on employers. As the
commenters noted, many employers
already provide the Department notice
of abandonment or termination to take
advantage of incentives provided in
§§ 655.122(n) and 655.153; for these
employers, the only change is a
requirement to add a copy of the notice
to the employer’s document retention
file. In the NPRM, the Department
assessed the proposed burden of this
recordkeeping requirement and
determined the total annual cost, among
just over 4,900 employers, would range
from $10,890 in 2020 to $15,988 in
2029. The Department believes the
minimal burden imposed on employers
by this recordkeeping requirement is
outweighed by the Department’s interest
in ensuring program integrity.
Therefore, the Department has
adopted the proposed changes to
§ 655.167, with additional revisions
necessary to conform to a change
adopted in § 655.175 of this final rule
and the current provisions in effect,
which were revised as a result of the
2019 H–2A Recruitment Final Rule, and
to remove an unnecessary parenthesis.
Accordingly, this final rule reflects the
elimination of paragraph (c)(1)(ii) of the
2010 H–2A Final Rule—the document
retention requirements associated with
print newspaper advertisements—and
the redesignation of paragraphs
(c)(1)(iii) and (iv) as paragraphs (c)(1)(ii)
and (iii), which the 2019 H–2A
Recruitment Final Rule made effective
October 21, 2019.
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G. Post-Certification
1. Section 655.170, Extensions
The NPRM did not propose changes
to the standards and procedures by
which an employer may apply to the CO
for a short- or long-term extension to its
certified Application for Temporary
Employment Certification. However, the
Department is making one minor
technical amendment under paragraph
(b) to replace the term ‘‘12 months’’
with ‘‘1 year’’ as the maximum period
for a long-term extension, except in
extraordinary circumstances, to ensure
greater consistency with the use of that
same term adopted under § 655.103(d)
of this final rule
2. Section 655.171, Appeals
The NPRM proposed substantive
amendments to this section containing
the standards and procedures by which
an employer may request an
administrative review or a de novo
hearing before an ALJ regarding a
decision issued by the CO, where
authorized under this subpart. As
discussed in detail below, the
Department received numerous
comments opposing all or some of the
proposed changes to § 655.171. After
carefully considering these comments,
the Department has decided to largely
adopt the regulatory text proposed in
the NPRM, with several minor revisions,
as discussed below. Such revisions
include the addition of regulatory
language the Department adopted in a
different final rule, Rules Concerning
Discretionary Review by the Secretary
(85 FR 30608), and other modifications
that either respond to concerns raised
by commenters or provide further
clarity. Some comments simply opposed
all changes regarding the appeals
section without explanation, and do not
necessitate changes to the regulatory
text. Other comments referenced
§ 655.171 but appear to address changes
related to § 655.141; the Department has
already addressed those comments in
the section of the preamble addressing
§ 655.141.
a. Discretionary Review by the Secretary
Between the publication of the
proposed rule at 84 FR 36168 (July 26,
2019) and this final rule, the
Department published Rules Concerning
Discretionary Review by the Secretary
(85 FR 30608), which affected the
language of this section. The current
iteration of § 655.171, with the changes
effectuated by the Rules Concerning
Discretionary Review by the Secretary, is
different from the iteration of § 655.171
that was in effect when the proposed
rule was published. Specifically, the
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Rules Concerning Discretionary Review
by the Secretary removed the language
in paragraphs (a) and (b)(2) that stated
the decision of the ALJ was the final
decision of the Secretary, and it added
language, pursuant to 29 CFR 18.95
stating that the Secretary could assume
jurisdiction over a ‘‘case for which a de
novo hearing is sought or handled under
20 CFR 655.171(b),’’ after the BALCA
had issued a decision. 29 CFR
18.95(b)(2).
In the NPRM, the Department had
already proposed removing language
from the prior regulations that stated the
ALJ’s decision is the final decision of
the Secretary. This language was
thought to be unnecessary in light of the
Office of Administrative Law Judge’s
(OALJ) Rules of Practice and Procedure
for Administrative Hearings, which state
that the ALJ’s decision is the final
agency action for purposes of judicial
review when the applicable statute or
regulation does not provide for a review
procedure, as here. See 29 CFR 18.95; 20
CFR 655.171. The removal of the ‘‘final
decision’’ language was consistent with
the H–2B regulations, which lack
similar language, and does not affect the
issue of whether the parties may appeal
to the ARB, which is governed by other
authorities issued by the Department.
See 20 CFR 655.61; Secretary’s Order
02–2012, Delegation of Authority and
Assignment of Responsibility to the
Administrative Review Board, 77 FR
69378 (Nov. 16, 2012). However,
because the aforementioned Rules
Concerning Discretionary Review by the
Secretary removed this language from
the regulations, the issue of the removal
of the language is now moot.
The Department has merged the
language added to this subsection by the
issuance of Rules Concerning
Discretionary Review by the Secretary
with the originally proposed text.
b. Request for Review
The prior text of § 655.171 outlined
the procedure by which an employer
may request administrative review, the
timeline for doing so, and how the ALJ
must make a decision. General
information on the request for review
was previously located in sections of the
H–2A regulations that discussed the
CO’s authority and procedure for
issuing a specific decision (e.g., denied
certification). See, e.g., § 655.164. As
proposed in the NPRM, the Department
has amended the regulations so that the
language regarding the requests for
review are located in one location. The
language conforms with the
corresponding appeals section in the H–
2B regulations to the extent possible to
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provide consistency across the
programs.
To clarify an employer’s existing
administrative exhaustion obligations,
the NPRM specified in paragraph (a)
that when a hearing or administrative
review of a CO’s decision is authorized
in this subpart, an employer must
request such review in accordance with
§ 655.171 in order to exhaust its
administrative remedies. No comments
were received on the text regarding the
administrative remedies, and the
Department has adopted this language
unchanged from the NPRM.
The newly added paragraph (a)
describes the content of the request for
review and the procedures for its
submission. This language was drawn
from the H–2B procedures at § 655.61 as
well as the already existing text in the
H–2A regulations. In paragraph (a)(1),
the Department proposed to extend the
time in which an employer may file a
request for review from 7 calendar days
to within 10 business days of the date
of the CO’s decision to more closely
align with the timeframe to request
review under the H–2B regulations. It
also proposed that the request for
review must be received by—rather than
sent to—the Chief ALJ and the CO
within 10 business days of the CO’s
decision. The Department believes that
specifying a time for receipt of the
request for review is reasonable because
it enables the Department to more easily
determine if a request was filed in a
timely manner. The longer period of
time provided to file a request for
review allows the employer more time
to develop a robust request, which, in
the case of a request for administrative
review, will also serve as the employer’s
brief to the OALJ. To this end, the
Department has included in the
regulations that the request must
include the specific factual issues the
employer seeks to have examined as
part of its appeal. Having this
information allows for the prompt and
fair processing of appeals by providing
the ALJ and the CO adequate notice
regarding the nature of the appeal. One
commenter supported the proposal to
determine timeliness based on the
receipt of the request for review. The
Department received no comments that
opposed the changes in paragraph (a)(1),
and therefore the Department has
adopted the proposed language
unchanged from the NPRM.
In paragraph (a)(1), the Department
has also added the phrase ‘‘[e]xcept as
provided in § 655.181(b)(3).’’ Upon
review of the proposed §§ 655.171 and
655.181, it became apparent that the
regulatory text, as drafted, contained
confusing information regarding the
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timelines for submitting appeal
requests. This added phrase makes clear
that § 655.181(b)(3), while referencing
§ 655.171, does not change the existing
timelines to file appeal requests under
§ 655.181.
In paragraph (a)(4), the Department
proposed including language that the
request for review clearly state whether
the employer is requesting
administrative review or a de novo
hearing. The Department has found that
in the past, some requests did not
identify the type of review sought by the
employer, which would result in delays
(as the ALJ asked for clarification) or a
type of review not desired by the
employer (as the ALJ presumed the
employer requested a hearing). The
Department also proposed that the case
will proceed as a request for
administrative review if the request
does not clearly state the employer is
seeking a hearing. See 8 U.S.C.
1188(e)(1) (noting the regulations must
provide for expedited administrative
review or, at the employer’s request, for
a de novo hearing).
The Department received a few
comments regarding this proposal. One
commenter supported the change and
stated that this will expedite the appeals
process by avoiding ambiguity. Another
commenter opposed the proposal and
characterized it as placing a burden on
the employer to identify the type of
review requested. Another commenter
asked for clarification on whether an
employer had to go through
administrative review before it could
ask for a de novo hearing. The
Department disagrees with the
characterization that articulating which
type of appeal an employer desires is a
burden. The INA requires the
regulations provide for an expedited
procedure for review, ‘‘or, at the
applicant’s request,’’ a de novo hearing.
8 U.S.C. 1188(e)(1). The employer may
request whichever it prefers. The
Department agrees with the comment
that the proposed change will improve
judicial efficiency and provide for more
orderly and consistent administration of
appeal proceedings, and therefore has
adopted the proposed language. Finally,
in response to the commenter seeking
clarification, an employer does not need
to go through administrative review
before asking for a hearing. Therefore,
the Department has adopted the
proposed language unchanged from the
NPRM.
In paragraph (a)(7), the Department
proposed to clarify that where the
request is for administrative review, the
request may only contain evidence that
was before the CO at the time of their
decision. This language has been
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adopted unchanged from the NPRM.
The Department included this language
in paragraph (a), which tracks language
in the administrative review section
(paragraph (d)), so that employers or
their representative(s) can prepare their
requests accordingly. The Department
has also included language that an
employer may submit new evidence
with its request for a de novo hearing,
which will be considered by the ALJ if
the new evidence is introduced during
the hearing. The Department included
this language in paragraph (a), which
tracks language in the de novo hearing
section (paragraph (e)), so that
employers or their representative(s) can
assemble their requests and prepare
their cases accordingly. Comments
regarding evidence submission are
discussed in the administrative review
and de novo hearing sections below.
c. Administrative File
Proposed paragraphs (b) and (c) drew
on existing language in the H–2A
regulations and language from the H–2B
appeals procedures to reorganize
information on the administrative file
and the assignment of the case into
separate sections. Though not proposed
in the NPRM, the Department has
decided to change how it refers to the
‘‘administrative file’’ or ‘‘appeal file.’’
Both terms have been used. To be
consistent, the Department will simply
refer to the document that OFLC
compiles and transmits as the
‘‘administrative file.’’ This is a
nonsubstantive change that is made
only to provide clarity in the regulation.
The Department proposed paragraph
(b) to specify that the CO would send a
copy of the OFLC administrative file to
the Chief ALJ as soon as practicable.
One commenter approved of this
additional language but suggested that
the regulations go further and require
that the administrative file be
transmitted within a specific timeframe.
This commenter also suggested that
because applications are filed
electronically, a 48- or 72-hour deadline
for transmittal should be feasible.
Another commenter suggested that
compiling the administrative file was
simply a matter of printing it. The
Department understands the concern for
expediency and the sensitive timing of
these cases, but compiling the
administrative file is not as simple as
suggested. As with any type of
government or court record, the
administrative file must be assembled
and reviewed for accuracy and
completeness. Because the length of this
process is dependent on a variety of
factors, including the length of the
record, the Department has determined
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that a specific timeframe is not
practicable. The Department believes
adding the language that the CO will
send the administrative file as soon as
practicable balances expediency with
the realities of agency resources and
therefore has adopted the proposed
language that the file must be sent as
soon as practicable.
A number of commenters believed
that the administrative file would not be
transmitted to the employer. This is not
the case. The current regulations do not
explicitly state that the administrative
file will be sent to the employer and the
NPRM mirrored that same language.
However, in response to these concerns,
the text of paragraph (b) has been
amended to state that the CO will
transmit the administrative file to the
Chief ALJ as well as to the employer, the
employer’s attorney or agent (if
applicable), and the Associate Solicitor
for Employment and Training Legal
Services, Office of the Solicitor, U.S.
DOL (counsel).
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d. Assignment
In paragraph (c), the Department
proposed language to clarify that the
ALJ assigned to the case may be a single
member or a three-member panel of the
BALCA. The proposed amendments to
paragraphs (b) and (c) mirror the
wording and organization of the appeals
section in the H–2B regulations. See
§ 655.61(b) and (d). The Department did
not receive any comments regarding
paragraph (c) and has adopted the
paragraph as proposed.
e. Administrative Review
The prior regulations regarding
administrative review give only a brief
overview of the process. In the NPRM,
the Department proposed adding a
specific briefing schedule, explaining
the standard and scope of review, and
providing a revised timeline for
decisions in cases of administrative
review. The Department received
numerous comments on these changes.
After carefully considering these
comments, the Department has decided
to substantially adopt the proposed
language. The changes made, and the
reasons for making those changes, are
discussed below.
In paragraph (d)(1), the Department
outlined a briefing schedule; numerous
commenters opposed the proposed
change. Some argued that the counsel
for the CO would have an advantage in
the appeal process. One commenter
suggested that this was because counsel
would be able to respond item-by-item
to the arguments made by the
employers. One commenter was
concerned that because the counsel for
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the CO has 7 days after receiving the
administrative file to submit a brief, and
because there is no set deadline for
when the administrative file must be
transmitted to the counsel for the CO,
the counsel for the CO would have
significantly more time to write a brief
than the employer. Some commenters
expressed opposition on the grounds
that employers would not have the
administrative file with them when
writing their briefs, as the brief must be
submitted with the request for review.
While many of those commenters who
expressed opposition on this ground
believed they would never receive the
administrative file, which is not the
case, the concern that they would have
to write a brief without the
administrative file is noted. Some
suggested that not having concurrent
briefing would slow down the process
of review.
The Department understands the
commenters’ concerns about timing and
fairness. As noted in the NPRM, because
there was no regulatory briefing
schedule, concurrent or otherwise, there
was often inconsistency among cases,
and neither party knew when briefs
would be due until an ALJ issued an
order. Also, it was not uncommon that,
due to the practice of simultaneous
briefing, issues raised by the employer
were not addressed by the counsel for
the CO. A set briefing schedule will
ensure consistency of deadlines
between cases and thus efficiency in the
appeals process. The CO filing a brief in
response to the employer’s brief allows
for a complete set of arguments, as
appropriate, which, in turn, more
effectively assists the ALJ’s decisionmaking process. Through this updated
rule, the employer has been given 10
business days, instead of 7 calendar
days, to file its request for review. This
provides the employer with ample time
to write a brief in support of its case and
provides the employer as much, if not
more, time than the CO to draft and file
its brief.
The Department does not agree that
the counsel for the CO will have an
advantage over the employer with
respect to the briefing schedule. The
administrative file contains documents
the employer has submitted to OFLC
with its applications, and it contains
communication back and forth between
OFLC and the employer. The employer
should therefore have the vast majority,
if not all, of the documents contained in
the administrative file at the time it files
its request for review. Furthermore, the
administrative file must be assembled
and transmitted to the parties ‘‘as soon
as practicable.’’ A nonconcurrent
briefing structure may extend the
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timeline for adjudication of an appeal,
but the Department nonetheless believes
that the benefit of a set time schedule
for briefing, and the benefits of having
a complete set of arguments, ultimately
provide a more efficient and reliable
process.
The Department invited the public to
comment on other ways it could address
a briefing procedure while still ensuring
expedited review. The public submitted
no such proposals, except to argue that
no change should be made and that the
Department should keep concurrent
briefing. However, as stated, the
regulations did not establish a briefing
schedule. To the extent that the
argument to ‘‘keep’’ concurrent briefing
is a proposal, the Department explained
in the proposal and above why it has
decided to adopt the proposed
approach.
In paragraph (d)(2), the Department
has set out clearly the standard of
review for administrative review cases.
The Department did not receive
comments on the proposed paragraph
(d)(2) and the Department has adopted
this section as proposed. The
Department has incorporated the
arbitrary and capricious standard of
review into requests for administrative
review, codifying a well-established and
longstanding interpretation of the
standard of review for such requests.
See, e.g., J and V Farms, LLC, 2016–
TLC–00022, at 3 & n.2 (Mar. 7, 2016).
In paragraph (d)(3), the Department
has included language providing that
the scope of administrative review is
limited to evidence in the OFLC
administrative file that was before the
CO when the CO made their decision.
The Department included this language
because the administrative file may
contain new evidence submitted by the
employer to the CO after the CO has
issued their decision, such as when the
employer submits a request for review
with new evidence, or a corrected
recruitment report with new
information, after the CO has denied
certification. Although such evidence is
in the administrative file, this change
was proposed to clarify that the ALJ
may not consider this new evidence
because it was not before the CO at the
time of the CO’s decision. Despite some
commenters’ assertion that the
Department is removing the ability to
submit new evidence on administrative
review, this amendment incorporates
legal principles already in existence for
H–2A cases, namely, that administrative
review is limited to the written record
and written submissions, ‘‘which may
not include new evidence.’’
§ 655.171(a). A de novo hearing is the
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only avenue by which an employer may
introduce new evidence.
The Department has adopted the
substance of paragraph (d)(3) but has
reorganized the wording of this
paragraph for clarity. The language now
mirrors more closely the similar
language in paragraph (e)(2). The
Department has also added for clarity
the fact that the ALJ must affirm,
reverse, or modify the CO’s decision, or
remand to the CO for further action,
‘‘except in cases over which the
Secretary has assumed jurisdiction
pursuant to 29 CFR 18.95.’’ This
concluding phrase was not in the
NPRM, nor was it in the amended
language of § 655.171 in the Rules
Concerning Discretionary Review by the
Secretary (85 FR 30608). However, the
principle that the Secretary may assume
jurisdiction over cases in which
administrative review was requested is
contained within the Rules Concerning
Discretionary Review by the Secretary
and is now a part of the current
regulations. 29 CFR 18.95(b)(1) states
that a decision by the BALCA
constitutes the final administrative
decision except in cases over which the
Secretary has assumed jurisdiction,
which include ‘‘any case for which
administrative review is sought or
handled in accordance with 20 CFR
655.171(a).’’ The addition of the
language in paragraph (d)(3) codifies the
principle of 29 CFR 18.95(b)(1) in this
section of the regulations. This also
makes the language more consistent
with similar language located in
paragraph (e)(2).
In proposed paragraph (d)(4), the
Department has modified the timeline
in which the ALJ should issue a
decision from 5 business days to 10
business days after receipt of the OFLC
administrative file, or within 7 business
days of the submission of the CO’s brief,
whichever is later. This schedule
conforms to the timeline in the H–2B
appeals procedures while continuing to
provide for an expedited review
procedure. See § 655.61(f). No
comments were received on paragraph
(d)(4). The Department has made one
change to proposed paragraph (d)(4) for
clarity. The paragraph had modified the
individuals and entities that receive the
ALJ’s decision to align with the
recipients of ALJ decisions under the H–
2B regulations, namely, the employer,
the CO, and counsel for the CO. See
§ 655.61(f). In this final rule, the
Department has added text to clarify
that the employer’s attorney or agent (if
applicable) will also receive the
decision.
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f. De Novo Hearing
The Department proposed changes
related to the de novo hearing process.
After carefully considering the
comments it received on this proposal,
the Department has decided to adopt the
proposed language, with minimal
changes, as discussed below.
In paragraph (e)(1)(ii), the Department
proposed changing the time in which an
expedited hearing must occur from 5 to
14 business days after the ALJ’s receipt
of the OFLC administrative file. This
proposed change was based on the
Department’s administrative experience,
and it was intended to allow the parties
reasonable time to adequately prepare
for a hearing while effectuating the
INA’s concern for prompt processing of
H–2A applications.
Some commenters opposed the
proposal that the hearing must occur
within 14 business days of the ALJ’s
receipt of the administrative file rather
than within 5 business days. One
explained that because there was no
time certain for the CO to send the
administrative file to the Chief ALJ and
related parties, extending the time for a
hearing could cause ‘‘irreparable harm’’
to employers while they wait. The
commenter further argued that this time
extension combined with the 10
calendar days in which the ALJ may
issue an opinion, along with alleged
delays by DHS and DOS, means that it
is unlikely an employer will have its
workers by its start date of need.
The Department understands the
concerns regarding timing and
expediency but has adopted the
language as proposed. As stated in the
NPRM, the experience of the
Department is that scheduling a hearing
within 5 business days is very difficult
for not only the parties, but also the ALJ.
The extension of time is meant to
provide more preparation time,
flexibility, and time for the parties to
potentially settle the case. The
Department believes that holding a
hearing within 14 business days is still
working within an expedited timeline.
To the extent commenters suggested late
arrival of workers is caused by alleged
delays from DHS or DOS, those
comments cannot be resolved by this
regulatory process and are not within
the Department’s purview.
In paragraph (e)(1)(iii), the
Department had proposed to provide the
ALJ broad discretion to limit discovery
and the filing of pre-hearing motions in
a way that contributes to a fair hearing
while not unduly burdening the parties.
As is the case with the 2010 H–2A Final
Rule, 29 CFR part 18 governs rules of
procedure during the hearing process,
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subject to certain exceptions discussed
in this section and part 18. Although 29
CFR 18.50 through 18.65. permits an
ALJ to exercise discretion in matters of
discovery, the Department’s language
makes explicit the ALJ’s broad
discretion to limit discovery and the
filing of pre-hearing motions in the
circumstances of a hearing under the H–
2A program. The Department has
included this language because in the
H–2A program, the time to hold a
hearing and to issue a decision
following that hearing are expedited.
This expedited timeline makes the need
for limits on requests for discovery and
the filing of pre-hearing motions is
particularly pronounced. The
administrative procedures in 29 CFR
part 18, and particularly the sections on
discovery and motions, were not
specifically designed for the H–2A
program, nor for situations that require
an accelerated adjudication process, as
is required by the H–2A program. As
such, the Department has provided the
ALJ with broad discretion to restrict
discovery and the filing of pre-hearing
motions to situations where they are
needed to ensure fundamental fairness
and expeditious proceedings. One
commenter sought clarification
regarding the ALJ’s discretion and asked
if this text was a change to current
practice. The proposed regulation was
not a change to current practice, but
rather a codification of the same. No
other comments were received in
relation to this subsection and the
Department has adopted it as proposed.
In paragraph (e)(1)(iv), the
Department proposed a 10-calendar-day
timeframe in which an ALJ must issue
a decision after a hearing. The
Department invited the public to
comment on whether this time period
should be modified, but no proposals
were received. The Department has
adopted the language as proposed.
In paragraph (e)(1)(v), the Department
clarified that for cases in which the
employer waives its right to a hearing,
the proper standard and scope of review
is the standard and scope used for
administrative review. Under the INA,
the regulations must provide for
expedited administrative review or, at
the employer’s request, a de novo
hearing. See 8 U.S.C. 1188(e)(1). If the
employer requests a de novo hearing but
then waives its right to such a hearing,
the case reverts to administrative
review. In that circumstance, the
standard and scope of review for
administrative review applies.
Similarly, should an ALJ determine that
a case does not contain disputed
material facts to warrant a hearing,
review must proceed under the standard
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and scope used in cases of
administrative review. As no comments
were received on this clarification, the
Department has adopted the language as
proposed.
In paragraph (e)(2), the Department
has articulated the standard and scope
of review for de novo hearings. The
Department has clarified that the ALJ
will review the evidence presented
during the hearing and the CO’s
decision de novo. This standard of
review recognizes that new evidence
may be introduced during the hearing
and allows the ALJ, as permitted under
sec. 218(e)(1) of the INA, to review such
evidence and other evidence introduced
during the hearing de novo. See 8 U.S.C.
1188(e)(1) (noting regulations shall
provide for a de novo administrative
hearing at the applicant’s request).
Similarly, the INA permits the ALJ to
review the CO’s decision de novo when
the employer requests a de novo
administrative hearing. See id. This is
the standard of review under the INA,
and the Department has codified it in
the regulations so that the standard is
clearly and consistently applied. As no
comments were received regarding the
standard of review, the Department has
adopted the language as proposed.
The Department has recognized that
there may be instances when the issues
to be resolved are purely legal, or when
only limited factual matters are
necessary to resolve the issues in the
case. Paragraph (e)(2) has been revised
to address this possibility and provide
that the ALJ may resolve the issues
following a hearing based only on the
disputed factual issues, if any. Two
commenters suggested that the proposed
language would limit the issues an ALJ
could review and adjudicate. This was
not the intention, and the language in
this rule simply codifies an already
existing practice. Currently, the OALJ
already relies on mechanisms,
including, but not limited to, status
conferences and pre-hearing exchanges,
to determine which issues raised in the
request for review can be resolved as a
matter of law and which issues involve
disputed material facts requiring the
introduction of new evidence during a
hearing. Should an ALJ determine that
an issue is purely legal and does not
contain disputed material facts to
warrant a hearing, review must proceed
under the standard and scope used in
cases of administrative review. The
wording of this language has been
slightly revised in this final rule for
clarity, but the substance remains the
same as it was in the NPRM.
The Department proposed and
subsequently adopted language that
states that if new evidence is submitted
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with a request for de novo hearing, and
the ALJ determines that a hearing is
warranted, the new evidence submitted
with the request for review must be
introduced during the hearing to be
considered by the ALJ. This allows for
the introduction of new evidence, and
for the de novo review of that evidence
by the ALJ, while ensuring new
evidence submitted with a request for
review is subject to the same procedures
that apply to new evidence introduced
during a hearing, such as the
opportunity for cross-examination and
rebuttal.
Finally, as part of its efforts to
conform this section with the appeals
section in the H–2B regulations, the
Department has moved the language
that the ALJ must affirm, reverse, or
modify the CO’s decision, or remand to
the CO for further action, except in
cases over which the Secretary has
assumed jurisdiction pursuant to 29
CFR 18.95, from proposed paragraph
(e)(3) to proposed paragraph (e)(2),
which addresses the standard and scope
of review.
In paragraph (e)(3), the Department
has adopted changes regarding the
issuance of the decision for a de novo
hearing as proposed with only the one
minor change. Paragraph (e)(3) had
modified the individuals and entities
that receive the ALJ’s decision to align
with the recipients of ALJ decisions
under the H–2B regulations, namely, the
employer, the CO, and counsel for the
CO. See 20 CFR 655.61(f). In this final
rule, the Department, in paragraph
(e)(3), has added that employer’s
attorney or agent (if applicable) will also
receive the decision.
g. Other Comments
Finally, there were some general
comments, which the Department
addresses here. As discussed below, the
Department has not made any changes
in response to these comments. One
commenter proposed that the CO be
prohibited from denying applications
that are similar to previously approved
applications unless the CO provides
notice to employers that, as the
commenter characterized it, those
previously approved temporary
agricultural labor certifications could no
longer be ‘‘relied upon’’ for future
applications. The Department declines
to adopt this suggestion. The
Department rejects the suggestion that
previously approved applications
mandate approval in the future. Each
application for a temporary agricultural
labor certification must be processed on
its own merits, and each must be
processed according to the time and
place for which the job opportunity will
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take place. See 8 U.S.C. 1188(a) and (b)
(noting that a temporary agricultural
labor certification certifies, among other
things, that there are ‘‘not sufficient
workers who are able, willing, and
qualified, and who will be available at
the time and place needed, to perform
the labor or services involved in the
petition’’). The regulatory appeals
process provides an adequate
opportunity for employers to seek
review of the CO’s decisions, as is
required by statute. 8 U.S.C. 1188(e)(1).
To the extent that this commenter
alleged that previous applications may
have been processed or adjudicated
outside a regulatory timeline, such an
allegation falls outside the scope of this
rule to address specific prior
applications or appeals.
One commenter expressed concern
that the Department would eliminate
the opportunity to appeal from an ALJ’s
temporary agricultural labor
certification decision to the
Department’s ARB. However, employers
did not previously have the ability to
appeal a temporary agricultural labor
certification decision to the ARB, nor
was such an option proposed in the
NPRM.
One commenter suggested that the
Department establish a system by which
employers could seek out advisory
opinions, which could be adjudicated
through the appellate system, and
which would clarify the Department’s
interpretation of the regulations. This
submitted comment is beyond the scope
of the proposed rule and cannot be
implemented through this regulatory
rulemaking.
3. Section 655.172, Post-Certification
Withdrawals
The NPRM proposed technical
amendments to this section to relocate
the job order withdrawal provision from
§ 655.172(a) to § 655.124, in addition to
amendments to relocate the Application
for Temporary Employment
Certification withdrawal provision from
§ 655.172(b) to § 655.136, as discussed
above in the preamble for those
sections. The Department proposed to
reorganize these withdrawal provisions
so that, for example, the procedure for
withdrawing the Application for
Temporary Employment Certification is
located in the section of the rule where
an employer at that stage of the
temporary agricultural labor
certification process would look for
such a provision. The Department also
proposed language in this section
reiterating current requirements that
withdrawal does not nullify an
employer’s obligation to comply with all
the terms and conditions of employment
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under the certified Application for
Temporary Employment Certification.
The Department received no
comments on the proposed amendments
to reorganize the withdrawal provisions
in the regulatory text. Therefore, this
final rule adopts the proposed changes
from the NPRM without change.
Accordingly, an employer seeking
withdrawal of a certified Application for
Temporary Employment Certification
must submit a withdrawal request, in
writing, to the NPC. In the withdrawal
request, the employer must identify the
temporary agricultural labor
certification to be withdrawn and state
the reason(s) for the employer’s request.
Similar to the withdrawal provisions at
§§ 655.124 and 655.136, this section
adopts the proposed language to
reiterate that the withdrawal of a
temporary agricultural labor
certification does not nullify an
employer’s obligations to comply with
the terms and conditions of employment
under the certification with respect to
all workers recruited in connection with
the application and job order.
The Department received two
comments stating that employers should
not be bound to comply with obligations
under the Application for Temporary
Employment Certification and related
job order after withdrawal, apparently
without regard to the timing of
withdrawal. These comments have
already been addressed above in the
section of the preamble related to
§ 655.124.
4. Section 655.173, Setting Meal
Charges; Petition for Higher Meal
Charges
The NPRM proposed minor
amendments to this section that
contains the methodology for setting the
annual rates at which an employer may
charge workers for meals and the
procedures by which an employer may
request approval from the CO for a
higher meal charge amount. The
Department received a few comments
related only to the proposal to establish
a ceiling on the meal charge amount the
CO may approve. As discussed in detail
below and after carefully considering
these comments, the Department has
decided to largely adopt the regulatory
text proposed in the NPRM, with
revisions to remove language related to
establishing a maximum higher meal
charge amount.
As provided in § 655.122(g),
employers must provide each worker
three meals a day or furnish free and
convenient cooking and kitchen
facilities so that the worker can prepare
meals. If an employer provides workers
with three meals per day, rather than
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providing them with free and
convenient cooking and kitchen
facilities, the employer may not charge
workers more than the allowable meal
charge set by the Department’s
regulations at § 655.173(a) for providing
those meals, unless and until the CO
authorizes the employer to charge a
higher amount pursuant to § 655.173(b).
The Department proposed no changes
to the existing methodology used to
annually adjust the standard amount an
employer may charge workers for
providing them with three meals per
day. The Department proposed to
update the amount stated in paragraph
(a) to reflect the current standard meal
charge amount in effect (i.e., $14.00 per
day) and to more clearly characterize it
as the starting point for future annual
updates. 85 FR 16133 (Mar. 20, 2020).
In addition, the Department proposed to
make the annual adjustments effective
on a date no more than 14 calendar days
after publication in the Federal
Register, to provide employers a brief
period for adjustment to the updated
rate, consistent with the Department’s
proposed approach to wage rate
updates. See, e.g., § 655.120(b)(3). The
Department did not receive comments
on these revisions to paragraph (a).
However, consistent with the
Department’s reasoning and decision
not to adopt an adjustment period of up
to 14 calendar days for both AEWR
updates and prevailing wage updates,
the Department has not adopted the
proposed adjustment period for meal
charge updates. Therefore, apart from a
grammatical edit and removal of the
proposed 14-day adjustment period, the
Department has adopted paragraph (a)
without change in this final rule.
In paragraph (b), the Department
proposed to retain the basic process an
employer may follow to petition the CO
for authorization to charge workers
more than the standard meal charge set
under paragraph (a), with revisions for
clarity and to address situations in
which an employer’s higher meal charge
petition is based on its use of a third
party to provide meals to workers (e.g.,
hiring a food truck to prepare and
deliver meals or engaging restaurants
near the housing or place of
employment to provide meals). In
paragraph (b)(1), the Department
clarified that the CO will deny the
employer’s petition, in whole or in part,
if the documentation the employer
submits to the CO does not justify the
higher meal charge requested, with
paragraph (c) retaining the employer’s
option to appeal.
In paragraph (b)(1)(i), the Department
retained the 2010 H–2A Final Rule’s
documentation requirements for
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employers that directly provide meals to
workers (i.e., through its own kitchen
facilities and cooks), with clarification
that the employer’s documentation must
include only permitted costs. The
Department proposed a new paragraph
(b)(1)(ii) to address documentation
requirements applicable to employers
that provide meals to workers through a
third party. Specifically, the employer’s
documentation must identify each third
party engaged to prepare meals, describe
how the employer’s agreement with
each third party will fulfill the
employer’s obligation to provide three
meals a day to workers, and document
each third party’s charges to the
employer for the meals to be provided.
The employer must retain records of
payments to the third party and
deductions from a worker’s pay, as
provided in § 655.167(b). Finally, the
employer, or anyone affiliated with the
employer, is prohibited from receiving a
direct or indirect benefit from a higher
meal charge to a worker. The
Department did not receive comments
on these proposals and is adopting them
without change in this final rule.
In paragraph (b)(2), the Department
clarified the effective date and scope of
validity of an approved higher meal
charge petition. In addition to waiting
for the CO’s approval, which may
specify a later effective date, an
employer must disclose to workers any
change in the meal charge or deduction
before it may begin charging the higher
rate. Further, the Department clarified
that the CO’s approval of a higher meal
charge is valid only for the meal
provision arrangement presented in the
higher meal charge petition and only for
the meal charge amount the CO
approved. If the approved meal
provision arrangement changes, the
employer would not be permitted to
charge workers more than the standard
meal charge set under paragraph (a)
until the employer repeated the higher
meal charge petition process for the new
meal provision arrangement and
received the CO’s authorization to
charge a higher amount. The
Department did not receive comments
on these revisions and is adopting them
without change in this final rule.
Finally, the Department also proposed
to reintroduce an objective ceiling on
meal charges through a maximum
higher meal charge amount. In part, the
Department thought an upper limit on
meal charges could help to ensure that
an employer’s choice to engage a third
party to provide three meals a day to
workers would not unreasonably reduce
workers’ wages. The maximum higher
meal charge amount the Department
proposed was derived from the last
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maximum allowable higher meal charge
amount published in the Federal
Register and effective in 2008, updated
using the same methodology as in
paragraph (a). The Department invited
comments on methods for processing
and evaluating higher meal charge
requests involving third party prepared
meals, including alternative methods for
determining and updating a higher meal
charge ceiling that would not inhibit the
provision of sufficient, adequate meals
and will not reduce workers’ wages
without justification.
The Department received several
comments from trade associations,
agents, and an employer that expressed
strong opposition to the proposal to
impose a ceiling for higher meal charge
petitions. The commenters generally
viewed the ceiling as ‘‘artificial.’’ Some
expressed concern that the maximum
rate proposed would often be below
actual meal costs, with one asserting
that such a limitation would result in
some employers providing smaller and
lower quality meals to their workers to
stay within budget. Another agent saw
no added benefit from a maximum
amount because higher meal charge
requests are subject to the CO’s
approval, so there is no need to place an
arbitrary limit on the CO’s discretion.
The Department did not receive
comments suggesting alternative
methods to determine an appropriate
higher meal charge limitation.
After consideration of the comments
received, the Department has decided
not to adopt the proposed ceiling on the
meal charge amount the CO may
approve and, therefore, has revised
paragraphs (b) introductory text and
(b)(1) to remove language related to a
maximum higher meal charge amount.
The Department appreciates and shares
commenters’ concerns that the proposal
would not adequately account for
various factors that could influence the
costs of employer-provided meals, such
as the variance of food costs across
localities or the need to accommodate a
worker’s dietary restrictions, and could
result in employers providing smaller
and lower quality meals to their workers
to stay within budget in certain
circumstances. The Department also
agrees the proposal would have placed
an unnecessarily rigid limitation on the
CO’s discretion and might have
prevented the CO from approving higher
meal charge requests even in cases
where the employer provides ample
documentation of actual costs,
compelling justification for the higher
meal charge, and solid evidence the
employer could not have provided
adequate meals at a lower cost.
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The Department has therefore
determined that the reasonable
approach, at this time, is to allow the
CO to determine whether to approve
higher meal charge petitions, on a caseby-case basis, based on the CO’s
evaluation of the employer’s
documentation. Particularly in meal
arrangements involving third-party
preparers, the CO will consider whether
the employer has demonstrated it
cannot provide the required meals for
the standard costs permitted by
paragraph (a) and the higher meal
charge requested, based on the meal
provision arrangements presented in the
petition, is necessary, not merely
convenient or a means of reducing an
employer’s housing costs (e.g., when
motel rooms with kitchenettes are
available at a higher rate). In
administering this final rule, the
Department will continue to consider
ways to best protect workers from
improper deductions, while also
providing sufficient discretion to the CO
and adequately accounting for the
various factors that may influence the
cost of employer-provided meals.
One State government commenter
reiterated a comment submitted in
connection with the meal provision
obligation at § 655.122, stating that even
where an employer provides three meals
per day that satisfy minimum Federal
standards, a worker may need to
supplement those meals through
individually purchased and stored food
to satisfy nutritional and caloric needs
and urging the Department to allow this
practice. A pattern of workers finding it
necessary to supplement employerprovided meals might suggest that the
employer’s meals are insufficient and its
meal provision arrangement should be
reevaluated. However, where an
employer is providing sufficient meals
and workers wish to supplement those
meals with additional food (e.g.,
snacks), the Department notes that
nothing in the regulations prohibits or
prevents workers from purchasing,
storing, and eating food not provided by
the employer.
5. Section 655.174, Public Disclosure
The NPRM did not propose changes
to the longstanding practice of
providing publicly accessible
information about users of the H–2A
program on the OFLC website.
Therefore, this final rule retains the
current requirements.
6. Section 655.175, Post-Certification
Amendments
The 2010 H–2A Final Rule does not
permit amendments to an application
after the CO issues a Final
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Determination. Thus an employer that
experiences changed circumstances
after certification is required to submit
a new and substantially similar
Application for Temporary Employment
Certification and job order. The NPRM
proposed to add a new provision
permitting an employer to request minor
amendments to the places of
employment listed in the certified
Application for Temporary Employment
Certification and job order under
limited circumstances and subject to
certain conditions. The proposal was
intended to recognize that an employer
may experience changed circumstances,
wholly outside of their control, after
certification, necessitating adjustments
to certain aspects of the anticipated
work plan. The Department’s proposed
provision would have allowed for
narrowly tailored post-certification
amendments to alleviate the burdens
with filing and processing a new
Application for Temporary Employment
Certification and provide employers
with a certain degree of flexibility to
more quickly respond to changing
needs, without compromising the H–2A
program’s integrity or changing the
terms and conditions of employment to
which the employer already attested.
The Department received a significant
number of comments on this provision.
After careful consideration of
comments, the Department has decided
not to adopt the proposed postcertification amendments provision at
§ 655.175, as discussed in detail below.
The majority of comments from
employers, associations, and agents that
addressed the proposed postcertification amendment provision
expressed general support and viewed
this provision as a practical, reasonable
administrative improvement that would
simplify the H–2A program, reduce
burdens on employers by providing
flexibility to accommodate changed
circumstances after certification within
limits appropriate to protect program
integrity, and improve the accuracy of
information available to the Department
regarding worker location, especially in
the case of workers that travel from site
to site when employed by FLCs or
itinerant employers. An agent explained
that requiring an employer to file a new
application to add a place of
employment within the certified AIE is
burdensome and restrictive because the
employer has already completed a labor
market test for that area and the period
of need. Several of the comments
provided examples of the types of
circumstances in which a postcertification amendment would help
producers stay in compliance with the
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rule while adapting to on-the-ground
conditions. For example, situations like
late snow, drought, or excessive rain
may prevent access to rangeland, or
wildfire or drought may alter or
eliminate vegetation on the rangeland,
such that ranchers must relocate herds,
on short notice, to other rangeland with
vegetation of sufficient quality and
quantity available for grazing. Other
examples commenters cited included
severe adverse weather, changes in
vegetative growing conditions, sudden
presence of predators, disaster
situations, and unanticipated planting
to replace lost crops. An agent requested
the Department include examples,
unrelated to weather, constituting good
and substantial cause. Commenters
provided non-weather examples
including wildfires, predators, and
inability to access certain locations due
to route conditions, which are discussed
above.
The Department also received a
significant number of comments from
workers’ rights advocacy organizations,
labor unions, State agencies, and elected
officials expressing concerns about the
proposed post-certification amendments
provision. Commenters expressed
concern that this provision would
provide employers with unilateral
ability to make mid-season changes to
the terms and conditions of
employment, which they asserted is
unfair to workers who are not able to
negotiate or appeal changes made after
the job begins. These commenters also
expressed concerns that the proposal
might jeopardize the labor market test,
create occupational instability,
complicate wage determinations, hinder
the work of workers’ rights advocacy
organizations, lead to worker
exploitation, disadvantage employers
that do not employ H–2A workers, and
result in employer abuse of the
attestation-based process.
In response to the Department’s
request for comments on ways to
balance employers’ need to adapt
quickly to changed circumstances with
the Department’s need to protect
program integrity, a workers’ rights
advocacy organization asserted that the
timeline for processing an Application
for Temporary Employment
Certification is already short enough to
accommodate an employer’s need to
adapt to changing circumstances. The
commenter asserted the proposal would
violate the Department’s statutory
obligation by relying on employer
assurances that they met all program
requirements, including those vital to
workers’ rights (e.g., workers’
compensation and wage rate for a new
State). Two U.S. Senators requested the
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Department abandon the proposal,
asserting the Department can balance its
goals within the current regulatory
framework, specifically the precertification amendment provision at
§ 655.145 and the emergency situations
waiver provision at § 655.134. In
contrast, a few trade associations
thought the proposal was sufficiently
limited to allow employers to react
quickly to unforeseen circumstances
without compromising the integrity of
the temporary agricultural labor
certification.
A workers’ rights advocacy
organization asserted that the
Department had not provided sufficient
data or rationale to explain how this
proposal furthers regulatory or statutory
goals. This commenter also stated that
even if the employer provides a copy of
the amended temporary agricultural
labor certification to workers, H–2A
workers who are told to work at
different worksites, possibly in different
States, may not be certain that the work
is permitted under their H–2A visa. This
commenter also believed the proposed
post-certification amendment process
would be abused by H–2ALCs and
would permit employers to use the
process as a ‘‘tool to further their illegal
preference for H–2A workers.’’
Some commenters asserted the
proposal conflicted with workers’ need
to know the job terms before accepting
an H–2A job opportunity, which could
negatively affect U.S. workers’ access to
jobs and deter them from applying. Two
U.S. Senators and one of the workers’
rights advocacy organizations asserted
the employment of foreign workers at
worksites not disclosed to U.S. workers
would not only disadvantage U.S.
workers, but may increase the risk of
exploitation, trafficking, and labor
abuses. The senators further asserted
that, in conjunction with the
Department’s proposal to determine the
AEWR for specific occupations, postcertification amendments to worksites
would unnecessarily complicate wages
for employers and workers, greatly
increasing the risk of workers being paid
an incorrect wage. The senators also
believed the proposal unnecessarily
increased the administrative burden on
employers and defeated the
Department’s objective of simplifying
the H–2A program.
Some commenters viewed postcertification changes to worksites as
compounding their general concerns
about the labor market test, the
proposed option for staggered start
dates, and the proposed 30-day period
replacing the 50 percent rule. Two
workers’ rights advocacy organizations
expressed concern the proposal did not
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require additional recruitment. One of
the commenters asserted workers must
know where they will be required to
work in order to assess housing,
transportation, terrain, facilities, quality
of crops, and other factors that affect
workers’ interest in potential
employment. This commenter expressed
particular concern about situations in
which the certified AIE crosses State
lines because the proposal would not
require the employer to conduct
additional positive recruitment in the
new State or allow the SWA in the new
State to evaluate the job order and
availability of workers, which it feared
would result in lost job opportunities
for U.S. workers.
A State governor expressed concern
the proposal could create hardships for
U.S. workers who have to find their way
to the new worksite or risk being fired,
which they believed would be a
particular concern in a situation where
the employer has a ‘‘no rehire policy’’
and might invoke the policy to refuse to
hire those workers who had to quit or
were fired for refusing to report to an
additional work location. One of the
workers’ rights advocacy organization
commenters expressed concern about
U.S. workers who might lose jobs at the
added place of employment, such as
former workers with seniority at that
worksite who might not be contacted to
determine whether they are available for
the job. The commenter expressed
particular concern about situations in
which an H–2ALC adds a place of
employment where workers were
directly hired by the farmer in prior
years.
A State governor and one of the
workers’ rights advocacy organizations
feared that the proposal would permit
misuse of the program by employers,
such as reforestation contractors,
employing workers in many locations,
because these employers might test the
labor market in one AIE, but actually
employ workers in another area. The
governor further expressed concern the
proposal would not provide the SWA
sufficient time to test the labor market
for domestic workers in the new
locations because amendments to
worksites after certification would
require changes to the job order in the
SWA system, as well as changes to
recruitment posters and advertising that
the SWA creates to notify the
community of the jobs available. The
governor also noted domestic workers at
the new locations will need to be made
aware of the change in order to know if
they are in corresponding employment
under the H–2A certification.
In addition to comments expressing
support or opposition to the proposed
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post-certification amendments, the
Department received several comments
requesting specific changes to the
proposal or suggesting alternatives to
one or more aspects of the proposal.
Comments from employers,
associations, and agents generally urged
the Department to expand the scope of
post-certification amendments, ease the
proposed restrictions on the
amendments, and clarify requirements
for approval of amendment requests.
Some commenters mistakenly believed
the provision would permit employers
to increase the number of workers and
add work locations after certification as
they acquire additional work (e.g., new
contracts or fields) in the normal course
of business. Several commenters also
urged the Department to provide
additional guidance and clarity
regarding various aspects of the
proposed provision. An international
recruitment company asked the
Department to define more clearly the
terms ‘‘minor changes,’’ ‘‘good and
substantial cause,’’ ‘‘circumstance(s)
underlying the request,’’ ‘‘reasonably
foreseen,’’ ‘‘wholly outside the
employer’s control,’’ and ‘‘material
terms and conditions.’’ An agent and
two farm owners urged the Department
to be flexible in evaluating ‘‘good and
substantial cause,’’ expressing concern
that if an employer’s burden of proof is
too high it could render postcertification amendments unworkable.
One of these commenters believed the
Department should apply a more
flexible definition of ‘‘good and
substantial cause’’ than it applies to
emergency situation requests under
§ 655.134.
Regarding the time provided for the
CO to review these requests, several
commenters simply stated postcertification amendment requests
should be processed as quickly as
possible or otherwise without delay. An
international recruiting company
suggested employers submit real-time
updates regarding the workers’ location
to the NPC, rather than submitting
individual requests and waiting up to 3
days for CO approval. In contrast, a
workers’ rights advocacy organization
opposed the proposed 3-business-day
review period, asserting this would not
provide sufficient time to review the
request and assess the effect on the labor
market test.
The Department also received
comments addressing time limitations
on post-certification amendment
requests. A workers’ rights advocacy
organization argued if the Department
adopts a post-certification amendment
provision, the amendments must be
limited to a post-certification time
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period shorter than 30 days after
certification, the shortest period the
Department mentioned as an option in
the NPRM. An individual commenter
suggested the Department either permit
post-certification amendments until 50
percent of the work contract period has
elapsed or extend the employer’s hiring
obligation to 30 days after any
amendment to the temporary
agricultural labor certification. In
contrast, a few trade associations urged
the Department to permit employers
‘‘ample’’ time to submit postcertification amendments requests
because the circumstances necessitating
these amendments are not bound by any
regulatory limit and can happen at any
time.
After careful consideration of all
comments, as stated above, the
Department has decided not to adopt
the post-certification amendment
provision in this final rule. Although
the Department did not intend for the
proposed provision to have permitted
post-certification amendments that
changed the terms and conditions of
employment (e.g., adding places of
employment in a different AIE than
certified), the Department recognizes
commenters’ concerns. The Department
is sensitive to the concerns about the
potential for changed terms and
conditions of employment and ensuring
U.S. workers’ access to job
opportunities. The Department agrees
that permitting employers to add places
of employment beyond the AIE and the
States certified would change the terms
and conditions of employment without
CO review, could permit employers to
use the post-certification amendment
process in a way that undermines the
Department’s underlying finding
regarding U.S. worker availability, and
could require the employer to secure
additional documentation of the type
that would have been subject to the
CO’s review during application
processing (e.g., evidence of workers’
compensation compliance in the new
State and, potentially, housing). These
types of changes are beyond the scope
of what the Department believes is
appropriate to permit under a postcertification, expedited review process.
The Department appreciates the
concerns of a workers’ rights advocacy
organization and State governor
regarding potential job losses for
workers with seniority at that worksite
who might not be contacted to
determine whether they are available for
the job and workers who may be unable
or unwilling to report to a new worksite.
The Department agrees an effective postcertification amendment provision
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should require the employer to contact
former U.S. workers for each added
place of employment and solicit their
return to the job opportunity and that
the post-certification amendment
process may require a carefully tailored
expedited process to guarantee
employers engage in such contact. The
Department also appreciates and agrees
with commenters’ concern about the
necessity of providing sufficient time to
assess the effect of the amendment on
the labor market test. Finally, the
Department appreciates the State
governor’s comment expressing concern
regarding the process for apprising
corresponding workers at new worksites
of their rights and protections and the
Department agrees that an effective postcertification amendment provision must
more clearly address employers’
obligation to reevaluate whether its
workers are engaged in corresponding
employment and timely disclose to
workers approved amendments to the
work contract, in compliance with
§ 655.122(q).
While the Department understands
the importance of providing flexibilities
that permit employers and associations
to quickly respond to exigent
circumstances requiring minor
amendments to places of employment
after their applications are certified, the
Department has determined that the
proposal would require significant
revisions to provide greater clarity to
employers and ensure post-certification
amendments do not adversely affect
workers similarly employed in the AIE
and those U.S. workers seeking
employment. In light of the substantial
and numerous commenter concerns, the
Department does not believe the
proposal, even with significant
revisions, will satisfy the policy
considerations underlying this final
rule. Notwithstanding, as noted by the
U.S. Senators and workers’ rights
advocacy organization commenters, the
Department agrees that the existing
regulations already provide a limited
degree of flexibility to employers to
react to exigencies and changing
circumstances. Accordingly, the
Department declines to adopt the
proposal in the NPRM at this time.
Under this final rule, as under the 2010
H–2A Final Rule, the employer may
request certain amendments under the
provisions set forth at § 655.145, in
situations where the employer could
foresee the need for amendment after
filing, but prior to the CO issuing a Final
Determination, and, if necessary, may
file a new Application for Temporary
Employment Certification, using the
emergency situations procedures at
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§ 655.134 to address changes not
permitted under § 655.145. For example,
if unusually heavy storms and rains
occur after the employer submits its
Application for Temporary Employment
Certification, the employer can assess
impacts on crop conditions and its
temporary need and may determine it is
appropriate to reduce staffing levels for
the job opportunity described on the
pending Application for Temporary
Employment Certification and file an
emergency situation Application for
Temporary Employment Certification to
address its need for labor or services
under the new circumstances at other
place(s) of employment or with adjusted
duties.
The Department will continue to
consider how best to accommodate the
needs of employers to make minor postcertification amendments to places of
employment due to unforeseen
circumstances over which the employer
has no control, while also sufficiently
limiting the scope of these amendments
to ensure employers provide effective
notice of job opportunities to non-H–2A
workers—both former U.S. workers and
workers in corresponding employment
at each place of employment added to
the temporary agricultural labor
certification—and guarantee changes to
specific work locations are minimal for
workers, terms and conditions of
employment remain unchanged, and the
underlying labor market test for the AIE
remains valid for the certification.
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H. Integrity Measures
1. Section 655.180, Audit
The NPRM proposed minor
amendments to this section to clarify
the procedures by which OFLC
conducts audits of applications for
which temporary agricultural labor
certifications have been granted. The
Department received a few comments
on this provision, none of which
necessitated changes to the regulatory
text. Therefore, as discussed below, this
provision remains unchanged from the
NPRM.
The Department proposed five
revisions to this section in the NPRM.
First, the Department proposed
revisions to paragraphs (b)(1) and (2) to
clarify that audit letters will specify the
documentation that employers must
submit to the NPC, and that such
documentation must be sent to the NPC
not later than the due date specified in
the audit letter, which will be no more
than 30 calendar days from the date the
audit letter is issued. Second, in
paragraph (b)(2), the Department
proposed to revise the timeliness
measure from the date the NPC receives
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the employer’s audit response to the
date the employer submits its audit
response. This change is more
consistent with other filing
requirements contained in this final rule
and better ensures employers’ ability to
timely submit their responses. Third,
the Department proposed to revise
paragraph (b)(3) to clarify that partial
audit compliance does not prevent
revocation or debarment. Rather,
employers must fully comply with the
audit process in order to avoid
revocation under § 655.181(a)(3) or
debarment under § 655.182(d)(1)(vi)
based on a finding that the employer
impeded the audit. Fourth, the
Department proposed to add language to
paragraph (c) to codify the current
practice of a CO issuing more than one
request, and sometimes multiple
requests, for supplemental information
if the circumstances warrant. This
practice ensures that employers have
every opportunity to comply fully with
audit requests and that the CO’s audit
findings are based on the best record
possible. Finally, the Department
proposed revisions in paragraph (d) to
clarify the referrals a CO may make as
a result of audit, including updating the
name of the office within the DOJ, Civil
Rights Division, Immigrant and
Employee Rights Section, that will
receive referrals related to
discrimination against eligible U.S.
workers.
The Department received two
comments expressing general support
for the proposed changes and one
comment suggesting that only WHD
conduct audit examinations of certified
Applications for Temporary
Employment Certification. Although the
Department appreciates the suggestion,
the NPRM did not propose changes
related to which agency would conduct
audit examinations. Therefore, this
suggestion is outside the scope of this
rulemaking.
2. Section 655.181, Revocation
The NPRM proposed minor
amendments to paragraph (b)(2) of this
section to clarify that if an employer
does not appeal a Final Determination
to revoke a temporary agricultural labor
certification according to the procedures
in proposed § 655.171, that
determination will become the final
agency action. The Department
proposed to remove language referring
to the timeline for filing an appeal, as
that information was provided in
proposed § 655.171. The Department
received some comments generally
supporting these proposals, and no
comments in opposition. However, as
explained below, the Department has
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decided not to adopt the proposed
revisions in this final rule.
The proposed deletion of paragraph
(b)(2)’s current 10-calendar-day timeline
for appealing, combined with the
proposed retention of paragraph (b)(2)’s
reference to the appeal procedures of
§ 655.171, would have resulted in an
unintended change in paragraph (b)(2)’s
appeal timeline. The Department did
not intend to change any of the current
timelines in paragraph (b). This final
rule therefore retains the timelines
stated in current paragraphs (b)(1) and
(2), both of which now reference
paragraph (b)(3). Paragraph (b)(3), in
turn, retains a reference to the appeal
procedures of § 655.171, but now
clarifies that while the appeal
procedures of § 655.171 apply to any
appeals filed under paragraph (b)(1) or
(2), the timelines to file an appeal, as
stated in paragraphs (b)(1) and (2),
continue to apply.
Additionally, the Department has
removed language from the proposed
paragraph (b)(3), stating that the ALJ’s
decision is the final agency action, in
light of an intervening change to the
current paragraph (b)(3). As discussed
elsewhere, between the publication of
the 2019 proposed rule at 84 FR 36168
and this final rule, the Department
published Rules Concerning
Discretionary Review by the Secretary
(85 FR 30608), which affected the
language of this section. The current
iteration of § 655.181(b)(3), with the
changes made by the Rules Concerning
Discretionary Review by the Secretary, is
different than the iteration of
§ 655.181(b)(3) that was in effect when
the NPRM was published. Specifically,
the Rules Concerning Discretionary
Review by the Secretary removed the
language in paragraph (b)(3) that stated
the decision of the ALJ was the final
decision of the Secretary, consistent
with the principle that the Secretary
could assume jurisdiction over a de
novo appeal pursuant to 29 CFR 18.95.
Section 655.171 of this final rule
contains language implementing that
principle, which § 655.181(b)(3), in
turn, incorporates by stating that the
appeal procedures of § 655.171 apply.
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3. Section 655.182, Debarment; 29 CFR
501.16, Sanctions and Remedies—
General; 29 CFR 501.19, Civil Money
Penalty Assessment; 29 CFR 501.20,
Debarment and Revocation; 29 CFR
501.21, Failure To Cooperate With
Investigations; 29 CFR 501.41, Decision
and Order of Administrative Law Judge;
29 CFR 501.42, Procedures for Initiating
and Undertaking Review; 29 CFR
501.43, Responsibility of the Office of
Administrative Law Judges; 29 CFR
501.44, Additional Information, if
Required; and 29 CFR 501.45, Decision
of the Administrative Review Board
The NPRM proposed amendments to
the debarment provision in § 655.182 to
improve integrity and compliance with
program requirements, and to establish
consistency in holding program
violators accountable among the H–2A
regulations and the other labor
certification programs administered by
the Department. The NPRM also
proposed amendments to WHD’s
debarment provision at 29 CFR 501.20
to conform with the proposed changes
to 20 CFR 655.182(a) regarding the
ability to debar an agent or attorney, and
their successors in interest, based on the
agent’s or attorney’s own substantial
violations. The Department received
some comments on these provisions,
none of which necessitated substantive
changes to the regulatory text. As noted
above, the Department has revised
§ 655.182(h) to confirm its approach to
debarment of associations, employermembers of associations, and joint
employers. Therefore, as discussed
below, these provisions remain
substantively unchanged from the
NPRM.
The Department proposed to revise
§ 655.182 to clarify that if an employer,
agent, or attorney is debarred from
participation in the H–2A program, the
employer, agent, or attorney, or their
successors in interest, may not file
future Applications for Temporary
Employment Certification during the
period of debarment. Under the
proposal, if such an application is filed,
the Department will deny the
application without review, rather than
issuing a NOD before denying the
application, as it does under the current
regulations.
The Department also proposed to
revise § 655.182 to allow for the
debarment of agents or attorneys, and
their successors in interest, based on
their own misconduct. Since the 2008
H–2A Final Rule, the H–2A regulations
have allowed the Department to debar
an agent or attorney based on its
participation in the employer’s
substantial violation. See § 655.182(b);
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2010 H–2A Final Rule, 75 FR 6884,
6936–6937; 2008 H–2A Final Rule, 73
FR 77110, 77188. As explained in the
NPRM, the proposed revisions would
allow the Department to hold agents and
attorneys of the employer accountable
for their own substantial violation(s), as
well as for their participation in the
employer’s substantial violation(s), as
that term is defined in § 655.182(d). The
Department also proposed conforming
revisions to the definition of ‘‘successor
in interest’’ in § 655.103(b) to reflect that
a debarred agent’s or attorney’s
successor in interest may be held liable
for the debarred agent’s or attorney’s
violation. The Department has adopted
these changes as proposed. However,
the Department has made one
additional, minor revision to
§ 655.182(b), consistent with revisions
to § 655.103(b), to clarify that neither a
debarred employer, agent or attorney,
nor a successor in interest to a debarred
employer, agent or attorney may file an
H–2A application.
The Department received one
comment expressing support for the first
proposal and several comments
expressing general support for the
second. Some commenters expressed
concern, however, that the Department
would not seek to debar the employer
where the Department is pursuing
debarment of an agent or attorney based
on the agent’s or attorney’s own
misconduct. The Department believes
these concerns are misplaced. Under the
changes adopted in this final rule, the
Department may pursue debarment
against the agent or attorney for their
own misconduct in those rare instances
where the Department determines the
agent or attorney commits a substantial
violation that the Department finds it
cannot or, in its discretion, should not,
attribute to the employer. The
Department anticipates that, in most
instances, it would be appropriate to
debar the employer as well as the agent
or attorney, because the ultimate
responsibility for ensuring compliance
with the program rests with the
participating employer.
Some agent commenters objected to
statements in the NPRM that expressed
the Department’s concern with the role
of agents in the H–2A program. The
Department’s intent was simply to note
that, in its experience, the participation
of agents in the program can, but
certainly does not always, undermine
program compliance.
The Department received several
other comments about the debarment
provisions that were unrelated to the
changes the NPRM proposed, and
therefore are beyond the scope of the
current rulemaking. For instance, some
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employer and employer association
commenters requested changes to ease
the standard for debarment, such as
requesting a de minimis exception from
the kinds of violations that would lead
to debarment from the H–2A program.
Save for the addition of an H–2ALC’s
failure to submit an original surety bond
at § 655.182(d)(2) (discussed in the
surety bond section above), the
Department proposed no changes to the
kinds of violations that are sufficient to
warrant debarment, and thus the
Department cannot consider this
recommendation in the current
rulemaking. The Department notes,
however, that the Department considers
debarment only in the case of
substantial violations, as required by the
statute. See 8 U.S.C. 1188(b)(2)(A).
Another commenter opposed shared
debarment authority between WHD and
OFLC. This comment is outside the
scope of the current rulemaking, as the
NPRM did not propose changes to the
Department’s longstanding practice,
reflected in the associated regulations,
that both WHD and OFLC have
debarment authority.
A workers’ rights advocacy
organization commented that the
proposed changes were insufficient to
address perceived shortcomings to the
H–2A debarment procedures.
Specifically, the commenter noted a
need to improve the debarment
procedures’ treatment of successors in
interest and cited specific enforcement
efforts as demonstrative of the
limitations of the regulation’s current
provision. The commenter also
advocated that the Department’s
debarment procedures should promote
employee participation in WHD
investigations. The Department
appreciates these comments but notes
that the suggestions are not within the
scope of the current rulemaking, as the
Department did not propose any
changes to the debarment procedures
generally. As noted above, however, the
Department proposed and is adopting as
final conforming revisions to the
definition of ‘‘successors in interest’’ in
§ 655.103(b) to reflect the changes
detailed above.
I. Labor Certification Process for
Temporary Agricultural Employment in
Range Sheep Herding, Goat Herding,
and Production of Livestock Operations
The NPRM proposed amendments to
certain provisions in this section largely
to conform the labor certification
process for temporary agricultural
employment in range sheep herding,
goat herding, and production of
livestock operations to other changes
proposed in the NPRM. The Department
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received many comments on this
section; the vast majority of which were
outside the scope of this rulemaking and
none of which necessitated substantive
changes to the regulatory text.
Therefore, as discussed in detail below,
the provisions contained in this section
remain unchanged from the NPRM
except for minor technical or clarifying
changes.
1. Modernizing Recruitment
Requirements
Between the publication of the 2019
proposed rule at 84 FR 36168 and this
final rule, the Department published the
2019 H–2A Recruitment Final Rule that
amended § 655.225 by removing
paragraph (d) and redesignating
paragraph (e) as paragraph (d). This
final rule incorporates those changes.
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2. Regulatory Revisions Implemented by
This Final Rule
As proposed in the NPRM, the
Department has revised §§ 655.200
through 655.235 to conform to the other
revisions in this final rule. Minor
changes include replacing a dash
between two sections with the word
‘‘through’’ (e.g., replacing ‘‘§§ 655.200–
655.235’’ with ‘‘§§ 655.200 through
655.235’’) for technical consistency with
other sections of this final rule. The
Department received no comments
regarding these minor changes, or the
substantive changes discussed below,
and therefore has adopted all proposed
revisions in §§ 655.200 through 655.235.
Aside from technical changes, the
Department has made one minor change
to the proposed text in § 655.215(b)(1),
which is discussed further below.
The Department has revised § 655.205
to reflect revisions to the normal job
order filing procedures in § 655.121 and
to clarify variances from § 655.121 that
remain for job opportunities involving
herding or production of livestock on
the range.
In addition, consistent with the
Department’s reasoning and decision
not to adopt the transition period for an
employer to implement a new higher
AEWR proposed in § 655.120(b), the
Department did not adopt similar
transition period language proposed in
§ 655.211(a)(2). The final rule requires
an employer to start paying the higher
rate on the effective date published in
the Federal Register. The Department
has also added the phrase ‘‘at least’’ to
§ 655.211 to clarify that employers must
pay at least the rate required by the
regulations, but as the regulations are
meant to provide a minimum,
employers may of course choose to offer
and pay a higher rate. The phrase also
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provides consistency with §§ 655.120
and 655.210(g).
The Department has also simplified
and revised § 655.215(b) introductory
text and (b)(1) to conform to other
revisions in this final rule. In paragraph
(b) introductory text, detailed language
about additional required information is
obsolete, as the job order Form ETA–
790/790A addenda include data fields
for employers to provide detailed
information about the job opportunity.
The obsolete language was removed.
As the language promulgated in the
Department’s 2015 H–2A Herder Final
Rule could have been interpreted to
permit an Application for Temporary
Employment Certification for herding or
production of livestock on the range to
cover multiple AIEs in more than two
contiguous States but not a smaller
geographic area, such as multiple AIEs
within one State, the Department has
included one minor change to language
in paragraph (b)(1) for clarity. See 2015
H–2A Herder Final Rule, 80 FR 62958,
62998, 63068. Specifically, an
Application for Temporary Employment
Certification may cover multiple AIEs in
one State, or multiple AIEs in two or
more contiguous States. Accordingly,
the text in this final rule has been
revised to make clear that an
‘‘Application For Temporary
Employment Certification and job order
may cover multiple [AIEs] in one or
more contiguous States,’’ as opposed to
saying ‘‘and one or more contiguous
[S]tates’’ as originally proposed
(emphasis added).
Trade associations, an agent, and
individual employers suggested
removing the ‘‘contiguous State’’
restriction, stating that this limitation
hinders access to job opportunities.
However, the Department’s proposed
revisions for this subpart were meant to
serve as clarification only, and the
Department did not propose substantive
changes to the regulatory requirements.
Therefore, the comments requesting that
the Department remove the ‘‘contiguous
State’’ restriction are outside the scope
of this rulemaking.
In addition to minor revisions to
§ 655.220(b) and (c) for consistency
within this final rule, the Department
has revised paragraph (b) to reflect the
centralization of job order dissemination
from the NPC to the SWAs as set forth
in § 655.121. Consistent with § 655.121,
after the content of a job order for
herding or production of livestock on
the range has been approved, the NPC
will transmit the job order to all
applicable SWAs to begin recruitment.
The Department also recently rescinded,
in the separate 2021 H–2A Herder Final
Rule, the 364-day provision that
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governed the adjudication of temporary
need for employers of sheep and goat
herders (§ 655.215(b)(2)) to ensure the
Department’s adjudication of temporary
or seasonal need is conducted in the
same manner for all H–2A applications.
The text at § 655.215(b)(2) in this rule
has been updated to reflect this
recission.
Finally, the Department has made
minor revisions in § 655.225(b) and (d)
to simplify the language and reflect
procedural changes made elsewhere in
this final rule, such as revisions to the
duration of the recruitment period at
§ 655.135(d).
3. Other Comments
A significant number of comments
from a trade association, individual
employers, and other commenters urged
the Department to reconsider the wage
rate methodology for herding and range
livestock opportunities. However, the
Department explicitly stated in the
NPRM that it was not reconsidering, and
therefore not seeking public comment
on, this wage rate methodology. 84 FR
36168, 36220–36221. As a result, the
comments regarding the wage rate
methodology for herding and range
livestock job opportunities are outside
the scope of this rulemaking and will
not be addressed further.
An immigration advocacy group,
trade associations, and individual
employers and other commenters
expressed concerns and suggested
changes regarding housing, the
frequency of record keeping, the
frequency of pay for employees, and the
cost and profitability of business. A
trade association and individual
employers offered a number of
suggested changes, which included the
Department putting all forms and
procedures online, providing for
reimbursement for in-bound travel,
allowing for a wage credit, and
removing overtime pay statutes for
sheepherders. However, the Department
did not propose changes regarding these
substantive issues and, thus, the
comments are outside the scope of this
rulemaking. With regard to removing or
exempting specific occupations from
statutory requirements, the suggestion
would require a legislative change.
Other comments from a trade
association, a State agricultural
department, and individual employers
and other commenters were general in
nature and discussed the industry
overall and expressed concern about the
viability of their businesses moving
forward. The Department understands
the industry has concerns; however,
these aforementioned comments and
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suggestions are not within the scope of
this rulemaking.
J. Labor Certification Process for
Temporary Agricultural Employment in
Animal Shearing, Commercial
Beekeeping, and Custom Combining
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1. Section 655.300, Scope and Purpose
The NPRM proposed to establish
certain variances to the procedures for
temporary agricultural labor
certification for employers who seek to
hire H–2A workers in animal shearing,
commercial beekeeping, and custom
combining to address the unique
occupational characteristics of these
occupations. To date, the Department
has processed Applications for
Temporary Employment Certification in
these occupations using TEGLs specific
to each of these occupations, which
specify applicable variances from H–2A
program requirements.111
In order to employ H–2A workers
under these procedures, an employer’s
job opportunity must be in one of the
covered occupations and must involve
agricultural work to be performed on a
scheduled itinerary covering multiple
AIEs, including in multiple contiguous
States. Unless otherwise specified in
these variances, set forth in new
§§ 655.300 through 655.304, employers
must also comply with all H–2A
requirements in §§ 655.100 through
655.185, including payment of at least
the highest applicable wage rate,
determined in accordance with
§ 655.122(l) for all hours worked.112
111 See TEGL No. 17–06, Change 1, Special
Procedures: Labor Certification Process for
Employers in the Itinerant Animal Shearing
Industry under the H–2A Program (June 14, 2011),
https://wdr.doleta.gov/directives/corr_
doc.cfm?docn=3041; TEGL No. 33–10, Special
Procedures: Labor Certification Process for Itinerant
Commercial Beekeeping Employers in the H–2A
Program (June 14, 2011), https://wdr.doleta.gov/
directives/corr_doc.cfm?DOCN=3043; TEGL No.
16–06, Change 1, Special Procedures: Labor
Certification Process for Multi-State Custom
Combine Owners/Operators under the H–2A
Program (June 14, 2011), https://wdr.doleta.gov/
directives/corr_doc.cfm?DOCN=3040. The NPRM
also proposed to incorporate reforestation and pine
straw activities into the H–2A program. Those
activities have been considered under the H–2B
program, and variances for the unique
characteristics of those activities are provided for in
TEGL No. 27–06, Special Guidelines for Processing
H–2B Temporary Labor Certification in Tree
Planting and Related Reforestation Occupations
(June 12, 2007), https://wdr.doleta.gov/directives/
corr_doc.cfm?DOCN=2446. However, following a
consideration of the public submissions, and as
discussed in the preamble to § 655.103(c), above,
this final rule does not incorporate reforestation and
pine straw activities into the H–2A program, and
thus no specific variances are included for these
activities.
112 Compliance with § 655.122(l), as revised by
this rule, requires an employer to ‘‘pay the worker
at least the AEWR; a prevailing wage, if the OFLC
Administrator has approved a prevailing wage
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The Department is adopting the
variances proposed in the NPRM with
minor revisions and technical changes.
The Department received many
comments on the proposed procedures
in §§ 655.300 through 655.304. All of
the commenters supported the proposed
incorporation of variances for the
commercial beekeeping, animal
shearing, and custom combining
occupations in the Department’s H–2A
regulations.
Some commenters requested
additional variances not proposed in the
NPRM. Several employer commenters
requested a variance from the H–2A
wage requirements in the case of job
opportunities that involve animal
shearing. The commenters stated that
employers of animal shearers generally
pay per piece or head, not hourly, and
need a regional or national piece rate
prevailing wage for shearers. The
Department notes that the H–2A
program does not prohibit the payment
of a piece rate to covered workers, so
long as the piece rate is accurately
disclosed and the worker’s average
hourly earnings for the pay period equal
at least the highest of the AEWR,
prevailing hourly wage, agreed-upon
collective bargaining rate, or the Federal
or State minimum wage. Indeed,
historical prevailing wage rates for
animal shearing have often been
published as piece rates. Additionally,
the Department believes that the
prevailing wage methodology adopted
in this final rule at § 655.120(c)(1)
adequately addresses the needs of
animal shearing employers and removes
the need for the prevailing wage
variance specified in the TEGL. The
TEGL permitted use of a prevailing
piece rate finding from an adjoining or
proximate State or based on aggregated
survey data for the occupation in a
region to address situations such as
inadequate sample sizes that would
otherwise prevent a prevailing piece
rate finding in a particular State.113
Under this final rule, a prevailing wage
survey may cover a regional area, where
appropriate, based on the factors at
§ 655.120(c)(1)(vi).114 Because the
survey for the applicable crop activity or
agricultural activity and, if applicable, a distinct
work task or tasks performed in that activity,
meeting the requirements of § 655.120(c); the
agreed-upon collective bargaining rate; the Federal
minimum wage; or the State minimum wage rate,
whichever is highest, for every hour or portion
thereof worked during a pay period.’’
113 See TEGL No. 17–06, Change 1, Special
Procedures: Labor Certification Process for
Employers in the Itinerant Animal Shearing
Industry under the H–2A Program, Attachment A,
Section I.A (June 14, 2011).
114 In the NPRM, the Department expressed its
intent to codify existing practice, including regional
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prevailing wage methodology adopted
in this final rule accommodates the
potential for a regional survey, a specific
variance is no longer required to address
situations in which a statewide survey
fails to generate a prevailing piece rate
wage result for this occupation. In
addition, as a prevailing wage survey
may set a prevailing wage by the piece
rate based on employer responses, a
specific variance is not required to
accommodate piece rates. Regardless,
the Department notes that this final rule
does not require employers to change
their existing payment practices, as the
obligation to pay at least the amount
required by § 655.122(l) continues
unchanged.
A workers’ rights advocacy
organization submitted a comment that
mentions reports of violations regarding
the adequate payment for compensable
time for workers employed as animal
shearers and custom combining workers
for travel time. In response, the
Department reiterates that employers
must account for all hours worked by
the employee in meeting their wage
obligations in § 655.122(l). As
previously noted, in determining
compensable hours worked under the
H–2A Program, the Department applies
FLSA hours worked principles. The
principles applied in determining
compensable hours worked are
explained in more detail in 29 CFR part
785. As such, the Department reminds
employers that any employee
performing work while traveling (e.g.,
driving a combine or employer housing
between locations, or transporting other
workers along an itinerary) constitutes
hours worked. See § 785.41.
Additionally, certain transportation
time may constitute hours worked for
passengers. See §§ 785.33 through
785.41.
Some commenters requested a meal
allowance credit towards the wage rate
for workers in herding and range
livestock production occupations. As
explained in the preamble to the NPRM,
however, the Department is not
reconsidering and thus did not seek
comment on the wage rate methodology
for herding and range livestock
production job opportunities. These
comments are outside the scope of this
rulemaking.
2. Section 655.301, Definition of Terms
The NPRM proposed definitions for
the occupations subject to the
procedures in §§ 655.300 through
655.304. As discussed below, the
Department is adopting § 655.301 from
surveys where appropriate, through
§ 655.120(c)(1)(vi). 84 FR 36168, 36187.
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the NPRM with clarifying and
conforming changes. Commenters
generally supported the proposed
definitions. A workers’ rights advocacy
organization recommended adding a
sentence to the definition of commercial
beekeeping stating that the definition
includes work performed under the
supervision of either a fixed-site farmer/
rancher or an itinerant beekeeping
employer providing services to a fixedsite farmer/rancher, purportedly to
‘‘ensure accurate coverage of all
applicable job opportunities.’’ However,
the commenter did not provide any
explanation as to why the identity of the
supervisor of an itinerant beekeeping
worker is relevant to coverage of
applicable job opportunities. The
Department declines to adopt the
commenter’s proposal. Some
commenters argued that itinerant
beekeepers have been erroneously
subject to the MSPA FLC registration
requirements. The Department
disagrees. Beekeepers providing
pollination services on land that they do
not own or operate are subject to MSPA
FLC registration requirements.
Moreover, the Department did not
propose any substantive changes to
§ 655.132’s requirement that H–2ALCs
submit a copy of their MSPA
registration certificate ‘‘if required by
MSPA.’’ These comments are therefore
outside the scope of this rulemaking.
A workers’ rights advocacy
organization proposed expanding the
definition of ‘‘custom combining’’—
though it did not provide a rationale for
doing so—to cover additional types of
equipment beyond that used in
combining, and additional worksites
beyond those covered by the definition
of agriculture. The Department rejects
the proposal. To avoid the possibility
that readers will construe the definition
more broadly than intended, the
Department has deleted the following
terms from the proposed definition of
‘‘custom combining’’ ‘‘associated with’’
and ‘‘including.’’ The Department also
has made other minor revisions for
clarity, such as specifying that the type
of equipment involved in the covered
activities is combine equipment.
Several trade associations suggested
that the NPRM inadvertently omitted
certain aspects of custom combining,
such as custom harvesters that harvest
not only grain but also silage for
livestock feed. The omission was not
inadvertent. Harvesting silage does not
require a combine, but rather a chopper
or mower, and therefore falls outside the
definition of custom combining. The
TEGL was intended to cover only
custom combining harvesters, as
evidenced by the regulation authorizing
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promulgation of the TEGLs (i.e.,
§ 655.102, which authorized special
procedures for processing H–2A
applications for, among other things,
‘‘custom combine harvesting crews’’).115
The definition adopted in this final rule
clarifies that intent.
In proposing the occupational
definitions at § 655.301, the Department
acknowledged that some of the listed
activities may not otherwise constitute
agricultural work under the current
definition of agricultural labor or
services in § 655.103(c) but are a
necessary part of performing this work
on an itinerary (e.g., transporting
equipment from one field to another).
See 84 FR 36168, 36222. Accordingly,
and solely for the purposes of the
proposed variances in §§ 655.300
through 655.304, the Department
explained that it would include these
activities in the occupational
definitions. Id. The Department did not
receive any comments opposing the
inclusion of specific activities listed in
the proposed definitions. However, the
Department acknowledges that only
duties that fall within the definition of
agricultural labor or services under
§ 655.103(c) may be certified under the
H–2A program. Additionally, an
application for a job opportunity that
contains non-agricultural duties, or a
combination of agricultural and nonagricultural duties, could not otherwise
be certified. See generally § 655.161(a);
2010 H–2A Final Rule, 75 FR 6884,
6888. Accordingly, the Department
clarifies in this final rule that, under the
variances adopted in §§ 655.300 through
655.304, the activities included in the
occupational definitions at § 655.301 are
eligible for certification under the H–2A
program. The Department therefore has
made a technical, conforming revision
to add new paragraph § 655.103(c)(5),
which expressly provides that, for the
purposes of § 655.103(c), agricultural
labor or services includes animal
shearing, commercial beekeeping, and
custom combining activities as defined
and specified in §§ 655.300 through
655.304.
115 In light of this final rule’s promulgation of
specific variances to the procedures for H–2A
temporary labor certification as necessary to
address the unique occupational characteristics of
animal shearing, commercial beekeeping, and
custom combining for employers who seek to hire
temporary agricultural foreign workers in these
occupations, the rule also repeals § 655.102’s
authorization of the TEGLs, and it replaces it with
a new § 655.102 that provides a transitional period
for the orderly and seamless implementation of
these variances in lieu of the TEGLs.
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3. Section 655.302, Contents of Job
Orders
a. Paragraph (a), Content of Job Offers
A workers’ rights advocacy
organization expressed general support
for proposed § 655.302, but they
recommended that job orders be
required to include additional
information about workers’
compensation, rates of pay, the offered
wage, and productivity standards for
each State in which work will be
performed. No change is required to
address this comment. Unless a specific
variance under § 655.302 is applicable
and provides otherwise, an employer’s
job order must still comply with each of
the content requirements at § 655.122.
See § 655.302(a). For example, in order
to satisfy its obligation to provide
workers’ compensation insurance
coverage for injury and disease ‘‘arising
out of and in the course of the worker’s
employment’’ and ‘‘for the entire period
of employment’’ under § 655.122(e), an
employer requiring work in multiple
States (including a single AIE that
crosses State lines) must satisfy this
obligation in each State in which work
will be performed. Similarly,
§ 655.122(c) and (l) require the employer
to disclose the wage rate(s) offered and
productivity standards in the job order.
The Department’s modernized job order
form, Form ETA–790A, facilitates full
disclosure of job offer information.
b. Paragraph (b), Job Qualifications and
Requirements
A workers’ rights advocacy
organization opposed the Department’s
proposal to allow a job offer for the
animal shearing and custom combining
occupations to include a statement that
applicants must possess up to 6 months
of experience in similar occupations,
and for the commercial beekeeping
occupation to include a statement that
applicants must possess up to 3 months
of experience in similar occupations.
The Department is retaining the NPRM
proposal. The proposal was consistent
with the TEGLs for these occupations.
This final rule does not mandate that
employers seeking workers for these
occupations require such experience;
rather, this final rule recognizes that
such experience is consistent with the
experience employers normally choose
to require for these occupations, as has
been observed in filings with OFLC.
These occupations typically involve
specialized skills (e.g., operating heavy
equipment; using shearing tools quickly
and close to an animal’s skin without
injury; or detecting and addressing bee
health issues). The regulatory text
specifies the maximum amount of
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experience that an employer may
require absent an affirmative
demonstration that such experience is a
normal and accepted requirement. This
provision does not mean an employer
must require the maximum amount of
experience in the job order—it simply
sets a ceiling for what are considered to
be normal requirements. Further, in the
event that a SWA or OFLC CO obtains
information indicating that the amount
of experience required by the employer
is not usual for a given State, AIE, or job
opportunity, nothing in this rule
precludes the SWA and/or OFLC from
assessing the normalcy of the
experience requirement under
§ 655.122(b).
The same commenter also requested
that § 655.302(b) be revised to remove
the verifiable experience requirement
because such requirements are used as
a barrier to exclude U.S. workers, but
they are rarely applied to foreign
workers. The Department does not
believe that this change is necessary.
The Department’s regulations have long
prohibited the preferential treatment of
H–2A workers over other workers,
including by prohibiting the imposition
on U.S. workers of any restrictions or
obligations that will not be imposed on
the employer’s H–2A workers. See
§ 655.122(a)(1). These protections
continue to apply under this final rule.
Employers should therefore ensure that
any restrictions or obligations imposed
on U.S. applicants are also imposed on
H–2A workers, and the employer retains
records of the imposition of these
restrictions or obligations in the event of
an audit by OFLC or enforcement by
WHD.
An employer commenter opposed the
provision in § 655.302(b) permitting
beekeeping employers to specify in the
job order that applicants must possess a
valid driver’s license or be able to obtain
such a license no later than 30 days after
the worker’s arrival to the place of
employment. The commenter noted that
beekeeping employers do not require all
workers to drive and when they do, it
is often not possible to obtain a license
within 30 days. This comment seemed
to misunderstand the nature of the
provision in § 655.302(b). Nothing in the
regulation would require an employer to
impose a driver’s license requirement or
to require workers to obtain a license
within 30 days for every job order. On
the contrary, only to the extent
beekeeping employers choose to require
that workers possess a driver’s license,
§ 655.302(b) provides that the job offer
may require that applicants either
possess a driver’s license or be able to
obtain one within 30 days. However,
nothing in § 655.302(b) would prevent
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an employer from allowing applicants
more than 30 days to obtain a driver’s
license.
c. Paragraph (c), Communication
Devices
Pursuant to § 655.122(f), employers
must provide each worker, without
charge or deposit charge, all tools,
supplies, and equipment required to
perform the duties assigned. Due to the
potentially remote, isolated, and unique
nature of the work to be performed by
workers in animal shearing and custom
combining occupations, the NPRM
proposed to require the employer to
provide each worker, without charge or
deposit charge, effective means of
communicating with persons capable of
responding to the worker’s needs in case
of an emergency. The proposed
requirement is consistent with that same
requirement in place for workers
primarily engaged in the herding and
production of livestock on the range
under the H–2A program, see
§ 655.210(d)(2), as well as those
currently in place in the TEGLs for these
occupations. Therefore, as discussed
below, the Department is adopting
paragraph (c) from the NPRM with a
change for flexibility.
Several employer and association
commenters opposed the requirement to
provide communication devices for
each worker in an animal shearing and
custom combining crew. The
commenters argued that crews in these
occupations do not generally perform
work in areas that are as remote and
isolated as workers engaged in herding
and production of livestock on the
range. They also noted that workers
generally have their own
communication devices, so there is no
need for the employer to bear the cost
of providing a device to each worker. A
workers’ rights advocacy organization,
on the other hand, argued that
communication devices should be
provided for all workers in those
occupations, as well as for workers in
commercial beekeeping occupations.
In light of the comments, the
Department has decided to modify the
NPRM proposal. This final rule requires
the employer to provide at least one
communication device to each animal
shearing and custom combining crew
(i.e., group of workers working together
as a unit). The Department’s intent is to
ensure that each worker have a
meaningful way to seek assistance in
case of emergencies. The Department’s
interest in ensuring meaningful access
to communication devices may be
accomplished by requiring one
communication device per crew. Each
worker in the crew must have
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meaningful access to that device in the
case of an emergency. To have
meaningful access, each worker in the
crew must be notified as to the location
of the communication device at all
times (e.g., stored in a particular vehicle
or equipment), trained in operation of
the device (e.g., informed of any
passcodes), and be free to use the device
to contact first responders or other
emergency responders directly, without
first contacting the employer or crew
leader. Employers must have the ability
to address language barriers in the event
of an emergency. Employers can address
language barriers by having on-call staff
or otherwise making available (e.g.,
through a conference call), a person
capable of speaking the worker’s
language and communicating the
worker’s needs, or by using translation
technology (e.g., computer software,
translation devices). This modification
strikes a balance between the need to
ensure that workers have access to a
communication device for emergencies,
while heeding the employer
commenters’ arguments that workers in
the animal shearing and custom
combining occupations usually work as
a crew, and therefore individual devices
are not necessary. Additionally, the
Department agrees that, in contrast to
herding and livestock workers on the
range, these occupations are more likely
to be working on farms and ranches,
rather than in remote areas. However,
the relatively less remote nature of the
worksites characterizing these
occupations (when compared to range
herding and production of livestock)
does not obviate the need for
communication devices; this work can
be dangerous and may occur in remote
areas, thus necessitating that workers
have the ability to call for help in case
of an emergency.
The Department does not believe
communication devices should be
mandated for commercial beekeepers,
contrary to the suggestion by a workers’
rights advocacy organization. The TEGL
for that occupation does not currently
include such a requirement because
workers in that occupation generally
work in less remote locations where
phones are more easily accessible.
The NPRM also posed questions about
whether the regulation should identify
other specific tools the employer must
provide to each worker in the covered
occupations. A workers’ rights advocacy
organization requested that the
Department modify the proposed
§ 655.302(c) to include an explicit,
nonexclusive list of such items that are
typically required by the nature of the
work under this subpart, to ensure
employers provide the tools, supplies,
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and equipment necessary for workers to
do the job. Employer association
commenters opposed the requirement
that employers provide all tools, but
they provided little detail regarding the
tools that employers should not be
required to provide to workers in
commercial beekeeping and custom
combining occupations.
This final rule retains the proposal in
the NPRM, which does not identify the
specific tools the employer must
provide to workers in the covered
occupations. There is much variability
in the tools necessary to perform the
work in these occupations, and they
may vary by employer, region, and type
of work.
Employer association commenters in
the animal shearing occupations
opposed the requirement that the
employer provide all tools to shearing
workers, arguing that shearing workers
generally have their own set of shears
and that requiring the employer to
provide them would be burdensome and
unnecessary. The requirement to
provide all necessary tools to workers is
not unique to animal shearing
employers, as all H–2A employers must
provide to the worker, without charge or
deposit charge, all tools, supplies, and
equipment required to perform the
duties assigned. See § 655.122(f). In
addition, the Department’s regulation at
§ 655.122(p) prohibits an employer from
making an unlawful deduction that is
primarily for the benefit or convenience
of the employer. Because all tools,
supplies, and equipment required to
perform the duties assigned are
primarily for the benefit of the
employer, these tools must be provided
to the worker free of charge. See 29 CFR
531.3(d)(2). While employers must
provide tools free of charge to workers,
workers may choose to use their own
tools if that is their preference.
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d. Paragraph (d), Housing
The NPRM proposed that for job
opportunities involving animal shearing
and custom combining, the employer
must specify in the job order that
housing will be provided as set forth in
§ 655.304. This final rule retains the
requirement in this section. The specific
housing requirements for these
occupations are discussed below in the
preamble to § 655.304.
4. Section 655.303, Procedures for Filing
Applications for Temporary
Employment Certification
The NPRM proposed that employers
in the covered occupations continue to
satisfy the regular requirements for
filing an Application for Temporary
Employment Certification under
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§§ 655.130 through 655.132, and that,
consistent with the TEGLs, employers
seeking workers in the covered
occupations continue to provide the
specific locations, estimated start and
end dates, and, if applicable, names for
each farm or ranch for which work will
be performed. The NPRM, however,
proposed an exception to the geographic
limitations in §§ 655.130 through
655.132 for applications subject to the
procedures in §§ 655.300 through
655.304. This exception allows such
agricultural work to be performed on a
scheduled itinerary covering multiple
AIEs, including in multiple contiguous
States. Further, the NPRM proposed an
additional exception for applications in
the commercial beekeeping occupation.
Consistent with the current TEGL for
that occupation, the NPRM proposed
allowing such applications to include
one noncontiguous State at the
beginning and end of the period of
employment for retrieving bee colonies
from and returning them to their
overwintering location. Commenters
expressed general support for the
procedures in § 655.303. Therefore, as
discussed below, this final rule retains
the proposal in the NPRM with minor
technical revisions.
Several employers and employer
associations and agent commenters
opposed the NPRM’s proposal that
applications for the covered occupations
limit itineraries to contiguous States.
Some of the employer and association
commenters opposed the proposal on
the basis that it would be a change from
the geographic scope permitted under
current practice and that the change
would not permit them to continue
performing the job duties associated
with these occupations. Other
commenters expressed concern that the
proposal was limited to a starting State
and its contiguous States only, which
was not the intent of the proposal. The
Department’s use of the term
‘‘contiguous’’ was not intended to
anchor all States on the itinerary to the
starting State. Rather, the proposal was
intended to permit covered employers
to file applications with an itinerary
spanning multiple States so long as each
of the States included in the itinerary
shared a border with another State on
the itinerary. In other words, the
Department intended to describe an
itinerary covering a contiguous grouping
of States akin, but not limited, to
recognized regional groupings of States
(e.g., USDA farm production regions).
For example, an animal shearing
application could include an itinerary
with work to be performed in California,
Oregon, Idaho, and Utah; but not
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California, Oregon, Idaho, and Colorado,
as Colorado is not contiguous to any of
the other States on the itinerary. A
beekeeping application could include
an itinerary with work in Texas, North
Dakota, and South Dakota; or Texas,
California, and Oregon; but not Texas,
North Dakota, and California. Where an
employer has planned work in groups of
States that are not contiguous, or for
beekeeping employers that are not
contiguous apart from the overwintering
State, the employer must file more than
one Application for Temporary
Employment Certification, where each
satisfies the contiguous State itinerary
requirement.
In adopting the NPRM proposal
regarding contiguous States, the
Department expects that most
participating employers will be able to
continue filing applications with
minimal or no changes to current
practice. Employers generally limit the
time and distances between work
locations on the itinerary, both for their
own profitability and to satisfy wage
and hour guarantees to workers.
Further, the distances that can be
covered within one itinerary are limited
by the seasonality of the need for the
duties to be performed. Therefore,
employers typically file applications in
which work will be performed along a
contiguous-State route, involving a
grouping of States.
Contrary to some commenters’
suggestion, the limitation serves to
advance legitimate Departmental goals
while recognizing the need for
employers in the covered occupations to
have ample flexibility to follow an
itinerary over a large geographic area.
This final rule serves to ensure that
applications reflect bona fide job
opportunities for full-time, temporary
work through the employer’s asserted
period of need. An employer must have
sufficient evidence of the work it
expects to perform across the itinerary
at the time it submits its Application for
Temporary Employment Certification.
Long distances between places of
employment on an itinerary suggest a
lack of full-time work throughout the
work contract. Although the threefourths guarantee provides an assurance
to workers of the minimum hours and
wages they can expect under the work
contract, that guarantee is intended to
address the normal variability of
weather, crop readiness, and other
circumstances in agricultural work. The
three-fourths guarantee is not intended
to allow an employer to include periods
without work, as would be the case
during travel between distant places of
employment. The Department further
notes that the limitation in § 655.303 is
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consistent with the requirement in
§ 655.215(b)(1) for herding and range
livestock applications.
In addition, under the applicable
hours worked principles, only certain
time spent traveling between worksites
constitutes compensable hours worked.
See 29 CFR part 785. Because it is
possible that time spent traveling
between worksites would not constitute
compensable hours worked for many H–
2A and corresponding workers,
permitting itineraries to include
noncontiguous States (apart from those
necessary for overwintering bees) could
result in several non-compensable hours
worked for these workers during longer
trips.
Employer and employer association
commenters expressed concern that the
proposed § 655.303 would change
current practice under the TEGLs by
requiring an employer to file one H–2A
application for each crew of itinerant
workers. Those commenters noted that
under current practice, employers with
multiple crews sometimes operate along
a single itinerary, traveling to separate
locations when needed, and requested
additional flexibility in the number of
itineraries that may be filed under a
single application. They stated that
switching workers between crews
sometimes becomes necessary—for
example, if a worker is sick and another
worker is needed to fill in to complete
a job.
The NPRM proposal was intended to
be consistent with the procedures and
policy established in the TEGLs. In the
TEGLs, the Department permitted a
variance from § 655.132(a) to allow, for
example, an itinerant animal shearing
employer ‘‘who desires to employ one
or more nonimmigrant workers on an
itinerary’’ to submit ‘‘a planned
itinerary of work in multiple
[S]tates.’’ 116 The NPRM inadvertently
introduced confusion by using the term
‘‘crew,’’ rather than ‘‘itinerary,’’ though
no distinction from current practice was
intended. The Department understands
that employers may divide workers into
various crews, with all of the crews
performing work along the same
planned route, with different crews
working at different farms or ranches
within the same area or some crews
moving ahead of others to the next
location on the planned route.
Depending on agricultural needs (e.g.,
farm size and/or crop conditions) at
116 See TEGL No. 17–06, Change 1, Special
Procedures: Labor Certification Process for
Employers in the Itinerant Animal Shearing
Industry under the H–2A Program, Attachment B,
Sections I.B. and II.B (June 14, 2011), https://
wdr.doleta.gov/directives/attach/TEGL/TEGL17-06Ch1.pdf.
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each farm or ranch, the number of
workers or crews needed at each
worksite may vary. As long as all of the
workers covered by the application were
performing labor or services along the
same planned route, the Department
would consider the employer to have
one itinerary, even if the workers might
be assigned to different particular
contracts along that route. This
understanding is consistent with a nonitinerant H–2ALC employing workers
performing work at different locations
within a single AIE.
To the extent employers in the
covered occupations present work
itineraries that contain different
planned routes for some of the workers,
they would be required to file more than
one Application for Temporary
Employment Certification. However, to
the extent employers present an
itinerary that contains one planned
route for all of the workers, in which
some workers are briefly assigned to
different farm contracts, they will be
able to file one Application for
Temporary Employment Certification.
For example, where an employer assigns
some workers to farm contracts along
one travel route and other workers to
farm contracts along a different travel
route, and the two groups of workers
travel and work separately throughout
the period of employment (or during all
but a few occasions, such as for a
particularly large job or at the beginning
or end of the employer’s period of
need), the employer has two distinct
itineraries that cannot be combined on
a single Application for Temporary
Employment Certification. In contrast,
an employer has a single itinerary and
can file one Application for Temporary
Employment Certification where its
planned route involves all of the
workers traveling together or along the
same path and working in the same
general areas at approximately the same
times. The fact that some workers are
assigned to one client farm and other
workers are assigned to a different client
farm in the same AIE does not create a
separate itinerary. Likewise, and absent
some countervailing information
suggesting truly distinct itineraries, an
employer has one itinerary and can file
one Application for Temporary
Employment Certification in situations
where some workers remain longer in
one location on the employer’s planned
route performing their assigned farm
contracts than other workers and some
workers travel ahead to begin to work
on other farm contracts at the next
location on the employer’s planned
route.
In light of the above clarification
regarding the intended meaning, this
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61775
final rule retains the proposal in the
NPRM with minor technical revisions.
Employer association commenters
also asked that DOL make available the
application procedure in § 655.205 to
applications that involve animal
shearing. This change is unnecessary as
an animal shearing employer—or any
other employer—with an emergency
situation justifying waiver of the normal
filing timeframes can file its application
under § 655.134.
5. Section 655.304, Standards for Mobile
Housing
As discussed below, the Department
is adopting § 655.304 from the NPRM
with some changes. Due to the unique
nature of animal shearing and custom
combining occupations, the NPRM
proposed to permit employers to
provide mobile housing for workers
engaged in these occupations. The
Department chose not to permit
commercial beekeeping employers to
provide mobile housing for workers
engaged in that occupation. This
approach is consistent with the relevant
TEGLs.117 The NPRM included
proposed standards for mobile housing
for workers engaged in the animal
shearing and custom combining
occupations, which largely incorporated
the housing standards in the TEGLs,
with two key exceptions.
First, the TEGL for workers engaged
in animal shearing occupations
expressly provides that an animal
shearing contractor may lease a mobile
unit owned by a crew member or other
person or make some other type of
‘‘allowance’’ to the unit owner. Under
the proposed rule, such an arrangement
with a crew member (e.g., employee) is
not permitted. Employer and employer
association commenters opposed this
proposal, opining that it appeared the
Department is attempting to require
employees to live in employer-furnished
housing and forbidding workers from
living and traveling in their own
lodging, if so preferred. The Department
is not prohibiting workers from
choosing to live and travel in their own
mobile housing unit, if so preferred. As
117 See TEGL No. 17–06, Change 1, Special
Procedures: Labor Certification Process for
Employers in the Itinerant Animal Shearing
Industry under the H–2A Program, Attachment B
(June 14, 2011), https://wdr.doleta.gov/directives/
attach/TEGL/TEGL17-06-Ch1.pdf; TEGL No. 16–06,
Change 1, Special Procedures: Labor Certification
Process for Multi-State Custom Combine Owners/
Operators under the H–2A Program, Attachment A
(June 14, 2011), https://wdr.doleta.gov/directives/
attach/TEGL/TEGL16-06-Ch1.pdf; TEGL No. 33–10,
Special Procedures: Labor Certification Process for
Itinerant Commercial Beekeeping Employers in the
H–2A Program, Attachment A (June 14, 2011),
https://wdr.doleta.gov/directives/corr_
doc.cfm?DOCN=3043.
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commenters noted, all workers are free
to decline employer-provided housing;
however, WHD’s enforcement
experience indicates that most workers
tend not to reject this housing, and any
investigation will closely review
whether the worker’s rejection of the
housing was truly voluntary. However,
the INA requires every H–2A employer
to furnish housing at no cost to workers.
See 8 U.S.C. 1188(c)(4). Consistent with
this statutory requirement, it is the
employer’s obligation to offer and
furnish such housing at no cost to the
worker; permitting an employer to rely
on the workers to provide their own
such housing, including through a lease
agreement, is inconsistent with this
statutory requirement.
Second, the proposed standards
deviated from the TEGLs’ approach of
permitting employers of animal shearing
and custom combining workers to
provide housing that met the range
housing standards (§ 655.235) at all
times. In contrast, the NPRM proposed
to allow such employers to comply with
the range housing standards only when
the housing is located on the range and
proposed mobile housing standards to
be used when the housing is not on the
range. A workers’ rights advocacy
organization commenter stated that,
with a small modification, the proposed
mobile housing standards would be
sufficient to meet the mobile housing
needs of workers employed in animal
shearing and custom combining
occupations even when the housing is
located on the range. Some commenters
also expressed concern that it might not
be clear which housing standards would
apply in certain situations.
Upon further consideration, the
Department has decided to modify
§ 655.304 to require employers seeking
workers in the animal shearing and
custom combining occupations to
provide housing that complies with the
mobile housing standards in § 655.304
regardless of where the housing is
located, except as provided below.
Thus, employers seeking workers in the
covered occupations will generally not
be permitted to comply with the range
housing standards (§ 655.235) even
when the housing is located on the
range. For the most part, employers
seeking workers in the animal shearing
and custom combining occupations will
be able to provide housing consistent
with the mobile housing standards.
To account for the occasional
instances where employers in the
covered occupations provide housing
located on the range in locations where
compliance with all of the mobile
housing standards is not feasible, this
final rule establishes a procedure to
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permit employers to request a variance
from the mobile housing standards that
would allow them to instead comply
with a specific range housing standard
for the limited time the housing is in
that particular location on the range.
There are minor distinctions between
the mobile housing standards in
§ 655.304 and the range housing
standards in § 655.235. Those
distinctions are only appropriately
invoked in a small subset of instances
where the work is so remote that the
mobile housing standard is not feasible
for the covered occupations. Similar to
the procedure in § 655.235(b)(4) and (l),
employers may request a variance from
the CO at the time of the application by:
• Identifying the particular mobile
housing standard(s) in § 655.304, and
attesting that compliance with the
standard(s) is not feasible;
• Identifying the range location(s)
where it is unable to meet the particular
mobile housing standard(s) in § 655.304;
• Identifying the anticipated dates
when the mobile unit(s) will be in those
locations;
• Identifying the corresponding range
housing standard(s) in § 655.235, and
attesting that it will comply with such
standard(s); and,
• Attesting to the reason(s) why the
particular mobile housing standard(s) in
§ 655.304 cannot be met.
If the CO approves one or more
variances to the mobile housing
standards at § 655.304, the approval will
specify the locations, dates, and specific
variances approved. The variance
procedure in § 655.304(a)(1) therefore
eliminates any potential confusion
about which housing standards would
apply in any given situation. Further,
this final rule will allow the Department
to monitor the use of mobile housing,
while maintaining employer flexibility
where necessary.
Accordingly, this final rule also does
not adopt the NPRM’s proposal at
§ 655.304(a)(1) (consistent with animal
shearing TEGL) to apply the range
housing inspection procedures to
mobile housing units used on the range.
Instead, the inspection procedures at
§ 655.122(d)(6) apply to all mobile units
used to house workers engaged in
occupations subject to the procedures in
§§ 655.300 through 655.304, except
those covered by the exception at
§ 655.304(a)(2). Before issuing any
temporary labor certification for workers
engaged in custom combining or animal
shearing work covered by the
procedures at §§ 655.300 through
655.304, and who will be housed in
mobile units, the CO must receive a
housing certification based on an
inspection conducted by the SWA or
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that of another local, State, or Federal
authority acting on behalf of the SWA—
or, under the exception at
§ 655.304(a)(2), an authorized
representative of the Federal or
provincial government of Canada—
reflecting the certifying authority’s
knowledge of the employer’s planned
use of the housing, confirming that all
of the employer’s mobile units have
been inspected, consistent with the
requirements of § 655.122(d)(6), and
certified as meeting applicable housing
standards.118 The Department has made
conforming revisions to § 655.122(d)(2),
as discussed above.
If a mobile unit does not satisfy the
housing standards at § 655.304(c)
through (p) as a self-contained unit, the
employer may satisfy those standards by
providing supplemental facilities at
each location on the itinerary to ensure
that the housing standards at
§ 655.304(c) through (p) are satisfied
throughout the work contract period.
See § 655.304(b).
Some employer and employer
association commenters, who generally
opposed the obligation to provide
housing at no cost to H–2A workers and
workers in corresponding employment,
also opposed specific aspects of the
mobile housing standards, such as an
employer’s responsibility for the cost of
laundering workers’ clothes. The
Department notes that an employer’s
obligation to provide housing at no cost
to the workers extends to all required
amenities within the housing, regardless
of the housing standards applicable. For
example, an employer cannot charge the
worker for a bed or for a window
because the housing standards require
these basic amenities. Similarly, the
employer cannot charge the worker for
the laundry facilities provided, because
housing standards require laundry
facilities. When the housing provided
does not have laundry facilities, and the
118 One workers’ rights advocacy organization
commented that because it is ‘‘possible that
worksites of intended employment may include
provincial land owned or operated by Canadian
employers,’’ this final rule should be extended to
cover such worksites. This comment appears to be
based on an inaccurate reading of the custom
combine TEGL. TEGL No. 16–06, Change 1, Special
Procedures: Labor Certification Process for MultiState Custom Combine Owners/Operators under the
H–2A Program (June 14, 2011), https://
wdr.doleta.gov/directives/corr_
doc.cfm?DOCN=3040. That TEGL acknowledges
that worksites located in the United States may be
owned or operated by Canadian employers, and
therefore states that if such employers provide
mobile housing units or other similar vehicles,
those employers must submit an inspection report
of such vehicles conducted by an authorized
representative of the Canadian Federal or provincial
government. Nothing in this final rule permits
worksites of intended employment to be located in
Canada.
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employer meets the obligation to
provide laundry facilities by providing
transportation to a laundromat, the
employer must pay for laundering
expenses. On the other hand, where an
employer has provided functional
laundry facilities but the employee
chooses to go to a laundromat, the
employer has complied with its
obligation and is not responsible for
laundering expenses.
A commenter also raised a concern
regarding the impact that use and
transportation of heating equipment
may have on wilderness areas and
proposed revisions to § 655.304 to note
compliance with the Wilderness Act is
required. Because the employer is
already required to comply with all
applicable laws, a provision specifying
that compliance with a particular law is
not necessary.
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VI. Discussion of Revisions to 29 CFR
Part 501
In the NPRM, the Department
proposed revisions to its regulations at
29 CFR part 501, which sets forth the
responsibilities of WHD to enforce the
legal, contractual, and regulatory
obligations of employers under the H–
2A program. The Department proposed
these amendments concurrent with and
in order to complement the changes that
ETA proposed to its certification
procedures in 20 CFR part 655, subpart
B. Where the Department has adopted
changes to 20 CFR part 655, subpart B,
as discussed in the above section-bysection analysis of that subpart, the
Department has adopted the relevant
complementary and conforming
revisions to this part.
In addition, since publication of the
NPRM and through other rulemakings,
the Department has revised the
regulations in 29 CFR part 501
addressing the amounts and methods of
payment of civil money penalties, and
the timing and finality of decisions of
the ARB. This final rule reflects these
intervening rulemakings, as discussed
below.
A. Conforming Changes
As discussed in the NPRM, the
Department proposed various revisions
to 29 CFR part 501 that conformed to
proposed revisions to 20 CFR part 655,
subpart B. Where the Department has
adopted proposed changes to 20 CFR
part 655, subpart B, as discussed in the
above section-by-section analysis of that
subpart, the Department has adopted the
appropriate complementary and
conforming revisions to this part. These
conforming revisions include, among
others, clarification of the delegated
authority of, and division of
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responsibilities between, ETA and WHD
under the H–2A program in § 501.1, and
the addition or revision of certain
definitions of terms in § 501.3. Any
comments received on these proposed
revisions, and any changes adopted in
this final rule, are discussed above in
the section-by-section analysis of 20
CFR part 655, subpart B.
B. Section 501.9, Enforcement of Surety
Bond
The Department proposed revisions to
WHD’s surety bond provision at 29 CFR
501.9 as described fully in the
discussion of 20 CFR 655.132 above. As
detailed above, the Department has
adopted its proposed changes to 20 CFR
655.132, with certain revisions. Those
revisions, however, do not necessitate
changes to proposed 29 CFR 501.9.
Accordingly, this final rule adopts 29
CFR 501.9 as proposed in the NPRM,
without substantive change.
C. Section 501.20, Debarment and
Revocation
The Department proposed revisions to
WHD’s debarment provisions at 29 CFR
501.20 to maintain consistency with the
proposed changes to 20 CFR 655.182(a),
which would permit the Department to
debar an agent or employer for
substantially violating a term or
condition of the temporary agricultural
labor certification. The section also has
been revised to make clear that joint
employers under 20 CFR 655.131(b) are
subject to debarment only for
participation in a debarrable violation.
The Department has responded to the
comments received on these proposed
changes in the above discussion of 20
CFR 655.182(a) and 655.131(b).
Accordingly, this final rule adopts
proposed 29 CFR 501.20 without
substantive change.
D. Terminology and Technical Changes
In addition to proposed revisions to
conform to the terminology and
technical changes proposed to 20 CFR
part 655, subpart B, the Department
proposed minor changes throughout this
part to correct typographical errors and
improve clarity and readability. Such
changes are nonsubstantive and do not
change the meaning of the current text.
For example, the Department proposed
throughout part 501 to replace the
phrase ‘‘the regulations in this part’’
with the phrase ‘‘this part.’’ The
Department received no comments on
these proposed revisions and
accordingly adopts them without
change in this final rule. The
Department has made additional
technical, nonsubstantive changes
throughout this part and 20 CFR part
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61777
655, subpart B, for accuracy and clarity.
For example, the Department has
replaced the phrase ‘‘hereunder’’ in
§ 501.5 with a specific reference to the
relevant authority and made technical
changes to the cross-references in
§ 655.135(h).
E. Intervening Rulemakings
Since publication of the NPRM, the
Department has revised the regulations
in 29 CFR part 501 on three occasions.
First, on November 7, 2019, the
Department published a final rule
revising certain of its regulations
governing the payment and collection of
civil money penalties, including those
under the H–2A program at § 501.22, by
allowing for the payment of civil money
penalties through an electronic payment
alternative, and otherwise amending the
regulations to ensure uniform payment
instructions. See Authorizing Electronic
Payments of Civil Money Penalties, 84
FR 59928 (Nov. 7, 2019). These
revisions are reflected in this final rule
at § 501.22.
Next, on January 15, 2020, the
Department published a final rule to
adjust for inflation the civil money
penalties assessed or enforced by the
Department, including the H–2A civil
money penalties listed in § 501.19,
pursuant to and as required by the
Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by
the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (Inflation Adjustment Act). See
Department of Labor Federal Civil
Penalties Inflation Adjustment Act
Annual Adjustments for 2020, 85 FR
2293 (Jan. 15, 2020).
Relatedly, the Department received
three comments on the NPRM opposing
what these commenters perceived to be
discretionary changes in the civil money
penalty amounts currently reflected in
§ 501.19(b). As noted above, however,
the Department issued its annual
inflation adjustment to civil money
penalty amounts for 2020, as required
by the Inflation Adjustment Act, after
publication of the NPRM. This final rule
reflects the current, appropriate civil
money penalty amounts at § 501.19. The
Department will continue to annually
adjust these amounts for inflation, as
required by the Inflation Adjustment
Act.
Finally, on May 20, 2020, the
Department published a final rule to,
among other changes and together with
Secretary’s Order 01–2020, establish a
new discretionary review process and
make technical changes to Departmental
regulations governing the timing and
finality of decisions of the ARB,
including those under the H–2A
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program at § 501.45. See Rules
Concerning Discretionary Review by the
Secretary, 85 FR 30608. These technical
revisions are reflected in this final rule
at § 501.45.
VII. Administrative Information
A. Executive Orders 12866 (Regulatory
Planning and Review) and 13563
(Improving Regulation and Regulatory
Review)
Under E.O. 12866, the OMB’s Office
of Information and Regulatory Affairs
(OIRA) determines whether a regulatory
action is significant and, therefore,
subject to the requirements of the E.O.
and review by OMB. Section 3(f) of E.O.
12866 defines a ‘‘significant regulatory
action’’ as an action that is likely to
result in a rule that: (1) has an annual
effect on the economy of $100 million
or more, or adversely affects in a
material way a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities (also referred to as
economically significant); (2) creates
serious inconsistency or otherwise
interferes with an action taken or
planned by another agency; (3)
materially alters the budgetary impacts
of entitlement grants, user fees, or loan
programs, or the rights and obligations
of recipients thereof; or (4) raises novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the E.O. The
OMB’s OIRA has determined that this
final rule is a significant regulatory
action, although it is not an
economically significant action, under
E.O. 12866 sec 3(f)(4) and, accordingly,
OMB has reviewed this final rule.
Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), OIRA has
designated this rule as not a ‘‘major
rule,’’ as defined by 5 U.S.C. 804(2).
E.O. 13563 directs agencies to propose
or adopt a regulation only upon a
reasoned determination that its benefits
justify its costs; the regulation is tailored
to impose the least burden on society,
consistent with achieving the regulatory
objectives; and in choosing among
alternative regulatory approaches, the
agency has selected those approaches
that maximize net benefits. E.O. 13563
recognizes that some benefits are
difficult to quantify and provides that,
where appropriate and permitted by
law, agencies may consider and discuss
qualitatively values that are difficult or
impossible to quantify, including
equity, human dignity, fairness, and
distributive impacts.
longer a change to how travel costs are
reimbursed. Travel costs will continue
to be reimbursed from the place of
worker recruitment which may or may
not be the worker’s home community.
Consequently, there is no shift in cost
burdens from employers to H–2A
workers because the Department has
decided to retain the current regulatory
requirement.
Public Comments
One commenter stated they no longer
understood the rationale behind the
move to e-filing and did not identify an
analysis of the costs and benefits
associated with the proposed changes to
e-filing in the NPRM.
The NPRM stated that mandating efiling would reduce costs and burdens
for most employers (and the
Department), reduce the frequency of
delays related to filing applications and
supporting documentation by mail,
improve the consistency and quality of
information collected, and promote
administrative efficiency and
accountability. The costs of e-filing were
determined to be non-quantifiable due
to a lack of information to determine
whether the six percent of employers
who currently choose not to e-file are
doing so as a matter of preference or
because they are incapable of doing so
due to a lack of equipment or ability.
The cost savings portion of the e-filing
requirement is quantifiable and is
presented in the regulatory impact
analysis below.
One commenter said that the proposal
seeks to shift costs from employers to
H–2A workers by requiring employers
to reimburse travel costs only from the
U.S. consulate, rather than from the
workers’ home communities.
Under the NPRM, the provision to
define ‘‘the place from which the
worker departed’’ as the U.S. embassy or
consulate for certain H–2A workers was
intended to provide workers, employers,
and the Department with a consistent
point from where costs can be
calculated. In this final rule there is no
Section VII.A.1 describes the need for
this final rule, and section VII.A.2
describes the process used to estimate
the costs and cost savings of the rule
and the general inputs used, such as
wages and number of affected entities.
Section VII.A.3 explains how the
provisions of this final rule will result
in quantifiable costs and cost savings
and presents the calculations the
Department used to estimate them. In
addition, section VII.A.3 describes the
qualitative costs, cost savings, and
benefits of this final rule. Section
VII.A.4 summarizes the estimated firstyear and 10-year total and annualized
costs, cost savings, and net costs of this
final rule. Finally, section VII.A.5
describes the regulatory alternatives that
were considered during the
development of this final rule.
Outline of the Analysis
Summary of the Analysis
The Department estimates that this
final rule will result in costs and cost
savings. As shown in Exhibit 1, this
final rule is expected to have an
annualized quantifiable cost of $2.75
million and a total 10-year quantifiable
cost of $19.29 million at a discount rate
of seven percent.119 This final rule is
estimated to have annualized
quantifiable cost savings of $0.16
million and total 10-year quantifiable
cost savings of $1.12 million at a
discount rate of seven percent.120 The
Department estimates that this final rule
would result in an annualized net
quantifiable cost of $2.59 million and a
total 10-year net cost of $18.17 million,
both at a discount rate of seven percent
and expressed in 2021 dollars.121
EXHIBIT 1—ESTIMATED MONETIZED COSTS AND COST SAVINGS OF THIS FINAL RULE
[2021 $millions]
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Costs
Undiscounted 10-Year Total ........................................................................................................
10-Year Total with a Discount Rate of 3% ..................................................................................
10-Year Total with a Discount Rate of 7% ..................................................................................
10-Year Average ..........................................................................................................................
119 This final rule will have an annualized cost of
$2.69 million and a total 10-year cost of $22.96
million at a discount rate of three percent in 2021
dollars.
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120 This final rule will have an annualized cost
savings of $0.15 million and a total 10-year cost
savings of $1.32 million at a discount rate of three
percent in 2021 dollars.
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$26.51
22.96
19.29
2.65
Cost savings
$1.51
1.32
1.12
0.15
Net costs 122
$25.00
21.64
18.17
2.50
121 This final rule will have an annualized net
cost of $2.54 million and a total 10-year cost of
$21.64 million at a discount rate of three percent
in 2021 dollars.
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61779
EXHIBIT 1—ESTIMATED MONETIZED COSTS AND COST SAVINGS OF THIS FINAL RULE—Continued
[2021 $millions]
Costs
Annualized at a Discount Rate of 3% .........................................................................................
Annualized with at a Discount Rate of 7% ..................................................................................
The total cost of this final rule is
associated with rule familiarization and
recordkeeping requirements for all H–
2A employers,123 as well as increases in
the amount of surety bonds required for
H–2ALCs. The two largest contributors
to the cost savings of this final rule are
the electronic submission of
applications and application signatures,
including the use of electronic surety
bonds, and the electronic sharing of job
orders submitted to the NPC with the
SWAs. See the costs and cost savings
subsections of section VII.A.3 (Subjectby-Subject Analysis) below for a
detailed explanation.
The Department was unable to
quantify some cost, cost savings, and
benefits of this final rule. The
Department describes them qualitatively
in section VII.A.3 (Subject-by-Subject
Analysis).
1. Need for Regulation
The Department has determined that
new rulemaking is necessary to
modernize the H–2A program. The
Department is updating its regulations
to ensure that employers can access
agricultural labor while maintaining the
program’s strong protections for the
workforce. The changes adopted in this
final rule will streamline the
Department’s review of H–2A
applications and enhance WHD’s
enforcement capabilities, thereby
reducing workforce instability that can
hinder the growth and productivity of
our nation’s farms, while allowing
aggressive enforcement against program
fraud and abuse that undermine the
interests of workers. Among other
changes to achieve these goals, the
Department has decided to (1) require
mandatory e-filing and accept electronic
signatures; (2) update surety bond
requirements and clarify recordkeeping
requirements; and (3) revise the
debarment language to allow the
Department to debar agents and
attorneys, and their successors in
interest, based on their own substantial
violations.
2. Analysis Considerations
The Department estimated the costs
and cost savings of this final rule
relative to the existing baseline (i.e., the
current practices for complying, at a
minimum, with the H–2A program as
currently codified at 20 CFR part 655,
subpart B, and 29 CFR part 501). This
existing baseline is consistent with the
2010 H–2A Final Rule.
In accordance with the regulatory
analysis guidance articulated in OMB’s
Circular A–4 and consistent with the
Department’s practices in previous
rulemakings, this regulatory analysis
focuses on the likely consequences of
this final rule (i.e., costs and cost
savings that accrue to entities affected).
The analysis covers 10 years (from 2022
through 2031) to ensure it captures
Cost savings
2.69
2.75
0.15
0.16
Net costs 122
2.54
2.59
major costs and cost savings that accrue
over time. The Department expresses all
quantifiable impacts in 2021 dollars and
uses discount rates of three and seven
percent, pursuant to Circular A–4.
Exhibit 2 presents the number of
affected entities that are expected to be
affected by this final rule. The number
of affected entities is calculated using
OFLC certification data from Fiscal Year
(FY) 2016 through 2020.124 The
Department provides these estimates
and uses them throughout this analysis
to estimate the costs and cost savings of
this final rule.
EXHIBIT 2—AVERAGE ANNUAL NUMBER
OF AFFECTED ENTITIES BY TYPE
[FY 2016–2020]
Entity type
Number
H–2A Applications Processed .................................
Unique H–2A Applicants ......
Certified H–2A Employers ....
Certified H–2A Workers ........
11,527
8,204
7,596
184,323
a. Growth Rate
The Department estimated growth
rates for applications processed and
applications certified, and workers
certified based on FY 2012–2020 H–2A
program data, presented in Exhibit 3.
Estimation of the growth rates for labor
contractors is limited to FY 2013–2020
data.
EXHIBIT 3—HISTORICAL H–2A PROGRAM DATA
Applications
processed
FY
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2012
2013
2014
2015
2016
2017
2018
2019
2020
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
122 Net
Costs = [Total Costs]—[Total Cost Savings]
Department does not consider the cost of
H–2A employers learning how to e-file. Based on
H–2A certification data from FY 2019, 94.1 percent
of applications are submitted electronically. Almost
of all the remaining 5.9 percent of H–2A applicants
123 The
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5,459
5,973
6,726
7,567
8,684
10,097
11,698
13,095
14,063
have access to email, so very few applicants will
need to learn how to e-file.
124 Only three quarters of FY 2021 data were
available at the time of analysis. To the extent that
the COVID–19 pandemic impacted H–2A
applications or workers, the inclusion of FY 2020
data allows for some impacts to be captured.
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Applications
certified
5,278
5,706
6,476
7,194
8,297
9,797
11,319
12,626
13,552
Workers
certified
85,248
98,814
116,689
139,725
165,741
199,924
242,853
258,446
275,430
Labor
contractors
........................
284
340
388
415
483
566
588
715
However, in FY 2020 Q1–Q3, there were 223,263
certified workers, and in FY 2021 Q1–Q3, there
were 247,969 certified workers, indicating that FY
2021 is continuing the historical trend of year-overyear increases in workers certified and that the
pandemic may have minimal impacts on program
trends.
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The geometric growth rate for
certified H–2A workers using the
program data in Exhibit 3 is calculated
as 17.2 percent. This growth rate,
applied to the analysis timeframe of
2022 to 2031, would result in more H–
2A certified workers than projected BLS
workers in the relevant H–2A SOC
codes.125 Therefore, to estimate realistic
growth rates for the analysis, the
Department applied an autoregressive
integrated moving average (ARIMA)
model to the FY 2012–2020 H–2A
program data to forecast workers,
applications, and labor contractors
estimate geometric growth rates based
on the forecasted data. The Department
ran multiple ARIMA models on each set
of data and used common goodness of
fit measures to determine how well each
ARIMA model fit the data.126 Multiple
models yielded indistinctive measures
of goodness of fit. Therefore, each model
was used to project workers and
applications through 2031. Then, a
geometric growth rate was calculated
using the forecasted data from each
model and an average was taken across
each model.
The growth rate in certified employers
was estimated by calculating the
geometric growth rate using data from
the analysis period (FY 2016–FY 2020).
The resulting growth rates used in the
analysis are presented in Exhibit 4. The
estimated growth rates were applied to
the estimated costs and cost savings of
this final rule to forecast participation in
the H–2A program.
c. Compensation Rates
EXHIBIT 4—ESTIMATED H–2A
GROWTH RATES
Value
(percent)
Growth Rate
H–2A applications processed
growth rate ........................
H–2A applications certified
growth rate ........................
H–2A workers certified
growth rate ........................
H–2A certified labor contractor employer growth
rate ....................................
H–2A certified employer
growth rate ........................
3.1
4.5
5.6
7.3
3.8
b. Estimated Number of Workers and
Change in Hours
The Department presents the
estimated average number of workers
and the change in hours required to
comply with this final rule for each
activity in section VII.A.3 (Subject-bySubject Analysis). For some activities,
such as rule familiarization and
application submission, all applicants
will experience a change. For other
activities, this final rule will affect only
certified H–2A employers or H–2A
certified labor contractors. These
numbers are derived from OFLC
certification data for the years 2016
through 2020 and represent an average
of the fiscal years.127 To calculate these
estimates, the Department estimated the
average amount of time (in hours)
needed for each activity to meet the new
requirements relative to the baseline.
In section VII.A.3 (Subject-by-Subject
Analysis), the Department presents the
costs, including labor, associated with
the implementation of the provisions of
this final rule. Exhibit 5 presents the
hourly compensation rates for the
occupational categories expected to
experience a change in the number of
hours necessary to comply with this
final rule. The Department used the
mean hourly wage rate for private sector
human resources specialists 128 129 and
the wage rate for Federal employees at
the NPC (Grade 12, Step 5).130 Wage
rates are adjusted to reflect total
compensation, which includes nonwage
factors such as overhead and fringe
benefits (e.g., health and retirement
benefits). For all labor groups (i.e.,
private sector, and Federal
Government), we use an overhead rate
of 17 percent 131 and a fringe benefits
rate based on the ratio of average total
compensation to average wages and
salaries in June 2021. For the private
sector employees, we use a fringe
benefits rate of 42 percent.132 For the
Federal Government, we use a fringe
benefits rate of 63 percent.133 We then
multiply the loaded wage factor by the
corresponding occupational category
wage rate to calculate an hourly
compensation rate. The Department
used the hourly compensation rates
presented in Exhibit 5 throughout this
analysis to estimate the labor costs for
each provision.
EXHIBIT 5—COMPENSATION RATES
[2021 Dollars]
Position
Grade level
Base hourly
wage rate
Loaded wage factor
Overhead costs
Hourly compensation rate
(a)
(b)
(c)
d=a+b+c
Private Sector Employees
jspears on DSK121TN23PROD with RULES2
Human Resources
(HR) Specialist .......
N/A
$34.33
125 Comparing BLS 2029 projections for combined
agricultural workers with a 15.8 percent growth rate
of H–2A workers yields estimated H–2A workers
that are about 107 percent greater than BLS 2029
projections. The projected workers for the
agricultural sector were obtained from BLS’s
Occupational Projections and Worker
Characteristics, which may be accessed at https://
www.bls.gov/emp/tables/occupational-projectionsand-characteristics.htm.
126 The Department estimated models with
different lags for autoregressive and moving
averages, and orders of integration: ARIMA(0,2,0);
(0,2,1); (0,2,2); (1,2,1); (1,2,2); (2,2,2). For each
model we used the Akaike Information Criteria
(AIC) goodness of fit measure.
127 The total unique H–2A applicants in 2016,
2017, 2018, 2019, and 2020 were 7,446, 7,798.
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$14.25 ($34.33 × 0.42)
8,580, 9,382, and 7,815, respectively. The total
certified H–2A employers in 2016, 2017, 2018,
2019, and 2020 were 6,713, 7,187, 7,902, 8,391, and
7,785, respectively.
128 BLS, Occupational Employment and Wage
Estimates, May 2020: 13–1071 Human Resources
Specialists, https://www.bls.gov/oes/current/
oes131071.htm (last modified Mar. 31, 2021).
129 Because the Occupational Employment
Statistics wage rate is in 2020 dollars, the
Department inflated it to 2021 dollars using the ECI
to be consistent with the rest of the analysis, which
is in 2021 dollars.
130 Office of Personnel Management, Salary Table
2020–CHI: Incorporating the 1% General Schedule
Increase and a Locality Payment of 28.59% for the
Locality Pay Area of Chicago-Naperville, IL–IN–WI
(Jan. 2021), https://www.opm.gov/policy-data-
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$5.84 ($34.33 × 0.17)
$54.42
oversight/pay-leave/salaries-wages/salary-tables/
pdf/2021/CHI_h.pdf.
131 Cody Rice, U.S. Environmental Protection
Agency, Wage Rates for Economic Analyses of the
Toxics Release Inventory Program (June 10, 2002),
https://www.regulations.gov/document?D=EPA-HQOPPT-2014-0650-0005.
132 BLS, Employer Costs for Employee
Compensation, https://www.bls.gov/news.release/
ecec.toc.htm (last modified Sept. 16, 2021) (ratio of
total compensation to wages and salaries for all
private industry workers).
133 DOL, DOL-Only Performance Accountability,
Information, and Reporting System; OMB Control
No. 1205–0521 (2018), https://www.reginfo.gov/
public/do/ PRAViewDocument?ref_nbr=201802–
1205–003.
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61781
EXHIBIT 5—COMPENSATION RATES—Continued
[2021 Dollars]
Position
Grade level
Base hourly
wage rate
Loaded wage factor
Overhead costs
Hourly compensation rate
(a)
(b)
(c)
d=a+b+c
Federal Government Employees
NPC Staff ...................
12
$46.67
3. Subject-by-Subject Analysis
The Department’s analysis below
covers the estimated costs and cost
savings of this final rule. The
Department emphasizes that many of
the provisions in this final rule are
existing requirements in the statute,
regulations, or regulatory guidance. This
final rule codifies these practices under
one set of rules; therefore, they are not
considered ‘‘new’’ burdens resulting
from this final rule. Accordingly, the
regulatory analysis focuses on the costs
and cost savings that can be attributed
exclusively to the new requirements in
this final rule.
a. Costs
The following sections describe the
costs of this final rule.
Quantifiable Costs
jspears on DSK121TN23PROD with RULES2
i. Rule Familiarization
When this final rule takes effect, H–
2A employers will need to familiarize
themselves with the new regulations.
Consequently, this will impose a onetime cost in the first year.
To estimate the first-year cost of rule
familiarization, the Department applied
the growth rate of H–2A applications
processed (3.1 percent) to the number of
unique H–2A applications (8,204) to
determine the annual number H–2A
applications impacted in the first year.
The number of H–2A applications
(8,462) was multiplied by the estimated
amount of time required to review the
rule (1 hour).134 135 This number was
then multiplied by the hourly
compensation rate of Human Resources
Specialists ($54.42 per hour). This
calculation results in a one-time
undiscounted cost of $460,502 in the
first year after this final rule takes effect.
This one-time cost yields a total average
annual undiscounted cost of $46,050.
The annualized cost over the 10-year
134 This estimate reflects the nature of this final
rule. As a rulemaking to amend to parts of an
existing regulation, rather than to create a new rule,
the 1-hour estimate assumes a high number of
readers familiar with the existing regulation.
135 Differences in the calculation of applications
may occur due to the rounding of growth rate
figures.
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$29.40 ($46.67 × 0.63)
period is $53,985 and $65,565 at
discount rates of three and seven
percent, respectively.
ii. Surety Bond Amounts
An H–2ALC is required to submit
with its Application for Temporary
Employment Certification proof of its
ability to discharge its financial
obligations under the H–2A program in
the form of a surety bond. See 20 CFR
655.132(b)(3); 29 CFR 501.9. Based on
the Department’s experience
implementing the bonding requirement
and its enforcement experience with H–
2ALCs, the Department is updating its
regulations. These updates are intended
to clarify and streamline the existing
requirement while strengthening the
Department’s ability to collect on such
bonds. Further, the Department is
adjusting the required bond amounts to
reflect updates to the AEWR and to
address the increasing number of
temporary agricultural labor
certifications that cover a significant
number of workers under a single
application and surety bond.
Currently, the required bond amounts
range from $5,000 to $75,000,
depending on the number of H–2A
workers employed by the H–2ALC
under the temporary agricultural labor
certification. For temporary agricultural
labor certifications covering fewer than
25 workers, the required bond amount
is currently $5,000. For temporary
agricultural labor certifications covering
25–49 workers, 50–74 workers, 75–99
workers, and 100 or more workers, the
required bond amounts are $10,000,
$20,000, $50,000, and $75,000,
respectively. Under this final rule, the
Department will adjust the required
bond amounts proportionally to the
degree that a national average AEWR
exceeds $9.25 using the current bond
amounts as the base amounts for this
adjustment. The Department will
calculate and publish an average AEWR
when it calculates and publishes AEWR
in accordance with § 655.120. The
average AEWR will be calculated as a
simple average of the AEWR applicable
to the SOC 45–2092 (Farmworkers and
Laborers, Crop, Nursery, and
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$7.93 ($46.67 × 0.17)
$84.01
Greenhouse) and, until the Department
publishes a different average AEWR,
bond amounts will be calculated using
an average AEWR of $14.28. To
calculate the updated bond amounts,
the Department will multiply the base
amounts by the average AEWR and
divide that number by $9.25. For
instance, for a temporary agricultural
labor certification covering 100 workers,
the required bond amount would be
calculated by the Department using the
following formula:
$75,000 (base amount) × ($14.28 ÷
$9.25) = $115,784 (updated bond
amount).
When the Department publishes a
different average AEWR, that amount
would replace $14.28 in this calculation
and the calculations that follow.
The Department also is increasing the
required bond amounts for temporary
agricultural labor certifications covering
150 or more workers. For such
temporary agricultural labor
certifications, the bond amount
applicable to certifications covering 100
or more workers is used as a starting
point and is increased for each
additional set of 50 workers. The
interval by which the bond amount
increases will be based on the amount
of wages earned by 50 workers over a 2week period and, in its initial
implementation, would be calculated
using an average AEWR of $14.28 as
demonstrated:
$14.28 (Average AEWR) × 80 hours × 50
workers = $57,120 in additional
bond for each additional 50 workers
over 100.
For a crew of 275 workers, additional
surety of $171,360 would be required.
This amount is calculated by
determining the number of additional
full sets of 50 workers beyond the first
100 workers covered by the temporary
agricultural labor certification and then
multiplying this number by the amount
of additional surety required per each
set of additional 50 workers (275¥100
= 175; 175 ÷ 50 = 3.5; this is 3 additional
sets of 50 workers; 3 × $57,120 =
$171,360). As explained above, this
additional surety is added to the bond
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amount required for temporary
agricultural labor certifications of 100 or
more workers, resulting in a required
bond amount of $287,144 ($115,784) for
certifications of 100 or more workers +
$171,360 in additional surety).
While this may represent a significant
increase in the face value of the required
bond, the Department understands that
employer premiums for FLC surety
bonds generally range from one to four
percent on the standard bonding market
(i.e., contractors with fair/average credit
or better).136
For this analysis, the Department
assumes that the bond premium faced
by H–2ALCs will be four percent. To
calculate the costs of the increase in the
required bond amounts, the Department
first calculated the average number of
H–2ALCs in FY 2016 to 2020 and the
current required bond amounts. Also,
the Department calculated the average
number of additional sets of 50 workers
in FY 2016 to 2020. Next, the
Department calculated the required
bond amounts for each category of
number of workers using the average
AEWR of $14.28, as well as the bond
amount for each set of additional 50
workers per H–2ALC. Exhibit 6 presents
these calculations.
EXHIBIT 6—COST INCREASES DUE TO CHANGES IN REQUIRED BOND AMOUNTS
Existing
required bond
amount
Number of workers
1–24 .....................................................................................
25–49 ...................................................................................
50–74 ...................................................................................
75–100 .................................................................................
More than 100 ......................................................................
Each Additional Set of 50 Workers Greater than 100 .........
jspears on DSK121TN23PROD with RULES2
a This
Average
number of
H–2ALCs in
FY 16–20
$5,000
10,000
20,000
50,000
75,000
N/A
315
71
51
32
135
a 607
Proposed
required bond
amount
Change in
required bond
amount
Cost increase
(or decrease)
$7,718.92
15,437.84
30,875.68
77,189.19
115,783.78
57,120.00
$2,718.92
5,437.84
10,875.68
27,189.19
40,783.78
57,120.00
$108.76
217.51
435.03
1,087.57
1,631.35
2,284.80
value represents the total number of additional sets of 50 for H–2ALCs with more than 100 workers.
For H–2ALCs with temporary
agricultural labor certifications covering
1 to 24 workers the Department
calculated the first-year cost by
multiplying the average number of H–
2ALCs in FY 2016 to 2020 with
certifications covering 1 and 24 workers
(315 H–2ALCs) by the change in the
required bond amount ($2,718.92) and
the assumed bond premium (four
percent). The Department calculated
this for each additional category of
number of workers. Additionally, the
Department calculated the total cost due
to the required bond amounts for
additional sets of 50 workers by
multiplying the average additional sets
of 50 workers (607 sets) in the FY 2016
to 2020 by the required bond amount
($57,120) and the assumed bond
premium (four percent). To project the
costs of this final rule these calculations
were repeated in each year from 2022
through 2031.
After calculating annual total costs,
the geometric growth rate of H–2ALCs
(7.3 percent) was applied to account for
anticipated increased H–2A applicants.
The increased costs for each size
category were summed to obtain the
total annual costs resulting from the
change in bond premiums. This
calculation yields an average annual
undiscounted cost of $2.58 million.
The estimated total cost from the
required bond amounts over the 10-year
period is $25.76 million undiscounted,
or $22.25 million and $18.62 million at
discount rates of three and seven
percent, respectively. The annualized
cost over the 10-year period is $2.61
million and $2.65 million at discount
rates of three and seven percent,
respectively.
136 The Department reviewed premium rates on
the websites of companies that offer FLC bonds and,
as noted in the NPRM, found that employer
premiums generally range from one to four percent
on the standard bonding market (i.e., contractors
with fair/average credit or better). 84 FR 36168,
36205, 36233. The Department assumed contractors
would have fair/average credit and so used a
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iii. Recordkeeping
Earnings Records
This final rule requires an H–2A
employer to maintain a worker’s actual
permanent home address, email
address, and phone number(s), which
are usually in the worker’s country of
origin. This information will greatly
assist the Department in contacting an
H–2A worker in the worker’s home
country, should the Department need to
do so to conduct employee interviews as
part of an investigation, to secure
employee testimony during litigation, or
to distribute back wages.
To calculate the estimated
recordkeeping costs associated with
collecting and maintaining this
information, the Department first
multiplied the number of certified H–2A
employers (7,596 employers) by the 3.8
percent annual growth rate of certified
H–2A employers to determine the
annual impacted population of H–2A
employers. The impacted number was
then multiplied by the estimated time
required to collect and maintain this
information (2 minutes) to obtain the
total amount of recordkeeping time
required. The Department then
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multiplied this estimate by the hourly
compensation rate for Human Resources
Specialists ($54.42 per hour). This
yields an annual cost ranging from
$14,298 in 2022 to $19,955 in 2031.
Abandonment of Employment or
Termination for Cause
This final rule revises § 655.122(n) to
require an employer to maintain records
of notification detailed in the same
section for not less than 3 years from the
date of the temporary agricultural labor
certification. An employer is relieved
from the requirements relating to return
transportation and subsistence costs and
three-fourths guarantee when the
employer notifies the NPC (and the DHS
in case of an H–2A worker), in a timely
manner, if a worker voluntarily
abandons employment before the end of
the contract period or is terminated for
cause. Additionally, the employer is not
required to contact its former U.S.
workers, who abandoned employment
or were terminated for cause, to solicit
their return to the job.
To estimate the recordkeeping costs
associated with maintaining records of
these notifications, the Department first
multiplied the number of certified H–2A
employers (7,596) by the 3.8 percent
annual growth rate of certified H–2A
employers to determine the annual
impacted population of H–2A
employers. The impacted number was
then multiplied by the assumed
percentage of employers per year that
premium of four percent to approximate the rate on
the high side for premiums on the standard bond
market. Id.
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will have 1 or more workers abandon
employment or be terminated for cause
(70 percent). This amount was then
multiplied by the estimated time
required to maintain these records (2
minutes) to estimate the total amount of
recordkeeping time required. This total
time was then multiplied by the hourly
compensation rate for Human Resources
Specialists ($54.42 per hour). This
yields an annual cost ranging from
$10,009 in 2022 to $13,968 in 2031.
Total Recordkeeping Costs
The total cost from the recordkeeping
requirements over the 10-year period is
estimated at $288,778 undiscounted, or
$251,445 and $212,599 at discount rates
of three and seven percent, respectively.
The annualized cost of the 10-year
period is $29,477 and $30,269 at
discount rates of three and seven
percent, respectively.
Non-Quantifiable Costs
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i. Housing
This final rule implements changes to
the standards applicable to employers
who choose to meet their H–2A housing
obligations by providing rental and/or
public accommodations. Under this
final rule, the Department identified
specific OSHA temporary labor camp
standards that are applicable to rental or
public accommodations. Where local
health and safety standards for rental
and/or public accommodations exist,
the local standards apply in their
entirety. However, if the local standards
do not address one or more of the issues
addressed in the OSHA health and
safety standards listed in the regulation,
the relevant State standards on those
issues will apply. If both the local and
State standards are silent on one or
more of the issues addressed in the
OSHA health and safety standards listed
in the regulation, the relevant OSHA
health and safety standards will apply.
If there are no applicable local or State
standards at all, only the OSHA health
and safety standards listed in the
regulation will apply. OSHA temporary
labor camp standards that are not
specifically mentioned in
§ 655.122(d)(1)(ii) will not be applicable
to rental or public accommodations.
Generally, under the 2010 H–2A Final
Rule, only certain rental and/or public
accommodations are subject to the
OSHA housing standards. As such,
employers who are not currently subject
to the OSHA standards are likely to
experience costs related to ensuring
their chosen rental and/or public
accommodations comply with those
standards. For example, employers that
currently require workers to share beds
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will be required to provide each worker
with a separate bed. To comply with
this final rule, such employers may be
required to book additional rooms or
provide different housing. The
Department is unable to quantify an
estimated cost due to a lack of data as
to the number of employers that would
be required to change current practices
under this final rule. The Department
invited comment on this analysis for
relevant data or information that would
allow for a quantitative analysis of
possible costs in this final rule and
received none.
ii. Requirement To File Electronically
During FY 2019, about six percent of
employers choose not to file
electronically. Under this final rule,
employers will have two options—to
file electronically or to file a request for
accommodation because they are unable
or limited in their ability to use or
access electronic forms as result of a
disability or lack of access to e-filing.
Despite the vast majority of employers
choosing to currently file electronically,
the Department has not estimated costs
for employers’ time and travel to file
electronically when they otherwise
would not have. The Department
believes these costs will be very small.
The Department also has not
estimated any costs for accommodation
requests. The Department expects to
receive very few, if any, mailed-in
accommodation requests. In its H–1B
program, which has mandatory efiling—albeit from a very different set of
industry—the Department has not
received any requests for
accommodation due to a disability. Of
the handful of internet access requests
received annually, none were approved,
as the requestors had public access
nearby. For those requesting an
accommodation in H–2A, the
Department estimates that the cost to
apply would be de minimis, consisting
of the time and cost of a letter, printing
out, and completing the forms.
b. Cost Savings
The following sections describe the
cost savings of this final rule.
Quantifiable Cost Savings
i. Electronic Processing and Process
Streamlining
The Department is modernizing and
clarifying the procedures by which an
employer files a job order and an
Application for Temporary Employment
Certification for H–2A workers under
§§ 655.121 and 655.130 through
655.132. The NPC will electronically
share job orders with SWAs, which will
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61783
result in both a material cost and a time
cost savings for employers.
To ensure the most efficient
processing of all applications, the
Department must receive a complete
application for review. Based on the
Department’s experience administering
the H–2A program under the current
rule, a common reason for issuing a
NOD on an employer’s application
includes failure to complete all required
fields on a form, failure to submit one
or more supporting documents required
by the regulation at the time of filing, or
both. These incomplete applications
create unnecessary processing delays for
both the NPC and employers. In order
to address this concern, this final rule
requires an employer to submit the
Application for Temporary Employment
Certification and all required supporting
documentation using an electronic
method(s) designated by the OFLC
Administrator, unless the employer
cannot file electronically due to
disability or lack of internet access. The
FLAG system used by the OFLC will not
permit an employer to submit an
application until the employer
completes all required fields on the
forms and uploads and saves to the
pending application an electronic copy
of all required documentation,
including a copy of the job order
submitted in accordance with § 655.121.
The Department estimates that 94
percent of applications are currently
filed electronically and that this final
rule would significantly increase the
number of employers who submit
electronic applications. This would
result in material and time cost savings
for employers. Electronic processing
would also result in a time cost savings
for the NPC. This final rule also
provides that employers may file only
one Application for Temporary
Employment Certification for place(s) of
employment contained within a single
AIE covering the same occupation or
comparable work by an employer for
each period of employment, which will
reduce the number of overall
applications submitted. Finally, this
final rule permits the use of electronic
signatures as a valid form of the
employer’s original signature and, if
applicable, the original signature of the
employer’s authorized attorney or agent.
To estimate the material cost savings
to employers due to electronic
processing, the Department assumed
that this final rule would result in six
percent of H–2A employers switching to
electronic processing of applications.
The Department applied the growth rate
of H–2A applications (3.1 percent) to
the number of H–2A applications
processed (11,527) to determine the
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annual impacted number of
applications. The Department then
multiplied the percentage estimated to
switch to electronic processing of
applications (six percent) by the annual
number of impacted H–2A applications
to obtain the number of employers who
would no longer be submitting by mail.
For each application, a material cost
was calculated by summing the price of
a stamp ($0.58), the price of an envelope
($0.04), and the total cost of paper
($0.61). The total cost of paper was
calculated by multiplying the cost of a
sheet of paper ($0.01) by the number of
pages in the application (100 pages).
The per-application costs were then
multiplied by the number of
applications who would no longer be
submitting by mail. This yields average
annual undiscounted cost savings of
$993.
The total material cost savings from
electronic processing over the 10-year
period is estimated at $9,933
undiscounted, or $8,662 and $7,338 at
discount rates of three and seven
percent, respectively. The annualized
cost savings over the 10-year period is
$1,015 and $1,045 at discount rates of
three and seven percent, respectively.
To estimate the time cost savings to
employers due to electronic processing,
the Department again estimated the
number of affected applications by
multiplying the assumed percentage of
employers that would switch to
electronic applications (six percent) by
the total number of annually impacted
H–2A applications. The Department
assumed that the time savings due to
electronic submission (rather than
sealing and mailing an envelope) would
be 5 minutes. The time cost savings
were calculated by multiplying 5
minutes (0.083 hours) by the hourly
compensation rate for Human Resources
Specialists ($54.42 per hour). This time
cost savings was then multiplied by the
estimated number of applications
expected to switch to electronic
submission. This yields average annual
undiscounted cost savings of $3,657.
The total time cost savings from
electronic processing over the 10-year
period is estimated at $36,566
undiscounted, or $31,886 and $27,011
at discount rates of three and seven
percent, respectively. The annualized
cost savings over the 10-year period is
$3,738 and $3,846 at discount rates of
three and seven percent, respectively.
To estimate the material cost savings
to employers due to the NPC sharing job
orders with the SWAs electronically, the
Department assumed that 100 percent of
unique H–2A applicants would be
affected. For each annually impacted H–
2A application, a material cost was
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calculated by summing the price of a
stamp ($0.58), the price of an envelope
($0.04), and the total cost of paper
($0.61). The total cost of paper was
calculated by multiplying the cost of a
sheet of paper ($0.01) by the number of
pages in the application (100 pages).
The per-application costs were then
multiplied by the number of
applications who would no longer be
submitting by mail. This yields average
annual undiscounted cost savings of
$16,836.
The total material cost savings over
the 10-year period is estimated at
$168,361 undiscounted, or $146,812
and $124,368 at discount rates of three
and seven percent, respectively. The
annualized cost savings over the 10-year
period is $17,211 and $17,707 at
discount rates of three and seven
percent, respectively.
To estimate the time cost savings to
employers resulting from the NPC
electronically sharing job orders with
the SWAs, the Department again
assumed that 100 percent of unique H–
2A applicants would be affected. For
each annually impacted H–2A
application, the Department assumed
that the time savings due to electronic
submission (rather than sealing and
mailing an envelope) would be 5
minutes. The time cost savings were
calculated by multiplying 5 minutes in
hours (0.083 hours) by the hourly
compensation rate for Human Resources
Specialists ($54.42 per hour). This cost
savings was then multiplied by the
estimated number of applications
switching to electronic submission. This
yields average annual undiscounted cost
savings of $61,976.
The total time cost savings over the
10-year period is estimated at $619,762
undiscounted, or $540,438 and
$457,818 at discount rates of three and
seven percent, respectively. The
annualized cost savings over the 10-year
period is $63,356 and $65,183 at
discount rates of three and seven
percent, respectively.
The Department assumes that the
DOL staff will save approximately 1
hour for each application that is now
submitted electronically. To calculate
the time cost savings to the Federal
Government due to electronic
processing, the Department first
calculated the number of employers that
would now submit electronically by
multiplying the assumed percentage (six
percent) by the total number of annually
impacted H–2A applications. This cost
savings was then multiplied by the perapplication time cost savings, calculated
by multiplying the time savings (1 hour)
by the hourly compensation rate for
DOL staff ($84.01 per hour). This yields
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average annual undiscounted cost
savings of $68,008.
The total time cost savings over the
10-year period is estimated at $680,079
undiscounted, or $593,034 and
$502,374 at discount rates of three and
seven percent, respectively. The
annualized cost savings over the 10-year
period is $69,522 and $71,527 at
discount rates of three and seven
percent, respectively.
Non-Quantifiable Cost Savings
i. Cost Savings From Efficiencies
Associated With Receiving More
Complete and Accurate Applications
The Department is modernizing the
process by which H–2A employers
submit job orders to the SWAs and
applications to the Department through
e-filing and requiring the designation of
a valid email address for sending and
receiving official correspondence during
application processing, except where
the employer has limited ability to use
or access electronic forms as result of a
disability or lacks access to e-filing.
The Department believes that
transitioning to electronic submissions
would result in additional cost savings
to employers and to the NPC from the
cost savings described above. Currently,
submissions that are incomplete or
obviously inaccurate upon their receipt
result in a NOD on the employer’s
application. As a result, employers who
submit incomplete applications must
start the submission process from the
beginning. This can lead to costly delays
for employers, as well as costly
processing time for the NPC.
The requirement for electronic
submissions would reduce the number
of instances where incomplete
applications are submitted because
employers have not fully completed the
form prior to submitting it. E-filing
permits automatic notification that an
application is incomplete or obviously
inaccurate and provides employers with
an immediate opportunity to correct the
errors or upload missing
documentation. Additionally, the
adoption of electronic submissions
should reduce the amount of time it
takes to correct errors because entries
can simply be deleted, rather than
requiring the production of new copies
of the form after an error is detected.
For the NPC, electronic filing and
communications will improve the
quality of information collected from
employers, reduce administrative costs
of communicating with employers to
resolve obvious errors or receive
complete information, and reduce the
frequency of delays related to
application processing.
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ii. Cost Savings From Efficiencies
Created by Acceptance of Electronic
Signatures
The Department will enable
employers, agents, and attorneys to use
electronic methods to sign or certify any
document required under this subpart
using a valid electronic signature
method. The current practice of
accepting electronic (scanned) copies of
original signatures on documents has
generated efficiencies in the application
process, and the Department believes
leveraging modern technologies to
accept electronic signature methods can
achieve even greater efficiencies and
result in cost savings to employers and
the NPC.
Accepting electronic signature
methods as a means of complying with
original signature requirements for the
H–2A program will reduce the costs for
employers associated with printing,
mailing, or delivering original signed
paper documents or scanned copies of
original signatures on documents to the
NPC. Additionally, electronic signature
methods give employers and their
authorized attorneys or agents greater
flexibility to conduct business with the
Department—at any time and at any
location with an internet connection—
rather than needing to be located in a
physical office. This frees valuable time
for conducting other business tasks.
The NPC anticipates additional cost
savings from use of electronic signature
methods. The acceptance of documents
containing electronic signatures will
facilitate the NPC’s use of a more
centralized document storage capability
to access documents more efficiently
during application processing, saving
time and expense.
iii. Cost Savings From Efficiencies
Created by the Use of Electronic Surety
Bonds
The Department also is developing a
process for accepting electronic surety
bonds through the FLAG system and is
requiring the use of a standardized bond
form. The Department believes that
these changes will result in a cost
savings to H–2ALCs and the NPC.
Currently all H–2ALCs, even the
majority that submit other components
of their applications electronically, must
submit original paper surety bonds
before the temporary agricultural labor
certifications can be issued. Accepting
original electronic surety bonds will
reduce the costs associated with mailing
or delivering the original surety bonds
to the NPC and the costs for NPC to
transfer these bonds to WHD for
enforcement purposes. Additionally,
using a standardized bond form will
reduce the likelihood of errors and the
amount of time required for the NPC to
review the bonds for compliance.
61785
c. Qualitative Benefits Discussion
i. Surety Bonds
The changes to the surety bond
requirement, including the use of
electronic surety bonds and a
standardized bond form, will also result
in unquantifiable benefits to the H–
2ALCs in the form of a more
streamlined application process with
fewer delays. Accepting electronic
surety bonds will mean that the NPC
receives the required original bond with
the rest of the application, and it will no
longer be necessary to wait for the bond
to arrive by mail or other delivery before
issuing the temporary agricultural labor
certification.
Further, these changes and the
changes to the required bond amounts
will enhance WHD’s enforcement
capabilities by making it more certain
that there will be a sufficient, compliant
bond available to redress potential
violations. This will advance the
Department’s goal of aggressively
enforcing against program fraud and
abuse that undermine the interests of
U.S. workers.
4. Summary of the Analysis
Exhibit 8 summarizes the estimated
total costs and cost savings of this final
rule over the 10-year analysis period.
The change in the surety bond amounts
has the largest effect as a cost.
EXHIBIT 8—ESTIMATED 10-YEAR MONETIZED COSTS AND COST SAVINGS OF THIS FINAL RULE BY PROVISION
[2021 $Millions]
Provision
Total cost
Total cost
savings
Surety Bond .............................................................................................................................................................
Record Keeping .......................................................................................................................................................
Rule Familiarization .................................................................................................................................................
Electronic Processing and Process Streamlining Cost ...........................................................................................
Undiscounted 10-Year Total ....................................................................................................................................
10-Year Total with a Discount Rate of 3% ..............................................................................................................
10-Year Total with a Discount Rate of 7% ..............................................................................................................
$25.76
0.29
0.46
........................
26.51
22.96
19.29
........................
........................
........................
$1.51
1.51
1.32
1.12
Exhibit 9 summarizes the estimated
total costs and cost savings of this final
rule over the 10-year analysis period.
The Department estimates the
annualized costs of this final rule at
$2.75 million and the annualized cost
savings at $0.16 million, at a discount
rate of seven percent. The Department
estimates that this final rule would
result in annualized net quantifiable
costs of $2.59 million and total 10-year
net costs of $18.17 million, both at a
discount rate of seven percent and
expressed in 2021 dollars. The
Department believes that the qualitative
benefits outweigh the quantified net
costs of this rule.
EXHIBIT 9—ESTIMATED MONETIZED COSTS, COST SAVINGS, AND NET COSTS OF THIS FINAL RULE
jspears on DSK121TN23PROD with RULES2
[2021 $Millions]
Costs
2022
2023
2024
2025
2026
2027
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
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$2.32
2.00
2.14
2.30
2.46
2.64
12OCR2
Costs savings
$0.13
0.14
0.14
0.14
0.15
0.15
Net costs
$2.19
1.86
2.00
2.15
2.32
2.49
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Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations
EXHIBIT 9—ESTIMATED MONETIZED COSTS, COST SAVINGS, AND NET COSTS OF THIS FINAL RULE—Continued
[2021 $Millions]
Costs
2028 .............................................................................................................................................
2029 .............................................................................................................................................
2030 .............................................................................................................................................
2031 .............................................................................................................................................
Undiscounted 10-Year Total ........................................................................................................
10-Year Total with a Discount Rate of 3% ..................................................................................
10-Year Total with a Discount Rate of 7% ..................................................................................
10-Year Average ..........................................................................................................................
Annualized with a Discount Rate of 3% ......................................................................................
Annualized with a Discount Rate of 7% ......................................................................................
5. Regulatory Alternatives
The Department considered two
alternatives to the chosen approach for
surety bonds. First the Department
considered, as the first alternative,
starting with the current (2010) bond
amounts and then adjusting for wage
growth as estimated by change in the
average AEWR and for very large crew
sizes by requiring additional surety for
each additional 50 workers sought. This
is the same approach as this final rule’s
surety bond structure except this
alternative would replace the category
for H–2ALCs requesting fewer than 25
workers with two categories: one with a
lower required bond amount for H–
2ALCs requesting fewer than 10 workers
and another with the same required
Costs savings
2.84
3.04
3.26
3.50
26.51
22.96
19.29
2.65
2.69
2.75
0.16
0.16
0.17
0.17
1.51
1.32
1.12
0.15
0.15
0.16
Net costs
2.68
2.88
3.09
3.33
25.00
21.64
18.17
2.50
2.54
2.59
bond amount as this final rule for H–
2ALCs requesting 10 to 24 workers. This
would provide some relief to H–2ALCs
who use between one and nine workers.
It would have the same remaining
categories as in this final rule. The
Department estimated the cost of this
alternative using the same method as in
this final rule. Exhibit 10 summarizes
the cost increases for this alternative.
EXHIBIT 10—COST INCREASES DUE TO CHANGES IN REQUIRED BOND AMOUNTS
Existing
required bond
amount
Number of workers
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1–9 .......................................................................................
10–24 ...................................................................................
25–49 ...................................................................................
50–74 ...................................................................................
75–100 .................................................................................
More than 100 ......................................................................
Each Additional Set of 50 Workers Greater than 100 .........
The total estimated cost of the first
alternative over the 10-year period is
$25.22 million undiscounted, or $21.78
million and $18.23 million at discount
rates of three and seven percent,
respectively. The annualized cost of the
10-year period is $2.55 million and
$2.60 million at discount rates of three
and seven percent, respectively. The
Department prefers the approach used
in this final rule because it maintains a
high proportion of sufficient bonds.
Under the second regulatory
alternative the Department considered,
the Department would base required
bond amounts on estimated gross
payroll based on the number of workers,
applicable wage rates, and length of
certification; then require a surety bond
equaling five percent of this value.
Under this alternative, the bond
computation would account for more
factors that potentially impact an
H–2ALC’s back wage liability and
would thus be application-specific.
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Average
number of
H–2ALCs in
FY 16–19
$5,000
5,000
10,000
20,000
50,000
75,000
N/A
196
120
71
51
32
135
a 607
The Department calculates the cost of
this second alternative by first
estimating gross payroll (i.e., number of
workers × applicable wage rate ×
number of weekly hours × number of
weeks in season) for each temporary
agricultural labor certification and then
taking the applicable percentage—five
percent. The difference in bond
amounts required under this alternative,
then, is for each temporary agricultural
labor certification the difference
between the bond an H–2ALC would
pay under the 2010 H–2A Final Rule
(between $5,000 and $75,000 based on
number of workers) and the calculated
alternative surety bond. Then, the
assumed bond premium (four percent)
is applied to calculate the cost for each
temporary agricultural labor
certification from FY 2016 to FY 2020
and the cost across certifications is
summed for an annual total cost. To
project the annual cost of this second
alternative, the growth rate of H–2ALCs
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Proposed
required bond
amount
Change in
required bond
amount
Cost increase
$3,087.57
7,718.92
15,437.84
30,875.68
77,189.19
115,783.78
57,120.00
¥$1,912.43
2,718.92
5,437.84
10,875.68
27,189.19
40,783.78
57,120.00
¥$76.50
108.76
217.51
435.03
1,087.57
1,631.35
2,284.80
(7.3 percent) is applied to the average
annual total cost from FY 2016 to FY
2020.
The estimated total cost of the second
alternative over the 10-year period is
$6.46 million undiscounted, or $5.58
million and $4.67 million at discount
rates of three and seven percent,
respectively. The annualized cost of the
10-year period is $654,196 and $664,778
at discount rates of three and seven
percent, respectively. The Department
prefers the chosen surety bond approach
because it is expected to result in a
higher proportion of sufficient bonds,
thus providing greater protection for
workers, while being easier to
understand and administer because the
bond amounts do not need to be
calculated for every temporary
agricultural labor certification.
Exhibit 11 summarizes the estimated
costs associated with the three
considered surety bond approaches.
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61787
EXHIBIT 11—ESTIMATED MONETIZED COSTS OF THIS FINAL RULE AND REGULATORY ALTERNATIVES
[2021 $Millions]
Final rule
Total 10-Year Cost ......................................................................................................................
Total with 3% Discount ................................................................................................................
Total with 7% Discount ................................................................................................................
Annualized Cost with 3% Discount .............................................................................................
Annualized Cost with 7% Discount .............................................................................................
B. Regulatory Flexibility Act, Small
Business Regulatory Enforcement
Fairness Act, and Executive Order
13272 (Proper Consideration of Small
Entities in Agency Rulemaking)
The RFA, 5 U.S.C. 601 et seq., as
amended by the Small Business
Regulatory Enforcement Fairness Act of
1996, Public Law 104–121 (Mar. 29,
1996), hereafter jointly referred to as the
RFA, requires Federal agencies engaged
in rulemaking to assess the impact of
regulations that will have a significant
economic impact on a substantial
number of small entities.
The Department believes that this
final rule will not have a significant
economic impact on a substantial
number of small entities. Based on this
determination, the Department certifies
that this final rule does not have a
significant economic impact on a
substantial number of small entities.
Therefore, a final regulatory flexibility
analysis updating the initial regulatory
flexibility analysis included in the
NPRM is not required. The factual basis
for this certification is set forth below
and is based on the Department’s
analysis of each actual individual small
entity impacted by this final rule.
1. Description of the Number of Small
Entities to Which This Final Rule Will
Apply
a. Definition of Small Entity
The RFA defines a ‘‘small entity’’ as
a (1) small not-for-profit organization,
(2) small governmental jurisdiction, or
(3) small business. The Department used
the entity size standards defined by the
Small Business Administration (SBA),
in effect as of August 19, 2019, to
classify entities as small.137 SBA
establishes separate standards for
individual 6-digit North American
Industry Classification System (NAICS)
industry codes, and standard cutoffs are
typically based on either the average
number of employees, or the average
annual receipts. For example, small
businesses are generally defined as
having fewer than 500, 1,000, or 1,250
employees in manufacturing industries
and less than $7.5 million in average
annual receipts for nonmanufacturing
industries. However, some exceptions
do exist, the most notable being that
depository institutions (including credit
unions, commercial banks, and
noncommercial banks) are classified by
total assets (small defined as less than
$550 million in assets). Small
governmental jurisdictions are another
noteworthy exception. They are defined
as the governments of cities, counties,
towns, townships, villages, school
districts, or special districts with
populations of less than 50,000
people.138
b. Number of Small Entities
The Department collected NAICS
code, employment, and annual revenue
data for unique entities in the
certification data, from the business
information provider Data Axle, and
merged those data into the H–2A
disclosure data for FY 2020 and FY
2021. This process allowed the
Department to identify the number and
type of small entities in the H–2A
disclosure data as well as their annual
revenues.
The Department identified 9,927
unique employers (excluding labor
contractors). Of those 9,927 employers,
the Department was able to obtain data
matches of revenue and employees for
2,615 H–2A employers in the FY 2020
and FY 2021 certification data. Of those
$25.76
22.25
18.62
2.61
2.65
Regulatory
alternative 1
$25.21
21.78
18.22
2.55
2.59
Regulatory
alternative 2
$6.46
5.58
4.67
0.65
0.66
2,615 employers, the Department
determined that 2,105 were small (80.5
percent). These unique small entities
had an average of 11 employees and
average annual revenue of
approximately $3.62 million. Of these
small unique entities, 2,085 of them had
revenue data available from Data Axle.
The Department identified 1,344
unique employers that are labor
contractors. Of those 1,344 labor
contractors, the Department was able to
obtain data matches of revenue and
employees for 152 H–2ALCs in the FY
2020 and FY 2021 certification data. Of
those 152 labor contractors, the
Department determined that 137 were
small (90.1 percent). These unique small
labor contractors had an average of 15
employees and average annual revenue
of approximately $3.81 million. Of these
small unique labor contractors, 134 of
them had revenue data available from
Data Axle.
The Department’s analysis of the
impact of this proposed rule on small
entities is based on the number of small
unique entities (2,242 small entities
with revenue data = 2,085 small nonlabor contractor entities and 134 small
labor contractor entities). The remaining
unmatched entities are assumed to have
impacts similar to these matched
entities. To provide clarity on the
agricultural industries impacted by this
regulation, Exhibit 12 shows the number
of unique non-H–2ALC small entity
employers with temporary agricultural
labor certifications in FY 2020 to 2021
within the top-10 NAICS code at the 6digit. Exhibit 13 shows the number of
unique H–2ALC small entity employers
with temporary agricultural labor
certifications in FY 2020 to 2021 within
the top-10 NAICS code at the 6-digit.
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EXHIBIT 12—NUMBER OF H–2A SMALL NON-LABOR CONTRACTOR EMPLOYERS BY NAICS CODE
Number of
employers
6-Digit NAICS
Description
111998 .....................
444220 .....................
All Other Miscellaneous Crop Farming .............................................................................
Nursery, Garden Center, and Farm Supply Stores ..........................................................
137 SBA, Table of Small Business Size Standards
Matched to North American Industry Classification
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System Codes (Aug. 2019), https://www.sba.gov/
document/support--table-size-standards.
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Percent
611
162
138 See https://advocacy.sba.gov/resources/theregulatory-flexibility-act for details.
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EXHIBIT 12—NUMBER OF H–2A SMALL NON-LABOR CONTRACTOR EMPLOYERS BY NAICS CODE—Continued
Number of
employers
6-Digit NAICS
Description
561730 .....................
445230 .....................
424480 .....................
111339 .....................
112990 .....................
424930 .....................
424910 .....................
484230 .....................
Other NAICS ............
Landscaping Services .......................................................................................................
Fruit and Vegetable Markets .............................................................................................
Fresh Fruit and Vegetable Merchant Wholesalers ...........................................................
Other Noncitrus Fruit Farming ...........................................................................................
All Other Animal Production ..............................................................................................
Flower, Nursery Stock, and Florists’ Supplies Merchant Wholesalers .............................
Farm Supplies Merchant Wholesalers ..............................................................................
Specialized Freight (except Used Goods) Trucking, Long-Distance ................................
............................................................................................................................................
Percent
134
127
84
78
57
51
41
39
721
6
6
4
4
3
2
2
2
34
EXHIBIT 13—NUMBER OF H–2A SMALL LABOR CONTRACTOR EMPLOYERS BY NAICS CODE
Description
484230 .....................
236115 .....................
111998 .....................
115115 .....................
561311 .....................
115113 .....................
541110 .....................
445230 .....................
115112 .....................
115116 .....................
Other NAICS ............
Specialized Freight (except Used Goods) Trucking, Long-Distance ................................
New Single-Family Housing Construction (except For-Sale Builders) .............................
All Other Miscellaneous Crop Farming .............................................................................
FLCs and Crew Leaders ...................................................................................................
Employment Placement Agencies .....................................................................................
Crop Harvesting, Primarily by Machine .............................................................................
Offices of Lawyers .............................................................................................................
Fruit and Vegetable Markets .............................................................................................
Soil Preparation, Planting, and Cultivating ........................................................................
Farm Management Services .............................................................................................
............................................................................................................................................
2. Projected Impacts to Affected Small
Entities
The Department has estimated the
incremental costs for small businesses
from the baseline 139 of this final rule.
We estimated the costs of (a) new surety
bond amounts required for H–2ALCs
based on the number of H–2A
employees; (b) recordkeeping costs
associated with maintaining records of
employee’s home address in their
respective home countries; (c)
recordkeeping costs incurred by the
abandonment or dismissal with cause of
employees; and (d) time to read and
review this final rule. The cost estimates
included in this analysis for the
provisions of this final rule are
consistent with those presented in the
E.O. 12866 section.
The Department estimates that small
businesses not classified as H–2ALCs,
2,085 unique employers, would incur a
one-time cost of $54.42 to familiarize
themselves with the rule and an annual
cost of $3.59 associated with
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Number of
employers
6-Digit NAICS
139 2010 H–2A Final Rule, 75 FR 6884; TEGL No.
17–06, Change 1, Special Procedures: Labor
Certification Process for Employers in the Itinerant
Animal Shearing Industry under the H–2A Program
(June 14, 2011); TEGL No. 33–10, Special
Procedures: Labor Certification Process for Itinerant
Commercial Beekeeping Employers in the H–2A
Program (June 14, 2011); TEGL No. 16–06, Change
1, Special Procedures: Labor Certification Process
for Multi-State Custom Combine Owners/Operators
under the H–2A Program (June 14, 2011).
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recordkeeping requirements.140 While
the Department estimates that small
businesses would also incur annual cost
savings associated with the electronic
processing of applications, the
Department is unable to quantify these
costs savings due to data limitations
concerning the proportion of small
businesses who currently select to file
electronically. However, the Department
conservatively estimates this cost as de
minimis by excluding them from the
unquantified cost savings discussed in
the previous section. In total, the
Department estimates that small
businesses not classified as labor
contractors will incur a total first-year
cost of $58.01 (= $54.42 + $3.59). The
Department uses the first-year cost
estimate because it is the highest cost
incurred by businesses over the analysis
timeframe.
This final rule includes the provision
pertaining to surety bonds that applies
to only H–2ALCs, so the Department
estimates the impact on those entities
separately. See § 655.132(c). To estimate
the impact of this final rule on these
entities, the Department used the SBA
size standards to classify 151 H–2ALCs
140 $54.42 = 1 hr × $54.42, where $54.42 is the
fully loaded wage rate for an HR Specialist.
Recordkeeping requirements include the following:
$1.80 to collect and maintain records of workers’
email address and phone number(s) home and
$1.80 to maintain records of notification to the NPC
(and DHS) of employment abandonment or
termination for cause.
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11
11
10
8
7
7
6
5
5
4
62
Percent
8
8
7
6
5
5
4
4
4
3
46
as small employers. These small entities
averaged 15 employees, 48 certified
workers, and annual revenues of
approximately $3.81 million.
The Department estimates that the
average small H–2ALC would incur a
one-time cost of $54.42 to familiarize
itself with the rule, annual costs of
$3.59 associated with recordkeeping
requirements, and calculated the
increase in required surety bond
amounts based on the number of
certified workers associated with the
average temporary agricultural labor
certification for each H–2ALC.141 While
the Department estimates that small
businesses would also incur annual cost
savings associated with the electronic
processing of applications, the
Department ignores those cost savings
for purposes of the RFA analysis. In
total, the Department estimates that
each small business classified as an H–
2ALC will incur a total first-year cost of
$275.52 (= $54.42 + $3.59 + $217.51).
The Department determined the
proportion of each small entity’s total
revenue that would be affected by the
costs of this final rule to determine if
this final rule would have a significant
and substantial impact on small
business. The cost impacts included the
141 For example, an H–2ALC with a temporary
agricultural labor certification for 48 workers is
estimated to face a cost of $217.51, the annual
incremental cost per H–2ALC with 25 to 49 H–2A
workers.
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Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations
estimated first-year costs and the wage
burden cost introduced by this final
rule. The Department used a total cost
estimate of 3 percent of revenue as the
threshold for a significant individual
impact and set a total of 15 percent of
small businesses incurring a significant
impact as the threshold for a substantial
impact on small business. A threshold
of three percent of revenues has been
used in prior rulemakings for the
definition of significant economic
impact.142 This threshold is also
consistent with that sometimes used by
other agencies.143 Of the 2,085 unique
small non-labor contractor employers
with work occurring in 2020–2021 and
revenue data, 100 percent of employers
61789
had less than 3 percent of their total
revenue affected. Of the 134 small labor
contractors with work occurring in
2020–2021 and revenue data, 97 percent
of labor contractors had less than 3
percent of their total revenue affected.
Exhibit 14 is a breakdown of small
employers by the proportion of revenue
affected by the costs of this final rule.
EXHIBIT 14—COST IMPACTS AS A PROPORTION OF TOTAL REVENUE FOR SMALL ENTITIES
Non-labor contractors by NAICS code
Proportion of revenue impacted
111998
444220
561730
445230
All other
Total
<1% ..........................................................
1%–2% .....................................................
2%–3% .....................................................
3%–4% .....................................................
4%–5% .....................................................
>5% ..........................................................
611 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
162 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
134 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
127 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
1051 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
2085 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
Total >3% .........................................
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
Labor contractors by NAICS code
<1% ..........................................................
1%–2% .....................................................
2%–3% .....................................................
3%–4% .....................................................
4%–5% .....................................................
>5% ..........................................................
11 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
11 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
9 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
8 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
87 (92.6%)
2 (2.1%)
1 (1.1%)
1 (1.1%)
0 (0.0%)
3 (3.2%)
126 (94.7%)
2 (1.5%)
1 (0.8%)
1 (0.8%)
0 (0.0%)
3 (2.3%)
Total >3% .........................................
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
4 (4.3%)
4 (3.0%)
In order to meet its statutory
responsibilities under the INA, the
Department collects information
necessary to render determinations on
requests for temporary agricultural labor
certification, which allow employers to
bring foreign labor into the United
States on a seasonal or other temporary
basis under the H–2A program. The
Department uses the collected
information to determine if employers
are meeting their statutory and
regulatory obligations. This information
is subject to the PRA, 44 U.S.C. 3501 et
seq. A Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally
not required to respond to an
information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB Control
Number. In addition, notwithstanding
any other provisions of law, no person
shall generally be subject to penalty for
failing to comply with a collection of
information that does not display a
valid Control Number. See 5 CFR
1320.5(a) and 1320.6. The Department
has OMB approval for its H–2A program
information collection under Control
Number 1205–0466.
In accordance with the PRA, the
information collection requirements that
must be implemented as a result of this
regulation must receive approval from
OMB. Therefore, the Department
submitted a clearance package in
connection with the NPRM that
contained proposed revisions to the
information collection pending OMB
approval under 1205–0466.144 In this
package, the Department proposed
changes to the forms used to collect
required information (i.e., Forms ETA–
9142A and appendices; Form ETA–790/
790A and addenda; and Form ETA–
232 145) to conform to proposed
revisions to the Department’s H–2A
regulations and introduced a new surety
bond form, Form ETA–9142A,
Appendix B, H–2A Labor Contractor
Surety Bond, to facilitate satisfaction of
an existing filing requirement for H–
2ALC employers. These proposed
modifications reflected the regulatory
changes in the NPRM, such as
consistent use of defined terms, revised
assurances, elimination of ‘‘no’’ check
boxes where such a response equates to
a noncompliant filing, and adding fields
to confirm, for example, submission of
the new electronic surety bond form and
the employer’s participation in optional
pre-filing recruitment, if applicable. In
addition, the Department’s package
142 See, e.g., NPRM, Increasing the Minimum
Wage for Federal Contractors, 79 FR 60634 (Oct. 7,
2014) (establishing a minimum wage for
contractors); Final Rule, Discrimination on the
Basis of Sex, 81 FR 39108 (June 15, 2016).
143 See, e.g., Final Rule, Medicare and Medicaid
Programs; Regulatory Provisions to Promote
Program Efficiency, Transparency, and Burden
Reduction; Part II, 79 FR 27106 (May 12, 2014)
(Department of Health and Human Services rule
stating that under its agency guidelines for
conducting regulatory flexibility analyses, actions
that do not negatively affect costs or revenues by
more than three percent annually are not
economically significant).
144 The Department had requested OMB’s
approval of revisions to the information collection
tools to modernize and streamline the forms and
electronic filing process. OMB approved the request
under 1205–0466 on August 22, 2019.
145 As explained in the NPRM, through this
rulemaking, the Department will revise and
consolidate the collection of information through
the Form ETA–232/232A, which is a collection of
information from SWAs, not employers, that is
currently authorized under OMB Control Number
1205–0017, into the agency’s primary H–2A
information collection requirements under OMB
Control Number 1205–0466. The SWAs will use the
new Form ETA–232, Domestic Agricultural InSeason Wage Report, to report to OFLC the results
of wage surveys in compliance with the revised
PWD methodology in this final rule, which OFLC
will use to establish prevailing wage rates for the
H–2A program. This consolidation and revision
will align all data collection for the H–2A program
under a single OMB-approved ICR.
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C. Paperwork Reduction Act
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61790
Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations
contained proposed revisions to the
information collection to reflect new
collections (e.g., notice of intent to
stagger entry of H–2A workers under the
option proposed at § 655.130(f)).
Although the information collection
requirements in this rulemaking fall
under OMB Control Number 1205–0537,
OMB authorized the NPRM Information
Collection Request (ICR) as OMB
Control Number 1205–0537, approved
on October 20, 2019, due to the
Department’s separate pending ICR
under OMB Control Number 1205–0466,
which OMB subsequently approved on
August 22, 2019.146 The public was
given 60 days to comment on the
information collection.
The Department did not receive
comments on the ICR itself; however,
commenters addressed aspects of the
information collection while discussing
the proposed regulations. After
considering public comments submitted
in response to the NPRM, the
Department modified the proposed
regulations, as discussed in the
preamble above, and the information
collection in this ICR. The information
collection changes to implement this
final rule must be assessed under the
PRA. For administrative purposes only,
the Department is submitting this ICR
under control number 1205–0537, the
control number OMB assigned to the
clearance package approved in
connection with the NPRM. Once all of
the outstanding actions are complete,
the Department intends to submit a
nonmaterial change request to transfer
the burden from this OMB Control
Number (1205–0537) to the existing
OMB control number for the H–2A
Foreign Labor Certification Program
(1205–0466) and proceed to discontinue
the use of this OMB Control Number
1205–0537.
In response to comments, the
Department made additional
modifications to the forms implemented
with this final rule to clarify
requirements, reflect the provisions of
this final rule (e.g., prevailing wage
survey methodology), and conform to
similar collections (e.g., manner of
collecting name information). In
addition to editing language on the
forms, the Department modified some
data collection fields after considering
public comments. Many commenters
addressed the Department’s proposal to
collect information about an employer’s
intent to stagger entry of H–2A workers
through a notice submitted to the NPC,
which would require an employer to
146 OMB Control Number 1205–0466 is
subsequently up for renewal again. The ICR expires
on August 31, 2022.
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submit a narrative notice to the NPC and
could be difficult to disclose to
prospective U.S. worker applicants
during recruitment. The estimated
burden hours for employers had
changed from the estimate provided for
the NPRM, reflecting the Department’s
decision not to adopt three optional
information collections proposed in the
NPRM. First, the Department did not
adopt the proposal to allow an employer
the option of staggering the entry of
some of its H–2A workers under a single
temporary agricultural labor
certification. Second, the Department
did not adopt the proposal to allow an
employer the option of engaging in prefiling recruitment activities. Third, the
Department did not adopt the proposal
to allow an employer to request postcertification changes to specific
worksites in the AIE where H–2A
workers are authorized to work. These
decisions eliminated the related
notification and document retention
burden that had been included in the
estimated burden hours of the NPRM. In
addition, several comments addressing
joint employment scenarios indicated
that a change to the manner in which
the Department collects information
about the role of agricultural
associations in filing H–2A applications
on behalf of their employer-members
and, generally, when joint employment
is involved could increase clarity for
filers. The Department modified this
collection on the Form ETA–9142A by
separating one item in Section A into
two parts to more clearly collect
information about the type of employer
filing (i.e., individual employer or joint
employers) and, if applicable, the role of
the agricultural association in the filing.
Further, many comments addressed the
Department’s housing inspection and
compliance requirements, in part,
expressing concern about the
complexity of those requirements and
evidence of compliance with applicable
standards. In response to these
comments, the Department revised
Form ETA–790A and ETA–790A,
Addendum B, to refocus the fields
related to housing type and compliance.
As a result, the forms implemented
with this final rule align information
collection requirements with the
Department’s regulation and continue
the ongoing efforts to provide greater
clarity to employers on regulatory
requirements, standardize and
streamline information collection to
reduce employer time and burden
preparing applications, and promote
greater efficiency and transparency in
the review and issuance of labor
certification decisions under the H–2A
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visa program. Overall, these revisions
discussed above decrease public burden
to respond to the information collection
required under this final rule from that
proposed in connection with the NPRM
by 5 minutes.
This final rule adopts more robust
information requirements for requests
for administrative review, as explained
in the preamble discussion of § 655.171,
which merit increasing the burden
estimate for employers who appeal final
determinations. As a result, this final
rule increases the public time burden
related to appeal by 40 minutes; thus,
the estimated time burden related to
appeals is now estimated at 1 hour (60
minutes). In addition to this final rule,
the Department issued a companion
2020 H–2A AEWR Final Rule governing
the methodology for establishing the
AEWR (85 FR 70445), which appeared
at paragraphs (b)(1), (2), and (5) of the
NPRM. The revised methodology
simplifies the process of determining
the hourly AEWR applicable to an
employer’s job opportunity and,
therefore, reduces the time burden of
determining the offered wage by 3
minutes, a burden accounted for in this
ICR, although it is not currently a
burden felt by employers due to the
2020 H–2A AEWR Final Rule injunction
discussed above.
The information collection change in
requirements associated with this final
rule are summarized as follows:
Title: H–2A Temporary Agricultural
Employment Certification Program.
Agency: DOL–ETA.
Type of Review: New Information
Collection Request.
OMB Control Number: 1205–0537.
Affected Public: Individuals or
Households, Private Sector—businesses
or other for-profits, Government, State,
Local, and Tribal Governments.
Form(s): ETA–9142A, H–2A
Application for Temporary Employment
Certification; ETA–9142A—Appendix
A; ETA–9142A—Appendix B, H–2A
Labor Contractor Surety Bond; ETA–
9142A—H–2A Approval Final
Determination: Temporary Agricultural
Labor Certification; ETA–790/790A, H–
2A Agricultural Clearance Order; ETA–
790/790A—Addendum A; ETA–790/
790A—Addendum B; ETA–790/790A—
Addendum C; ETA–232, Domestic
Agricultural In-Season Wage Report.
Total Annual Respondents: 11,702.
Annual Frequency: On Occasion.
Total Annual Responses: 373,176.
Estimated Time per Response
(averages):
—Forms ETA–9142A, Appendix A,
Appendix B—3.05 hours per
response.
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—Forms ETA–790/790A—0.70 hours
per response.
—Form ETA–232—3.30 hours per
response.
Estimated Total Annual Burden
Hours: 72,803.
Total Annual Burden Cost for
Respondents: $0.
of a federalism summary impact
statement.
F. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
D. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA) (Pub. L. 104–4,
codified at 2 U.S.C. 1501 et seq.) is
intended, among other things, to curb
the practice of imposing unfunded
Federal mandates on State, local, and
tribal governments. UMRA requires
Federal agencies to assess a regulation’s
effects on State, local, and tribal
governments, as well as on the private
sector, except to the extent the
regulation incorporates requirements
specifically set forth in law. Title II of
the UMRA requires each Federal agency
to prepare a written statement assessing
the effects of any regulation that
includes any Federal mandate in a
proposed or final agency rule that may
result in $100 million or more
expenditure (adjusted annually for
inflation) in any one year by State, local,
and tribal governments, in the aggregate,
or by the private sector. A Federal
mandate is any provision in a regulation
that imposes an enforceable duty upon
State, local, or tribal governments, or
upon the private sector, except as a
condition of Federal assistance or a duty
arising from participation in a voluntary
Federal program.
This final rule does not result in
unfunded mandates for the public or
private sector because private
employers’ participation in the program
is voluntary, and State governments are
reimbursed for performing activities
required under the program. The
requirements of title II of the UMRA,
therefore, do not apply, and the
Department has not prepared a
statement under the UMRA.
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E. Executive Order 13132 (Federalism)
This final rule would not have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with sec. 6 of E.O. 13132,147
it is determined that this final rule does
not have sufficient federalism
implications to warrant the preparation
147 E.O.
13132, Federalism, 64 FR 43255 (Aug. 10,
1999).
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The Department has reviewed this
final rule in accordance with E.O.
13175 148 and has determined that it
does not have tribal implications. This
final rule does not have substantial
direct effects on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and tribal governments.
List of Subjects
20 CFR Part 653
Agriculture, Employment, Equal
employment opportunity, Grant
programs—labor, Migrant labor,
Reporting and recordkeeping
requirements.
20 CFR Part 655
Administrative practice and
procedure, Foreign workers,
Employment, Employment and training,
Enforcement, Forest and forest products,
Fraud, Health professions, Immigration,
Labor, Passports and visas, Penalties,
Reporting and recordkeeping
requirements, Unemployment, Wages,
Working conditions.
29 CFR Part 501
Administrative practice and
procedure, Agricultural, Aliens,
Employment, Housing, Housing
standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
For the reasons stated in the
preamble, the Department of Labor
amends 20 CFR parts 653 and 655 and
29 CFR part 501 as follows:
Title 20—Employees’ Benefits
PART 653—SERVICES OF THE
WAGNER-PEYSER ACT EMPLOYMENT
SERVICE SYSTEM
1. The authority citation for part 653
continues to read as follows:
■
Authority: Secs. 167, 189, 503, Public Law
113–128, 128 Stat. 1425 (Jul. 22, 2014); 29
U.S.C. chapter 4B; 38 U.S.C. part III, chapters
41 and 42.
2. Amend § 653.501 by revising the
first sentence and adding a sentence
following the first sentence of paragraph
(c)(2)(i) to read as follows:
■
148 E.O. 13175, Consultation and Coordination
with Indian Tribal Governments, 65 FR 67249 (Nov.
9, 2000).
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§ 653.501 Requirements for processing
clearance orders.
*
*
*
*
*
(c) * * *
(2) * * *
(i) The wages offered are not less than
the applicable prevailing wages, as
defined in § 655.103(b) of this chapter,
or the applicable Federal or State
minimum wage, whichever is higher.
The working conditions offered are not
less than the prevailing working
conditions among similarly employed
farmworkers in the area of intended
employment. * * *
*
*
*
*
*
PART 655—TEMPORARY
EMPLOYMENT OF FOREIGN
WORKERS IN THE UNITED STATES
3. The authority citation for part 655
continues to read as follows:
■
Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)
and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and
(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat.
2099, 2102 (8 U.S.C. 1182 note); sec. 221(a),
Pub. L. 101–649, 104 Stat. 4978, 5027 (8
U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102–
232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103–206, 107 Stat.
2428; sec. 412(e), Pub. L. 105–277, 112 Stat.
2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L.
106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182
note); 29 U.S.C. 49k; Pub. L. 107–296, 116
Stat. 2135, as amended; Pub. L. 109–423, 120
Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR
214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8
CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C.
1288(c) and (d); sec. 323(c), Pub. L. 103–206,
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub.
L. 114–74 at section 701.
Subparts H and I issued under 8 U.S.C.
1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), and
(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L.
102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 412(e), Pub. L. 105–277, 112 Stat.
2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114–74 at section 701.
Subparts L and M issued under 8 U.S.C.
1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),
Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109–423, 120 Stat. 2900;
and 8 CFR 214.2(h).
■
4. Revise subpart B to read as follows:
Subpart B—Labor Certification Process for
Temporary Agricultural Employment in the
United States (H–2A Workers)
Sec.
655.100 Purpose and scope of this subpart.
655.101 Authority of the agencies, offices,
and divisions in the Department of
Labor.
655.102 Transition procedures.
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655.103 Overview of this subpart and
definition of terms.
Pre-Filing Procedures
655.120
655.121
655.122
655.123
655.124
Offered wage rate.
Job order filing requirements.
Contents of job offers.
[Reserved]
Withdrawal of a job order.
Application for Temporary Employment
Certification Filing Procedures
655.130 Application filing requirements.
655.131 Agricultural association and joint
employer filing requirements.
655.132 H–2A labor contractor filing
requirements.
655.133 Requirements for agents.
655.134 Emergency situations.
655.135 Assurances and obligations of H–
2A employers.
655.136 Withdrawal of an Application for
Temporary Employment Certification
and job order.
Processing of Applications for Temporary
Employment Certification
655.140 Review of applications.
655.141 Notice of deficiency.
655.142 Submission of modified
applications.
655.143 Notice of acceptance.
655.144 Electronic job registry.
655.145 Amendments to Applications for
Temporary Employment Certification.
Post-Acceptance Requirements
655.150 Interstate clearance of job order.
655.151–655.152 [Reserved]
655.153 Contact with former U.S. workers.
655.154 Additional positive recruitment.
655.155 Referrals of U.S. workers.
655.156 Recruitment report.
655.157 Withholding of U.S. workers
prohibited.
655.158 Duration of positive recruitment.
Labor Certification Determinations
655.160 Determinations.
655.161 Criteria for certification.
655.162 Approved certification.
655.163 Certification fee.
655.164 Denied certification.
655.165 Partial certification.
655.166 Requests for determinations based
on nonavailability of U.S. workers.
655.167 Document retention requirements
of H–2A employers.
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Post-Certification
655.170 Extensions.
655.171 Appeals.
655.172 Post-certification withdrawals.
655.173 Setting meal charges; petition for
higher meal charges.
655.174 Public disclosure.
Integrity Measures
655.180 Audit.
655.181 Revocation.
655.182 Debarment.
655.183 Less than substantial violations.
655.184 Applications involving fraud or
willful misrepresentation.
655.185 Job service complaint system;
enforcement of work contracts.
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Labor Certification Process for Temporary
Agricultural Employment in Range Sheep
Herding, Goat Herding, and Production of
Livestock Occupations
655.200 Scope and purpose of herding and
range livestock regulations in this
section and §§ 655.201 through 655.235.
655.201 Definition of herding and range
livestock terms.
655.205 Herding and range livestock job
orders.
655.210 Contents of herding and range
livestock job orders.
655.211 Herding and range livestock wage
rate.
655.215 Procedures for filing herding and
range livestock Applications for
Temporary Employment Certification.
655.220 Processing herding and range
livestock Applications for Temporary
Employment Certification.
655.225 Post-acceptance requirements for
herding and range livestock.
655.230 Range housing.
655.235 Standards for range housing.
Labor Certification Process for Temporary
Agricultural Employment in Animal
Shearing, Commercial Beekeeping, Custom
Combining, and Reforestation Occupations
655.300 Scope and purpose.
655.301 Definition of terms.
655.302 Contents of job orders.
655.303 Procedures for filing Applications
for Temporary Employment
Certification.
655.304 Standards for mobile housing.
§ 655.100
subpart.
Purpose and scope of this
(a) Purpose. (1) A temporary
agricultural labor certification issued
under this subpart reflects a
determination by the Secretary of Labor
(Secretary), pursuant to 8 U.S.C.
1188(a), that:
(i) There are not sufficient able,
willing, and qualified United States
(U.S.) workers available to perform the
agricultural labor or services of a
temporary or seasonal nature for which
an employer desires to hire temporary
foreign workers (H–2A workers); and
(ii) The employment of the H–2A
worker(s) will not adversely affect the
wages and working conditions of
workers in the United States similarly
employed.
(2) This subpart describes the process
by which the Department of Labor
(Department or DOL) makes such a
determination and certifies its
determination to the Department of
Homeland Security (DHS).
(b) Scope. This subpart sets forth the
procedures governing the labor
certification process for the temporary
employment of foreign workers in the
H–2A nonimmigrant classification, as
defined in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
It also establishes standards and
obligations with respect to the terms
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and conditions of the temporary
agricultural labor certification with
which H–2A employers must comply, as
well as the rights and obligations of H–
2A workers and workers in
corresponding employment.
Additionally, this subpart sets forth
integrity measures for ensuring
employers’ continued compliance with
the terms and conditions of the
temporary agricultural labor
certification.
§ 655.101 Authority of the agencies,
offices, and divisions in the Department of
Labo