[Federal Register Volume 73, Number 30 (Wednesday, February 13, 2008)]
[Proposed Rules]
[Pages 8538-8585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2525]



[[Page 8537]]

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Part V





Department of Labor





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Employment and Training Administration



20 CFR Part 655



Wage and Hour Division



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29 CFR Parts 501, 780, and 788



Temporary Agricultural Employment of H-2A Aliens in the United States; 
Modernizing the Labor Certification Process and Enforcement; Proposed 
Rule

  Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / 
Proposed Rules  

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Parts 501, 780, and 788

RIN 1205-AB55


Temporary Agricultural Employment of H-2A Aliens in the United 
States; Modernizing the Labor Certification Process and Enforcement

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of Labor (the Department or DOL) is proposing 
to amend its regulations regarding the certification of temporary 
employment of nonimmigrant workers employed in temporary or seasonal 
agricultural employment and the enforcement of the contractual 
obligations applicable to employers of such nonimmigrant workers. This 
notice of proposed rulemaking (NPRM or proposed rule) would re-engineer 
the process by which employers may obtain a temporary labor 
certification from the Department for use in petitioning the Department 
of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A 
(agricultural temporary worker) status. Re-engineering measures focus 
on the utilization of an attestation-based application process after an 
employer conducts pre-filing recruitment and the elimination of 
duplicative activities currently performed by the State Workforce 
Agencies (SWAs). In concert with these changes, the Department proposes 
to amend the wage and hour regulations to provide for enhanced 
enforcement, including more rigorous penalties, under the H-2A program 
to complement the modernized certification process so that workers are 
appropriately protected should an employer fail to meet the 
requirements of the H-2A program.

DATE: Interested persons are invited to submit written comments on the 
proposed rule on or before March 31, 2008.

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

FOR FURTHER INFORMATION CONTACT: For further information regarding 20 
CFR part 655, contact Sherril Hurd, Acting Team Leader, Regulations 
Unit, Employment and Training Administration (ETA), U.S. Department of 
Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210; 
Telephone (202) 693-3700 (this is not a toll-free number). Individuals 
with hearing or speech impairments may access the telephone number 
above via TTY by calling the toll-free Federal Information Relay 
Service at 1-800-877-8339. For further information regarding 29 CFR 
parts 501, 780 and 788, contact James Kessler, Farm Labor Team Leader, 
Wage and Hour Division, Employment Standards Administration, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room S-3510, 
Washington, DC 20210; Telephone (202) 693-0070 (this is not a toll-free 
number). Individuals with hearing or speech impairments may access the 
telephone number above via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Revisions to 20 CFR Part 655 Subpart B

A. Background

1. Statutory Standard and Current Department of Labor Regulations
    The H-2A worker visa program provides a means for U.S. agricultural 
employers to employ foreign workers on a temporary basis to perform 
agricultural labor or services when U.S. labor is in short supply. 
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act 
(INA or the Act) defines an H-2A worker as a nonimmigrant admitted to 
the U.S. on a temporary or seasonal basis to perform agricultural labor 
or services. 8 U.S.C. 1101(a)(15)(H)(ii)(a), see also 8 U.S.C. 
1184(c)(1) and 1188. Although foreign agricultural labor has 
contributed to the growth and success of America's agricultural sector 
since the 19th century, the modern-day agricultural worker visa program 
originated with the creation, in the Immigration and Nationality Act of 
1952, of the ``H-2 program''--a reference to the INA section that 
established it. The H-2

[[Page 8539]]

program established mechanisms for the use of temporary foreign labor 
but did not distinguish between agricultural and other types of work.
    More than 30 years later, the Immigration Reform and Control Act of 
1986 (IRCA) amended the INA to establish a separate H-2A visa 
classification for agricultural labor under INA Section 
101(a)(15)(H)(ii)(A). Public Law 99-603, Title III, 100 Stat. 3359, 
November 6, 1986. Today, the H-2A nonimmigrant visa program authorizes 
the Secretary of Homeland Security to permit employers to hire foreign 
workers to come temporarily to the U.S. and perform agricultural 
services or labor of a seasonal or temporary nature, if such employment 
is first certified by the Secretary of Labor (the Secretary).
    Section 214(c)(1) of the INA, as amended, requires the Secretary of 
Homeland Security to consult with appropriate agencies of the 
Government--in particular, the Department of Labor--before approving a 
petition from an employer for employment of H-2A nonimmigrant 
agricultural workers. 8 U.S.C. 1184(c)(1). Section 218 of the Act, 
together with section 214, establishes the statutory structure for the 
program and provides that a petition to import H-2A workers may not be 
approved unless the petitioner has applied to the Secretary of Labor 
for a certification. Section 218 sets out the explicit obligation for 
the Department to certify that:

    (A) There are not sufficient U.S. workers who are able, willing, 
and qualified, and who will be available at the time and place 
needed to perform the labor or services involved in the petition; 
and
    (B) The employment of the alien in such labor or services will 
not adversely affect the wages and working conditions of workers in 
the United States similarly employed.

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

    The INA specifies conditions under which the Secretary must deny 
certification, and establishes specific timeframes within which 
employers must file--and the Department must process and either reject 
or certify--applications for H-2A labor certification. In addition, the 
statute institutes certain employment-related protections, including 
workers' compensation insurance, recruitment, and housing, to which H-
2A employers must adhere. 8 U.S.C. 1188(c). The H-2A program does not 
limit the number of aliens who may be accorded H-2A status each year or 
the number of labor certification applications the Department may 
process.
    The Department has published regulations at 20 CFR part 655, 
subpart B--``Labor Certification Process for Temporary Agricultural 
Employment Occupations in the United States (H-2A Workers),'' governing 
the H-2A labor certification process; and at 29 CFR part 501 to 
implement its enforcement responsibilities under the H-2A program. 
Regulations impacting employer-provided housing for agricultural 
workers appear at 20 CFR part 654, subpart E (Housing for Agricultural 
Workers), and 29 CFR 1910.42 (standards set by the Occupational Safety 
and Health Administration); see also 20 CFR 651.10, and part 653, 
subparts B and F.
    The INA also sets out the conditions under which a certification 
may not be granted, including:

    (1) There is a strike or lockout in the course of a labor 
dispute which, under the regulations, precludes such certification.
    (2)(A) The employer during the previous two-year period employed 
H-2A workers and the Secretary of Labor has determined, after notice 
and opportunity for a hearing, that the employer at any time during 
that period substantially violated a material term or condition of 
the labor certification with respect to the employment of domestic 
or nonimmigrant workers.
    (B) No employer may be denied certification under subparagraph 
(A) for more than three years for any violation described in such 
subparagraph.
    (3) The employer has not provided the Secretary with 
satisfactory assurances that if the employment for which the 
certification is sought is not covered by State workers' 
compensation law, the employer will provide, at no cost to the 
worker, insurance covering injury and disease arising out of and in 
the course of the worker's employment which will provide benefits at 
least equal to those provided under the State workers' compensation 
law for comparable employment.
    (4) The Secretary determines that the employer has not made 
positive recruitment efforts within a multi-state region of 
traditional or expected labor supply where the Secretary finds that 
there are a significant number of qualified United States workers 
who, if recruited, would be willing to make themselves available for 
work at the time and place needed. Positive recruitment under this 
paragraph is in addition to, and shall be conducted within the same 
time period as, the circulation through the interstate employment 
service system of the employer's job offer. The obligation to engage 
in positive recruitment under this paragraph shall terminate on the 
date the H-2A workers depart for the employer's place of employment.

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

    The statute further sets out strict timelines for the processing of 
certifications: The Secretary may not require that an application be 
filed more than 45 days before the employer's date of need, and 
certification must occur no later than 30 days prior to the date of 
need, provided that all the criteria for certification are met. 8 
U.S.C. 1188(c). If the application fails to meet threshold requirements 
for certification, notice must be provided to the employer within 7 
days of the date of filing, and a timely opportunity to cure 
deficiencies must be provided to the employer. The Act does not 
explicitly provide a timeframe for certification in cases where an 
application as originally filed failed to meet the criteria for 
certification and the employer is, upon the date that is 30 days prior 
to the date of need, still coordinating with the Department and making 
a good faith effort to cure deficiencies.
    The Secretary has delegated her statutory responsibilities under 
the H-2A program, through the Assistant Secretary, Employment and 
Training Administration (ETA), to ETA's Office of Foreign Labor 
Certification (OFLC). Under the current regulations in 20 CFR part 655, 
subpart B, H-2A labor certification applications are processed 
concurrently through the State Workforce Agency (SWA) having 
jurisdiction over the area of intended employment and the applicable 
National Processing Center (NPC) within the OFLC. The SWA and ETA--
through the NPCs--receive the application and review the terms of the 
job offer concurrently.
    Upon receipt of an employer's application, the SWA places in its 
job clearance system a job order initiating local recruitment, but does 
not place the job in broader circulation until it receives additional 
instructions from ETA. By law, ETA has 7 calendar days from the 
employer's date of filing within which to identify and notify the 
employer and SWA of deficiencies in the application and provide the 
employer an opportunity to submit an amended or modified application. 
Alternatively, in that same time period, ETA may accept the application 
for processing; acceptance reflects ETA's initial determination that 
the benefits, wages, and working conditions of the employer's job 
offer, for which temporary certification of foreign labor is sought, 
will not have an adverse effect on similarly employed U.S. workers. ETA 
then notifies the employer and SWA of this threshold determination and 
authorizes the SWA to place the employer's job order in intrastate/
interstate clearance. See 20 CFR part 653, subpart F.
    The SWA having jurisdiction over the State where the employer's 
work site is located is responsible for processing the

[[Page 8540]]

employer's request for H-2A labor certification, overseeing the 
recruitment and directing U.S. worker referrals to the employer. The 
NPC reviews whether the employers comply with advertising and 
recruitment requirements, and adjudicates the application--determining 
whether to approve or deny certification for some or all of the jobs 
requested.
    To obtain a temporary labor certification, the employer must 
demonstrate that the need for the services or labor is of a temporary 
or seasonal nature. The employer must also establish that the job 
opportunity for the temporary position is full-time, and, absent 
extraordinary circumstances, the period of need is 1 year or less.
    Historically, Departmental review and adjudication of applications 
took place through both the SWAs and ETA's Regional Offices. However, 
in December 2004, the Department opened two new NPCs, one located in 
Atlanta, Georgia, and the other in Chicago, Illinois, to consolidate 
processing of permanent and temporary foreign labor certification cases 
at the Federal level. In 2005, the Department published a notice in the 
Federal Register at 70 FR 41430, Jul. 19, 2005, clarifying that 
employers seeking H-2A certifications (with a few limited exceptions 
discussed below) must file two original copies of Form ETA 750, Part A, 
and Form ETA 790 directly with the NPC of jurisdiction and, 
concurrently, a copy with the SWA serving the area of intended 
employment. SWAs coordinate all activities regarding the processing of 
H-2A applications directly with the appropriate NPC for their 
jurisdiction, including transmittal to the NPC of housing inspection 
results, prevailing wage surveys, prevailing practice surveys, or any 
other material bearing on an application. Once the application is 
reviewed by the SWA and after the employer conducts its required 
recruitment, the SWA sends the complete application to the appropriate 
NPC. The NPC Certifying Officer (CO), on behalf of the Secretary, 
reviews the application for completeness and either certifies the 
application for temporary employment under the H-2A program, or denies 
the certification. Current Department regulations at 20 CFR part 655, 
subpart B, establish procedures by which an employer may appeal to an 
administrative law judge either an initial rejection of an application 
or a final determination denying the application.
    Employers receiving approved labor certifications attach them in 
support of their I-129 petitions to DHS for authorization to employ 
foreign workers in H-2A status. For situations where prospective H-2A 
workers are outside of the U.S., the employer forwards the approved 
petition notice to its prospective employees who then apply for an H-2A 
visa at the appropriate U.S. consulate or port of entry. The Department 
of State then determines whether to issue visas to the foreign workers 
requested under the employer's petition, who can then be admitted 
through the appropriate port of entry. For H-2A workers already legally 
present in the U.S., DHS adjudicates an application to extend or change 
their current status to H-2A status as part of the petition approval 
process.
2. The Need for a Redesigned System
    Modern agriculture is a tremendous benefit to the U.S.--to its 
culture, its health, and its economic prosperity. The value of U.S. 
agricultural production was estimated to be $276 billion in 2006.\1\ 
Farm and farm-related industries employ an estimated 2.7 million 
workers every year.\2\ This includes both wage earning workers and 
those working for no wages on family farms.
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    \1\ Bureau of Economic Analysis, National Income and Product 
Accounts, Table 7.3.5; http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=263&FirstYear=2005&LastYear=2006&Freq=Year.
    \2\ Bureau of Economic Analysis, Regional Economic Accounts, 
Table SA25N, http://www.bea.gov/regional/spi/default.cfm?satable=SA25N&series=NAICS.
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    One unfortunate reality of modern American agriculture is that the 
majority of the foreign workers assisting with the year's harvest are 
undocumented. In fact, the share of the agricultural workforce that is 
not work-authorized has increased dramatically in recent years while 
the number of U.S. workers engaged in agriculture has dropped 
steadily.\3\
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    \3\ National Agricultural Workers Survey, Public Access Data, 
Fiscal Years 1989-2006. U.S. Department of Labor, Employment and 
Training Administration, Office of Policy Development and Research. 
http://www.doleta.gov/agworker/naws.cfm.
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    Evidence of a shrinking domestic agricultural workforce is found in 
the U.S. Department of Agriculture's (USDA) Farm Labor Survey, a 
quarterly survey of employers. Comparing third-quarter totals over the 
10 year period 1998-2007, there were 1,450,000 wage-earning workers on 
the Nation's farms and ranches in July 1998 but only 1,205,000 for the 
same quarter of 2007, for a decrease of 245,000 workers. The largest 
decrease occurred between 2005, when there were 1,344,000 wage-earning 
workers, and 2006, when 1,196,000 were reported.\4\ The 1 year change 
between 2005 and 2006 represents an 11 percent decrease. While 
increases in productivity have contributed to an expanding agricultural 
output with fewer inputs, including labor, this sudden and dramatic 
decrease in the supply of workers cannot be entirely attributed to 
productivity, and poses severe economic consequences for growers, 
especially those of perishable crops. Indeed, the Department's program 
experience and survey data have consistently supported the proposition 
that the agricultural industry has many more jobs than available legal 
workers.
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    \4\ 2006 USDA National Agricultural Survey.
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    Recent reports on the state of agriculture in the U.S. confirm the 
dependence of many agricultural employers on undocumented workers. The 
National Agricultural Worker Survey (NAWS) \5\ conducted each year by 
the Department shows that in 1990, 17 percent of agricultural workers 
were illegally present in the U.S. By 2006, the number of agriculture 
workers who self-identify as being illegal had increased to 53 percent. 
Some worker advocates have suggested that the actual number of illegal 
workers is greater than 70 percent.\6\
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    \5\ The National Agricultural Workers Survey (NAWS) is a 
Department-sponsored employment-based, random survey of the 
demographic, employment, and health characteristics of the U.S. crop 
labor force. The information is obtained directly from farm workers 
through face-to-face interviews.
    \6\ See, e.g., Marcos Camacho, General Counsel, United Farm 
Workers, Testimony Before the Committee on the Judiciary, U.S. House 
of Representatives, May 24, 2007.
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    Data from NAWS further shows that in 2006, 19 percent of all 
agricultural workers were first time U.S. farm workers (new farm 
workers are those who have less than a year of U.S. farm work 
experience). Among the new workers, 85 percent were foreign-born; 15 
percent were U.S. citizens. All of the foreign-born new workers were 
unauthorized (100 percent).
    Authorized workers appear to be leaving farm jobs because of age or 
opportunities for more stable and higher paying employment outside of 
agriculture, and are being replaced almost exclusively by unauthorized 
foreign-born workers. In addition, enhanced enforcement of Federal 
immigration law appears to have also contributed to a reduction in the 
availability of agricultural workers, which has in turn had the 
unintended consequence of sparking a series of agricultural crises 
across a number of States in the past year. As increased border 
enforcement efforts have succeeded in limiting the number of border 
crossings by illegal workers, U.S.

[[Page 8541]]

employers, which all too often relied on such workers in the past, have 
had an increasingly difficult time finding enough workers to harvest 
their crops.
    Numerous reports of shrinking or nonexistent farm seasonal labor, 
with attendant crop loss for lack of harvest help, have been prominent 
in recent months and reflect Department survey data. See, e.g., 
``Pickers are Few, and Growers Blame Congress,'' The New York Times, 
September 22, 2006; ``Farmers to Congress: Crops are Rotting,'' Austin-
American Statesman, January 10, 2007. As stepped-up enforcement efforts 
have diminished the availability of agricultural workers, States and 
farmers have increasingly resorted to sometimes extreme means to 
address the resulting labor shortage. For example, the State of 
Colorado has initiated the use of inmate labor on farms where migrant 
labor was previously used. ``Facing Illegal Immigrant Crackdown, Farms 
Look to Inmate Labor,'' ABC News, July 25, 2007. In addition, an 
increasing number of farmers have been investigating alternatives such 
as raising crops across the Mexican border to secure needed workers 
that they cannot legally hire in the U.S. ``Short on Labor, Farmers in 
U.S. Shift to Mexico,'' The New York Times, September 5, 2007.
    This critical need for legal workers in the U.S. agricultural 
industry has been recognized by many Members of Congress, including 
during recent deliberations over immigration reform. Senator Feinstein 
highlighted the unique labor needs of agriculture and the importance of 
foreign labor in a September 2006 floor statement:

    We have 1 million people who usually work in agriculture. I must 
tell you they are dominantly undocumented. Senator Craig pointed out 
the reason they are undocumented is because American workers will 
not do the jobs.
    When I started this I did not believe it, so we called all the 
welfare departments of the major agriculture counties in California 
and asked--can you provide agricultural workers? Not one worker came 
from the people who were on welfare who were willing to do this kind 
of work. That is because it is difficult work. The Sun is hot. The 
back has to be strong. You have to be stooped over. It is 
extraordinarily difficult work.
    For a State as big as mine, there is an immigrant community 
which is professionally adept at this kind of work. They can pick, 
they can sort, they can prune, they can harvest--virtually better 
than anybody. This is what they do. This is what makes our 
agricultural community exist.
    It is very hard for a farmer to hire a documented worker. It is 
very hard to find that documented worker. So if they are going to 
produce they have to find the labor somewhere.
    My State produces one-half of the Nation's fruits, vegetables 
and nuts. One-half comes from California. We produce 350 different 
crops. We have an opportunity now, with this bill, to get adequate 
labor for this harvest season on this border security bill.
    In my State of California, growers are reporting that their 
harvesting crews are 10 to 20 percent of what they were previously 
due to two things: Stepped up enforcement, a dwindling pool of 
workers, and the problem that ensues from both.\7\
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    \7\ 152 Cong. Rec. S9773 (2006).

    In January 2007, Senator Craig summarized the problem facing U.S. 
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agriculture in this way:

    [T]his economic sector, more than any other, has become 
dependent for its existence on the labor of immigrants who are here 
without legal documentation. The only program currently in place to 
respond to a lack of legal domestic agricultural workers, the H-2A 
guest worker program, is profoundly broken. Outside of H-2A, farm 
employers have no effective, reliable assurance that their employees 
are legal.
    We all want and need a stable, predictable, legal workforce in 
American agriculture. Willing American workers deserve a system that 
puts them first in line for available jobs with fair market wages. 
All workers should receive decent treatment and protection of 
fundamental legal rights. Consumers deserve a safe, stable, domestic 
food supply. American citizens and taxpayers deserve secure borders 
and a government that works.
    Last year, we saw millions of dollars' worth of produce rot in 
the fields for lack of workers. We are beginning to hear talk of 
farms moving out of the country, moving to the foreign workforce. 
All Americans face the danger of losing more and more of our safe, 
domestic food supply to imports.
    Time is running out for American agriculture, farm workers, and 
consumers. What was a problem years ago is a crisis today and will 
be a catastrophe if we do not act immediately.\8\
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    \8\ 153 Cong. Rec. S441-S442 (2007).

    Facing a shortage of available U.S. workers, agricultural employers 
have been left with the untenable choice of either (a) attempting to 
legally employ temporary foreign workers through an H-2A program that 
is widely decried as dysfunctional, but risking losing crops if 
inefficient program administration results in the workers arriving too 
late for harvest; (b) using illegal workers, and incurring the risk 
that the workers, and consequently the crops, will be lost to 
immigration enforcement; or (c) not hiring any workers at all--in 
effect, ending U.S. farming operations.
    It is entirely unacceptable, but perhaps unsurprising, that many 
agricultural employers have chosen in recent years to take their 
chances with undocumented workers--if for no other reason than a lack 
of viable alternatives. The willingness of agricultural employers to 
hire illegal workers has created a continuing economic magnet 
encouraging illegal workers to enter the U.S., resulting in attendant 
problems for national security and the rule of law, as well as 
additional costs associated with an underground economy, crime, and 
social services.
    This increasing reliance on undocumented workers has left the 
agricultural workforce increasingly vulnerable to exploitation because 
illegal workers fear deportation if they complain about substandard 
wages or working conditions. As the U.S. Supreme Court has noted, 
``[A]cceptance by illegal aliens of jobs on substandard terms as to 
wages and working conditions can seriously depress wage scales and 
working conditions of citizens and legally admitted aliens.* * *'' 
Sure-Tan v. NLRB, 467 U.S. 883, 892 (1984) (citing De Canas v. Bica, 
424 U.S. 351, 356-57, 96 S.Ct. 933, 936-37 (1976). And it is not only 
wages that are depressed, as Senator Kennedy stated in May 2007:

    [W]e have, unfortunately, employers who are prepared to exploit 
the current condition of undocumented workers in this country--
potentially, close to 12 [and] \1/2\ million are undocumented. 
Because they are undocumented, employers can have them in these 
kinds of conditions. If they don't like it, they tell them they will 
be reported to the immigration service and be deported. That is what 
is happening today.
    I yield to no one in terms of my commitment to working 
conditions or for fairness and decency in the workplace. That is 
happening today. The fact that we have those undocumented workers 
and they are being exploited and paid low wages has what kind of 
impact in terms of American workers? It depresses their wages. That 
should not be too hard to grasp. Those are the facts.\9\
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    \9\ 153 Cong. Rec. S6590 (2007).

    The U.S. has an estimated 3 million agricultural job opportunities 
filled by about 1.2 million hired agricultural workers each year.\10\ 
As noted above, more than 50 percent and perhaps in excess of 70 
percent of these workers are in the country illegally. This means there 
are at least 600,000 and perhaps more than 800,000 illegal workers 
employed on America's 2 million farms.
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    \10\ Dr. James S. Holt, Testimony Before the Committee on 
Education and Labor, U.S. House of Representatives, June 7, 2007. 
http://edworkforce.house.gov/testimony/060707JamesHoltTestimony.pdf.
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    The H-2A program is woefully underutilized by agricultural 
employers. Unlike other temporary worker programs with annual visa caps 
that are routinely reached on the first day on

[[Page 8542]]

which visas are available, the H-2A program has no annual limit on the 
number of visas that can be issued. Yet despite the vast need for 
agricultural labor, and the availability of H-2A visas, only about 
7,700 agriculture employers used the H-2A program last year, and only 
75,000 workers were hired--less than 6 percent of the hired 
agricultural workforce. This situation clearly demonstrates that the 
vast majority of agricultural employers in the U.S. find the H-2A 
program so plagued with problems that they avoid using it altogether. 
The Department seeks to remedy this problem and render the H-2A program 
functional so that if and when agricultural employers are unable to 
locate sufficient numbers of U.S. workers, they will turn to the 
program to provide them with a fully legal workforce. A functional H-2A 
program will change the incentives for agricultural employers, thereby 
assisting in eradicating the underground economy created by the 
widespread use of unauthorized workers and better protecting the wages 
and working conditions of U.S. workers who are currently harmed by the 
employment of workers illegally present in the U.S.
    On August 10, 2007, the Administration announced a series of 
actions the Administration would pursue to address border security and 
immigration-related processes. As part of that effort, the President 
directed the Department to review the H-2A program:

    No sector of the American economy requires a legal flow of 
foreign workers more than agriculture, which has begun to experience 
severe labor shortages as our Southern border has tightened. The 
President has therefore directed DOL to review the regulations 
implementing the H-2A program and to institute changes that will 
provide farmers with an orderly and timely flow of legal workers, 
while protecting the rights of laborers.\11\

    \11\ Fact Sheet: Improving Border Security and Immigration 
Within Existing Law, Office of the Press Secretary, The White House 
(August 10, 2007); see also Statement on Improving Border Security 
and Immigration Within Existing Law, 43 Weekly Comp. Pres. Doc. 1067 
(Aug. 13, 2007).
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    Pursuant to this directive, the Department conducted a ``top to 
bottom'' review of the H-2A program, its statutory basis, and current 
implementing regulations. This analysis identified a number of 
practices not required by the statute that have made administration of 
the program unwieldy and parts of the program difficult to use, 
particularly for an industry that needs its workforce at specific times 
and cannot afford delays. This NPRM enhances many protections for 
workers while seeking to eliminate unnecessarily cumbersome regulatory 
practices that interfere with or inhibit use of the program, provide 
little or no benefit for U.S workers, and indirectly contribute to the 
employment of illegal workers.
    The process for obtaining a temporary labor certification for H-2A 
nonimmigrant agricultural temporary workers has been criticized as 
complicated, time-consuming, and requiring the considerable expenditure 
of resources by employers, SWAs, and the Federal Government. The 
current requirement that applications for temporary labor 
certifications be filed simultaneously at the SWA and the applicable 
ETA NPC has resulted in burdensome, costly, and unnecessarily 
duplicative Government review, with little associated benefit to 
workers. In addition, the compressed time frame for supervised 
recruitment has burdened employers and made it difficult for U.S. 
workers to access and pursue these opportunities. The supervised 
recruitment requirements and process have also been inconsistently 
applied, leading to further administrative burdens for both employers 
and workers. While the consolidation of the Regional Office oversight 
of applications into two NPCs has, to a certain extent, lessened the 
administrative burden and made application processing more consistent 
at the Federal level, it has not lessened the burden faced by 
employers, eliminated delays in application processing, or increased 
the Department's ability to ensure worker protections. Consequently, 
the program continues to be regarded with trepidation by many 
agricultural employers who continue to make the unacceptable choice to 
employ an undocumented workforce rather than face the program's many 
complexities.
3. Overview of the Proposed Redesign of the System
    In light of its extensive experience in both the processing of 
applications and the enforcement of worker protections, the Department 
has re-examined its program administration and is consequently 
proposing several significant measures to re-engineer the H-2A program 
processing. These proposals will simplify the process by which 
employers obtain a labor certification while maintaining, and even 
enhancing, the Department's substantial role in ensuring that U.S. 
workers have access to agricultural job opportunities before H-2A 
workers are hired. These proposals will also increase employer 
accountability through newly applied penalties to further protect 
against violations of program and worker standards, including 
substantially increased civil monetary penalties for non-compliance 
with program requirements and enhanced provisions for denying non-
compliant employers access to the program.
    The Department expects that the resulting efficiencies in program 
administration will significantly encourage increased program 
participation, resulting in an increased legal farm worker labor supply 
with the attendant legal rights and protections for workers. The 
Department further expects that U.S. workers will be better protected 
from adverse effects when they are competing with workers who are 
legally present in the U.S. and who are subject to all of the 
requirements of the H-2A program. See Sure-Tan v. NLRB, 467 U.S. at 883 
(1984).
    The Department is proposing to implement an attestation-based 
process by which employers, as part of their application, would attest, 
under threat of penalties, including perjury and debarment from the 
program, they have complied with all applicable program requirements. 
In addition, employers would be required to maintain all supporting 
documentation for their application for a period of 5 years in order to 
support the Department's enforcement of program requirements. The 
Department would also institute a new auditing process to verify that 
employers have, in fact, met their responsibilities under the H-2A 
program.
    In the Department's experience, delays by SWAs in conducting 
housing inspections have frequently caused the Department to miss 
mandatory statutory deadlines for processing H-2A labor certification 
applications. By statute, the Department has only 15 days to process H-
2A labor certifications; the Department cannot require that 
applications be filed more than 45 days before the first date of need, 
8 U.S.C. 1188(c)(1), and is required to make a determination on 
applications no fewer than 30 days before the first date of need, 8 
U.S.C. 1188(c)(3)(A). Housing determinations are similarly required by 
statute to be completed no fewer than 30 days before the first date of 
need--a mandate designed to ensure that housing inspections do not 
interfere with the specified timeframes for certifying labor 
applications. 8 U.S.C. 1188(c)(4). The Department's program experience 
indicates, however, that housing inspections are frequently delayed 
well past 30 days before the first date of need, causing the Department 
to make late certification

[[Page 8543]]

decisions thus violating the statutory timeframe specified. To bring 
the program back into compliance with the law and ensure that 
determinations are made no fewer than 30 days prior to the first date 
of need, the proposed rule would alter the current H-2A housing 
inspection procedures by adopting procedures that are currently used to 
inspect housing for U.S. workers under the Migrant and Seasonal 
Agricultural Worker Protection Act (MSPA). These procedures are 
explained in greater detail below.
    Consistent with the Department's statutory obligations under the 
INA to process H-2A applications under strict time constraints, and the 
experience we have had in not being able on a regular basis to achieve 
these obligations with respect to employer-provided housing, it is 
necessary in this proposed rule to separate the INA procedure from the 
procedures for inspections not under the H-2A program in 20 CFR 654.400 
and 654.403. While this INA rule would apply to H-2A related housing 
inspections in the future, the housing standards themselves, that is, 
20 CFR 654.404-654.417 and 29 CFR 1910.142, whichever are applicable, 
continue to apply to such housing.
    Employer applications would be submitted directly to an NPC, 
streamlining the intake process and reducing the time required to 
render a determination on the application. SWAs would continue to post 
job orders, circulate them through the Interstate Employment Service 
System, and refer potential U.S. workers to employers. SWAs would no 
longer directly oversee the employer's recruitment efforts. Instead, as 
described above, employers will attest to their compliance with the 
program requirements and those attestations will be audited by the 
Department to ensure compliance.
    Upon submission of the application, the applicable NPC would review 
the job offer and the attestations to ensure compliance with all the 
criteria for certification relative to the date of need. As necessary, 
the NPC may issue a notice of application deficiency to enable the 
employer to amend or modify the application or job offer. The employer 
would also submit a preliminary recruitment report to the NPC as part 
of the filing process, documenting its recruitment efforts (and their 
outcome) for the period from the initiation of the recruitment efforts 
to the time of the submission of the application. In addition, the 
employer would be required to create and retain a supplemental written 
recruitment report for 5 years from the date of certification for use 
in a Department audit or other investigation.
    Employers would be required to retain for 5 years all supporting 
documentation for their application including documents supporting 
recruitment efforts, a copy of the housing certification, any relevant 
certificate of occupancy used to demonstrate compliance, as well as any 
written requests submitted to a SWA or other State agency for 
preoccupancy inspection of housing, and any other documentation 
required to demonstrate compliance with a program obligation.
    The introduction of audits serves as both a quality control measure 
and a means of evaluating applications. Audits would be conducted for 
quality control and fraud detection purposes on adjudicated 
applications as well as randomly-selected applications being processed. 
The criteria used for selecting applications for audits would be drawn 
from the Department's program experience and be based in part on 
information received from the Department's Employment Standards 
Administration (ESA), which is charged with enforcing the provisions of 
the H-2A program through its Wage and Hour Division (WHD). During an 
audit, employers would be required to provide information supporting 
the attestations in their application. Failure to meet the required 
program standards or to provide information in response to an audit 
would result in an adverse finding that could lead to penalties, such 
as revocation of an approved labor certification or debarment from the 
program. These penalties may be in addition to penalties separately 
assessed by ESA.
    Finally, the Department's proposal creates an additional process 
for penalizing employers or their attorneys or agents who have failed 
to perform obligations required under the H-2A program. The Department 
will continue to debar employers who have engaged in prohibited 
activities or who have failed to comply with the obligations and 
assurances required by the program, and we have added a process to 
revoke an approved labor certification, which may in turn provide a 
basis for the DHS to revoke an approved visa petition.
    The re-engineering of the H-2A program to include pre-filing 
recruitment, submission of applications directly to an NPC, modernized 
processing of applications, reduction of duplication in the application 
process, and focusing of SWAs on referral of U.S. workers should yield 
improvements in the time needed to process labor certification 
applications and help ensure the Department meets its obligation to 
protect U.S. workers and process applications within the statutory 
timeframe mandated by Congress.

B. Proposed Redesign To Achieve a Modernized Attestation-Based Program

1. Enhanced Recruitment Requirements
    The recruitment process fulfills the Department's statutory mandate 
to certify that there are not sufficient U.S. workers who are 
available, able, willing, and qualified to perform the agricultural 
labor or services and that the employment of the temporary foreign 
worker will not adversely affect the wages and working conditions of 
similarly employed U.S. workers. 8 U.S.C. 1188(a)(1). The Department 
currently ensures that these standards are met by requiring a 
combination of SWA-supervised recruitment by employers, the posting of 
job orders in the Interstate Employment Service System, and the 
independent contacting of other sources of potential labor. These 
activities must take place in a very narrow 15-day window, as under the 
statute the Department cannot require that applications be filed more 
than 45 days prior to date of need for the worker and the Department 
must approve or deny labor certifications no later than 30 days before 
the employer's date of need.
    The Department is now proposing to require employers to conduct 
recruitment of U.S. workers for temporary agricultural job 
opportunities for a substantially longer period of time before the job 
begins by requiring that recruitment be started well in advance of the 
employer filing the application. The Department's experience in other 
programs, such as its permanent labor certification program, has 
demonstrated that recruitment in advance of filing an application 
benefits the potential U.S. worker population by providing a maximum 
opportunity for consideration of the job opportunity. Employers would 
continue to engage in so-called ``positive recruitment'' and post a job 
clearance order for both interstate and intrastate clearance with the 
SWA having jurisdiction over the place of employment in advance of the 
application being filed with the Department. The Department believes 
that advance recruitment in the H-2A program would help maximize the 
ability of employees and organizations representing their interests to 
identify available jobs with sufficient time to apprise all interested 
workers of the potential opportunity well in advance of the job's start 
date.

[[Page 8544]]

    Under the new recruitment system, which is discussed in more detail 
below, U.S. workers' ability to identify job opportunities would be 
further enhanced by requiring employers to place three advertisements, 
instead of the currently required two, in a newspaper of general 
circulation most appropriate for the agricultural occupation and most 
likely to reach the U.S. workers who will apply for the job 
opportunity. In addition, the Department would require that one of the 
three newspaper advertisements appear in a Sunday edition. If a 
newspaper of general circulation with a Sunday edition is not available 
(as may be the case in many rural areas where such jobs are located), 
the employer would instead use the edition with the widest circulation 
in the area of intended employment that is most appropriate to the 
occupation and most likely to be read by the U.S. workers most likely 
to apply for the job opportunity. In addition, if the use of a 
professional, trade or ethnic publication is more appropriate to the 
occupation, and if that publication is the most likely source to bring 
responses from qualified and available U.S. workers, the employer may 
use such publication instead of a newspaper in place of the two 
required daily (but not Sunday) advertisements. This advertising option 
will allow recruitment for agricultural jobs to be appropriately 
tailored in those areas where such jobs are traditionally advertised in 
ethnic or trade publications. Employers would also be required to 
contact former employees to determine their willingness to accept the 
employer's job opportunity.
    In addition to recruiting in the area of intended employment, 
employers would be required, based on an annual determination made by 
the Secretary, to recruit in any State designated as a State of 
traditional or expected labor supply for the place the employer's work 
is to be performed. This additional recruitment would consist of a 
single newspaper advertisement in the area or areas within the States 
that are outlined in the Secretary's designation, and must be placed at 
the same time as the three local newspaper advertisements discussed 
above. SWAs will also place job orders into those designated states as 
required.
    As required by the current regulations, all advertising must 
include all of the details required in the job offer, including the 
name and geographic location of the employer. If the employer is an 
association, the advertisement may, as is current practice, list only 
the name of the association, but the Department proposes to require 
that the advertisement inform the reader that the SWA will have on file 
and will make available upon request the name and location of every 
member of the association seeking workers through the advertisement. 
Ads must identify in all cases the wage being offered. In the event an 
association is serving as the employer and the wage is a range 
throughout the area of intended employment, the range of wages must be 
included in the advertisement, and the advertisement must indicate that 
the SWA will have on file, and will make available upon request, the 
wage rate applicable to each member of the association. These 
requirements will help ensure that potential applicants are afforded 
the opportunity to make fully informed decisions about job 
opportunities.
    Employers would begin advertising job opportunities no earlier than 
120 calendar days and no later than 75 calendar days before the date on 
which the foreign worker would begin work (i.e., the date of need). 
This will permit sufficient time for an advertisement to be placed and 
responded to by potential U.S. workers most likely to apply for the job 
opportunities, and for workers who apply to be evaluated by the 
employer before the H-2A application is filed. The Department believes 
that the expanded recruitment window appropriately balances the need to 
maximize the notice of available job opportunities to U.S. workers with 
the need to ensure that recruitment is not conducted so far in advance 
of the growing season that employers do not yet know when or how many 
workers will be needed.
    Employers filing the labor certification applications would be 
required to attest under penalty of perjury that (1) they did, in fact, 
attempt to recruit U.S. workers in the manner prescribed by the 
regulations, and (2) any potentially qualified U.S. workers that 
applied were rejected for lawful, job-related reasons. Employers would 
submit with their application a preliminary recruitment report, 
documenting their efforts to date in attempting to find eligible U.S. 
workers, including the outcome of the evaluation of U.S. worker 
applicants. Employers would also be required to prepare a supplemental 
report after filing that documents subsequent recruitment efforts and 
the results, including results from SWA recruitment and referrals, to 
be retained with the other documentation supporting the application.
    The proposed rule expands the period in which the employer must 
conduct recruitment and consider potential U.S. workers, so that U.S. 
workers will be given notice well in advance of the actual openings. To 
account for the fact that the date and extent of need is always 
flexible in the agriculture industry, the Department has retained 
current provisions permitting employers to reasonably adjust the 
numbers of workers needed without engaging in additional recruitment.
    The INA also requires employers to engage in recruitment through 
the Employment Service SWA job clearance system. 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 proposed recruitment model requires employers to submit 
job orders to the SWA having jurisdiction over the area of intended 
employment. When the job order is for a work opportunity in more than 
one State, the SWA to which the job order is submitted will in turn 
forward the job order to all States listed in the application as 
anticipated worksites. In circumstances where the employer's 
anticipated worksite location(s) is contained within the jurisdiction 
of a single State, the SWA must, to maximize the recruitment of 
eligible U.S. workers, transmit a copy of its job order to no fewer 
than three States, which must include any State designated by the 
Secretary as a State of traditional or expected labor supply for the 
area of intended employment. This recruitment takes place in tandem 
with the employer's own recruitment within a multi-state region of 
traditional labor or expected labor supply, as discussed above. INA 
Sec.  218(b)(4).
    The Department is proposing that SWA job orders also be posted 
until the time the H-2A worker departs for the place of employment (or 
3 days prior to the start date of the employment, whichever is later). 
Because referrals of U.S. workers resulting from newspaper 
advertisements and intrastate/interstate job orders will all come from 
the SWA, this proposal will better synchronize efforts to recruit U.S. 
workers and ensure that such efforts operate in parallel.
    Employers should retain several types of documents reflecting their 
compliance with the program's recruitment requirements. Documentation 
relating to newspaper advertisements will be satisfied by copies of 
pages from the newspapers (or other publication) in which the job 
opportunity appeared. Documentation of an SWA job order will be 
satisfied by maintaining copies of the job order printed from the SWA's 
Internet job listing Web site on the first day of posting, a copy of 
the job order provided

[[Page 8545]]

by the SWA with the start date of posting, or other proof of 
publication from the SWA containing the text of the job order on the 
first day of posting. Contact with previous employees, another required 
positive recruitment element, will be documented by maintaining copies 
of correspondence with such employees (or records of attempts to 
contact former employees). Such documentation should also contain a 
description of the outcome of those contacts, including the lawful, 
job-related reasons for not rehiring a former employee. In sum, these 
proposed changes in the recruitment process will increase the 
likelihood that U.S. workers will receive advance notice of available 
job opportunities, as well as provide them with additional information 
on available positions. In addition, the proposed changes will help 
avoid recruitment-related processing delays.
2. Use of Attestations of Compliance With Assurances and Obligations
    The Department is proposing to require employers to submit their 
application directly to the NPC having jurisdiction over the employer's 
place of employment. The application under the re-engineered process 
will differ not only in the manner of its submission, but also in its 
form. Based on the Department's experience administering the 
attestation-based Permanent Labor Certification (PERM) program, the 
Department is proposing instituting an application that would require 
employers to attest to their adherence to the articulated obligations 
under the H-2A program. An employer would be required to attest, under 
penalty of perjury, that it will abide by all of the obligations 
imposed on employers under the statutory and regulatory framework. The 
employer would have to attest, for example, that it has begun to 
conduct and either completed or will complete the required recruitment 
(and document the recruitment efforts). The employer would also have to 
attest that it has provided or secured required housing and, where 
applicable, applied to the SWA and requested or received a satisfactory 
inspection. The employer would also need to attest its compliance with 
securing workers' compensation insurance; the so-called ``three-fourths 
guarantee;'' and the provision of tools and transportation. In 
addition, the employer would have to attest that it is in compliance 
with and will continue to comply with all applicable Federal, State and 
local employment-related laws. In short, all of the obligations of 
employers to comply with H-2A program requirements would continue and 
would be documented through these formal attestations.
    As part of the application process, employers would attest that 
they have conducted expanded recruitment in advance of filing an 
application with the Department. Employers would attest to their 
compliance with the required elements of the H-2A job offer, including 
offering the applicable legally required wage, which would be obtained 
in advance through a request to the NPC. Employers would attest that 
they have provided the obligatory workers' compensation insurance and 
met the required working conditions. Employers would further attest to 
their adherence to requirements regarding the recruitment of qualified 
U.S. workers through both their own positive recruitment efforts and by 
requesting the posting of job orders through SWAs, as well as 
confirming that any U.S. workers who have applied or been referred and 
were not hired were rejected only for lawful, job-related reasons.
    Employers would attest to having obtained worker housing comporting 
with all applicable safety and health standards. Employers would 
identify the housing to be provided by location and, if public or 
rental accommodation, by name, and attest that the housing meets the 
applicable standards. And, if the housing is of a sort that must by 
statute be inspected, the employer would attest that such housing has 
either satisfactorily passed a preoccupancy SWA inspection, or that the 
employer has made a timely request for such an inspection that has not 
occurred through no fault of the employer. As part of its recruitment 
prior to filing its application, the employer would be required to 
place a job order with the appropriate SWA, which would in turn post it 
through the interstate/intrastate job clearance system.
    The Department anticipates the shift to an attestation-based 
process with pre-filing recruitment would help to bring the program 
into compliance with longstanding statutorily required processing 
timelines and better harmonize the program with the unique needs of the 
agricultural sector, thereby enabling more employers to utilize the 
program and better protecting U.S. workers from the adverse effects 
resulting from the employment of illegal workers. Employers would still 
be required to comply with all the requirements and obligations of the 
program, and indeed penalties for noncompliance would increase. 
Employers would retain supporting documentation evidencing their 
compliance with the program requirements, while the Department would 
retain for itself the right to request such documentation to ensure 
program integrity.
    The revised attestation process will dramatically reduce the number 
of incomplete applications that currently consume valuable processing 
time only to then have to be returned to the applicant for the 
inclusion of missing information. The majority of the information on 
the application form would consist of attestations that will elicit 
information similar to that required by the current H-2A labor 
certification process reflecting that the employer has performed the 
necessary activities to establish eligibility for certification. These 
proposed attestations lend themselves to a more efficient processing of 
applications.
    The Department anticipates that, with an expected increase in use 
of the program, it will see a marked increase in participants 
unfamiliar with the obligations that are integral to the H-2A program. 
The movement to an attestation system would be accompanied by outreach 
to potential users as well as those currently utilizing the program. 
Such education efforts will of necessity focus on employers' 
obligations and the mechanisms by which compliance will be judged. The 
Department invites comment on a timeline for its anticipated training 
and educational outreach initiatives.
3. Form Submission
    The Department proposes initially to require employers to submit 
applications on paper, through an information collection form that will 
be modified significantly from the current form to reflect an 
attestation-based process. The use of a redesigned form would provide 
the necessary assurances of an expeditious paper application review 
process. The Department ultimately envisions implementing an electronic 
submission system similar to that employed in other programs 
administered by the Department's OFLC, such as the electronic 
submission system in the PERM program.
    The Department is proposing to eventually require electronic 
submission in explicit recognition of the fact that such a process will 
significantly further improve the application process. An electronic 
submission process will also improve the collection of key program data 
and better allow the Department to anticipate trends, investigate areas 
of concern, and focus on areas of needed program improvement. Improved 
data collection will also enable the

[[Page 8546]]

Department to capture information regarding noncompliance and potential 
fraud that may lead to future administrative, civil, or criminal 
enforcement actions against unscrupulous or non-performing employers.
    The Department recognizes that H-2A employers may be concerned 
about their ability to comply with the application requirements through 
use of an Internet-based submission process and is accordingly not 
requiring it at this time. The Department is committed to reviewing its 
ability to transition the H-2A filing process to such a method and is 
reviewing specifically its ability to provide, based upon its previous 
experience, user-friendly electronic registration and filing processes 
that would enable use by any employer with computer and Internet 
access. The Department's experience with agricultural employers in 
other contexts (program requirements under the Migrant and Seasonal 
Agricultural Worker Protection Act, for example) support its 
determination that such access is common enough among agricultural 
employers to justify eventually requiring its use in this context. The 
Department invites comments, in particular from H-2A employers, on the 
concept of an electronic filing process.
4. Elimination of Unnecessary Duplication in the SWAs' Role
    The Department's focus on providing employers a more efficient 
process has taken into consideration the total time an employer must 
spend before all Federal agencies to obtain permission to employ an H-
2A worker and ensure that workers are available when needed. Employers 
must by statute apply to DOL, DHS and DOS to obtain H-2A workers. 
Reducing the time it takes an employer to secure H-2A workers after 
filing their application, and after their unsuccessful search for U.S. 
workers, is critical to the program's success given the time sensitive 
nature of many agricultural employers' labor needs.
    Congress has signaled its awareness of the incredible importance to 
the agricultural sector of timely application processing by building 
tight mandatory timeframes into the statutes governing the H-2A 
program. For example, the Secretary is required to make certification 
decisions ``not later than 30 days before the date such labor or 
services are first required to be performed,'' 8 U.S.C. 1188(c)(3)(A), 
and SWAs are required to complete housing inspections by that date as 
well, 8 U.S.C. 1188(c)(4). Actual practice has shown, however, that the 
procedures established by the current regulations are cumbersome, slow, 
unwieldy, and have resulted in both SWAs and the Department regularly 
failing to meet the required statutory timeframes.
    Consequently, the Department's efforts have focused on how to 
develop a smoother and more expeditious H-2A process while ensuring 
protections for workers. Among our proposals in this rulemaking is the 
elimination of duplicate filing of applications with the SWA and the 
Department's NPC. By focusing the SWAs' role in the initial stages of 
the application process (placing job orders, managing referrals of 
eligible U.S. workers, and conducting housing inspections), the 
Department can more effectively oversee the adjudication and consistent 
processing of all applications. As a result of this modernized 
application review procedure, the Department can reduce and equalize 
the average processing time of applications regardless of the area of 
the country where the application originated.
    We expect that the time savings gained by using a more efficient 
labor certification process will reduce the total time an employer 
spends obtaining permission from the Federal Government to employ an H-
2A worker and getting that worker from his or her country of origin to 
the place of employment. Moreover, the Department's consolidation of 
the review of applications in its NPCs will permit greater consistency 
of adjudication. Two centers, as opposed to the fifty State agencies, 
will be charged with all major aspects of application adjudication, 
ensuring consistency in the application of program requirements and 
policy. Indeed, the Department is considering consolidating all H-2A 
applications into one NPC rather than two, to further enhance 
consistency of adjudication and processing.
    The SWA will continue to play its traditional role in the 
recruitment process by posting and processing an appropriate job order 
to notify available and qualified U.S. workers of the opportunity. The 
employer would need to contact the SWA to initiate placement of the job 
order, rather than relying on the SWA to place it in the course of 
processing the H-2A application, as is the case now. The job order 
would be required to provide the same information as the newspaper 
advertisements contemplated by this proposal. This is an expansion of 
the information previously required to be included with the job order, 
and will significantly enhance the transparency of the recruitment 
process for prospective workers. Employers whose applications involve 
worksites in multiple SWA jurisdictions would place the job order with 
the SWA in which the majority of the proposed work assignment will take 
place. The SWA will arrange to have it posted with other SWAs, as 
appropriate.
    To strengthen the integrity of the Secretary's determination of 
whether there are available U.S. workers for the position, and to help 
build employers' confidence in their local SWAs and the H-2A program, 
the proposed rule at Sec.  655.102(j) clarifies the SWAs' obligation to 
verify the employment eligibility of prospective U.S. workers before 
referring them to an employer under a job order in support of a H-2A 
application. The failure of many SWAs to verify the employment 
eligibility of referred workers, despite existing statutory 
requirements that only eligible workers be counted as valid referrals 
and existing regulatory requirements that no ineligible workers be 
referred, has created a situation in which it is all too easy for 
illegal workers, rather than U.S. workers, to be referred to employers. 
For many years, agricultural employers have complained to this 
Department that SWA-referred workers are often undocumented, generating 
substantial additional legal risks and administrative burdens for 
employers. Collectively, agricultural employers appear to have little 
confidence in their local employment service or the H-2A program, and 
consequently rarely utilize either.
    The INA provisions governing admission of foreign workers under the 
H-2A program make employment eligibility of U.S. workers a core element 
of a worker's ``availability;'' a U.S. worker has long been 
characterized as being ``available'' for employment when authorized to 
legally undertake that employment. An employer will not be penalized 
for turning away applicants who are not authorized to work, and 
referred workers who are refused employment on the basis of not having 
work authorization will not be counted as available for purposes of H-
2A labor certification. By statute, the Secretary must certify the job 
opportunity if the employer: (1) ``Has complied with the criteria for 
certification (including criteria for the recruitment of eligible 
individuals as prescribed by the Secretary),'' and (2) ``does not 
actually have, or has not been provided with referrals of, qualified 
eligible individuals who have indicated their availability to perform 
such labor or services on the terms and conditions of a job offer which 
meets the requirements of the Secretary.'' 8 U.S.C.

[[Page 8547]]

1188(c)(3)(A) (emphasis added); see also definition of ``agricultural 
worker,'' 20 CFR 651.10 (applicable to referrals under the Employment 
Service System regulations at 20 CFR parts 651-658). For purposes of 
employment, the INA defines an ``eligible individual'' as one ``who is 
not an unauthorized alien * * * with respect to that employment.'' 8 
U.S.C. 1188(i)(1).
    SWAs receiving ETA Alien Labor Certification (ALC) grant funding to 
support H-2A activities are required to verify the employment 
eligibility of applicants seeking referral under a job order in support 
of an H-2A application pursuant to current regulations and agency 
guidance; this proposed regulation provides additional clarification of 
this requirement. The Department notes that DHS regulations at 8 CFR 
274a.6 provide additional verification authority and procedures for 
SWAs. To confirm its continued eligibility to receive ALC grant 
funding, each State agency will be asked to submit proof of these 
procedures to the Department prior to the beginning of the 2009 fiscal 
year (FY). In the event a SWA refers a worker who is not eligible, 
current H-2A employer responsibilities will not change; an employer is 
not required to hire such worker and can include ineligibility as a 
reason for rejection in its recruitment report.
    We strongly caution that the SWA's responsibility to perform 
threshold, pre-referral verification exists separate from each 
employer's independent obligation under Immigration Reform Control Act 
of 1986 (IRCA) to verify the employment eligibility of every worker to 
whom it has extended a job offer. The INA does provide, however, that 
employers who accept referrals from SWAs that verify employment 
eligibility in compliance with the DHS process and provide referred 
employees with appropriate documentation certifying that verification 
has taken place are entitled to ``safe harbor'' in the event it is 
later discovered a referred worker was not authorized to work in the 
U.S. 8 U.S.C. 1324a(a)(5). To simplify the recruiting process and avoid 
unnecessary duplication of functions, SWAs are directed to provide all 
referred employees with adequate documentation that verification of 
their employment eligibility has taken place. Employers can rely on INA 
Sec.  274A(a)(5) only where the documentation complies with all 
statutory and regulatory requirements, including 8 CFR 274a.6. SWAs are 
strongly encouraged to provide this documentation to employers. The 
Department is not insensitive to the resource and time constraints 
facing SWAs in their administration of H-2A program requirements and 
the difficulties inherent in making informed referrals from a 
population of workers that is frequently itinerant and often difficult 
to contact. However, we do not believe that this requirement has 
resulted or will result in a significant workload increase or 
administrative burden. Further, the mechanisms available for 
verification, including the E-Verify Web-based system operated by DHS, 
allow SWA staff to perform this function relatively quickly after 
training.
    E-Verify is a program administered by the United States Citizenship 
and Immigration Services (USCIS) within DHS. E-Verify electronically 
confirms a person's employment eligibility after the Employment 
Eligibility Verification Form (Form I-9) has been completed. SWAs that 
choose to use E-Verify refer a job seeker to an H-2A-related job 
opportunity only after completing a Form I-9 and submitting the 
required information via E-Verify. The SWA will be required to follow 
the terms and conditions in the Memorandum of Understanding that must 
be signed by the SWA and USCIS in order to gain access to E-Verify. The 
SWA may not refuse to make a referral and the employer may not refuse 
to accept a referral because of an E-Verify tentative nonconfirmation 
(TNC), unless the job seeker decides not to contest the TNC. SWAs and 
employers may not take any adverse action, such as delaying a referral 
or start date, against a job seeker or referred worker based on the 
fact that E-Verify may not have yet generated a final confirmation of 
employment eligibility. The SWA will be required to advise the employer 
when E-Verify generates a final confirmation or nonconfirmation.
    The requirement that SWAs verify employment eligibility prior to 
referral is designed to strengthen the integrity of the temporary labor 
certification process, afford employers a legal pool of U.S. worker 
applicants, and improve confidence in and use of the H-2A labor 
certification program.
5. Retention of Supporting Documentation
    Employers would be required to retain the documentation outlined in 
the proposed regulations in hard copy for 5 years from the date of 
adjudication, and to provide all documentation to demonstrate 
compliance with the requirements of the program in response to an audit 
or other investigative matter, whether conducted by the Department or 
another Federal agency, such as DHS. As described above, the documents 
to be retained include proof of recruitment efforts, including 
advertising, contact made with applicants and former employees, and a 
written recruitment report with results of efforts and reasons for not 
hiring U.S. workers.
    Finally, the Department recognizes that there is always a risk that 
less-than-scrupulous H-2A program participants will try to secure 
workers through fraud or misrepresentation. Long-standing practice and 
coordination with SWAs in the H-2A program, as well as experience with 
the attestation-based PERM system, have provided us substantial insight 
regarding the mechanisms by which employers may seek to take advantage 
of the re-engineered attestation-based system. The Department proposes 
to employ various measures to address potential fraud or abuse in the 
attestation-based process and the H-2A program generally. These will 
include audits, a combination of increased deterrent penalties, 
including [0]fines, revocation of approved applications, and debarment 
from future participation in the H-2A program, all of which are 
discussed below, as well as other mechanisms for detecting fraud. In 
addition, employers and their agents and attorneys are reminded that 
submission of any materially false, fictitious, or fraudulent 
statements to any Federal Government agency constitutes a criminal 
violation (18 U.S.C. 1001 and 1546), subjecting anyone convicted of a 
violation to fines and/or imprisonment for not more than 5 years.

C. Maintaining and Enhancing Program Integrity

    The shift to an attestation-based temporary H-2A agricultural labor 
certification system will be accompanied by the Department's vigorous 
enforcement of employer obligations under this program. Consequently, 
the Department is proposing certain actions in this rulemaking, 
consistent with its statutory authority, to examine and enforce 
compliance with the enumerated obligations and responsibilities of 
employers that seek approval of labor certifications pursuant to the H-
2A program.
1. Prohibition on Cost-Shifting
    Under proposed new Sec.  655.105(n), an employer must attest that 
it has not shifted and will not shift to the H-2A worker the costs of 
preparing or filing the application, including the costs of recruitment 
or attorneys' fees, and that it has not utilized a foreign recruiter 
without contractually prohibiting that

[[Page 8548]]

foreign recruiter from passing on such costs. The recruitment, legal, 
and other costs associated with filing a temporary labor certification 
application are business expenses necessary for, or in the case of 
legal fees, desired by, the employer to complete the labor market test 
and to prepare and submit the labor certification application. The 
employer's responsibility to pay the costs of preparing an application 
exists separate and apart from any potential benefit that may accrue to 
the foreign worker as a result of the employer filing the application. 
Prohibiting the employer, including a Farm Labor Contractor (FLC), from 
passing these costs on to its H-2A worker(s) allows the Department to 
better protect the integrity of the process, as well as protect the 
wages of the H-2A worker from deterioration by disallowable deductions. 
Disallowable deductions taken from an H-2A worker's wages cause those 
workers to be paid less than the required wage, which results in an 
adverse effect on U.S. workers.
2. The Use of Audits
    Pursuant to proposed new Sec.  655.112, after a labor certification 
application has been adjudicated, the Department would, based upon 
various selection criteria, identify certain applications for audit 
review. Investigations performed by the Department's WHD and the 
Department of Justice's Office of Special Counsel for Unfair 
Immigration-Related Employment Practices (OSC) would provide another 
potential source of information triggering audits. In addition, some 
applications would be randomly selected for audit as part of the 
Department's quality control processes. This authority would enable the 
Department to perform its directed and random audits on any application 
that has been adjudicated, regardless of whether the application was 
approved or denied.
    If an application is selected for an audit, the employer will be 
notified in writing of the selection. The employer would then be 
required to submit, within 30 days, the documentation specified in the 
audit request to verify the information stated in or attested to on the 
selected application. Upon timely receipt of an employer's audit 
documentation, and after any further investigation that may be 
warranted, the audit information would be reviewed by the Department's 
Certifying Officer (CO). The Department would then determine whether 
the employer complied with its obligations and would notify the 
employer in writing of its findings.
    The Department will take firm action when it discovers non-
compliance by employers. The Department is invoking all available 
statutory authorities to bolster its enforcement capabilities. If, at 
the conclusion of an audit, there is evidence of non-compliance with 
required attestations and/or other program requirements, or if an 
employer refuses to participate in the audit process, the proposed rule 
would enable the CO to order a variety of remedies. The CO may initiate 
debarment proceedings against the employer, agent and/or attorney in 
order to prohibit participation in the H-2A program for a period of up 
to 3 years at the Department's discretion and depending on the nature 
and severity of the violations. If the audit reveals that employer's 
documentation is incomplete, is inconsistent with the employer's 
statements and/or attestations contained in the application, or if the 
application and supporting documentation is otherwise deficient in some 
material respect, the employer may, in addition to debarment, also 
experience revocation of the approved H-2A certification, as described 
below. The proposed rule also adds a provision explaining that the 
Department of Justice's OSC will refer to the CO pertinent information 
gained in the course of OSC's investigations. Likewise, the proposed 
rule would require the Department and Department-funded entities to 
share pertinent information with OSC.
3. Revocation of Existing Labor Certifications
    Section 218(e)(1) of the INA authorizes the Department to revoke a 
temporary agricultural labor certification in appropriate instances. 
When the Department initiated rulemaking in 1987 to implement IRCA, it 
considered implementing this provision, but determined that the SWA's 
supervision of the employer's activities during the labor certification 
application process, together with WHD's post-certification enforcement 
role, vitiated the need for such a sanction. 52 FR 20524, 20525, Jun. 
1, 1987.
    Along with the modernized approach to the application and 
certification processes proposed in this rule, we also include proposed 
measures, consistent with the provisions of INA Sec.  218(e)(1), to 
ensure compliance. This includes the possibility of revocation of an 
approved certification if it is subsequently determined that an 
employer has not complied with a material term or condition of the 
certification, or upon recommendation of WHD for egregious program 
violations or interference with or failure to cooperate with an 
investigation. DHS, in a separate rulemaking, is proposing to revoke 
approved visa petitions that were approved on the basis of the revoked 
H-2A labor certifications.
4. Debarment
    Proposed Sec.  655.118 seeks to modernize and enhance the statutory 
process relating to the debarment of employers who substantially 
violate the terms of a labor certification. Over the past two decades, 
effective policing of the program has been hampered by an unnecessarily 
narrow definition of employer actions warranting debarment. In 
particular, the current regulation does not authorize debarment for 
actions that occurred during the recruitment process, including the 
rejection of domestic workers for other than lawful job-related 
reasons. Under the proposed rule, however, where certification would be 
granted based on employer attestations that recruitment of U.S. workers 
was unsuccessful, the availability of debarment as a sanction would be 
a powerful tool to encourage compliance.
    Accordingly, if the OFLC Administrator finds that an employer or an 
employer's agent or attorney has misrepresented a material fact or made 
fraudulent statements in its attestations, materially failed to comply 
with the terms of the attestations, or committed an act(s) of 
commission or omission that reflects a willful failure to comply with 
an obligation, attestation or other activity listed in proposed Sec.  
656.118, the OFLC Administrator may order debarment of the employer, 
agent and/or attorney from the H-2A program for a period of up to 3 
years. In addition, other Federal agencies will be notified, as 
appropriate, of the audit findings.
    The current regulation provides debarment authority solely to ETA 
and requires the WHD to report findings of violations to ETA and make 
recommendations to deny future certifications. Under the proposal, 
debarment authority for issues identified by WHD investigations would 
reside with the Wage and Hour Administrator, while debarment authority 
for violations of program requirements committed during the application 
and attestation process would remain with ETA. This change will allow 
administrative hearings and appeals for civil money penalties assessed 
by the WHD to be consolidated with debarment actions arising from the 
same facts. It will also eliminate the need for ETA to review Wage and 
Hour investigations, allowing for more

[[Page 8549]]

expeditious proceedings and efficient enforcement.

D. Other Significant Changes

1. Wages and the Adverse Effect Wage Rate (AEWR)
    Section 218(a)(1)(B) of the INA requires as a condition for 
approval of H-2A petitions that the Secretary has certified that ``the 
employment of the alien in such labor or services will not adversely 
affect the wages and working conditions of workers in the United States 
similarly employed.'' To ensure that the wages of similarly employed 
U.S. workers are not adversely affected, agricultural employers wishing 
to utilize the H-2A program have traditionally been required to offer 
and pay their covered U.S. workers and H-2A workers the higher of the 
applicable hourly ``Adverse Effect Wage Rate'' (AEWR), as determined by 
the Federal government; the applicable prevailing wage, as determined 
by the States; or the Federal or State statutory minimum wage.
    Over the last 20 years, it has become clear that perhaps the 
biggest threat to the wages and working conditions of U.S. workers is 
direct competition from a large undocumented workforce that is often 
underpaid and taken advantage of yet is afraid to assert its rights. 
Senators from both political parties remarked upon this phenomenon 
during the recent immigration debates in Congress,\12\ and the U.S. 
Supreme Court has also noted the threat that undocumented workers pose 
to the wages and working conditions of U.S. workers. See Sure-Tan v. 
NLRB, 467 U.S. 883, 892 (1984).
---------------------------------------------------------------------------

    \12\ See e.g., 152 Cong. Rec. S9773 (2006) (statement of Senator 
Dianne Feinstein); 153 Cong. Rec. S441-S442 (2007) (statement of 
Senator Larry Craig); and 153 Cong. Rec. S6590 (2007) (statement of 
Senator Edward Kennedy).
---------------------------------------------------------------------------

    Thus, based on data collected during more than 20 years of 
experience in administering the H-2A program, the Department has 
concluded that one of the most significant actions it can take to 
protect the wages and working conditions of U.S. workers is to render 
the H-2A program sufficiently functional such that, rather than 
resorting to the employment of workers illegally present in the U.S. to 
make up for shortages in the number of U.S. workers who are willing and 
available to perform agricultural work, agricultural employers will 
instead use the H-2A program, with all of its accompanying legal 
requirements and protections.
    One of the most important things the Department must do to ensure 
that the H-2A program is fully functional and protective of the wages 
and working conditions of U.S. workers is to set AEWRs that 
appropriately reflect market realities and labor costs. Two decades of 
experience with the H-2A program have shown that, in light of the 
prevailing conditions in the agricultural labor market, an AEWR that is 
set too low or too high is likely to harm U.S. workers. It is no secret 
that foreign workers may be willing to work for wages that are lower, 
and often substantially lower, than wages that are typically paid to 
U.S. workers. Allowing foreign workers to work at substandard wages 
would likely harm U.S. agricultural workers by causing them to be 
displaced or by forcing them to accept substandard wages in order to 
compete with the foreign workers. Direct harm effects of a too-low AEWR 
may also include increased levels of unemployment among U.S. workers. 
Indirect effects of a too-low AEWR could include worsening working 
conditions.
    Conversely, an AEWR that is artificially set too high can also 
result in harm to U.S. workers. If the AEWR is set so high that it is 
seen as not reflective of actual market conditions, agricultural 
employers may hire undocumented foreign workers instead of 
participating in the H-2A program, and the resulting influx of 
undocumented foreign workers erodes the earnings and employment 
opportunities of U.S. workers in agricultural occupations. U.S. workers 
cannot fairly compete against undocumented workers, who may accept work 
at below-market wages, and who are also cheaper to employ than H-2A 
workers because they do not require the additional payment of other H-
2A program requirements, including transportation, and housing. 
Although the threat of legal sanctions and attendant risks of work 
disruption will constrain some employers from employing undocumented 
workers, the greater the total cost to employers of the AEWR plus all 
other attendant H-2A program costs as compared to the market rate for 
labor, the greater the likelihood is that employers will risk hiring 
undocumented foreign labor.
    Indeed, according to the USDA, there are an estimated 1.2 million 
hired agriculture workers in the United States. Recent survey data from 
the Department indicate that more than 50 percent of agriculture 
workers in the U.S. admit to being here illegally, and some farm worker 
advocacy groups have estimated that 70 percent of the agricultural 
labor force is undocumented.\13\ That means there are currently more 
than 600,000 and perhaps more than 800,000 illegal agricultural workers 
on U.S. farms, a strong indication of the failures of the current 
system.
---------------------------------------------------------------------------

    \13\ See Julia Preston, ``Farmers Call Crackdown on Illegal 
Workers Unfair,'' The New York Times, August 11, 2007.
---------------------------------------------------------------------------

    These system failures have contributed to the large number of 
undocumented workers in agricultural positions in the U.S., which has 
in turn adversely impacted U.S. workers by eroding agricultural 
employment opportunities and wages. The effect on U.S. workers of an 
AEWR that is set too high is ultimately similar to the effect of an 
AEWR that is set too low: Loss of family income, increased duration of 
job searches, and increased levels of unemployment. The undocumented 
workers whose hiring is incentivized when AEWRs are artificially set 
too high lack the legally enforced protections and benefits that the H-
2A program provides, further threatening to degrade U.S. workers' 
working conditions.
    The Supreme Court expressly recognized in its decision in Sure-Tan, 
467 U.S. at 892, that ``acceptance by illegal aliens of jobs on 
substandard terms as to wages and working conditions can seriously 
depress wage scales and working conditions of citizens and legally 
admitted aliens * * *.'' This is still the case today. As Senator 
Kennedy stated in May 2007,

    We have, unfortunately, employers who are prepared to exploit 
the current condition of undocumented workers in this country--
potentially, close to 12 [and] 1/2 million are undocumented. Because 
they are undocumented, employers can have them in these kinds of 
conditions. If they don't like it, they tell them they will be 
reported to the immigration service and be deported. That is what is 
happening today.'' \14\
---------------------------------------------------------------------------

    \14\ 153 Cong. Rec. S6590 (2007).

    Because illegal aliens may be willing to work for substandard 
wages, may be reluctant to report violations of the labor and 
employment laws, and in some instances may even accept illegally low 
wages that are paid off the books, the prevalence of illegal aliens in 
the agricultural sector today represents a substantial threat to the 
wages and working conditions of U.S. workers.
    As noted above, there is demand for hundreds of thousands of 
agricultural workers beyond what the domestic labor market is able to 
supply. Replacing the hundreds of thousands of undocumented 
agricultural workers currently employed in the U.S. with U.S. workers 
or with H-2A program workers paid at a legally required wage

[[Page 8550]]

that will not undermine agricultural wages will substantially 
counteract these adverse effects.
    Wages vary across the U.S. by geographic location, by specific 
agricultural occupation, and by level of skill. An AEWR that does not 
take into account these variables will inevitably disrupt program 
functionality and adversely affect U.S. workers. For example, a single 
national AEWR applicable to all agricultural jobs in all geographic 
locations would prove to be below market rates in some areas and above 
market rates in other areas, resulting in all of the associated adverse 
effects that have been previously discussed. AEWRs covering large 
multi-state regions suffer from similar flaws. In an agricultural 
sector where prevailing labor conditions make the need for precision in 
AEWR determinations paramount, it is essential that a methodology be 
adopted that allows for as great a degree of geographic refinement as 
possible.
    It is therefore critical that the AEWR be accurate and reflect 
market conditions for each locality across the country. If the AEWR 
does not reflect market wages and is too low or too high in any given 
area, it will harm U.S. workers directly by artificially lowering wages 
or it will harm U.S. workers indirectly by providing an incentive for 
employers to hire undocumented workers. Improving the geographic 
precision of the AEWR is essential to ensuring that the AEWR meets its 
statutory objective.
    Another important element in determining an appropriate AEWR that 
reflects market realities and labor costs is including wage data 
relating to the specific occupation and level of skill or experience 
required for a position. Farm labor comprises a number of occupations 
and skills, and both the demand for and supply of farm workers with a 
particular skill level or experience varies significantly across 
geographic areas. The farm labor market is not a monolithic entity, but 
rather is a matrix of markets across a spectrum of occupations, skill 
or experience levels, and local areas. Effectively protecting U.S. 
workers from unfair foreign competition by setting an AEWR that is 
neither too low nor too high requires that the AEWR be specifically 
applicable to the labor market affected in terms of specific 
occupation, skill or experience, and geographic location.
    The present AEWR calculation method is based on a 1989 final rule, 
29 CFR part 655, that calculates regional AEWRs based on the previous 
year's annual combined average hourly wage rate for field and livestock 
workers in each of 15 multi-state regions and 3 stand-alone States, as 
compiled by the USDA quarterly Farm Labor Survey Reports. In 1989, the 
Department determined that the USDA survey was the best available 
``barometer'' for measuring farm wages on a nationwide basis. In the 
succeeding years, however, the Department has gained vast knowledge and 
experience in applying wage data that simply did not exist in 1989.
    The Department's reliance on USDA Farm Labor Survey data creates 
several problems for functional program administration. The USDA 
quarterly Farm Labor Survey does not provide refined data by skill 
level or experience, occupations, or geographic locales of workers 
typically sought by agriculture employers in the H-2A program. The USDA 
Farm Labor Survey population includes not only the lower-skilled crop 
field workers typically sought by agriculture employers who turn to the 
H-2A program for labor resources, but also inspectors, animal breeding 
technicians, and trained animal handlers--all occupations that provide 
a poor basis for determining H-2A wages because they are rarely, if 
ever, filled by H-2A workers. Additionally, the USDA Farm Labor Survey 
does not account at all for different skill levels required by 
agriculture occupations.
    The accuracy of AEWRs based on the USDA Farm Labor Survey is 
further diminished because the Farm Labor Survey is not based on 
reported hourly wage rates. Instead, USDA's Farm Labor Survey asks 
employers to report total gross wages and total hours worked for all 
hired workers for the two reference weeks of the survey. Based on this 
limited information, the survey constructs annual average wages for the 
broad general categories of field workers and livestock workers. The 
AEWR is then calculated by combining the average of the annual wage for 
field workers and the average annual wage for livestock workers into 
one annual wage rate covering both of those general occupational 
categories. The survey thus determines the hourly AEWR based not on 
reported hourly wages, but rather on the basis of the numerator (total 
gross wages for the combined occupations) and denominator (total hours 
for the combined occupations) derived from the information supplied by 
employers.
    In addition, the Farm Labor Survey estimates hired labor use and 
costs at the aggregation of 15 multi-state regions (along with 3 stand-
alone states). The aggregation of a widely diverse national 
agricultural landscape into just 15 regions (and 3 stand-alone states) 
results in extremely broad generalizations that fail to account for 
specific market conditions at the local level. Wage data collected at 
each individual State and even substate level would be more appropriate 
for purposes of computing an accurate, sub-regional AEWR that reflects 
local market conditions. Indeed, market-based wage survey data at the 
state or substate level is the standard for calculating comparison 
wages in other temporary worker programs administered by the 
Department, including the H-2B program that is the non-agricultural 
counterpart of H-2A and the H-1B specialty occupation worker 
program.\15\
    Moreover, the USDA Farm Labor Survey is administered and funded 
through USDA, giving the Department no direct control over its design 
and implementation. USDA could terminate the survey at any time and 
leave the Department without the basic data, problematic as it is, used 
to calculate the AEWR. In fact, just this past year, USDA announced 
that it would suspend the survey in February 2007 due to budget 
constraints. Ultimately, USDA resumed the Survey in May 2007. The 
possibility that USDA may suspend the survey at some point in the 
future adds a measure of instability and uncertainty for AEWR 
determinations in future years.
    Therefore, this NPRM proposes to institute an alternative 
methodology for determining the AEWR that will more accurately measure 
market-based wages by occupation, skill level, and geographic location. 
A more accurate and refined AEWR methodology will produce an AEWR that 
more closely approximates actual market conditions, which will, in 
turn, help protect the wages and working conditions of U.S. workers.
    The Department invites comment on an alternative AEWR methodology 
that achieves the goals described above. Under this proposed rule, the 
Department suggests a revised AEWR methodology that would achieve those 
goals by utilizing the Bureau of Labor Statistics (BLS) Occupational 
Employment Survey (OES) data instead of USDA Farm Labor Survey data. 
The OES program in BLS collects data on wage and salary workers and 
produces employment and wage estimates for about 800 occupations 
covering over 70 percent of the employment in the U.S. See 67 FR at 
30479, May 6, 2002.
---------------------------------------------------------------------------

    \15\ Calculation of the applicable wage by a SWA using the OES 
survey is, in fact, a ``safe harbor'' providing presumption of 
correctness in the H-1B labor condition application. 20 CFR 
655.730.(a)(2)(ii)(A)(3).
---------------------------------------------------------------------------

    The wage component of the OES survey is, with the exception of the

[[Page 8551]]

Decennial Census, the most comprehensive survey conducted by any agency 
of the Federal Government. The OES program surveys approximately 
200,000 establishments every 6 months, and over 3 years collects the 
full sample of 1.2 million establishments. The OES program collects 
occupational employment and wage data in every State in the U.S. and 
the data are published annually. The OES wage data is already utilized 
by the Department for determining comparison wages in other temporary 
worker programs and has proven to be an accurate and successful wage 
reference. In 1989, when the Department established the current AEWR 
methodology, the OES program was not well developed and thus was not an 
effective alternative for the USDA Labor Survey. In the intervening 18 
years the OES program has surpassed the USDA Labor Survey as a source 
for comprehensive agricultural wage data in several respects.
    First, the OES program produces occupational estimates by 
geographic area and by industry. Estimates based on geographic areas 
are available at the national, State, and metropolitan area levels. 
Industry estimates are available for over 450 industry classifications 
at the national level. The industry classifications correspond to the 
sector, 3, 4, and 5-digit North American Industry Classification System 
(NAICS) industrial groups.
    Second, the OES program provides data at the substate level in 
addition to the State level. Data is compiled for each metropolitan 
statistical area (MSA) and for additional non-MSA areas that completely 
cover the balance of each State. Data is available for 573 distinct 
areas comprehensively covering the U.S. This level of detail will 
enable AEWRs to be defined for H-2A applicant occupations that are 
specific to a relevant substate labor market area, greatly improving 
the ability of the Department to tailor certification decisions and 
parameters to relevant local labor market conditions. By contrast, the 
current AEWR provides wage data for just 15 multi-state regions and 3 
stand-alone States across the U.S.
    Another advantage of OES is that it offers the ability to establish 
four wage level benchmarks commonly associated with the concepts of 
experience, skill, responsibility, and difficulty variations within 
each occupation. The four skill levels for each occupation afford the 
employer and the Department the opportunity to more closely associate 
the level of skill required for the job opportunity to the relevant OES 
occupational category and skill level. This is another important 
advantage over the USDA Farm Labor Survey, which makes absolutely no 
skill distinctions.
    There are five OES categories of occupations that would most likely 
be identified with H-2A job classifications. The Department expects 
that the ``farm workers and laborers, crop, nursery and greenhouse'' 
occupational category would encompass the majority of the jobs that 
employers would seek to fill under the H-2A program. The survey does, 
however, contain other categories, such as ``sorters and graders'' and 
``farmworkers, farm and ranch animals,'' that will enable employers and 
the Department to more closely match the job opportunity to the 
relevant OES job category and, in turn, the appropriate AEWR. This is a 
significant advantage over the USDA Farm Labor Survey, which awkwardly 
provides just a single wage that purports to cover the entire spectrum 
of agricultural occupations.
    Importantly, the OES survey is conducted by the Department's Bureau 
of Labor Statistics, which will enable continuity and coordination 
between those who gather the wage data and those who utilize it. This 
will help ensure the data needs of the H-2A program and AEWR 
calculation are consistently met.
    The Department recognizes that the proposed new methodology 
utilizing the OES survey data to determine the AEWR is subject to some 
limitations. For example, the OES survey presently determines 
agricultural wages by surveying establishments that provide support 
activities for crop production, such as farm labor contractors, who 
provide workers and laborers to farm owners and operators. The survey 
does not include farm establishments that are directly engaged in the 
business of crop production. Nonetheless, the survey is broad enough to 
provide accurate and statistically valid wage rates: The latest OES 
data covers agricultural establishments accounting for the employment 
of 451,770 hired agricultural workers of all types or more than one-
third of the 1.2 million hired farm workers in the U.S., according to 
the USDA. Moreover, employees of farm labor contractors and other 
similar businesses generally perform the same type of work as H-2A 
workers, and thus provide a good general basis for wage comparison. In 
the Department's estimation, taking these factors into account, the OES 
survey data is substantially more complete, detailed, and accurate--
considering geography, occupation, and skill level--than is the USDA 
Farm Labor Survey.
    The Department's examination of data from the Census Bureau's 
Current Population Survey (CPS), which includes agricultural workers 
from both farm and nonfarm establishments, confirms that the OES data 
covering wages paid by nonfarm agricultural establishments provides an 
effective and appropriate proxy for the wages paid directly to workers 
by farm operators. The CPS, a monthly survey of 60,000 households, 
collects information on the employment and unemployment experience of 
workers in the U.S. Estimates based on CPS data for 2006 show little 
difference in the mean or median earnings of agricultural workers 
employed by farm establishments and those employed by nonfarm 
establishments (the establishments within the scope of OES).\16\ 
Agricultural workers in nonfarm establishments had mean hourly earnings 
of $8.86 and median hourly earnings were $8.20. In the farm 
establishments, mean hourly earnings were $8.55 and median hourly 
earnings were $7.80. Because of the small size of the CPS survey, the 
difference in wages reported by agricultural workers in farm 
establishments and nonfarm establishments is not statistically 
significant. Comparable OES estimates place mean hourly earnings at 
$8.94 for agricultural workers in nonfarm establishments and are very 
similar to the CPS estimate of $8.86.\17\
---------------------------------------------------------------------------

    \16\ As noted above, although an OES-surveyed employer may 
technically be a nonfarm establishment, the employer's workers may 
work on farms in agricultural occupations as reflected in the OES 
agricultural worker categories.
    \17\ The CPS estimates were for miscellaneous agricultural 
workers (occupation code 45-2090). The OES estimates were done for 
four more specific occupations: Agricultural equipment operators 
(occupation code 45-2091); farmworkers and laborers, crop, nursery, 
and greenhouse (45-2092); farmworkers, farm and ranch animals (45-
2093); and agricultural workers, all other (45-2099). Average hourly 
earnings for these four occupations ranged from $8.48 to $12.05 (see 
www.bls.gov/oes/current/oes_nat.htm#b45-0000) and the weighed 
average across the four occupations was $8.94. Median hourly 
earnings range from $7.95 to $10.80. The vast majority of the 
workers in these occupations are in the ``farmworkers and laborers, 
crop, nursery, and greenhouse'' category, which has median earnings 
of $7.95, and so it is likely that the median across all four 
occupational categories differs little from $7.95 or from the CPS 
estimate of $7.80.
---------------------------------------------------------------------------

    In looking at the CPS as a possible source of wage data for this 
purpose, the Department determined that while that survey may provide a 
reasonable basis for making national level estimates and comparisons, 
the sample size is too small to provide the type of detailed State and 
substate-level estimates that can be gleaned from the OES data. And for 
that reason, the Department

[[Page 8552]]

determined that the CPS program would not be able to provide 
sufficiently accurate comprehensive data on agricultural wages to 
compute a precise and reliable AEWR.
    The Department is aware that shifting from regional AEWRs derived 
from USDA Farm Labor Survey data to more geographically and 
occupationally refined AEWRs derived from OES data may raise the 
legally required wage rates in some areas while lowering them in 
others. Although these changes in wage rates presumably will make local 
AEWRs more reflective of actual local labor market conditions, the 
Department proposes, and asks for comment on, adding an additional 
protection for workers against potential short-term wage reductions 
resulting from the change in AEWR methodology. To counteract potential 
wage reductions in some areas, the Department proposes to use the 
future (effective July 24, 2009) Fair Labor Standards Act (FLSA) 
minimum wage of $7.25 as the floor for any AEWR, regardless of the 
methodology ultimately selected for calculating the AEWR. This basic 
wage floor will provide a fundamental protection to both foreign 
temporary workers and U.S. workers that will ensure that AEWRs cannot 
be lower than new federal minimum wage even though that wage will not 
be legally required until 2009.
    An additional frame of reference on appropriate wage rates is the 
proposed ``AgJOBS'' legislation, which has been widely endorsed by 
groups representing both agricultural businesses and agricultural 
workers.\18\ Many AgJOBS provisions implicate important Governmental 
interests that may not have been adequately taken into account when 
business and worker groups worked out their proposed compromise 
legislation, but the wage provisions are at the heart of the direct 
economic interests of both groups, and the bargain they have struck 
with respect to wages presumably reflects a comfortable middle ground 
from their point of view. At a minimum, the Department believes that 
the many worker advocacy groups and congressional sponsors who have 
endorsed the legislation would never agree to wage rates that they 
believe would hurt the interests of U.S. workers.
---------------------------------------------------------------------------

    \18\ The Agricultural Job Opportunities, Benefits, and Security 
Act (AgJOBS) builds upon years of discussion and ideas from growers, 
farm worker advocates, and various groups and organizations, 
including several Latino groups, focused on the issue of 
immigration.'' Senator Larry Craig, AgJOBS Issue Briefing, http://
craig.senate.gov/~craig/i--agjobs.cfm#faq. Myriad advocacy groups 
have supported the AgJOBS legislation, including for example, the 
United Farm Workers, Farmworker Justice, National Council of LaRaza, 
AFL-CIO, Change to Win, Farm Labor Organizing Committee, Int'l 
Brotherhood of Teamsters, Laborers' Int'l Union of North America, 
Service Employees Int'l Union, United Food and Commercial Workers, 
UNITE HERE, National Council of Agricultural Employers, American 
Farm Bureau Federation, Western Growers Assn, Florida Fruit and 
Vegetable Assn, Agricultural Coalition for Immigration Reform, U.S. 
Chamber of Commerce, National Cattlemen's Beef Assn, American 
Nursery and Landscape Assn, United Egg Producers, United Fresh Fruit 
and Vegetable Assn, and New England Apple Council. See letter signed 
by more than 850 organizations supporting AgJOBS legislation that 
was sent to every member of the U.S. Senate, available at http://fj.nclr.org/Public/webpage/October2007edits/InformationAboutAgJOBS/110thAgJOBSsignonApril2007Final.pdf.
---------------------------------------------------------------------------

    As a comparison of the OES hourly wage rate at the national average 
or median rates for the occupational category ``Farmworkers and 
Laborers, Crop, Nursery and Greenhouse'' and the national average for 
the AEWR included in the ``AgJOBS'' legislation shows that on average, 
these workers would receive higher wages if paid an AEWR based on the 
OES data ($8.39) rather than the AEWR prescribed in AgJOBS ($7.50), 
thus demonstrating that use of the OES data provides additional wage 
protection to similarly employed U.S. workers. Even at the 25th 
percentile OES wage rate, workers in several States will receive higher 
AEWR wages on average than the AEWR rates proposed in AgJOBS. Further, 
when considering the proposed addition of the 2009 FLSA minimum wage 
floor to the OES data, that average AEWR turns out to be almost exactly 
the same as the average AEWR prescribed in AgJOBS.
    Even in those instances where the use of OES data may result in 
lower AEWRs for H-2A workers in the short term, the Department is 
confident that the wages and working conditions of U.S. workers will be 
protected because the total costs of hiring H-2A workers are higher 
than the hourly AEWR alone reflects, and employers focus not only on 
wages when making hiring decisions, but on a workers' total cost. The 
program requirement that employers pay for H-2A workers' transportation 
and lodging, as well as the administrative expense of filing H-2A 
applications with several different Government agencies, add 
substantial additional costs to the employment of H-2A workers. The 
additional costs beyond wages (administrative expense, transportation 
and lodging) associated with utilization of foreign labor under the H-
2A program are an important consideration that provides significant 
protection for U.S. workers. It is expected that U.S. workers in 
similar occupations, with similar skills and working in the same 
locality would likely be able to command higher hourly wages than H-2A 
workers and at least equivalent benefits because the additional cost 
considerations associated with utilization of the H-2A program provide 
an economic incentive for employers to seek out and hire U.S. workers 
instead of H-2A workers.\19\ And of course, U.S. workers also have the 
protection of the rule requiring agricultural employers to first 
attempt to recruit U.S. workers before they can employ H-2A workers. 
This proposed rule also includes added protection for U.S. workers by 
requiring employers to recruit U.S. workers for an expanded period of 
time.
---------------------------------------------------------------------------

    \19\ U.S. workers hired in response to recruitment required by 
the H-2A program are entitled to at least the same benefits received 
as those received by H-2A workers.
---------------------------------------------------------------------------

    In conclusion, the Department seeks comment on alternative 
methodologies for calculating AEWRs for the H-2A program, including the 
use of OES data. The Department believes that to achieve a more 
accurate AEWR, the proposed methodology must include data concerning 
occupational category, skill level, and geographical distinctions, at a 
state or substate level. The Department's proposals have been made 
after careful consideration of the statutory requirements of the 
program and with the full knowledge of the administrative record 
developed in earlier rulemaking activities regarding AEWRs, as 
published in the Federal Register. The Department has reviewed the 
current methodology in light of the limitations of the USDA data 
sources, as well as improvements in alternative data collection 
instruments. The Department invites specific comments on the current 
AEWR methodology as well as its proposals to improve it, including 
reasonable alternatives that both provide adequate protections for U.S. 
workers and avoid introducing undesirable inflexibilities in 
agricultural labor markets.
2. The 50 Percent Rule
    The 50 percent rule, which requires employers of H-2A workers to 
hire any qualified U.S. worker who applies to the employer during the 
first 50 percent of the period of the H-2A work contract, was 
originally created by regulation as part of the predecessor H-2 
agricultural worker program in 1978. 20 CFR 655.203(e); 43 FR 10316, 
Mar. 10, 1978. In 1986, IRCA added the 50 percent rule to the INA as a 
temporary 3 year statutory requirement, pending the findings of a study 
that the Department was required to conduct ``and other relevant 
materials including evidence of benefits to U.S. workers and costs to 
employers addressing the advisability of continuing a policy which 
requires an

[[Page 8553]]

employer as a condition for certification under this section, to 
continue to accept qualified, eligible U.S. workers for employment 
after the date the H-2A workers depart for work with the employer.'' 
Id.; Public Law 99-603. In the absence of the enactment of Federal 
legislation prior to the end of the 3 year period, the Secretary was 
instructed to immediately publish the findings and promulgate an 
interim or final regulation based on the findings.
    The Secretary hired a research firm to analyze the cost-benefit 
impact of the 50 percent rule on U.S. workers, growers, and the general 
public. The research firm studied the impact of the 50 percent rule in 
just Virginia and Idaho, the two States that were determined to have 
had the highest number of 50 percent rule workers. The number of 
growers interviewed was small, as the firm interviewed only those 
growers that actually hired U.S. workers because of the 50 percent 
rule--just 66 growers (0.1 percent) in all of Virginia and Idaho's 
total 64,346 farms (according to the USDA). The study did not take into 
consideration the 131 growers in the two States who received referrals 
under the 50 percent rule but did not hire any of the referred workers. 
The study also did not investigate why so few growers were using the H-
2A program, and therefore did not take into account the overwhelming 
number of growers who were not using the program. The study sought only 
to determine the costs to employers that hire referred 50 percent rule 
workers and the concomitant benefits to the U.S. workers hired under 
the rule.
    Even with this narrow focus, the study made it clear that the H-2A 
program was not regarded as desirable by growers. Of those questioned, 
6 percent said they were dropping out of the H-2A program because of 
the 50 percent rule. Forty percent wanted the rule eliminated entirely 
and 33 percent wanted to alter the requirement by, for example, 
requiring the 50 percent rule workers to finish the season or modifying 
substantially the 50 percent rule by requiring the hiring of U.S. 
workers only up to a certain point before the date of need. In fact, 16 
years later, only one of the agriculture employers surveyed in 1990 is 
still using the H-2A program.
    In 1990, pursuant to what is now INA Sec.  218(c)(3)(B)(iii), ETA 
published an interim final rule to continue the 50 percent requirement. 
55 FR 29356, July 19, 1990. Since the 1990 publication of the interim 
final rule continuing the 50 percent rule, the Department has gained 
experience and additional perspective that calls into question whether 
the Department's decision to continue the 50 percent rule was, at the 
time, supported by the data in the 1990 study; and whether the rule is 
in fact a necessary, efficient and effective means of protecting U.S. 
workers from the adverse impact resulting from the employment of 
foreign workers, No other temporary foreign labor program administered 
by the Department includes such a requirement, which may be yet another 
reason the H-2A program is viewed by many as containing burdensome 
requirements that do not provide a corresponding benefit to U.S. 
workers.
    The Department has heard complaints that the 50 percent rule 
creates substantial uncertainty for the employer in terms of managing 
their labor supply and labor costs during the life of the contract. In 
many situations, it appears the employer does not substitute the U.S. 
worker arriving under the 50 percent rule for the existing H-2A worker, 
but rather retains both workers and incurs the added expense in order 
to prevent further disruption to work flow resulting from dismissing an 
H-2A worker and sending that worker home. Anecdotally, employers report 
that the majority of the U.S. workers who are hired under the 50 
percent rule remain on the job for less than the term of the H-2A 
contract. This means that if an employer immediately dismisses an H-2A 
worker when a U.S. worker is hired under the 50 percent rule, that 
action could result in the employer being short of labor if and when 
the U.S. worker leaves the job early. In any case, the concern that new 
workers may arrive well into the harvest cycle and create the type of 
disruption described above can serve as a serious disincentive for 
employers to participate in the H-2A program. Given the ready 
availability of jobs in the agricultural sector to authorized workers, 
there is also reason to believe that U.S. workers would generally be 
best served by referrals to jobs that have not yet begun, rather than 
being thrust into job opportunities that have already partly elapsed.
    With the newly redesigned process being proposed, employers will be 
required to conduct additional recruitment in advance of their 
application. Employers will begin advertising for job opportunities no 
earlier than 120 days and no later than 75 days before the date on 
which the foreign worker will begin. This is a significant expansion of 
the period of required recruitment in the current rule and would enable 
more U.S. workers to be apprised of the job opportunities in a timely 
manner before the job begins. Additionally, under the redesigned 
process, the SWA will post the job orders until the date of departure 
of the foreign workers for the place of employment. These expanded time 
frames for recruitment will ensure that U.S. workers have substantially 
better and more effective notice about opportunities to obtain full 
term employment than is currently afforded by the 50 percent rule. 
Substituting these expanded recruitment requirements for the current 50 
percent rule would provide employers substantially greater certainty 
regarding required recruitment, expected labor costs, and the available 
workforce, and would help lend greater stability to a program that has 
been rendered unattractive to many agricultural employers because of 
the many administratively imposed uncertainties.
    For the above reasons, the Department is inclined to replace the 50 
percent rule with expanded up-front recruitment requirements that will 
enhance the ability of U.S. workers to identify and apply for 
agricultural job openings before the jobs begin. The Department would 
like more information about the impact of the 50 percent rule before it 
makes a final decision, however, and requests comment on and 
information regarding the costs and benefits of the 50 percent rule in 
the current labor market. The Department requests comments from 
employers, workers and their representatives on the merits of retaining 
or eliminating the rule, as well as possible alternatives, such as 
reducing the applicable time period for mandatory hiring to the first 
25 percent of the H-2A worker's contract, that might be effective in 
protecting U.S. worker access to job opportunities without creating 
uncertainty and competitive disadvantage for employers.
3. Housing
    Section 218(c)(4) of the INA requires employers to provide housing 
in accordance with specific regulations. Employer-provided housing, 
depending on when it was built, must meet either the Department's 
Occupational Safety and Health Administration (OSHA) standards set 
forth under 29 CFR 1910.142 (standards for temporary labor camps), or 
the ETA standards at 20 CFR 654.404-654.417 (standards for H-2A 
housing). In circumstances where rental, public accommodation, or 
another substantially similar class of habitation is used, the housing 
must first meet any local standards for such housing or, in the absence 
of applicable local standards, any applicable State standards. In the 
absence of both local and State standards, the housing must

[[Page 8554]]

meet the OSHA standards for temporary labor camps.
    The Department is proposing to require that employers attest to 
having secured the necessary housing and having requested or obtained 
the necessary inspection. The requirement that housing be inspected in 
a timely fashion is often problematic for SWAs, whose staff must travel 
to the site of the housing, sometimes over great distances to remote 
areas; perform the inspection; and issue a final determination, all 
within the current 15-day processing window (i.e., between 45 days and 
30 days prior to the date of need). The Department is accordingly 
proposing that employers who have commenced recruitment request a 
housing inspection no earlier than 75 days and no later than 60 days 
before the date of need, well in advance of the statutory deadline 
requiring the Department to issue a labor certification determination 
no later than 30 days before the date of need.
    The Department is not proposing to alter the discretion currently 
afforded to SWAs in the method by which inspections are conducted. The 
ability to perform inspections earlier than the date of filing will, 
however, provide SWAs with more time and more flexibility in executing 
this charge. This change is essential to address the frequent failure 
of SWAs to comply with the statutory mandate that housing inspections 
be completed ``prior to the date * * * by which the Secretary of Labor 
is required to make a certification,'' INA Sec.  218(d), which has in 
turn resulted in labor certifications being issued outside of the 
statutorily required timeframes. Absent an expansion in the timeframe 
for inspections, the expected increase in program participation would 
likely lead to ever greater strains on the resources of SWAs to keep up 
with requested inspections, and ever greater delays beyond the legally 
required deadline for completion of inspections.
    To ensure efficient and legally sufficient processing of 
applications, the Department is proposing to use the same basic model 
that applies to housing inspections for U.S. workers under the Migrant 
and Seasonal Workers Protection Act (MSPA). Employers would be required 
to request housing inspections no later than 60 days prior to the 
anticipated date of need. If an employer has not received or does not 
receive a housing inspection prior to the statutory deadline of 30 days 
prior to date of need, and the SWA failed to conduct the inspection for 
reasons beyond the employer's control, the Department will make a 
conditional determination on the application in the absence of a 
physical inspection. This conditional determination would only be 
granted in situations in which an employer has made a timely request 
and housing has not been inspected; employers who have been informed of 
deficiencies by SWAs and have failed to act to correct these 
deficiencies will not be conditionally certified, nor will those who 
have made untimely requests or who have not otherwise met all other 
criteria for certification. Moreover, the issuance of a conditional 
determination would not in any way prevent SWAs from later conducting 
housing inspections and ensuring that appropriate penalties are imposed 
if housing fails to meet standards. This proposed system closely 
parallels MSPA and ensures that foreign workers receive every 
protection to which U.S. workers are entitled while avoiding punishing 
employers for the Government's failure to meet its statutory deadlines 
with respect to housing.
    The Department appreciates the obstacles faced by employers when 
looking to build housing for farm workers, including zoning 
restrictions, resistance from the community, cost and the Federal 
housing standards to which the housing must be built. Therefore, the 
Department is proposing to allow H-2A employers to provide a housing 
voucher as an additional option by which H-2A certified employers may 
meet the requirement to provide housing to H-2A and U.S. workers who 
are not reasonably able to return to their residences within the same 
day.
    To ensure that workers receive the benefit to which they are 
entitled, the Department has proposed a number of safeguards when 
housing is provided via the voucher method. These safeguards include 
the requirement that the voucher method may not be used in an area 
where the Governor of the State has certified that there is inadequate 
housing available in the area of intended employment for farm workers; 
the voucher is not transferable and is not redeemable for cash by the 
employee, it may only be redeemed for cash paid by the employer to a 
party providing appropriate housing; and the voucher may not be used to 
secure housing located outside the reasonable commuting distance of the 
place of employment. Workers may ``pool'' the housing vouchers to 
secure housing (e.g., to secure a house instead of a motel room), but 
such pooling may not result in a violation of the applicable safety and 
health standards. The proposed voucher is one way an employer may meet 
his obligation to provide housing. However, if acceptable housing 
cannot be obtained via the voucher, the employer is not relieved of his 
obligation to provide housing meeting the applicable safety and health 
standards and must either provide or secure housing for the H-2A 
workers. The Department invites comments on whether this proposal 
appropriately balances the needs of employers and workers.
    In addition, the Department proposes to clarify and codify 
additional limited flexibility in the matter of post-certification 
changes in housing. Currently, under policy clarified by the Training 
and Employment Guidance Letter 11-07, Change 1 (November 14, 2007) if 
the employer-provided housing becomes unexpectedly unavailable, an 
employer is required to (1) notify the SWA in writing of the housing 
change, and (2) provide to the SWA evidence from the appropriate local 
or State agency responsible for determining compliance with the 
applicable safety and health standards and licensing such rental or 
public accommodations, which may include a certificate of occupancy 
where such a certificate demonstrates current compliance with 
applicable safety and health standards. This NPRM further clarifies and 
codifies this policy. Only if the employer takes these steps will a 
housing certification continue to be considered valid. The SWA may 
then, in its discretion, inspect the housing to ensure that it complies 
with the applicable safety and health standards. The SWA shall notify 
the appropriate CO of all housing changes and of the results of any 
housing inspections. This process will enable employers to avoid the 
delays associated with amending certifications and beginning the 
process anew when previously arranged and inspected housing becomes 
unavailable or uninhabitable for reasons outside their control (i.e., 
fire, natural disaster).
4. Transportation
    The NPRM at Sec.  655.104(h) proposes to continue the Department's 
policy of requiring employers to provide or pay for the worker's daily 
subsistence and transportation from the worker's home or place of 
employment, provided the worker works for 50 percent or more of the 
contract period. This proposal also retains the requirement that 
employers advance transportation and subsistence costs (or otherwise 
provide them) if it is the prevailing practice of non-H-2A agricultural 
employers in the occupation in the area to do so. The Department 
recognizes, however, that these requirements are unique to the H-2A 
program, and invites comments providing information on the costs and

[[Page 8555]]

benefits to employers and workers of continuing to require employers to 
pay for the inbound and outbound transportation and subsistence costs 
of H-2A workers.
5. Treatment of Logging
    The Department has long held logging employment to the same or 
similar standards as those found in the H-2A regulations, even though 
logging has not been included in the statutory definitions of 
agricultural employment. In 1978, the Department included logging in 
its final H-2 regulations for temporary labor certifications for 
``agricultural and logging workers,'' encompassing most of the same 
obligations found today in the current H-2A program. 43 FR 10306 Mar. 
10, 1978. This continued a Departmental policy going back to 1965. See 
20 CFR 602.10 and 602.10a (1971), 35 FR 12393, Aug. 4, 1970; 20 CFR 
602.10 (1966), 30 FR 12292, Sept. 25, 1965.
    In 1986, when IRCA separated the H-2 visa category into 
agricultural work under the H-2A visa and nonagricultural work under 
the H-2B visa, Congress provided the Secretary explicit authority in 
administering the H-2A program to expand the definition of 
``agriculture'' through regulation beyond IRCA's required minimum 
definition, which includes all agricultural labor as defined in the 
Federal Insurance Contributions Act (FICA) (the social security tax in 
section 3121(g) of the Internal Revenue Code) and in Sec.  3(f) of the 
FLSA. IRCA Sec.  301(a), Public Law 99-603, Title III, 100 Stat. 3359, 
November 6, 1986. The Department chose at that time not to expand the 
definition of agriculture beyond the statutory minimum. Nevertheless, 
the Department simultaneously continued the existing regulatory H-2A-
like standards for logging workers who were admitted under the H-2B 
program. Those pre-IRCA standards for agricultural and logging 
applications continue to apply to logging today (20 CFR part 655, 
subpart C), and are the model from which the H-2A agricultural 
regulatory processing framework derived. 52 FR 20496, Jun. 1, 1987. 
Logging employers, therefore, have been subject to a substantially 
similar set of obligations and processes as H-2A employers, but their 
nonimmigrant employees must enter on H-2B, rather than H-2A, visas.
    The Department no longer sees any reason to maintain two 
substantially similar yet slightly divergent processes for agriculture 
and logging, and intends to return to our 1965-1986 practice of 
treating both activities alike. The types of activities in which the 
employers in both fields engage--i.e., harvesting of agricultural and 
horticultural products--and the labor certification requirements to 
which they are subject, are essentially the same.
    Accordingly, the Department proposes to include logging employment 
in its definition of ``agricultural activity'' for purposes of H-2A 
labor certification. By doing so, the Department is exercising its 
legislative authority under Sec.  101(a)(15)(H)(ii)(a) of the INA to 
expand the definition of agriculture beyond the definitions in FICA and 
FLSA to include logging. Conforming amendments are being made to 
reflect this change, including the removal of the current regulations 
specific to logging employment. This change will result in loggers 
being eligible for H-2A visas rather than H-2B.
    The Department seeks comments as to whether there are other 
businesses that should be similarly included within the definition of 
agriculture under this program.
6. Definitions
    The Department is proposing to include the definition of employee 
and to modify the definition of employer to conform these definitions 
to those used in other Department-administered programs. The definition 
of employee conforms to the Supreme Court's holding in Nationwide 
Mutual Insurance v. Darden, 503 U.S. 318, 322-324 (1992). The 
Department is proposing these clarifications to remove any confusion 
that may exist for agricultural employers who have compliance 
obligations under FLSA, MSPA and the H-2A program.
    In defining an H-2A worker, the INA gives the Secretary of Labor 
the authority to define in regulations the term ``agricultural labor or 
services,'' with the requirement that the definition include 
agricultural labor or services as defined in the IRC, the FLSA, and the 
pressing of apples for cider on a farm. The work must also be of a 
temporary or seasonal nature. 8 U.S.C. 1101(a)(15)(h)(ii)(A). The 
activity of ``pressing of apples for cider on a farm'' was added to the 
statute by Public Law 109-90, dated October 18, 2005. The Department 
proposes to change the regulatory definition to reflect the 2005 
amendment.
    The Department is also proposing changes to the regulatory 
definition of ``agricultural labor or services'' to clarify that an 
activity that meets either the IRC or the FLSA definitions of 
agriculture is considered agricultural labor or services for H-2A 
program purposes and to remove limitations on the performance of 
traditional agricultural activities which, when performed for more than 
one farmer, are not considered agricultural labor or services under the 
IRC or the FLSA. The Department is also proposing clarifications to 
reflect that work activity of the type typically performed on a farm 
and incident to the agricultural labor or services for which an H-2A 
labor certification was approved may be performed by an H-2A worker. 
This clarification will ensure that H-2A workers can engage in minor 
amounts of other incidental farm work activity during periods when they 
are not performing the agricultural labor of services that is the 
subject of their application. In no case can this work amount to more 
than an incidental portion of the H-2A worker's total labor or services 
for which they were admitted.
7. Fees
    The proposed rule continues to provide that each employer (except 
joint employer associations) of H-2A workers must pay to the Department 
appropriate fees for each temporary agricultural labor certification 
received. The application fee for each employer receiving a temporary 
agricultural labor certification is supplemented by an appropriate fee 
covering each H-2A worker certified under the application. These 
processing fees, which are authorized by statute and set by regulations 
originally published in 1988, are required by the current statutory 
language to be deposited in the Treasury rather than being used to fund 
program costs at the Department. Nevertheless, the Department is 
updating the fees to an amount appropriate to comport with the 
statute's expectation that the fee recover ``the reasonable costs of 
processing'' H-2A applications.

II. Other Proposed Amendments to the Department's Regulations

A. Changes to Parts 780 and 788

    The Department proposes a modification to the FLSA regulations so 
that the production of trees through the application of agricultural 
and horticultural techniques to be harvested and sold for seasonal 
ornamental use as Christmas trees will be recognized as ``agriculture'' 
under the FLSA. The Department has determined that this modification is 
necessary in light of the Fourth Circuit Court of Appeals' decision in 
U.S. Department of Labor v. North Carolina Growers Association, 377 
F.3d 345 (4th Cir. 2004), as well as a recognition that modern 
production of such trees typically involves extensive

[[Page 8556]]

care and management. Indeed, Christmas tree production is already an 
eligible job under the H-2A program.
    The FLSA provides that employees who are ``employed in 
agriculture'' are exempt from the FLSA's overtime provisions. 29 U.S.C. 
213(b)(12). Section 203(f) of the FLSA defines ``agriculture'' as 
follows:

    Agriculture includes farming in all its branches and among other 
things includes the cultivation and tillage of the soil, dairying, 
the production, cultivation, growing, and harvesting of any 
agricultural or horticultural commodities (including commodities 
defined as agricultural commodities in section 1141j(g) of Title 
12), the raising of livestock, bees, fur-bearing animals, or 
poultry, and any practices (including any forestry or lumbering 
operations) performed by a farmer or on a farm as an incident to or 
in conjunction with such farming operations, including preparation 
for market, delivery to storage or to market or to carriers for 
transportation to market.

    In an interpretive bulletin published in 1956, the Department 
interpreted Sec.  203(f) of the FLSA to exclude Christmas tree farming. 
See 29 CFR 780.115, 780.200, 780.208. The Court of Appeals for the 
Fourth Circuit has noted that the exclusion of Christmas tree farming 
from the definition of ``agriculture'' is not consistent with the 
typical manner in which Christmas trees are produced. Indeed, as the 
North Carolina Growers Association court recognized:

    Christmas tree farming has evolved since the FLSA was enacted in 
1938. Before the 1960's, Christmas tree harvesting was more in the 
nature of ``enterprising individuals who took what nature 
provided.'' * * * However, since the mid 1960's, Christmas tree 
farming has evolved into the current system where growers plant and 
cultivate the trees for harvest.

N. Car. Growers Ass'n., 377 F.3d at 348 n.2 (internal citation 
omitted).
    Based on the Department's experience, modern Christmas tree 
production usually involves extensive care and management through the 
application of agricultural and horticultural techniques to raise such 
trees as ornamental horticultural products, such as planting seedlings 
in beds in a nursery; on-going treatment with fertilizer, herbicides, 
and pesticides as necessary; re-planting in lineout beds; lifting and 
re-planting the small trees in cultivated soil with continued treatment 
with fertilizers, herbicides, and pesticides as indicated by testing to 
see if such applications are necessary; pruning or shearing yearly; and 
harvesting of the tree for seasonal decorative use typically within 7 
to 10 years of planting. The Fourth Circuit described these activities 
as ``significant changes [from the time of the initial interpretive 
bulletin] in the industry's cultivation and management techniques.''
    Thus, the Department proposes to revise those references in 29 CFR 
part 780 and 29 CFR part 788 stating that planted Christmas trees are 
within the scope of forestry and lumbering operations and are not 
agricultural or horticultural commodities for purposes of 
``agriculture'' under the FLSA.
    The Department does not intend to change the treatment of Christmas 
trees that are not produced through the application of agricultural or 
horticultural techniques as discussed above. Production of such trees 
will continue to fall outside the scope of ``agriculture'' under the 
FLSA. In sections listed below for changes, references to Sec.  
13(a)(13) have been updated to make the reference to 13(b)(28). The 
exemption in 13(a)(13) for forestry and lumbering operations was 
repealed and a new exemption from overtime only was created in Sec.  
13(b)(28) in the 1974 amendments to the FLSA. See Sec.  , 23(b)(1) and 
(2), Public Law 93-259, 88 Stat. 69 (Apr. 8, 1974).

B. Changes to Part 501

    Section 218(g)(2) of the INA authorizes the Secretary of Labor to 
take such actions, including imposing appropriate penalties and seeking 
appropriate injunctive relief and specific performance of contractual 
obligations, as may be necessary to ensure employer compliance with 
terms and conditions of employment under this section of the statute. 
The Secretary determined that enforcement of the contractual 
obligations of employers under the H-2A program is the responsibility 
of the WHD. Regulations at 29 CFR part 501 were issued to implement the 
WHD's responsibilities under the H-2A program; amendment of these 
regulations is part of this proposed rulemaking.
    Concurrent with the Department's proposed amendments to its 
regulations in 20 CFR part 655 subpart B to modernize the certification 
of temporary employment of nonimmigrant H-2A workers, the Department 
proposes to amend its regulations at 29 CFR part 501 regarding 
enforcement under the H-2A program.
    Changes are proposed for enhanced enforcement to complement the 
modernized certification process so that workers are appropriately 
protected when employers fail to meet the requirements of the H-2A 
program. This notice of proposed rulemaking would make changes to 
specific sections of the existing regulations in 29 CFR part 501, as 
summarized below.
1. Definitions
    Section 501.10 of the current regulations sets forth the 
definitions used in part 501. The proposed rule would update the 
definition of ``work contract'' to reflect language used in the 
proposed changes to 20 CFR part 655, subpart B. As had been done in the 
current regulations, proposed Sec.  501.10 incorporates the same 
definitions listed in 20 CFR part 655, subpart B that pertain to 29 CFR 
part 501.
    In addition, language in Sec. Sec.  501.4, 501.15, and elsewhere 
has been modified to indicate that ``corresponding employment'' 
includes only U.S. workers who are newly hired by the employer in the 
occupations and during the period of time set forth in the application 
for labor certification and does not include U.S. workers who were 
already employed by the H-2A employer at the time the application was 
filed. The INA requires that U.S. workers hired during the H-2A 
recruitment period, including workers who respond to job 
advertisements, must be offered and provided no less than the same 
wages, benefits, and working conditions that the employer offers, 
intends to offer, or provides to the H-2A workers. U.S. workers who 
were already employed by the H-2A employer at the time the labor 
certification application was filed, however, cannot possibly be 
adversely affected by the subsequent hiring of H-2A workers who are 
paid higher wages. This modification to the Department's enforcement 
policy appropriately ties that policy to the Department's statutory 
authority to prevent adverse effects to the wages and working 
conditions of U.S. workers. The Department notes that its experience 
with the H-2A program indicates that situations where H-2A workers are 
paid more than similarly employed U.S. workers will arise very rarely, 
if ever, in practice.
2. Sanctions and Remedies--General
    The number of FLCs applying for labor market certifications 
enabling them to hire and employ H-2A workers has risen in recent years 
and is expected to continue to increase. The WHD's enforcement 
statistics reveal that FLCs are generally more likely to be found in 
violation of applicable requirements than fixed-site agricultural 
employers. To address this higher violation rate of FLCs and given the 
transient nature of FLCs, ESA has proposed in 29 CFR part 655, subpart 
B that FLCs must attest to, obtain, and maintain a surety bond, based 
on the number of workers

[[Page 8557]]

employed, throughout the period the temporary labor certification is in 
effect, including any extensions thereof. WHD will have authority to 
make a claim against the surety bond to secure unpaid wages or other 
benefits due to workers under the labor certification.
3. Civil Monetary Penalties
    In order to deter significant violations of the H-2A worker 
protection provisions, Sec.  501.19 would be amended to increase the 
maximum civil money penalties. The proposed maximum civil money penalty 
amount would be increased from $1,000 to $5,000 for a willful failure 
to meet a condition of the work contract, or for discrimination against 
a U.S. or H-2A worker who in connection with the INA or these 
regulations has filed a complaint, has testified or is about to 
testify, has exercised or asserted a protected right. Additionally, the 
fine amount would be increased to up to $15,000 for a willful failure 
to meet a condition of the work contract that results in displacing a 
U.S. worker employed by the employer during the period of employment on 
the employer's application, or during the period of 75 days preceding 
such period of employment.
    The proposed penalties for violators who willfully disregard their 
obligations under an attestation program would provide the Department 
with an effective tool to discourage potential abuse of the program. 
Such penalties will deter willful violations, discrimination and 
interference with investigations, and strengthen necessary enforcement 
of laws that protect workers who may be unlikely to approach Government 
agencies to intercede on their behalf.
    Further, if a violation of an applicable housing or transportation 
safety and health provision of the work contract causes the death or 
serious injury of any worker, the Department proposes a new penalty of 
up to $50,000 per worker. The Department also proposes a new penalty of 
up to $100,000 per worker where the violation of a safety and health 
provision involving death or serious injury is repeated or willful.
    In an attestation-based program the proposed penalties for such 
violations of applicable safety and health provisions would provide a 
meaningful assurance that participants meet their obligation to see 
that housing and/or transportation provided to the workers meets all 
applicable safety and health requirements and that housing and/or 
vehicles used in connection with employment do not endanger workers. 
The proposed penalty for repeat or willful violations that involve a 
fatality or serious injury will provide a significant deterrent to 
ensure that such violations do not occur. The Department's experience 
in enforcing safety and health standards shows that penalties are an 
important tool in reducing fatalities and injuries. Increased penalties 
will induce employers to be more proactive in their approach to 
complying with the applicable safety and health standards.
    The assessment of the maximum penalty under proposed Sec.  501.19 
would not be mandatory, but rather would be based on regulatory 
guidelines and the facts of each individual case.
4. Debarment by the WHD
    The current regulations provide ETA the authority to deny 
certification (i.e., debarment) and require the WHD to report findings 
to make a recommendation to ETA to deny future certifications. Under 
proposed Sec.  501.20, debarment authority for issues arising from WHD 
investigations would reside with the WHD Administrator, while debarment 
authority for issues arising out of the attestation process would 
remain with ETA. This proposal is in keeping with recommendations made 
as far back as 1997 in a General Accounting Office (GAO) report to 
Congress in which GAO proposed that authority to suspend employers with 
serious labor standard or H-2A contract violations be extended to the 
WHD. See U.S. Gen. Accounting Office: Report to Congressional 
Committees: H-2A Agricultural Guestworker Program, Changes Could 
Improve Services to Employers and Better Protect Workers, 68, 70 
(1997)). Both agencies will coordinate their activities whenever 
debarment is considered. The proposed standards for debarment within 
WHD's purview are identical to those proposed by ETA for debarment 
actions under 20 CFR part 655, thus ensuring consistency in 
application. This change will allow administrative trials and appeals 
for civil money penalties assessed by the WHD to be consolidated with 
the debarment actions that arise from the same facts. This change will 
remove the requirement that ETA review WHD investigations, eliminating 
a step in the administrative process and allowing for more expeditious 
proceedings and efficient enforcement. This will not affect ETA's 
ability to institute its own debarment proceedings regarding issues 
that arise from the application or attestations or ETA's proposed 
audits. Conforming changes are proposed to other sections in part 501 
to reflect the proposed WHD debarment authority.
5. Referrals of Revocations to ETA
    Section 501.21 is proposed to conform to the proposed changes in 20 
CFR part 655, which provides ETA the authority to revoke an existing 
certification, by allowing the WHD to recommend revocation to ETA based 
upon the WHD's investigative determinations.
6. Exhaustion of Administrative Remedies
    Sections 501.33 and 501.42 would be revised to include language 
that clarifies and assures that the exhaustion of all administrative 
remedies is required before an appeal of a final agency action may be 
taken to the Federal courts pursuant to the Administrative Procedures 
Act.
7. Nomenclature Changes
    The proposed rule would also make a number of non-substantive 
nomenclature changes and technical corrections to 29 CFR part 501. 
These include: Reflecting that the INA was amended in 1988 while the 
current regulations were published in June 1987 and H-2A provisions 
that were in Sec.  216 are now codified in Sec.  218 of the INA; 
changing references from the State Employment Service offices to the 
SWA; and reflecting that appeals from administrative law judge 
decisions are made to the Department's Administrative Review Board.

III. Administrative Information

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order (E.O.) 12866, the Department must determine 
whether a regulatory action is ``significant'' and therefore subject to 
the requirements of the E.O. and subject to review by the Office of 
Management and Budget (OMB). Section 3(f) of the E.O. defines a 
``significant regulatory action'' as an action that is likely to result 
in a rule (1) having an annual effect on the economy of $100 million or 
more, or adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or tribal governments or communities (also 
referred to as ``economically significant''); (2) creating serious 
inconsistency or otherwise interfering with an action taken or planned 
by another agency; (3) materially altering the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raising novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the E.O.

[[Page 8558]]

    The Department has determined that this proposed rule is not an 
``economically significant regulatory action'' under Sec.  3(f)(1) of 
E.O. 12866. The procedures for filing an Application for Temporary 
Employment Certification under the H-2A visa category on behalf of 
nonimmigrant temporary agricultural workers, as proposed under this 
regulation, will not have an economic impact of $100 million or more. 
The regulation will not adversely affect the economy or any sector 
thereof, productivity, competition, jobs, the environment, nor public 
health or safety in a material way. In fact, this proposed rule is 
intended to provide relief to the affected employers both directly, by 
streamlining the process by which they can apply for H-2A labor 
certification, and indirectly, by increasing the available legal 
workforce. The Department, however, has determined that this proposed 
rule is a ``significant regulatory action'' under Sec.  3(f)(4) of the 
E.O.

Summary of Impacts

    The changes being proposed are expected to have little or no direct 
cost impact, above and beyond the baseline of the current costs 
required by the program as it is currently implemented, with the 
exception of increased fees for filing. The re-engineering of the 
program requirements, including attestation-based applications and pre-
application recruitment, will have the effect of reducing employer 
application costs in time and resources and introduce processing 
efficiencies that will reduce costs for employers, particularly costs 
associated with loss of labor due to delayed certifications. The 
Department is specifically requesting comment on what costs these 
policies introduce and what efficiencies may be gained from adopting 
these new proposed procedures, toward the goal of ensuring a thorough 
consideration and discussion of the costs and benefits at the final 
rule stage.
    The additional filing fees will offset these reductions to a 
certain extent, but the Department believes that the increased filing 
fees represent the actual cost of processing and will have a net 
benefit to employers in the increased access to the program and the 
benefit of having a workforce in place when and where needed. The 
additional record retention costs for employers are minimal. The new 
record retention requirements will require a burden of approximately 10 
minutes per year per application to retain the application and 
supporting documents above and beyond the 1 year of retention required 
by regulations of the Equal Employment Opportunity Commission (EEOC) at 
29 CFR 1602.14, promulgated pursuant to Title VII of the Civil Rights 
Act and the American With Disabilities Act, and 29 CFR 1627.3(b)(3), 
promulgated pursuant to the Age Discrimination in Employment Act. In FY 
2007, 7,725 employers filed requests for 80,294 workers. Using standard 
administrative wage rates, including benefits, of $60.42 \20\ per hour, 
this additional burden for each of the 4 years following the mandated 
year above is approximately $77,791 total per year (or approximately 
$10 per applicant per year) if the current number of requests remains 
constant. Any increase in the use of the program would result in the 
same ultimate burden to applicants.
---------------------------------------------------------------------------

    \20\ Derived by utilizing the Bureau of Labor Statistics 2006 
median wage for Human Resources Manager wage of $42.55 and a 1.42 
factor for the cost of benefits and taxes.
---------------------------------------------------------------------------

    Employers will experience efficiencies as a result of the 
reengineering of the process. These savings are expected to be found in 
the simplified attestation-based application. While the Department 
cannot precisely estimate the cost savings as a result of this time 
saved, it believes that employers will experience economic benefits as 
a result of this reengineering of the application process to an 
attestation-based submission, including lower advertising costs and 
fewer labor costs from overlapping or duplicative workforces. These 
savings may be impacted by increased usage of the program by employers; 
while at this time it is impossible to tell exactly what that increased 
usage will be, the savings to employers will be universal to new users 
as well as current participants.

B. Regulatory Flexibility Analysis

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (RFA) requires that a regulatory flexibility analysis 
be prepared and made available for public comment. The RFA must 
describe the impact of the proposed rule on small entities. (5 U.S.C. 
603(a)). Section 605 of the RFA allows an agency to certify a rule, in 
lieu of preparing an analysis, if the proposed rulemaking is not 
expected to have significant economic impact on a substantial number of 
small entities. The Assistant Secretary of ETA has notified the Chief 
Counsel for Advocacy, Small Business Administration (SBA), and 
certifies under the RFA at 5 U.S.C. 605(b), that this proposed rule 
will not have a significant economic impact on a substantial number of 
small entities. The rule does not substantively change existing 
obligations for employers who choose to participate in the H-2A 
temporary agricultural worker program.
    The factual basis for such a certification is that even though this 
proposed rule can and does affect small entities, there are not a 
substantial number of small entities that will be affected, nor is 
there a significant economic impact upon those small entities that are. 
In FY 2007, 7,725 employers filed requests for 80,294 workers. Of the 
total 2,089,790 farms, 98 percent have sales of less than $750,000 per 
year and fall within SBA's definition of small entities. However, the 
Department does not expect that there will be a substantial number of 
small businesses that will utilize the H-2A program in light of its 
prior history. In FY 2007, 7,725 employers filed requests for 80,294 
workers. Even if all of the 7,725 employers who filed applications 
under H-2A in FY 2007 were small entities, the percentage of small 
entities applying for temporary foreign worker certification would be 
only 3 percent of the total number of small farms.
    The Department contends the costs incurred to employers under this 
proposed rule will not be substantially different from those incurred 
under the current application filing process. Employers seeking to hire 
foreign workers on a temporary basis under the H-2A program must 
continue to establish to the Secretary's satisfaction that their 
recruitment attempts have not yielded enough qualified and available 
U.S. workers and that their hiring of foreign workers will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. Similar to the current process, employers under this 
proposed H-2A process will file a standardized application for 
temporary labor certification and will retain recruitment 
documentation, a recruitment report, and any supporting evidence or 
documentation justifying the temporary need for the services or labor 
to be performed.
    To estimate the cost of this reformed H-2A process on employers, 
the Department calculated each employer will likely pay in the range of 
$500 to $1,850 to meet the advertising and recruitment requirements for 
a job opportunity, and spend approximately 3 hours of staff time 
preparing the standardized applications for the required offered wage 
rate and for temporary labor certification, final recruitment report, 
and retaining all other required documentation (e.g., newspaper ads, 
job orders, business necessity) in a file for audit purposes

[[Page 8559]]

that is not otherwise required to be retained in the normal course of 
business. In estimating employer staff time costs, the Department used 
the median hourly wage rate for a Human Resources Manager ($42.55), as 
published by the Department's OES survey, O*Net OnLine,\21\ and 
increased it by a factor of 1.42 to account for employee benefits and 
other compensation for a total staff time cost of $181.00 per 
applicant.
---------------------------------------------------------------------------

    \21\ Source: Bureau of Labor Statistics 2006 wage data.
---------------------------------------------------------------------------

    The Department acknowledges that there might be some extremely 
small businesses that may incur additional costs to file their 
application on-line if and when the Department moves to an electronic 
processing model. However, neither these additional costs nor the 
advertising and human resource staff time, if any, will eliminate more 
than 10 percent of the businesses' profits; exceed 1 percent of the 
gross revenue of the entities in a particular sector; nor exceed 5 
percent of the labor costs of the entities in the sector.
    The total costs for the small entities affected by this program 
will be reduced or stay the same as the costs for participating in the 
current program. Even assuming that all entities who file H-2A labor 
certification applications are considered to be small businesses, the 
net economic effect is not significant.
    The Department invites comments from members of the public who 
believe there will be a significant impact on a substantial number of 
small entities or who disagree with the size standard used by the 
Department in certifying that this proposed rule will not have a 
significant impact on a substantial number of small entities.

C. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private 
sector. This proposed rule has no ``Federal mandate,'' which is defined 
in 2 U.S.C. 658(6) to include either a ``Federal intergovernmental 
mandate'' or a ``Federal private sector mandate.'' A Federal mandate is 
any provision in a regulation that imposes an enforceable duty upon 
State, local, or tribal governments, or imposes a duty upon the private 
sector which is not voluntary. A decision by a private entity to obtain 
an H-2A worker is purely voluntary and is, therefore, excluded from any 
reporting requirement under the Act.
    The SWAs are mandated to perform certain activities for the Federal 
Government under this program, and are compensated for the resources 
used in performing these activities. Under the current regulations, 
employers file applications for H-2A labor certifications concurrently 
with the Department and the SWA having jurisdiction over the area of 
intended employment. The SWA and the Department through the NPCs of the 
OFLC both receive the application and review the terms of the job 
offer. The SWA then places the job order to initiate local recruitment. 
The SWA directly supervises and assists employer recruitment, and makes 
referrals of U.S. workers. The NPC directs the SWA to place job orders 
into intrastate/interstate clearance ensuring employers meet 
advertising and recruitment requirements. The SWA is responsible for 
processing the employer's certification request for H-2A labor 
certification, overseeing the recruitment and directing referrals to 
the employer. SWAs coordinate all activities regarding the processing 
of H-2A applications directly with the appropriate NPC for their 
jurisdiction, including transmittal to the NPC of housing inspection 
results, prevailing wage surveys, prevailing practice surveys or any 
other material bearing on the application. Once the application is 
reviewed by the SWA and after the employer conducts its required 
recruitment, the SWA then sends the complete application to the 
appropriate NPC for final certification or denial.
    Under the re-engineered process in the NPRM, the SWAs will still 
play a role in the clearance of job orders, the referral of eligible 
U.S. workers to employers, and conducting housing inspections, but will 
no longer be responsible for the receipt and substantive review of H-2A 
applications. SWA activities under the H-2A program are currently 
funded by the Department pursuant to grants provided under the Wagner-
Peyser Act. 29 U.S.C. 49, et seq. The Department anticipates continuing 
funding under the Wagner-Peyser Act. As a result of this NPRM and the 
publication of a final regulation, the Department will analyze the 
amounts of such grants made available to each State to fund the 
activities of the SWAs.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    The Department determined that this rulemaking did not impose a 
significant impact on a substantial number of small entities under the 
RFA; therefore, the Department is not required to produce any 
Compliance Guides for Small Entities as mandated by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801) (SBREFA). 
The Department has similarly concluded that this proposed rule is not a 
``major rule'' requiring review by the Congress under the SBREFA 
because it will not likely result in: (1) An annual effect on the 
economy of $100 million or more; (2) a major increase in costs or 
prices for consumers, individual industries, Federal, State or local 
Government agencies, or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of U.S.-based enterprises to compete with 
foreign-based enterprises in domestic or export markets.

E. Executive Order 13132, Federalism

    The Department has reviewed this proposed rule in accordance with 
E.O. 13132 regarding federalism and has determined that it does not 
have ``federalism implications.'' The proposed rule does not ``have 
substantial direct effects on States, on the relationship between the 
States, or on the distribution of power and responsibilities among the 
various levels of Government'' as described by E.O. 13132. Therefore, 
the Department has determined that this proposed rule will not have a 
sufficient federalism implication to warrant the preparation of a 
summary impact statement.

F. Executive Order 13175, Indian Tribal Governments

    This rule was reviewed under the terms of E.O. 13175 and determined 
not to have ``tribal implications.'' The 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 Indian tribes.'' As a result, no tribal summary impact 
statement has been prepared.

G. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act, enacted as part of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 
2681) requires the Department to assess the impact of this proposed 
rule on family well-being. A rule that is determined to have a negative 
effect on families must

[[Page 8560]]

be supported with an adequate rationale.
    The Department has assessed this proposed rule and determines that 
it will not have a negative effect on families.

H. Executive Order 12630

    This proposed rule is not subject to E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights, because it does not involve implementation of a policy with 
takings implications.

I. Executive Order 12988

    This regulation has been drafted and reviewed in accordance with 
E.O. 12988, Civil Justice Reform, and will not unduly burden the 
Federal court system. The regulation has been written so as to minimize 
litigation and provide clear legal standard for affected conduct, and 
has been reviewed carefully to eliminate drafting errors and 
ambiguities.

J. Plain Language

    The Department drafted this Notice of Proposed Rulemaking in plain 
language.

K. Executive Order 13211, Energy Supply

    This rule is not subject to E.O. 13211. It will not have a 
significant adverse effect on the supply, distribution, or use of 
energy.

L. Paperwork Reduction Act

    This NPRM contains revised paperwork requirements at Sec. Sec.  
655.100(a), 655.101, 655.102(c), 655.104(d)(5), 655.105, 655.106, 
655.107, 655.108, and 655.109 of Title 20 in the Code of Federal 
Regulations. This NPRM proposes to significantly change the method of 
collecting information for the H-2A program for which the current 
collection instruments do not suffice. Employers are currently required 
to file a Form ETA 750 (OMB Control Number 1205-0015) and Form ETA 790 
(OMB Control Number 1205-0134) when requesting a labor certification 
for temporary agricultural workers. Additionally, each SWA has its own 
form for its offered wage rate determinations. This proposed rule 
revises the current process for applying by requiring petitioners to 
attest to certain terms, conditions, and obligations. These 
attestations are made to the U.S. Government in accordance with these 
proposed regulations in order to modernize processing. To streamline 
the process, the proposed rule mandates the offered wage rate 
determination requests be filed with the Department instead of the 
individual SWAs. Under the Paperwork Reduction Act of 1995 (PRA), OMB 
considers the attestations and the wage rate determination requests an 
information collection requirement subject to review. Accordingly, this 
information collection in this proposed rule has been submitted to OMB 
for review under Sec.  3507(d) of the PRA. Copies of the proposed 
information collection request (ICR) can be obtained by contacting the 
office listed below in the addressee section of this notice or at this 
Web site: http://www.doleta.gov/OMBCN/OMBControlNumber.cfm or http://www.reginfo.gov/public/dol/pramain. Written comments are encouraged and 
will be accepted until April 14, 2008.
    When submitting comments on the information collection, your 
comments should address one or more of the following four points.
    Review Focus: The Department of Labor is particularly interested in 
comments which:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submissions of responses.

I. Overview of Information Collection Form 1

    Type of Review: New.
    Agency: Employment and Training Administration.
    Title: Application for Temporary Employment Certification.
    OMB Number: 1205-NEW1.
    Agency Number(s): (Proposed) Form ETA-9142.
    Recordkeeping: On occasion.
    Affected Public: Individuals, households, businesses, farms, 
Federal, State, local and tribal governments.
    Total Respondents: 7,725.
    Estimated Total Burden Hours: 16,738.
    Total Burden Cost (capital/startup): $9,573,400.
    Total Burden Cost (operating/maintaining): 0.

II. Overview of Information Collection Form 2

    Type of Review: New.
    Agency: Employment and Training Administration.
    Title: Job Offer and Required Wage Request Form.
    OMB Number: 1205-NEW2.
    Agency Number(s): (Proposed) Form ETA-9141.
    Recordkeeping: On occasion.
    Affected Public: Individuals, households, businesses, farms, 
Federal, State, local and tribal governments.
    Total Respondents: 7,725.
    Estimated Total Burden Hours: 5,794.
    Total Burden Cost (capital/startup): 0.
    Total Burden Cost (operating/maintaining): 0.
    Comments submitted in response to this comment request will be 
summarized and/or included in the request for OMB approval of the ICR; 
they will also become a matter of public record. All comments and 
suggestions or questions regarding additional information should be 
directed to the Federal e-Rulemaking Portal at: www.regulations.gov or 
mailed to the Office of Information and Regulatory Affairs of the 
Office of Management and Budget, Washington, DC 20503, Attention: Desk 
Officer for Employment & Training Administration. The information 
collection aspects of the proposed rulemaking will not take effect 
until published in a final rule and approved by OMB. Persons are not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number as required in 5 CFR 1320.11(k)(1).

M. Catalog of Federal Domestic Assistance Number

    This program is listed in the Catalog of Federal Domestic 
Assistance at Number 17-273, ``Temporary Labor Certification for 
Foreign Workers.''

List of Subjects in 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.

List of Subjects in 29 CFR Part 501

    Administrative practice and procedure, Agriculture, Aliens, 
Employment, Housing, Housing standards, Immigration, Labor, Migrant 
labor, Penalties, Transportation, Wages.

[[Page 8561]]

List of Subjects in 29 CFR Part 780

    Agricultural commodities, Agriculture, Employment, Forests and 
forest products, Labor, Minimum wages, Nursery stock, Overtime pay, 
Wages.

List of Subjects in 29 CFR Part 788

    Employment, Forests and forest products, Labor, Overtime pay, 
Wages.

    For reason stated in the preamble, the Department of Labor proposes 
that 20 CFR part 655 and 29 CFR parts 501, 780, and 788 be amended as 
follows:

Title 20--Employees' Benefits

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

    1. Revise the authority citation for part 655 to read as follows:

    Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) 
and (ii), 1182(n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) 
and (d); Sec.  3(c)(1), Public Law 101-238, 103 Stat. 2099, 2102 (8 
U.S.C. 1182 note); Sec.  221(a), Public Law 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); Sec.  303(a)(8), Public Law 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); Sec.  323(c), Public Law 103-
206, 107 Stat. 2428; Sec.  412(e), Public Law 105-277, 112 Stat. 
2681; and 8 CFR 214.2(h)(4)(i).
    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 
1184(c), and 1188; and 8 CFR 214.2(h).
    Subparts A and C 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).
    Subparts D and E authority repealed.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and 
Sec.  323(c), Public Law 103-206, 107 Stat. 2428.
    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), 
Public Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); Sec.  
412(e), Public Law 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).
    Subparts J and K issued under Sec.  221(a), Public Law 101-649, 
104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); Sec.  2(d), Public Law 106-95, 113 Stat. 1312, 1316 (8 
U.S.C. 1182 note); Public Law 109-423, 120 Stat. 2900; and 8 CFR 
214.2(h).

    2. Revise the heading of part 655 to read as set forth above.
    3. Revise Sec.  655.1 to read as follows:


Sec.  655.1  Purpose of scope of subpart A.

    This subpart sets forth the procedures governing the labor 
certification process for the temporary employment of nonimmigrant 
foreign workers in the United States in occupations other than 
agriculture or registered nursing.
    4. Revise subpart B to read as follows:

Subpart B--Labor Certification Process for Temporary Agricultural

Sec.
655.90 Purpose and scope of subpart B.
655.92 Authority of ETA-OFLC.
655.93 Special procedures
655.100 Overview of subpart B and definition of terms.
655.101 Applications for temporary employment certification in 
agriculture.
655.102 Required pre-filing recruitment.
655.103 Advertising requirements.
655.104 Contents of job offers.
655.105 Assurances and obligations of H-2A employers.
655.106 Assurances and obligations of Farm Labor Contractors.
655.107 Receipt and processing of applications.
655.108 Offered Wage Rate.
655.109 Labor certification determinations.
655.110 Validity and scope of temporary labor certifications.
655.111 Required departure.
655.112 Audits.
655.113 H-2A applications involving fraud or willful 
misrepresentation.
655.114 Petition for higher meal charges.
655.115 Administrative review and de novo hearing before an 
administrative law judge.
655.116 Job Service Complaint System; enforcement of work contracts.
655.117 Revocation of H-2A certification approval.
655.118 Debarment.


Sec.  655.90  Purpose and scope of subpart B.

    General. This subpart sets out the procedures established by the 
Secretary of Labor (the Secretary) to acquire information sufficient to 
make factual determinations of:
    (a) Whether there are sufficient able, willing, and qualified U.S. 
workers available to perform the temporary and seasonal agricultural 
employment for which an employer desires to import nonimmigrant foreign 
workers (H-2A workers); and
    (b) Whether the employment of H-2A workers will adversely affect 
the wages and working conditions of workers in the U.S. similarly 
employed.


Sec.  655.92  Authority of ETA-OFLC.

    Under this subpart, the accepting for consideration and the making 
of temporary agricultural labor certification determinations are 
ordinarily performed by the Administrator, Office of Foreign Labor 
Certification (OFLC), who, in turn, may delegate this responsibility to 
a designated staff member, e.g., a Certifying Officer (CO).


Sec.  655.93  Special procedures.

    (a) Systematic process. This subpart provides systematic and 
accessible procedures for the processing of applications from 
agricultural employers and associations of employers for the 
certification of employment of nonimmigrant workers, usually in 
relation to the production or harvesting of a particular agricultural 
crop or the raising of livestock for market.
    (b) Establishment of special procedures. To provide for a limited 
degree of flexibility in carrying out the Secretary's responsibilities 
under the INA, while not deviating from statutory requirements to 
determine U.S. worker availability and make a determination as to 
adverse effect, the OFLC Administrator has the authority to establish 
or to revise special procedures in the form of variances for processing 
certain H-2A applications when employers can demonstrate upon written 
application to and consultation with the OFLC Administrator that 
special procedures are necessary. In a like manner, for work in 
occupations characterized by other than a reasonably regular workday or 
workweek, such as the range production of sheep or other livestock, the 
Administrator has the authority to establish monthly, weekly, or bi-
weekly adverse effect wage rates for those occupations, for a Statewide 
or other geographical area, other than the rates established pursuant 
to Sec.  655.108, provided that the Administrator uses a methodology to 
establish adverse effect wage rates that are consistent with the 
methodology in Sec.  655.108. Prior to making determinations under this 
paragraph (b), the Administrator may consult with employer and worker 
representatives.
    (c) Construction. This subpart shall be construed to permit the 
OFLC Administrator, where the OFLC Administrator deems appropriate, to 
devise, continue, revise, or revoke special procedures where 
circumstances warrant. These include procedures previously in effect 
for the handling of applications for sheepherders in the Western States 
(and adaptation of such procedures to occupations in the range 
production of other livestock), for custom combine crews, and others on 
an as-needed basis.


Sec.  655.100  Overview of subpart B and definition of terms.

    (a) Overview--(1) Filing application process. (i) This subpart 
provides guidance to an employer that desires to apply for temporary 
agricultural labor certification for the employment of H-2A workers to 
perform agricultural employment of a temporary or seasonal nature. The 
regulations in this subpart provide that such employer shall file an H-
2A application, including a job offer, on forms prescribed by the 
Employment

[[Page 8562]]

and Training Administration (ETA), that describes the material terms 
and conditions of employment to be offered and afforded to U.S. and H-
2A workers, with the OFLC Administrator. The entire application shall 
be filed with the OFLC Administrator at least 45 calendar days before 
the first date the employer requires the services of the H-2A workers. 
The application will contain attestations of the employer's compliance 
or promise to comply with program requirements regarding recruitment of 
eligible U.S. workers, including the payment of an appropriate wage, 
and terms and conditions of employment.
    (ii) No earlier than 120 calendar days and no later than 75 
calendar days before the first date the employer requires the services 
of the H-2A workers, the employer shall initiate positive recruitment 
of eligible U.S. workers and cooperate with the local office of the 
State Workforce Agency (SWA) which serves the area of intended 
employment to place a job order into intrastate and interstate 
recruitment. To comply with the regulation and as part of its positive 
recruitment, an employer will: Obtain the appropriate agricultural wage 
directly from the ETA National Processing Center (NPC); place a job 
order with the SWA; place advertisements meeting the requirements of 
this regulation; contact former U.S. workers; and engage in recruitment 
in traditional labor supply States, when required, based on an annual 
determination from the Secretary, where such determination results in a 
finding of a multistate region of traditional or expected labor supply 
with a significant number of U.S. workers who, if recruited, would be 
willing to make themselves available at the time and place needed. The 
SWA will post a job order locally, as well as in all States listed in 
the application as anticipated work sites and in any States in which 
the Secretary finds that a multistate region of traditional or expected 
labor supply exists with a significant number of U.S. workers who, if 
recruited, would be willing to make themselves available at the time 
and place needed. No more than 60 days prior to the first date the 
employer requires the services of the H-2A workers, the employer will 
prepare an initial written recruitment report that it must submit with 
its application. The employer will cease any recruitment and acceptance 
of referrals of eligible U.S. workers no earlier than the actual date 
on which the H-2A workers depart for the place of work, or no earlier 
than three days prior to the first date the employer requires the 
services of the H-2A workers, whichever is later.
    (iii) The application for H-2A temporary labor certification may be 
filed by mail; in addition, the Department may require the application 
to be filed electronically. Applications that meet threshold 
requirements for completeness and accuracy will be forwarded for 
processing to NPC staff, who will review each application for 
compliance with the criteria for certification. Each application must 
meet requirements for timeliness, temporary need, and the provision of 
assurances and other safeguards against adverse impact, and must be 
free of technical errors. Employers receiving a labor certification 
must continue to cooperate with the SWA by accepting referrals--and 
have the obligation to accept eligible U.S. workers who apply--until 
the date on which the H-2A workers depart for the place of work, or 3 
days prior to the first date the employer requires the services of the 
H-2A workers, whichever is later.
    (2) Deficient applications. Under this subpart, the CO will 
promptly review the application and notify the applicant in writing if 
there are deficiencies that render the application not acceptable for 
certification, and afford the applicant a 5 business day period for 
resubmission of an amended application or an appeal of the CO's refusal 
to approve the application as acceptable for consideration. Amended 
applications that fail to cure deficiencies in a way that would make 
them certifiable will be denied. In addition, when an initial 
application contains a deficiency related to recruitment or some other 
element of adverse effect, the CO will deny the application, instruct 
the employer to file a new application, and include guidance on how to 
correct the deficiency during the new recruitment period. In these 
cases, the application must contain a new, later date of need and 
demonstrate compliance with pre-filing recruitment requirements.
    (3) Amendment of applications. This subpart provides for the 
amendment of applications, at any time prior to the CO's certification 
determination, to increase the number of workers requested in the 
initial application; and/or change the period of employment. In 
circumstances where the recruitment was not materially altered by such 
amendments, such amendments may not require an additional recruitment 
period for eligible U.S. workers.
    (4) Recruitment of U.S. workers; determinations--(i) Recruitment. 
If the employer has complied with the criteria for certification, 
including recruitment of eligible U.S. workers, the CO shall make a 
determination no later than 30 calendar days before the first date the 
employer requires the services of the H-2A workers to grant or deny, in 
whole or in part, the application for certification. Failure to comply 
with any of the certification criteria, and efforts to cure 
deficiencies identified by the CO, may lengthen the time required for 
processing, resulting in a final determination issued later than 30 
days prior to date of need.
    (ii) Granted applications. This subpart provides that an 
application for temporary agricultural labor certification shall be 
granted if the CO finds that the employer has not offered and does not 
intend to offer foreign workers higher wages or better working 
conditions (or has imposed less restrictions on foreign workers) than 
those offered and afforded to U.S. workers; that sufficient U.S. 
workers who are able, willing, qualified, and eligible, will not be 
available at the time and place needed to perform the work for which H-
2A workers are being requested; and that the employment of such 
nonimmigrants will not adversely affect the wages and working 
conditions of similarly employed U.S. workers.
    (iii) Fees. (A) Amount. This subpart provides that each employer 
(except joint employer associations) of H-2A workers shall pay to the 
appropriate CO fees for each temporary agricultural labor certification 
received. The application fee for each employer receiving a temporary 
agricultural labor certification is $200 plus $100 for each H-2A worker 
certified under the Application for Temporary Employment Certification. 
In the case of a joint employer association receiving a temporary 
agricultural labor certification, each employer-member receiving a 
temporary agricultural labor certification shall pay an application fee 
of $200 plus $100 for each H-2A worker certified for that employer-
member. The joint employer association will not be charged a separate 
fee. Any amendments requested pursuant to Sec.  655.107(a)(6) by the 
employer to a temporary agricultural labor certification, which are 
received, accepted, and processed by the appropriate CO, will be 
subject to an additional processing fee of $100. In circumstances where 
the CO grants an amendment to increase the number of H-2A workers 
requested on the initial certified application, the employer shall be 
subject to a fee of $100 for each additional H-2A worker certified on 
the amended temporary agricultural labor certification.

[[Page 8563]]

    (B) Timeliness of payment. The fee must be received by the 
appropriate CO no later than 30 calendar days after the granting of 
each temporary agricultural labor certification. Fees received any 
later are untimely. Failure to pay fees in a timely manner is a 
substantial program violation which may result in the denial of future 
temporary agricultural labor certifications and program debarment.
    (iv) Denied applications. This subpart provides that if the 
application for temporary agricultural labor certification is denied, 
in whole or in part, the employer may seek review of the denial, or a 
de novo hearing, by an administrative law judge as provided in this 
subpart.
    (b) Definitions of terms used in this subpart. For the purposes of 
this subpart:
    Administrative law judge means a person within the DOL Office of 
Administrative Law Judges appointed pursuant to 5 U.S.C. 3105; or a 
panel of such persons designated by the Chief Administrative Law Judge 
from the Board of Alien Labor Certification Appeals established by part 
656 of this chapter, but which shall hear and decide appeals as set 
forth in Sec.  655.115. ``Chief Administrative Law Judge'' means the 
chief official of the DOL Office of Administrative Law Judges or the 
Chief Administrative Law Judge's designee.
    Administrator, Office of Foreign Labor Certification (OFLC) means 
the primary official of the Office of Foreign Labor Certification, or 
the Administrator's designee.
    Adverse effect wage rate (AEWR) means the minimum wage rate that 
the Administrator has determined must be offered and paid to every H-2A 
worker employed in a particular occupation and/or area to ensure that 
the wages of similarly employed U.S. workers will not be adversely 
affected.
    Agent means a legal entity or person, such as an association of 
agricultural employers, or an attorney for an association, which:
    (1) Is authorized to act on behalf of the employer for temporary 
agricultural labor certification purposes, and
    (2) Is not itself an employer, or a joint employer, as defined in 
this paragraph (b).
    Agricultural association means any nonprofit or cooperative 
association of farmers, growers, or ranchers, incorporated or qualified 
under applicable State law, which recruits, solicits, hires, employs, 
furnishes, or transports any H-2A worker. An agricultural association 
may act as the agent of an employer for purposes of filing an H-2A 
temporary labor certification application.
    Agricultural employer means any person who owns or operates a farm 
or ranch, or otherwise engages in agriculture as defined in this 
subpart, and who either recruits, solicits, hires, employs, furnishes, 
or transports any H-2A worker. Agricultural employers may file H-2A 
applications either directly or through their agents or other legal 
representatives.
    Application for Temporary Employment Certification means the form 
submitted by an employer to secure a temporary agricultural labor 
certification determination from DOL.
    Area of intended employment means the geographic area within normal 
commuting distance of the place (worksite address) of intended 
employment of the job opportunity for which the certification is 
sought. There is no rigid measure of distance which constitutes a 
normal commuting distance or normal commuting area, because there may 
be widely varying factual circumstances among different areas (e.g., 
average commuting times, barriers to reaching the worksite, quality of 
regional transportation network, etc.). If the place of intended 
employment is within a Metropolitan Statistical Area (MSA), including a 
multistate MSA, any place within the MSA is deemed to be within normal 
commuting distance of the place of intended employment. The borders of 
MSAs are not controlling in the identification of the normal commuting 
area; a location outside of an MSA may be within normal commuting 
distance of a location that is inside (e.g., near the border of) the 
MSA.
    Attorney means any person who is a member in good standing of the 
bar of the highest court of any state, possession, territory, or 
commonwealth of the United States, or the District of Columbia, and who 
is not under suspension or disbarment from practice before any court or 
before DHS or the United States Department of Justice's Executive 
Office for Immigration Review. Such a person is permitted to act as an 
agent, representative, or attorney for an employer and/or foreign 
worker under this part.
    Certifying Officer (CO) means the person designated by the 
Administrator, OFLC with making programmatic determinations on 
employer-filed applications under the H-2A program.
    Date of need means the first date the employer requires services of 
the H-2A workers.
    Department of Homeland Security (DHS), through the United States 
Citizenship and Immigration Services (USCIS), means the Federal agency 
making the determination under the INA whether to grant petitions filed 
by employers seeking H-2A workers to perform temporary agricultural 
work in the U.S.
    DOL or Department means the U.S. Department of Labor.
    Eligible worker means, with respect to employment, an individual 
who is not an unauthorized alien (as defined in section 274A(h)(3) of 
the INA, 8 U.S.C. 1324a(h)(3), or in this paragraph (b)) with respect 
to that employment.
    Employee means ``employee'' as defined under the general common law 
of agency. Some of the factors relevant to the determination of 
employee status include: The hiring party's right to control the manner 
and means by which the work is accomplished; the skill required; the 
source of the instrumentalities and tools for accomplishing the work; 
the location of the work; the hiring party's discretion over when and 
how long to work; and whether the work is part of the regular business 
of the hiring party. Other applicable factors should be considered and 
no one factor is dispositive.
    Employer means a person, firm, corporation or other association or 
organization:
    (1) Which has a location within the U.S. to which U.S. workers may 
be referred for employment, or qualifies as a farm labor contractor 
(FLC) under this subpart;
    (2) Which has an employer relationship with respect to employees 
under this subpart as indicated by the fact that it may hire, pay, 
fire, supervise or otherwise control the work of any such employee; and
    (3) Which possesses a valid Federal Employer Identification Number 
(FEIN).
    (4) Where two or more employers each have the definitional indicia 
of employment with respect to an employee, those employers shall be 
considered to jointly employ that employee.
    (5) FLCs, for purposes of this subpart, shall be considered to be 
employers.
    Employment Service (ES) means the system of Federal and State 
entities responsible for administration of the labor certification 
process for temporary and seasonal agricultural employment of 
nonimmigrant foreign workers. This includes the State Workforce 
Agencies (SWAs) and the OFLC, including the NPCs.
    Employment Standards Administration (ESA) means the agency within 
the Department of Labor (DOL) that includes the Wage and Hour Division, 
and which is charged with carrying out certain investigative and

[[Page 8564]]

enforcement functions of the Secretary under the INA.
    Employment and Training Administration (ETA) means the agency 
within the Department that includes the OFLC.
    Federal holiday means a legal public holiday as defined at 5 U.S.C. 
6103.
    Farm labor contracting activity means recruiting, soliciting, 
hiring, employing, furnishing, or transporting any migrant and seasonal 
agricultural worker as those terms are used in 29 U.S.C. 1801 et seq. 
and 29 CFR part 500, with the intent to contract those workers to 
fixed-site employers.
    Farm Labor Contractor (FLC) means any person--other than an 
agricultural association, or an employee of an agricultural 
association--who, for any money or other valuable consideration paid or 
promised to be paid, performs any farm labor contracting activity.
    H-2A worker means any nonimmigrant who shall perform agricultural 
labor or services of a temporary or seasonal nature under INA Sec.  
101(a)(15)(H)(ii)(a), as amended, 8 U.S.C. 1101(a)(15)(H)(ii)(a).
    INA means the Immigration and Nationality Act, as amended, 8 U.S.C. 
1101 et seq.
    Job offer means the offer made by an employer or potential employer 
of H-2A workers to eligible workers describing all the material terms 
and conditions of employment, including those relating to wages, 
working conditions, and other benefits.
    Job opportunity means a job opening for temporary, full-time 
employment at a place in the U.S. to which a U.S. worker can be 
referred.
    Office of Foreign Labor Certification (OFLC) means the 
organizational component of the ETA that provides national leadership 
and policy guidance and develops regulations and procedures to carry 
out the responsibilities of the Secretary of Labor under the INA 
concerning the admission of foreign workers to the U.S. to perform work 
described in INA Sec.  101(a)(15)(H)(ii)(a), as amended.
    Occupational Safety and Health Administration (OSHA) means the 
organizational component of DOL that assures the safety and health of 
America's workers by setting and enforcing standards; providing 
training, outreach, and education; establishing partnerships; and 
encouraging continual improvement in workplace safety and health under 
the Occupational Safety and Health Act, as amended.
    Positive recruitment means the active participation of an employer 
or its authorized hiring agent in recruiting and interviewing qualified 
and eligible individuals in the area where the employer's establishment 
is located and any other area designated by the Secretary as a 
multistate area of traditional or expected labor supply with respect to 
the area where the employer's establishment is located in an effort to 
fill specific job openings with U.S. workers.
    Prevailing means, with respect to certain benefits other than wages 
provided by employers and certain practices engaged in by employers, 
that practice or benefit which is most commonly provided by employers 
(including H-2A and non-H-2A employers) for the occupation in the area 
of intended employment.
    Representative means the official employed by or duly authorized to 
act on behalf of the employer with respect to activities entered into 
for and/or attestations made with respect to the Application for 
Temporary Employment Certification. In the case of an attorney who acts 
as an employer's representative and who interviews and/or considers 
U.S. workers for the job offered to the foreign worker(s), such 
individual must be the person who normally interviews or considers, on 
behalf of the employer, applicants for job opportunities such as that 
offered in the application, but which do not involve labor 
certifications.
    Secretary means the Secretary of Labor, the chief official of the 
U.S. Department of Labor, or the Secretary's designee.
    Secretary of Homeland Security means the chief official of the U.S. 
Department of Homeland Security (DHS) or the Secretary of Homeland 
Security's designee.
    Secretary of State means the chief official of the U.S. Department 
of State (DOS) or the Secretary of State's designee.
    State Workforce Agency (SWA), formerly known as State Employment 
Security Agency (SESA), means the State Government agency that receives 
funds pursuant to the Wagner-Peyser Act to administer the public labor 
exchange delivered through the State's one-stop delivery system in 
accordance with the Wagner-Peyser Act. 29 U.S.C. 49 et seq. Separately, 
SWAs receive ETA grants, administered by the OFLC, to assist them in 
performing certain activities related to foreign labor certification--
including conducting housing inspections.
    Temporary agricultural labor certification means the certification 
made by the Secretary with respect to an employer seeking to file with 
DHS a visa petition to employ a foreign national as an H-2A worker, 
pursuant to Sec. Sec.  101(a)(15)(H)(ii)(a), 214(a) and (c), and 218 of 
the INA that:
    (1) There are not sufficient workers who are able, willing, and 
qualified, and who will be available at the time and place needed, to 
perform the agricultural labor or services involved in the petition, 
and
    (2) The employment of the foreign worker in such agricultural labor 
or services will not adversely affect the wages and working conditions 
of workers in the U.S. similarly employed, 8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1188.
    Temporary agricultural labor certification determination means the 
written determination made by the CO to approve or deny, in whole or in 
part, an application for temporary agricultural labor certification to 
employ a foreign worker(s).
    Unauthorized alien means, with respect to employment, an alien who 
is not at that time either (a) a foreign national lawfully admitted for 
permanent residence or (b) otherwise authorized to be so employed.
    United States (U.S.), when used in a geographic sense, means the 
continental United States, Alaska, Hawaii, the Commonwealth of Puerto 
Rico, and the territories of Guam, and the Virgin Islands of the United 
States.
    United States worker (U.S. worker) means a worker who is either
    (1) A citizen or national of the U.S., or
    (2) An alien who is lawfully admitted for permanent residence in 
the U.S., is admitted as a refugee under Sec.  207 of the INA, is 
granted asylum under Sec.  208 of the INA, or is an immigrant otherwise 
authorized (by the INA or by DHS) to be employed in the U.S.
    Wages means all forms of cash remuneration to a worker by an 
employer in payment for personal services.
    (c) Definition of agricultural labor or services of a temporary or 
seasonal nature. For the purposes of this subpart, ``agricultural labor 
or services of a temporary or seasonal nature'' means the following:
    (1) ``Agricultural labor or services.'' Pursuant to Sec.  
101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), 
``agricultural labor or services'' is defined for the purposes of this 
subpart as:
    (i) ``Agricultural labor'' as defined and applied in Sec.  3121(g) 
of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g));
    (ii) ``Agriculture'' as defined and applied in Sec.  3(f) of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 203(f));

[[Page 8565]]

    (iii) The pressing of apples for cider on a farm;
    (iv) Logging employment; or
    (v) Handling, planting, drying, packing, packaging, processing, 
freezing, grading, storing, or delivering to storage or to market or to 
a carrier for transportation to market, in its unmanufactured state, 
any agricultural or horticultural commodity while in the employ of the 
operator of a farm; or
    (vi) Other work typically performed on a farm that is incidental to 
the agricultural labor or services for which the worker was sought.
    (2) An occupation included in either of the statutory definitions 
cited in paragraphs (c)(1)(i) and (ii) of this section shall be 
``agricultural labor or services'', notwithstanding the exclusion of 
that occupation from the other statutory definition.
    (i) ``Agricultural labor'' for purposes of paragraph (c)(1)(i) of 
this section means all services performed:
    (A) On a farm, in the employ of any person, in connection with 
cultivating the soil, or in connection with raising or harvesting any 
agricultural or horticultural commodity, including the raising, 
shearing, feeding, caring for, training, and management of livestock, 
bees, poultry, and furbearing animals and wildlife;
    (B) In the employ of the owner or tenant or other operator of a 
farm, in connection with the operation, or maintenance of such farm and 
its tools and equipment, or in salvaging timber or clearing land of 
brush and other debris left by a hurricane, if the major part of such 
service is performed on a farm;
    (C) In connection with the production or harvesting of any 
commodity defined as an agricultural commodity in section 15(g) of the 
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in 
connection with the ginning of cotton, or in connection with the 
operation or maintenance of ditches, canals, reservoirs, or waterways, 
not owned or operated for profit, used exclusively for supplying and 
storing water for farming purposes;
    (D)(1) In the employ of the operator of a farm in handling, 
planting, drying, packing, packaging, processing, freezing, grading, 
storing, or delivering to storage or to market or to a carrier for 
transportation to market, in its unmanufactured state, any agricultural 
or horticultural commodity; but only if such operator produced more 
than one-half of the commodity with respect to which such service is 
performed;
    (2) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
paragraph (c)(2)(i)(A) of this section, but only if such operators 
produced all of the commodity with respect to which such service is 
performed. For purposes of this paragraph (c)(2)(i)(D)(2), any 
unincorporated group of operators shall be deemed a cooperative 
organization if the number of operators comprising such group is more 
than 20 at any time during the calendar quarter in which such service 
is performed;
    (3) The provisions of paragraphs (c)(1) and (2) of this section 
shall not be deemed to be applicable with respect to services performed 
in connection with commercial canning or commercial freezing or in 
connection with any agricultural or horticultural commodity after its 
delivery to a terminal market for distribution for consumption; or
    (4) On a farm operated for profit if such service is not in the 
course of the employer's trade or business or is domestic service in a 
private home of the employer.
    (E) As used in this subsection, the term ``farm'' includes stock, 
dairy, poultry, fruit, fur-bearing animal, and truck farms, 
plantations, ranches, nurseries, ranges, greenhouses or other similar 
structures used primarily for the raising of agricultural or 
horticultural commodities, and orchards. (See Sec.  3121(g) of the 
Internal Revenue Code of 1986 (26 U.S.C. 3121(g).)
    (ii) ``Agriculture.'' For purposes of paragraph (c)(1)(ii) of this 
section agriculture means farming in all its branches and among other 
things includes the cultivation and tillage of the soil, dairying, the 
production, cultivation, growing, and harvesting of any agricultural or 
horticultural commodities (including commodities as defined as 
agricultural commodities in 12 U.S.C. 1141j(g)), the raising of 
livestock, bees, fur-bearing animals, or poultry, and any practices 
(including any forestry or lumbering operations) performed by a farmer 
or on a farm as an incident to or in conjunction with such farming 
operations, including preparation for market, delivery to storage or to 
market or to carriers for transportation to market. (See 29 U.S.C. 
203(f) (Sec.  3(f) of the FLSA of 1938, as amended.).
    (iii) ``Agricultural commodity''. For purposes of paragraph 
(c)(1)(ii), of this section ``agricultural commodity'' includes, in 
addition to other agricultural commodities, crude gum (oleoresin) from 
a living tree, and gum spirits of turpentine and gum rosin as processed 
by the original producer of the crude gum (oleoresin) from which 
derived.. ``Gum spirits of turpentine'' means spirits of turpentine 
made from gum (oleoresin) from a living tree and ``gum rosin'' means 
rosin remaining after the distillation of gum spirits of turpentine. 
(See 12 U.S.C. 1141j(g) (Sec.  15(g) of the Agricultural Marketing Act, 
as amended, and 7 U.S.C. 92.)
    (3) ``Of a temporary or seasonal nature.''
    (i) ``On a seasonal or other temporary basis''. For the purposes of 
this subpart, ``of a temporary or seasonal nature'' means ``on a 
seasonal or other temporary basis'', as defined in the ESA's WHD's 
regulation at 29 CFR 500.20 under the Migrant and Seasonal Agricultural 
Worker Protection Act (MSPA).
    (ii) MSPA definition. The definition of ``on a seasonal or other 
temporary basis'' found in MSPA, summarized as follows, is:
    (A) Labor is performed on a seasonal basis, where, ordinarily, the 
employment pertains to or is of the kind exclusively performed at 
certain seasons or periods of the year and which, from its nature, may 
not be continuous or carried on throughout the year. A worker who moves 
from one seasonal activity to another, while employed in agriculture or 
performing agricultural labor, is employed on a seasonal basis even 
though he may continue to be employed during a major portion of the 
year.
    (B) A worker is employed on ``other temporary basis'' where he is 
employed for a limited time only or his performance is contemplated for 
a particular piece of work, usually of short duration. Generally, 
employment which is contemplated to continue indefinitely is not 
temporary.
    (C) ``On a seasonal or other temporary basis'' does not include the 
employment of any foreman or other supervisory employee who is employed 
by a specific agricultural employer or agricultural association 
essentially on a year round basis.
    (D) ``On a seasonal or other temporary basis'' does not include the 
employment of any worker who is living at his permanent place of 
residence, when that worker is employed by a specific agricultural 
employer or agricultural association on essentially a year round basis 
to perform a variety of tasks for his employer and is not primarily 
employed to do field work.
    (iii) ``Temporary''. For the purposes of this subpart, the 
definition of ``temporary'' in paragraph (c)(2)(ii) of this section 
refers to any job opportunity covered by this subpart where the 
employer needs a worker for a position for a limited period of time, 
which shall be for less than 1 year, unless the original temporary 
agricultural labor

[[Page 8566]]

certification is extended based on unforeseen circumstances, pursuant 
to Sec.  655.110 of this part.


Sec.  655.101  Applications for temporary employment certification in 
agriculture.

    (a) Application Filing Requirements. (1) An employer that desires 
to apply for certification of temporary employment of one or more 
nonimmigrant foreign workers must file a completed DOL Application for 
Temporary Employment Certification form, including a job offer. If the 
job opportunity contains multiple work locations within the same area 
of intended employment and the area of intended employment is found in 
more than one NPC, the application, if filed by mail, shall be filed 
with the NPC having jurisdiction over the place where the work is 
contemplated to begin. The employer's application will contain 
information related to the job opportunity, which shall comply with the 
requirements of Sec. Sec.  655.104 and 653.501 of this chapter and the 
assurances required by Sec.  655.105.
    (2) If an association of agricultural producers, which uses 
agricultural labor or services, files the application, the association 
shall identify whether it is either the sole employer, a joint employer 
with its employer-member employers, or the agent of its employer-
members. The association shall identify on the Application for 
Temporary Employment Certification, by name and address, each member 
that will be an employer of H-2A workers. The association shall retain 
documentation substantiating the employer or agency status of the 
association and be prepared to submit such documentation to the CO in 
the event of an audit examination.
    (3) If an employer intends to be represented by an agent, the 
employer shall sign the appropriate statement on the Application for 
Temporary Employment Certification that the agent is representing the 
employer and the employer assumes full responsibility for the accuracy 
of any representations made by the agent. The agent may accept for 
interview workers being referred to the job and make hiring commitments 
on behalf of the employer.
    (4) If an FLC intends to file the application, he/she must meet all 
of the requirements of the definition of ``employer'' in Sec.  
655.100(b), and comply with all the assurances, guarantees, and other 
requirements contained in this part and in part 653, subpart F, of this 
chapter. The FLC must have a place of business (physical location) in 
the United States to which U.S. workers may be referred. If an FLC 
files an application, H-2A workers employed by the FLC may not perform 
services for an agricultural employer unless the FLC has filed a 
confirmation of the agricultural employer's compliance with the housing 
and transportation obligations, as outlined in Sec.  655.106, with the 
OFLC, for each agricultural employer listed on the application. The FLC 
shall retain a copy of the compliance certificate.
    (b) Filing. The employer may complete the Application for Temporary 
Employment Certification and send it by U.S. Mail or private mail 
courier to the appropriate NPC. The Department shall publish a Notice 
in the Federal Register identifying the address(es), and any future 
address changes, to which paper applications must be mailed, and shall 
also post these addresses on the DOL Internet Web site at http://www.foreignlaborcert.doleta.gov/. The form must bear the original 
signature of the employer (or that of the employer's authorized agent 
or representative) at the time it is submitted.
    (c) Timeliness. A completed Application for Temporary Employment 
Certification is not required to be filed with the appropriate NPC more 
than forty-five (45) calendar days before the date of need.


Sec.  655.102  Required pre-filing recruitment.

    (a) Time of Filing of Application. An employer may not file an 
Application for Temporary Employment Certification before all of the 
pre-filing recruitment steps set forth in this section have been fully 
satisfied. An employer may file earlier than 45 days prior to the date 
of need, but is not required to do so.
    (b) General Attestation Obligation. An employer must document 
recruitment efforts on the application form and attest to performing 
all necessary steps of the recruitment process as specified in this 
section and having rejected any eligible U.S. workers who have applied 
only for lawful reasons. In addition, the employer shall attest that it 
will continue to cooperate with the SWA by accepting referrals of all 
eligible U.S. workers who apply (or on whose behalf an application is 
made) for the job opportunity until the H-2A workers depart for the 
place of work, or 3 days prior to the first date the employer requires 
the services of the H-2A workers, whichever is later, and then 
preparing a written recruitment report for submission to the CO in the 
event of an audit examination.
    (c) Retention of documentation. An employer filing an Application 
for Temporary Employment Certification must maintain documentation of 
its advertising and recruitment efforts as required in this subpart and 
be prepared to submit this documentation in response to a Notice of 
Deficiency from the CO prior to rendering a Final Determination or in 
the event of an audit examination. The documentation required in this 
section to be retained by the employer must be retained for a period of 
no less than 5 years from the date of the certification or, if such 
application was denied, no less than 5 years from the date of 
notification from the Department of such denial.
    (d) Positive Recruitment Steps. An employer filing an application 
must:
    (1) Post a job order with the SWA serving the area of intended 
employment,
    (2) Run three print advertisements (one of which must be on a 
Sunday, except as outlined in paragraph (g) of this section);
    (3) Contact former U.S. employees who were employed within the last 
year (except those who were dismissed for cause or who abandoned the 
worksite); and
    (4) Based on an annual determination made by the Secretary, as 
described in paragraph (i) of this section, recruit in any States 
currently designated as States of traditional or expected labor supply 
with respect to the State in which the employer's work is to be 
performed.
    (e) Job Order. (1) The employer shall place an active job order, 
consistent with part 653, subpart F, of this chapter, with the SWA 
serving the area of intended employment no earlier than 120 calendar 
days and no later than 75 calendar days before the date of need for 
intrastate and interstate clearance and begin recruitment of U.S. 
workers. For an application filed by an association of agricultural 
employers, the SWA shall prepare a single job order in the name of the 
association on behalf of all employer-members named in the application. 
If the job opportunity contains multiple work locations within the same 
area of intended employment and the area of intended employment is 
found in more than one State, the employer shall place a job order with 
the SWA having jurisdiction over the place where the work is 
contemplated to begin. Documentation of this step shall be satisfied by 
maintaining a copy of the SWA job order downloaded from the SWA 
Internet job listing site on the first day of posting, a copy of the 
job order provided by the SWA with the start date of posting, or other 
proof of publication from the SWA containing the text of the job order 
on the first day of posting.
    (2) The job order contents submitted by the employer to the SWA 
must satisfy all the requirements for newspaper advertisements 
contained in Sec.  655.103 and the adverse effect

[[Page 8567]]

requirements set forth at Sec.  655.104. In the job order, the SWA 
shall disclose that only eligible workers shall be referred and list 
the name of the employer and location(s) of work, or in the event that 
an association is serving as the employer, a statement indicating that 
the name and location of each member of the association can be obtained 
through the SWA.
    (3) Unless otherwise directed by the CO, the SWA shall keep the job 
order on its active file for intrastate clearance until the date the H-
2A worker(s) depart for the place of work, or upon 3 days prior to the 
date the employer requires the services of the H-2A workers, whichever 
is later.
    (f) Intrastate/Interstate Recruitment. (1) Upon placing a job order 
for intrastate clearance, the SWA receiving the job offer under 
paragraph (e) of this section shall promptly transmit, on behalf of the 
employer, a copy of its active job order to all States listed in the 
application as anticipated worksites. If the employer's anticipated 
worksite location(s) is contained within the jurisdiction of a single 
State, the SWA shall transmit a copy of its active job order to no 
fewer than 3 States, which must include those States designated as 
traditional or expected labor supply States (``out-of-state recruitment 
States'') for the State in which the employer's work is to be performed 
as defined in paragraph (i) of this section. Upon receipt of the active 
job order, each SWA shall promptly prepare a job order for intrastate 
clearance within its respective State and begin recruitment of eligible 
U.S. workers. For applications filed by an association of agricultural 
producers, each SWA shall prepare a single job order in the name of the 
association on behalf of all employer-members duly named in the 
application.
    (2) The job order contents must satisfy all the requirements for 
newspaper advertisements contained in Sec.  655.103 and the adverse 
effect requirements set forth at Sec.  655.104. In the job order, the 
SWA shall disclose that only eligible U.S. workers shall be referred 
and list the name of the employer and location(s) of work, or in the 
event that an association is serving as the employer, a statement 
indicating that the name and location of each member of the association 
can be obtained from the SWA to which the job offer was originally 
submitted under paragraph (e) of this section.
    (3) Unless otherwise directed by the CO, the SWA shall keep the job 
order on its active file for intrastate clearance until and only until 
the date the H-2A worker(s) depart for the place of work, or 3 days 
prior to the date the employer requires the services of the H-2A 
workers, whichever is later. Each of the SWAs to which the job order 
was referred shall refer back to the SWA to which the job offer was 
originally submitted under paragraph (e) of this section each eligible 
U.S. worker who applies (or on whose behalf an application is made) for 
the job opportunity.
    (g) Newspaper Advertisements. (1) Within the same period of time as 
the job order is being circulated by the SWA(s) for interstate 
clearance under paragraph (f) of this section, the employer shall place 
an advertisement on 3 separate days, which may be consecutive, one of 
which is to be a Sunday advertisement (except as provided in paragraph 
(g)(2) of this section), in a newspaper of general circulation serving 
the area of intended employment, which may be a daily local newspaper, 
that is most appropriate to the occupation and the workers likely to 
apply for the job opportunity and most likely to bring responses from 
able, available, qualified, and eligible U.S. workers. The first 
newspaper advertisement must be printed no earlier than 120 calendar 
days and no later than 75 calendar days before the date of need.
    (2) If the job opportunity is located in a rural area that does not 
have a newspaper with a Sunday edition, the employer shall use, in 
place of a Sunday edition advertisement, the regularly published 
edition with the widest circulation in the area of intended employment.
    (3) The newspaper advertisements must satisfy the requirements 
under Sec.  655.103 and the adverse effect requirements set forth at 
Sec.  655.104. Documentation of this step shall be satisfied by 
maintaining copies of newspaper pages (with date of publication and 
full copy of ad), tear sheets of the pages of the publication in which 
the advertisements appeared, or other proof of publication containing 
the text of the printed advertisements and the dates of publication 
furnished by the newspaper.
    (4) If the use of a professional, trade or ethnic publication is 
more appropriate to the occupation and the workers likely to apply for 
the job opportunity than the use of a general circulation newspaper and 
is the most likely source to bring responses from able, willing, 
qualified, and available U.S. workers, the employer may use a 
professional, trade or ethnic publication in place of two newspaper 
advertisements, but shall not replace the Sunday advertisement, or the 
substitute outlined in (g)(2), as appropriate.
    (h) Contact with former U.S. workers. Within the same period of 
time as the job offer is being circulated by the SWA(s) for intrastate/
interstate clearance under paragraph (f) of this part, the employer 
must contact by mail former U.S. workers (except those who were 
dismissed for cause or who abandoned the worksite) employed by the 
employer in the occupation at the place of employment during the 
previous year and solicit their return to the job. Such contact can be 
documented by providing copies of official correspondence signed and 
dated by the employer demonstrating that the workers were contacted and 
either unable or unwilling to return to the job or non-responsive to 
the employer's request.
    (i) Additional positive recruitment. (1) Each year, the Secretary 
shall make a determination with respect to each State whether there are 
other States in which there are located a significant number of able 
and qualified workers who, if recruited, would be willing to make 
themselves available for work in that State. Such determination shall 
be based on information provided by State agencies or by other sources 
within the 120 days preceding the determination, and shall take into 
account the success of recent efforts by out-of-state employers to 
recruit in that State. The Secretary shall not designate a State as a 
State of traditional or expected labor supply with respect for any 
other State if the State has a significant number of local employers 
that are recruiting for U.S. workers for the same types of occupations. 
The Secretary's annual determination as to which other States, if any, 
applicants from each State must recruit in shall be published in the 
Federal Register and made available through the ETA Web site.
    (2) Each employer shall be required to engage in positive 
multistate recruitment efforts in those States, if any, that the 
Secretary has designated as out-of-state recruitment States for the 
State in which the employer's work is to be performed. Such recruitment 
shall consist of one newspaper advertisement in each State so 
designated, published within the same period of time as the newspaper 
advertisements under paragraph (g) of this section, which must satisfy 
the requirements under Sec.  655.103 and the adverse effect 
requirements set forth at Sec.  655.104.
    (3) The obligation to engage in such positive recruitment shall 
terminate on the date H-2A workers depart for the employer's place of 
work.

[[Page 8568]]

    (j) Referrals of U.S. workers. SWAs shall refer for employment only 
those individuals whom they have verified are eligible U.S. workers.
    (k) Recruitment Report. No earlier than 60 calendar days before the 
date of need the employer must prepare, sign, and date a written 
recruitment report. The recruitment report must be submitted with the 
Application for Temporary Labor Certification. The recruitment report 
must:
    (1) Identify each recruitment source by name;
    (2) State the name and contact information of each U.S. worker who 
applied or was referred to the job opportunity up to the date of the 
preparation of the recruitment report for consideration by the 
employer, and the disposition of each U.S. worker who applied or was 
referred to the job opportunity;
    (3) If applicable, explain the lawful job-related reason(s) for not 
hiring any U.S. workers who applied for the position.
    (4) The employer shall retain resumes of (if available), and 
evidence of contact with, each U.S. worker who applied or was referred 
to the job opportunity. Such resumes and evidence of contact shall be 
retained as part of the recruitment report for a period of no less than 
5 years and must be provided in response to a Notice of Deficiency from 
the CO prior to rendering a Final Determination or in the event of an 
audit.
    (5) The employer shall update the recruitment report within 48 
hours of the date the H-2A workers depart for the place of work, or 3 
days prior to the date the employer requires the services of the H-2A 
workers, whichever is later. This supplement to the recruitment report 
shall list the name(s) and contact information of any additional U.S. 
workers who applied or were referred to the job opportunity, and list 
the disposition of each U.S. worker who applied or was referred to the 
job opportunity; explaining, if applicable, the lawful job-related 
reason(s) for not hiring any U.S. workers who applied or who were 
referred. The employer must sign and date this supplement to the 
recruitment report and retain it for a period of no less than 5 years. 
The supplement to the recruitment report must be provided in the event 
of an audit.


Sec.  655.103  Advertising requirements.

    All advertising conducted to satisfy the required recruitment steps 
under Sec.  655.102 before filing the Application for Temporary 
Employment Certification must meet the adverse effect requirements set 
forth at Sec.  655.104 and disclose the following information:
    (a) Identify the employer's name and location(s) of work, or in the 
event that an association is serving as the employer, a statement 
indicating that the name and location of each member of the association 
can be obtained from the SWA;
    (b) Indicate the geographic area of employment with enough 
specificity to apprise applicants of any travel requirements or where 
applicants will likely have to reside to perform the services or labor;
    (c) Describe the job opportunity with particularity to apprise U.S. 
workers of services or labor to be performed for which certification is 
sought and the duration of the job opportunity;
    (d) Identify the wage offer, or in the event that an association is 
serving as the employer, the range of applicable wage offers and a 
statement indicating that the rate applicable to each member can be 
obtained from the SWA;
    (e) Give the three-fourths guarantee described in Sec.  
655.104(h)(3)(i);
    (f) If applicable, state that work tools, supplies, and equipment 
will be provided without cost to the worker;
    (g) State that housing will be made available at no cost to workers 
who cannot reasonably return to their permanent residence at the end of 
the day;
    (h) If applicable, state that transportation and subsistence 
expenses to the worksite will be provided by the employer;
    (i) Indicate the position is temporary and the total number of job 
openings the employer intends to fill;
    (j) Contain terms and conditions of employment which are not less 
favorable than those subsequently offered to the foreign worker(s); and
    (k) Direct applicants to report or send resumes to the SWA for 
referral to the employer; and
    (l) Contact information for the SWA and the job order number.


Sec.  655.104  Contents of job offers.

    (a) Preferential treatment of aliens prohibited. The employer's job 
offer shall 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. Except where otherwise permitted under this 
section, no job offer may impose on U.S. workers any restrictions or 
obligations that will not be imposed on the employer's H-2A workers.
    (b) No less than minimum offered. The job duties and requirements 
specified in the job offer shall be consistent with the normal and 
accepted duties and requirements of non-H-2A employers in the same or 
comparable occupations and crops in the area of intended employment and 
shall not require a combination of duties not normal to the occupation. 
The employer cannot offer less than the minimum wages, benefits and 
working conditions that are required by paragraph (a) of this section.
    (c) Minimum benefits, wages, and working conditions. Except when 
higher benefits, wages or working conditions are required by the 
provisions of paragraph (a) of this section, every job offer 
accompanying an H-2A application must include each of the minimum 
benefit, wage, and working condition provisions listed in paragraphs 
(d) through (i) of this section.
    (d) Housing. (1) Obligation To Provide Housing. The employer shall 
provide housing to those workers who are not reasonably able to return 
to their permanent residence within the same day through one of the 
following means:
    (i) Employer-owned housing. Employer-owned housing that meets the 
full set of DOL OSHA standards set forth at 29 CFR 1910.142, or the 
full set of standards at Sec. Sec.  654.404 through 654.417 of this 
chapter, whichever are applicable pursuant to Sec.  654.401.
    (ii) Rental and/or public accommodations. Rental and/or public 
accommodations or other substantially similar class of habitation which 
meets applicable local standards for such housing. In the absence of 
applicable local standards, State standards shall apply. In the absence 
of applicable local or State standards, DOL OSHA standards at 29 CFR 
1910.142 shall apply. Any charges for rental housing shall be paid 
directly by the employer to the owner or operator of the housing. When 
such housing is to be supplied by an employer, the employer shall 
document to the satisfaction of the CO that the housing complies with 
the applicable Federal housing standards.
    (iii) Housing voucher. Except where the Governor of the State has 
certified that there is inadequate housing available in the area of 
intended employment for migrant farm workers and H-2A workers seeking 
temporary housing while employed in agricultural work, the employer may 
satisfy the requirement to provide housing by furnishing the worker a 
housing voucher provided that:
    (A) The employer has verified that housing meeting applicable 
standards is available for the period during which the work is to be 
performed, within a reasonable commuting distance of the place of 
employment, for the amount of

[[Page 8569]]

the voucher provided, and that the voucher is useable for that housing;
    (B) Upon the request of a worker seeking assistance in locating 
housing for which the voucher will be accepted, the employer shall make 
a good faith effort to assist the worker in identifying, locating and 
securing housing in the area of intended employment; and
    (C) Payment for the housing shall be made with a housing voucher, 
or such other means, that is not redeemable for cash by the employee to 
a third party.
    (D) The Governor's certification will be valid for a period of 3 
years from the date of the certification.
    (2) Standards for range housing. Housing for workers principally 
engaged in the range production of livestock shall meet standards of 
the DOL OSHA for such housing. In the absence of such standards, range 
housing for sheepherders and other workers engaged in the range 
production of livestock shall meet guidelines issued by ETA.
    (3) Deposit charges. Charges in the form of deposits for bedding or 
other similar incidentals related to housing shall not be levied upon 
workers. However, employers may require workers to reimburse them for 
damage caused to housing, bedding, or other property by the individual 
workers found to have been responsible for damage which is not the 
result of normal wear and tear related to habitation.
    (4) Family housing. When it is the prevailing practice in the area 
of intended employment and the occupation to provide family housing, 
family housing shall be provided to workers with families who request 
it.
    (5) Housing inspection. In order to ensure that the housing 
provided by an employer pursuant to this section meets the relevant 
standard:
    (i) An employer must make the required attestation at the time of 
filing the Application for Temporary Employment Certification pursuant 
to Sec.  655.105(e)(2).
    (ii) The employer must make a request to the SWA for a housing 
inspection no more than 75 days and no fewer than 60 days before the 
date of need.
    (iii) The determination that the housing meets the statutory 
criteria applicable to the type of housing provided must take place 
prior to certification as outlined in Sec.  218(c)(4) of the INA. If 
the employer has attested and met all other criteria for certification, 
and the employer has made a timely request for a housing inspection 
pursuant to this paragraph (d)(5), and the housing inspection has not 
taken place by the statutory deadline of 30 days prior to date of need, 
the certification shall not be withheld. The SWA shall in such cases 
inspect the housing prior to or during occupation to ensure it meets 
applicable housing standards. If, upon inspection, the SWA determines 
the supplied housing does not meet the applicable housing standards, 
the SWA shall promptly provide written notification to the NPC for 
appropriate action, which may include, but need not be limited to, 
referral to the ESA and where the violations is more than de minimis, 
revocation of the temporary labor certification, and/or debarment.
    (6) Certified Housing that Becomes Unavailable. For situations in 
which housing certified by the SWA later becomes unavailable for 
reasons outside the employer's control, the employer may substitute 
other rental or public accommodation housing that is in compliance with 
applicable housing standards and for which the employer is able to 
submit evidence of such compliance. The employer must notify the SWA in 
writing of the change in accommodations and the reason(s) for such 
change and provide the SWA evidence of compliance from the appropriate 
local or State agency responsible for determining compliance with 
applicable local, State or Federal safety and health standards. The SWA 
should make every effort to inspect such accommodations prior to 
occupation but may also conduct inspections during occupation, to 
ensure that they meet applicable housing standards. The SWA will notify 
the appropriate CO of all housing changes and of the results of any 
housing inspections
    (e) Workers' compensation. The employer shall provide, at no cost 
to the worker and for the entire time of the worker's employment, 
insurance, under a State workers' compensation law or otherwise, 
covering injury and disease arising out of and in the course of the 
worker's employment that will provide benefits at least equal to those 
provided under the State workers' compensation law, if any, for 
comparable employment. The employer shall retain for the full period of 
record retention required (5 years from the date of adjudication of the 
application) the name of the insurance carrier, the insurance policy 
number, and proof of insurance, or, if appropriate, proof of State law 
coverage.
    (f) Employer-provided items. Except as provided below, the employer 
shall provide to the worker, without charge or deposit charge, all 
tools, supplies, and equipment required to perform the duties assigned. 
The employer may charge the worker for reasonable costs related to the 
worker's refusal or negligent failure to return any property furnished 
by the employer or due to such worker's willful damage or destruction 
of such property. Where it is a common practice in the particular area, 
crop activity and occupation for workers to provide tools and 
equipment, with or without the employer reimbursing the workers for the 
cost of providing them, such an arrangement will be permitted.
    (g) Meals. The employer either shall provide each worker with three 
meals a day or shall furnish free and convenient cooking and kitchen 
facilities to the workers that will enable the workers to prepare their 
own meals. Where the employer provides the meals, the job offer shall 
state the charge, if any, to the worker for such meals. Until a new 
amount is set pursuant to this paragraph (g), the charge shall not be 
more than $9.52 per day unless the CO has approved a higher charge 
pursuant to Sec.  655.114. Each year the charge allowed by this 
paragraph (g) will be changed by the same percentage as the 12-month 
percent change in the Consumer Price Index for All Urban Consumers for 
Food between December of the year just concluded and December of the 
year prior to that. The annual adjustments shall be effective on the 
date of their publication by the Department as a Notice in the Federal 
Register.
    (h) Transportation; daily subsistence. (1) Transportation to place 
of employment. If the employer has not previously advanced such 
transportation and subsistence costs to the worker or otherwise 
provided such transportation or subsistence directly to the worker by 
other means and if the worker completes 50 percent of the work contract 
period, the employer shall pay the worker for costs incurred by the 
worker for transportation and daily subsistence from the place from 
which the worker has come to work for the employer to the place of 
employment. When it is the prevailing practice of non-H-2A agricultural 
employers in the occupation in the area to do so, or when such benefits 
are extended to H-2A workers, the employer shall advance the required 
transportation and subsistence costs (or otherwise provide them) to 
workers. The amount of the transportation payment shall be no less (and 
shall not be required to be more) than the most economical and 
reasonable common carrier transportation charges for the distances 
involved. The amount of the daily subsistence payment shall be at least 
as much as the employer will charge the worker for providing the worker 
with three meals a day during employment, but in no event less than

[[Page 8570]]

the amount permitted under paragraph (g) of this section.
    (2) Transportation from place of employment. If the worker 
completes the work contract period, the employer shall provide or pay 
for the worker's transportation and daily subsistence from the place of 
employment to the place from which the worker, disregarding intervening 
employment, came to work for the employer, or, if the worker has 
contracted with a subsequent employer who has not agreed in that 
contract to provide or pay in advance for the worker's transportation 
and daily subsistence expenses from the employer's worksite to such 
subsequent employer's worksite, the employer shall provide or pay for 
such expenses.
    (3) Transportation between living quarters and worksite. The 
employer shall provide transportation between the worker's living 
quarters (i.e., housing provided or secured by the employer directly or 
through a voucher pursuant to paragraph (d) of this section) and the 
employer's worksite without cost to the worker, and such transportation 
will be in accordance with all applicable Federal, State or local laws 
and regulations, and shall provide, at a minimum, the same vehicle 
safety standards, driver licensure, and vehicle insurance as required 
under 29 U.S.C. 1841 and 29 CFR part 500. If workers' compensation is 
used to cover such transportation, in lieu of vehicle insurance, the 
employer must either ensure that the workers' compensation covers all 
travel or that vehicle insurance exists to provide coverage for travel 
not covered by workers' compensation. This paragraph (h) is applicable 
to the transportation of workers eligible for housing, pursuant to 
paragraph (d) of this section.
    (i) Three-fourths guarantee. (1) Offer to worker. The employer 
shall guarantee to offer the worker employment for a total number of 
work hours equal to at least three-fourths of the workdays of the total 
period during which the work contract and all extensions thereof are in 
effect, beginning with the first workday after the arrival of the 
worker at the place of employment or the advertised contractual first 
date of need, whichever is later, and ending on the expiration date 
specified in the work contract or in its extensions, if any. For 
purposes of this paragraph (i)(1), a workday shall mean the number of 
hours in a workday as stated in the job order and shall exclude the 
worker's Sabbath and Federal holidays. The employer shall offer a total 
number of hours to ensure the provision of sufficient work to reach the 
three-fourths guarantee. The work hours must be offered during the work 
period specified in the work contract during or any modified work 
contract period of at least the same duration to which the worker and 
employer have mutually agreed and has been approved by ETA. The work 
contract period can be shortened only with the approval of the 
Department. In the event the worker begins working later than the 
specified beginning date of the contract, the guarantee period begins 
with the first workday after the arrival of the worker at the place of 
employment, and continues until the last day during which the work 
contract and all extensions thereof are in effect. Therefore, if, for 
example a work contract is for a 10-week period, during which a normal 
workweek is specified as 6 days a week, 8 hours per day, the worker 
would have to be guaranteed employment for at least 360 hours (e.g., 10 
weeks x 48 hours/week = 480-hours x 75 percent = 360). A worker may be 
offered more than the specified hours of work on a single workday. For 
purposes of meeting the guarantee, however, the worker shall not be 
required to work for more than the number of hours specified in the job 
order for a workday, or on the worker's Sabbath or Federal holidays. 
However, all hours of work actually performed may be counted by the 
employer in calculating whether the period of guaranteed employment has 
been met. If the employer affords the U.S. or H-2A worker during the 
total work contract period less employment than that required under 
this paragraph (i)(1), the employer shall pay such worker the amount 
the worker would have earned had the worker, in fact, worked for the 
guaranteed number of days.
    (2) Guarantee for piece-rate paid worker. If the worker will be 
paid on a piece rate basis, the employer shall use the worker's average 
hourly piece rate earnings or the AEWR, whichever is higher, to 
calculate the amount due under the guarantee.
    (3) Failure to work. Any hours the worker fails to work, up to a 
maximum of the number of hours specified in the job order for a 
workday, when the worker has been offered an opportunity to do so in 
accordance with paragraph (i)(1) of this section may be counted by the 
employer in calculating whether the period of guaranteed employment has 
been met.
    (4) Obligation to provide housing and meals. Notwithstanding the 
three-fourths guarantee contained in this section, employers are 
obligated to provide subsistence and, where appropriate, transportation 
for each day of the contract period up until the day the H-2A workers 
depart for other H-2A employment or depart to their place of permanent 
residence.
    (j) Records. (1) The employer shall keep accurate and adequate 
records with respect to the workers' earnings, including but not 
limited to field tally records, supporting summary payroll records, and 
records showing the nature and amount of the work performed; the number 
of hours of work offered each day by the employer (broken out by hours 
offered both in accordance with and over and above the three-fourths 
guarantee at paragraph (i)(3) of this section); the hours actually 
worked each day by the worker; the time the worker began and ended each 
workday; the rate of pay (both piece rate and hourly, if applicable); 
the worker's earnings per pay period; the worker's home address; and 
the amount of and reasons for any and all deductions made from the 
worker's wages.
    (2) To assist in determining whether the three-fourths guarantee at 
paragraph (i)(3) of this section has been met, if the number of hours 
worked by the worker on a day during the work contract period is less 
than the number of hours offered, as specified in the job opportunity 
for a work day, the records shall state the reason or reasons therefor.
    (3) Upon reasonable notice, the employer shall make the records 
available, including field tally records and supporting summary payroll 
records, for inspection and copying by representatives of the Secretary 
of Labor, and by the worker and representatives designated by the 
worker; and
    (4) The employer shall retain the records for not less than 5 years 
after the completion of the work contract.
    (k) Hours and earnings statements. The employer shall furnish to 
the worker on or before each payday in one or more written statements 
the following information:
    (1) The worker's total earnings for the pay period;
    (2) The worker's hourly rate and/or piece rate of pay;
    (3) The hours of employment offered to the worker (broken out by 
offers in accordance with and over and above the guarantee);
    (4) The hours actually worked by the worker;
    (5) An itemization of all deductions made from the worker's wages; 
and
    (6) If piece rates are used, the units produced daily.
    (l) Rates of Pay. (1) If the worker will be paid by the hour, the 
employer shall pay the worker at least the adverse effect

[[Page 8571]]

wage rate in effect at the time the work is performed, the prevailing 
hourly wage rate, or the legal Federal or State minimum wage rate, 
whichever is highest, for every hour or portion thereof worked during a 
pay period; or
    (2)(i) If the worker will be paid on a piece rate basis and the 
piece rate does not result at the end of the pay period in average 
hourly piece rate earnings during the pay period at least equal to the 
amount the worker would have earned had the worker been paid at the 
appropriate hourly rate, the worker's pay shall be supplemented at that 
time so that the worker's earnings are at least as much as the worker 
would have earned during the pay period if the worker had been paid at 
the appropriate hourly wage rate for each hour worked; and the piece 
rate shall be no less than the piece rate prevailing for the activity 
in the area of intended employment; and
    (ii) If the employer who pays by the piece rate requires one or 
more minimum productivity standards of workers as a condition of job 
retention, such standards shall be specified in the job offer and be no 
more than those normally required by other employers for the activity 
in the area of intended employment.
    (m) Frequency of Pay. The employer shall state the frequency with 
which the worker will be paid, which must be in accordance with the 
prevailing practice in the area of intended employment, or at least 
twice monthly, whichever is more frequent.
    (n) Abandonment of employment or termination for cause. If the 
worker voluntarily abandons employment before the end of the contract 
period, or is terminated for cause, and the employer notifies the 
Department and DHS in writing or any other method specified not later 
than 48 hours of such abandonment or termination, the employer will not 
be responsible for providing or paying for the subsequent 
transportation and subsistence expenses of that worker under paragraph 
(h) of this section, and that worker is not entitled to the ``three-
fourths guarantee'' (see paragraph (i) of this section).
    (o) Contract impossibility. If, before the expiration date 
specified in the work contract, the services of the worker are no 
longer required for reasons beyond the control of the employer due to 
fire, hurricane, or other Act of God that makes the fulfillment of the 
contract impossible, the employer may terminate the work contract. 
Whether such an event constitutes a contract impossibility will be 
determined by the Department. In the event of such termination of a 
contract, the employer shall fulfill the three-fourths guarantee at 
paragraph (i)(1) of this section for the time that has elapsed from the 
start of the work contract to its termination. The employer shall:
    (1) Offer to return the worker, at the employer's expense, to the 
place from which the worker came to work for the employer,
    (2) Reimburse the worker the full amount of any deductions made 
from the worker's pay by the employer for transportation and 
subsistence expenses to the place of employment, and
    (3) Pay the worker for any costs incurred by the worker for 
transportation and daily subsistence to that employer's place of 
employment. Daily subsistence shall be computed as set forth in 
paragraph (h) of this section. The amount of the transportation payment 
shall be no less (and shall not be required to be more) than the most 
economical and reasonable common carrier transportation charges for the 
distances involved.
    (p) Deductions. The employer shall make those deductions from the 
worker's paycheck required by law. The job offer shall specify all 
deductions not required by law which the employer will make from the 
worker's paycheck. All deductions shall be reasonable.
    (q) Copy of work contract. The employer shall provide to the 
worker, no later than on the day the work commences, a copy of the work 
contract between the employer and the worker. The work contract shall 
contain all of the provisions required by paragraphs (a) through (p) of 
this section. In the absence of a separate, written work contract 
entered into between the employer and the worker, the required terms of 
the Application for Temporary Employment Certification, including the 
job offer, shall be the work contract.


Sec.  655.105  Assurances and obligations of H-2A employers.

    An employer seeking to employ H-2A foreign workers shall attest 
that it will abide by the following conditions of this subpart. By so 
attesting, the employer makes each of the following assurances:
    (a) The job opportunity is open to any U.S. worker regardless of 
race, creed, color, national origin, age, sex, religion, handicap, or 
citizenship, and the employer conducted or will conduct the required 
recruitment, in accordance with regulations, prior to filing the labor 
certification application and was unsuccessful in locating qualified 
U.S. applicants for the job opportunity for which certification is 
sought. Any U.S. workers who applied for the job were rejected only for 
lawful, job-related reasons;
    (b) The employer is offering terms and working conditions normal to 
workers similarly employed in the area of intended employment and which 
are not less favorable than those offered to the H-2A worker(s) and are 
not less than the minimum terms and conditions required by this 
subpart;
    (c) There is not, at the time the labor certification application 
is filed, a strike, lockout, or work stoppage in the course of a labor 
dispute in the occupational classification at the place of employment;
    (d) The employer will continue to cooperate with the SWA by 
accepting referrals of all eligible U.S. workers who apply (or on whose 
behalf an application is made) for the job opportunity until the H-2A 
workers depart for the place of work, or three days prior to the first 
date on which the employer requires the services of the H-2A workers, 
whichever is later;
    (e) During the period of employment that is the subject of the 
labor certification application, the employer will:
    (1) Comply with applicable Federal, State and local employment-
related laws and regulations, including employment-related health and 
safety laws;
    (2) Provide housing to those workers who are not reasonably able to 
return to their permanent residence within the same day, without charge 
to the worker, that complies with the applicable local, State, or 
Federal standards and guidelines for housing; and, where applicable, 
has requested a preoccupancy inspection of the housing and, if one has 
been conducted, received certification;
    (3) Provide insurance, without charge to the worker, under a State 
workers' compensation law or otherwise, that meets the requirements set 
forth at Sec.  655.104(e).
    (4) Provide transportation in compliance with all applicable 
Federal, State or local laws and regulations between the worker's 
living quarters (i.e., housing provided by the employer pursuant to 
Sec.  655.104(d)) and the employer's worksite without cost to the 
worker.
    (f) Upon the separation from employment of H-2A worker(s) employed 
under the labor certification application, if such separation occurs 
prior to the end date of the employment specified in the application, 
the employer will notify the Department and DHS in writing or any other 
method specified of the separation from employment not later than 48 
hours after such separation is effective.

[[Page 8572]]

    (g) The offered wage rate is the highest of the adverse effect wage 
rate, the prevailing wage rate, which may be a prevailing wage piece 
rate, or the legal Federal or State minimum wage, and the employer will 
pay the offered wage during the entire valid period of the approved 
labor certification.
    (h) The offered wage is not based on commission, bonuses, or other 
incentives, unless the employer guarantees a wage paid on a weekly, bi-
weekly, or monthly basis that equals of exceeds the adverse effect wage 
rate, prevailing wage rate, which may be a prevailing wage piece rate, 
or the legal Federal or State minimum wage, whichever is highest.
    (i) The job opportunity is a full-time temporary position, whose 
qualifications are consistent with the normal and accepted 
qualifications required by non-H-2A employers in the same or comparable 
occupations and crops in that they shall not require a combination of 
duties not normal to the occupation,
    (j) The employer has not laid off and will not lay off any 
similarly employed U.S. worker in the occupation that is the subject of 
the Application for Temporary Employment Certification in the area of 
intended employment within the period beginning 75 days before the date 
of need, except that such layoff shall be permitted where the employer 
also attests that it offered the opportunity to the laid-off U.S. 
worker(s) and said U.S. worker(s) either refused the job opportunity or 
were rejected for the job opportunity for lawful, job-related reasons.
    (k) The employer shall not intimidate, threaten, restrain, coerce, 
blacklist, or in any manner discriminate against, and shall not cause 
any person to intimidate, threaten, restrain, coerce, blacklist, or in 
any manner discriminate against, any person who has with just cause:
    (1) Filed a complaint under or related to Sec.  218 of the INA (8 
U.S.C. 1188), or this subpart or any other DOL regulation promulgated 
pursuant to Sec.  218 of the INA;
    (2) Instituted or caused to be instituted any proceeding under or 
related to Sec.  218 of the INA, or this subpart or any other DOL 
regulation promulgated pursuant to Sec.  218 of the INA;
    (3) Testified or is about to testify in any proceeding under or 
related to Sec.  218 of the INA or this subpart or any other DOL 
regulation promulgated pursuant to Sec.  218 of the INA;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to Sec.  218 of the INA or this subpart or 
any other DOL regulation promulgated pursuant to Sec.  218 of the INA; 
or
    (5) Exercised or asserted on behalf of himself/herself or others 
any right or protection afforded by Sec.  218 of the INA, or this 
subpart or any other DOL regulation promulgated pursuant to Sec.  218 
of the INA.
    (l) The employer shall not discharge any person for the sole reason 
of that person's taking any action listed in paragraphs (k)(1) through 
(k)(5) of this section.
    (m) All fees associated with processing the temporary labor 
certification will be paid in a timely manner.
    (n) The employer will inform H-2A workers of the requirement that 
they leave the U.S. at the end of the period certified by the 
Department or separation from the employer, whichever is earlier, as 
required under Sec.  655.111, unless the H-2A is being sponsored by 
another employer and that employer has already filed and received a 
certified Application for Temporary Employment Certification and has 
filed that certification in support of a petition to employ that worker 
with DHS.
    (o) The employer has not sought or received payment of any kind for 
any activity related to obtaining labor certification, including 
payment of the employer's attorneys' fees or domestic recruitment 
costs, whether as an incentive or inducement to filing, or as a 
reimbursement for costs incurred in preparing or filing the application 
or securing the H-2A workers, from the employee or any other party, 
except when work to be performed by the H-2A worker in connection with 
the job opportunity will benefit or accrue to the person or entity 
making the payment, based on that person's or entity's established 
business relationship with the employer. In connection with this 
attestation, the employer is required to contractually forbid any 
foreign labor contractor whom they engage in international recruitment 
of H-2A workers to seek or receive payments from prospective employees. 
For purposes of this paragraph, payment includes, but is not limited 
to, monetary payments, wage concessions (including deductions from 
wages, salary, or benefits), kickbacks, bribes, or tributes, in kind 
payments, and free labor.
    (p) The applicant shall attest to whether it is a fixed-site 
employer, an agent or recruiter, an FLC as defined by MSPA, or an 
association, and--in cases in which the filer is someone other than a 
fixed-site employer--whether it is an employer as defined by these 
regulations with respect to the H-2A workers sought.


Sec.  655.106  Assurances and obligations of Farm Labor Contractors.

    In addition to all the assurances and obligations listed in Sec.  
655.105, FLC applicants shall also be required to:
    (a) Provide the MSPA certificate of registration number and 
expiration date;
    (b) Identify the farm labor contracting activities the FLC is 
authorized to perform;
    (c) Provide for each fixed-site agricultural business to whom the 
FLC will provide workers, the name and location of the fixed-site 
agricultural business, the approximate beginning and ending dates of 
when the FLC will be providing the workers, and a description of the 
crops and activities the workers will perform;
    (d) Provide proof of its ability to discharge financial obligations 
under the H-2A program by attesting that it has obtained a surety bond 
as required by 29 CFR 501.8, stating on the application the name, 
address, phone number, and contact person for the surety, and providing 
the amount of the bond and any identifying designation utilized by the 
surety for the bond;
    (e) Attest that it has engaged in, or will engage in within the 
timeframes required by Sec.  102, positive recruitment efforts in each 
location in which it has listed a fixed-site agricultural business; and
    (f) Attest that it has obtained from each fixed-site agricultural 
business that will provide housing or transportation to the workers a 
certificate of compliance regarding the following:
    (1) All housing utilized by H-2A workers and owned and/or operated 
by the fixed-site agricultural business complies with the applicable 
local, State or Federal standards and guidelines for such housing and
    (2) All transportation between the H-2A workers' living quarters 
and the worksite that is provided by the fixed-site agricultural 
business complies with all applicable Federal, State, or local laws and 
regulations and shall provide, at a minimum, the same vehicle safety 
standards, driver licensure, and vehicle insurance as required under 29 
U.S.C. 1841 and 29 CFR part 500.


Sec.  655.107  Receipt and processing of applications.

    (a) Processing. (1) Receipt. Upon receipt of the application, the 
CO will promptly review the application for completeness and compliance 
with the requirements of the program as outlined under paragraph (a)(2) 
of this section.
    (2) Review. Each Application for Temporary Employment Certification 
will be substantively reviewed for compliance with the criteria for

[[Page 8573]]

certification, and the CO will make a determination to certify, deny, 
or issue a Notice of Deficiency prior to making a Final Determination 
on the application. ``Criteria for Certification,'' as used in this 
part, shall include, but not be limited to, the nature of the 
employer's need for the agricultural services or labor to be performed 
is temporary; all assurances and obligations outlined in Sec.  655.105 
in this part; compliance with the timeliness requirements as outlined 
in Sec.  655.102 of this part; and a lack of errors in completing the 
application prior to submission, which would make the application 
otherwise non-certifiable.
    (3) Notice of Deficiencies. If the CO determines the employer has 
made all necessary attestations and assurances sufficient to reflect 
compliance with the assurances and obligations related to the 
recruitment of U.S. workers, but the application still fails to comply 
with one or more of the criteria for certification as outlined under 
paragraph (a)(2) of this section, the CO will promptly notify the 
employer (by means normally assuring next day delivery) within 7 
calendar days with a copy to the SWA serving the area of intended 
employment of any deficiencies.
    (4) The notice shall:
    (i) State the reason(s) why the application is unacceptable for 
temporary labor certification, citing the relevant regulatory 
standard(s);
    (ii) Offer the applicant an opportunity for submitting a modified 
application within 5 business days, stating the modification is needed 
for the CO to accept the application for consideration;
    (iii) State that the CO's determination on whether to grant or deny 
the Application for Temporary Employment Certification will be made no 
later than 30 calendar days before the date of need, provided that the 
employer submits the requested modification to the application within 5 
business days and in a manner specified by the CO.
    (iv) Offer the employer an opportunity to request an expedited 
administrative review of or a de novo administrative hearing before an 
administrative law judge of the non-acceptance. The notice shall state 
that in order to obtain such a review or hearing, the employer, within 
five business days of the notice, shall file by facsimile (fax), 
telegram, or other means normally assuring next day delivery, a written 
request to the Chief Administrative Law Judge of the DOL (giving the 
address) and simultaneously serve a copy to the CO. The notice shall 
also state that the employer may submit any legal arguments that the 
employer believes will rebut the basis of the CO's action; and
    (v) State that if the employer does not request an expedited 
administrative judicial review or a de novo hearing before an 
administrative law judge within the 5 business days no further 
consideration of the employer's application for temporary employment 
certification under the H-2A classification will be made by a 
Department official.
    (5) Submission of Modified Applications.
    (i) Provided that the CO notifies the employer of any deficiencies 
within the 7 calendar day timeframe set forth under paragraph (a)(3) of 
this section, the date by which the CO's Final Determination is 
required by statute to be made will be postponed by 1 day for each day 
that passes beyond the 5 business day period allowed under paragraph 
(a)(4)(ii) before an amended or modified application is filed.
    (ii) In circumstances where the employer submits an amended or 
modified application as required by the CO, and the CO approves the 
amended or modified application, the CO shall not deny the application 
based solely on the fact that it now does not meet the timeliness 
requirements for filing applications.
    (iii) If the amended or modified application is not approved, the 
CO shall deny the application in accordance with the labor 
certification determination provisions set forth at 655.109.
    (6) Amendments to Applications. (i) Applications may be amended to 
increase the number of workers requested in the initial application by 
not more than 20 percent (50 percent for employers of less than 10 
workers) without requiring an additional recruitment period for U.S. 
workers. Requests for increases above the percent prescribed, without 
additional recruitment, may be approved by the CO only when the request 
is submitted in writing, the need for additional workers could not have 
been foreseen, and the crops or commodities will be in jeopardy prior 
to the expiration of an additional recruitment period.
    (ii) Applications may be amended to make minor changes in the 
period of employment, as stated in the application, including the job 
offer, only when a written request is submitted to the CO and approved 
in advance. In considering whether to approve the request, the CO shall 
review the reason(s) for the request, determine whether each reason is 
justified, and take into account the effect(s) of a decision to approve 
on the adequacy of the underlying test of the domestic labor market for 
the job opportunity. If a request for a change in the start date of the 
period of employment is made after workers have departed for the 
employer's place of work, the CO may only approve the change if the 
request is accompanied by a written assurance signed and dated by the 
employer that all such U.S. workers will be provided housing and 
subsistence, without cost to the U.S. workers, until work becomes 
available.
    (iii) Other minor technical amendments to the application, 
including the job offer, may be requested if the CO determines the 
proposed amendment(s) are justified and will have no significant effect 
upon the CO's ability to make the labor certification determination 
required under Sec.  655.109.
    (7) Appeal procedures. With respect to either a notice of 
deficiency issued pursuant to paragraph (a)(6) of this section or a 
notice of final determination issued pursuant to paragraph (a)(2) of 
this section, if the employer timely requests an expedited 
administrative review or de novo hearing before an administrative law 
judge, the procedures set forth at Sec.  655.115 shall be followed.
    (b) [Reserved]


Sec.  655.108  Offered Wage Rate.

    (a) Highest wage. To comply with its obligation under Sec.  
655.105(g), an employer must provide an offered wage rate that is the 
highest of the adverse effect wage rate, the prevailing wage rate, 
which may be a prevailing wage piece rate, or the legal Federal or 
State minimum wage.
    (b) Wage rate request. The employer shall request an offered wage 
rate from the NPC having jurisdiction over the proposed area of 
intended employment before commencing any recruitment under this 
subpart. If the job opportunity involves multiple work sites within the 
same area of intended employment over which more than one NPC has 
jurisdiction, the employer shall request an offered wage rate from the 
NPC having jurisdiction over the area where the work is scheduled to 
begin.
    (c) Validity of wage rate. The employer must obtain an offered wage 
rate that is valid either on the date recruitment begins or the date of 
filing the Application for Temporary Employment Certification with the 
Department.
    (d) Wage offer. The employer must offer and advertise in its 
positive recruitment, as outlined in Sec.  655.103, for the position to 
all potential workers

[[Page 8574]]

at a wage at least equal to the wage rate obtained from the NPC.
    (e) Adverse effect wage rate. The adverse effect wage rate (AEWR) 
shall be based on published wage data for the occupation, skill level, 
and geographical area from the BLS, Occupational Employment Statistics 
(OES) survey. The NPC shall obtain wage information on the AEWR using 
the Agricultural On-line Wage Library (AOWL) found on the Foreign Labor 
Certification Data Center Web site (http://www.flcdatacenter.com/). 
This wage shall not be less than the 2009 Federal minimum wage of 
$7.25.
    (f) Wage determination. The NPC must enter its wage determination 
on the form it uses for these purposes, indicate the source, and return 
the form with its endorsement to the employer. The employer must offer 
this wage (or higher) to both its U.S. and H-2A workers.


Sec.  655.109  Labor certification determinations.

    (a) COs. The Administrator, OFLC, is the DOL National CO. The 
Administrator and the CO(s) in the NPC(s), by virtue of delegation from 
the Administrator, have the authority to certify or deny applications 
for temporary employment certification under the H-2A nonimmigrant 
classification. If the Administrator has directed that certain types of 
temporary labor certification applications or specific applications 
under the H-2A nonimmigrant classification be handled by the National 
OFLC, the Director(s) of the ETA NPC(s) shall refer such applications 
to the Administrator.
    (b) Determination. No later than 30 calendar days before the date 
of need, as identified in the Application for Temporary Employment 
Certification, except as provided for under Sec.  655.107(a)(7) of this 
part for amended or modified applications, or applications not 
otherwise meeting certification criteria by that date, the CO makes a 
determination either to grant or deny the Application for Temporary 
Employment Certification, and will grant the application if and only 
if:
    (1) The employer has properly attested that it has met the 
requirements of this subpart.
    (2) The nature of the employer's need is temporary or seasonal.
    (3) The application was timely filed with the Department.
    (4) The job opportunity does not contain duties, requirements or 
other conditions that preclude consideration of U.S. workers or that 
otherwise inhibit their effective recruitment for the temporary job 
opportunity. In making this determination, the following requirements 
shall apply:
    (i) The job opportunity is not vacant because the former 
occupant(s) is or are on strike or locked out in the course of a labor 
dispute involving a work stoppage;
    (ii) The job is not at issue in a labor dispute involving a work 
stoppage;
    (iii) The job opportunity's terms, conditions, and/or occupational 
environment are not contrary to Federal, State, or local law(s);
    (iv) The employer has a location within the U.S. to which domestic 
workers can be referred and hired for employment;
    (v) The employer is paying the highest of the adverse effect wage 
rate, the prevailing wage rate, which may be a prevailing wage piece 
rate, or the legal Federal or State minimum wage for the job to be 
performed; and
    (vi) The requirements of the job opportunity are not unduly 
restrictive and do not represent a combination of duties not normal to 
the occupation being requested for certification.
    (5) The employment of the H-2A worker(s) will not adversely affect 
the benefits, wages, and working conditions of similarly employed U.S. 
workers.
    (c) Notification. The CO shall notify the employer in writing 
(either electronically or by mail) of the labor certification 
determination.
    (d) Approved certification. If temporary labor certification is 
granted, the CO must send the certified Application for Temporary 
Employment Certification and a Final Determination letter to the 
employer, or, if appropriate, to the employer's agent or attorney, with 
a copy to the SWA serving the area of intended employment. The Final 
Determination letter shall notify the employer to file the certified 
application and any other documentation required by USCIS with the 
appropriate USCIS office and to continue to cooperate with the SWA by 
accepting all referrals of eligible U.S. workers who apply (or on whose 
behalf an application is made) for the job opportunity until the H-2A 
worker(s) depart for the place of work, or three days prior to the 
first date the employer requires the services of the H-2A workers, 
whichever is later.
    (e) Denied certification. If temporary labor certification is 
denied, the Final Determination letter will:
    (1) State the reasons the application is not accepted for 
consideration, citing the relevant regulatory standards and/or special 
procedures;
    (2) If applicable, address the availability of U.S. workers in the 
occupation as well as the prevailing benefits, wages, and working 
conditions of similarly employed U.S. workers in the occupation and/or 
any applicable special procedures.
    (f) Partial Certification. The CO may, in his/her discretion, and 
to ensure compliance with all regulatory requirements, issue a partial 
certification, reducing either the period of need or the number of H-2A 
workers being requested or both for certification, based upon 
information the CO receives in the course of processing the temporary 
labor certification application, an audit, or otherwise.
    (g) Payment of Processing Fees. A determination by the CO to grant 
an Application for Temporary Employment Certification or grant 
amendments to a certified application pursuant to Sec.  655.107(a)(6) 
shall include a bill for the required fees. Each employer (except joint 
employer associations) of H-2A workers under the Application for 
Temporary Employment Certification shall pay in a timely manner a non-
refundable fee upon issuance of the certification granting the 
application (in whole or in part), as follows:
    (1) Amount. The application fee for each employer receiving a 
temporary agricultural labor certification is $200 plus $100 for each 
H-2A worker certified under the Application for Temporary Employment 
Certification. In the case of a joint employer association receiving a 
temporary agricultural labor certification, each employer-member 
receiving a temporary agricultural labor certification shall pay an 
application fee of $200 plus $100 for each H-2A worker certified. Any 
amendments requested pursuant to Sec.  655.107(a)(6) by the employer to 
a temporary agricultural labor certification, which are received and 
processed by the appropriate CO will be subject to an additional 
processing fee of $100. In circumstances where the CO grants an 
amendment to increase the number of H-2A workers requested on the 
initial certified application, the employer shall be subject to a fee 
of $100 for each additional H-2A worker certified on the amended 
temporary agricultural labor certification. The fees shall be paid by 
check or money order made payable to ``United States DOL.'' In the case 
of H-2A employers that are members of a joint-employer association 
applying on their behalf, the aggregate fees for all employers of H-2A 
workers under the application must be paid by one check or money order.
    (2) Timeliness. Fees received by the CO no more than 30 days after 
the date the temporary labor certification is granted will be 
considered timely. Non-payment of fees shall be considered a 
substantial program violation.

[[Page 8575]]

Sec.  655.110  Validity and scope of temporary labor certifications.

    (a) Validity Period. A temporary labor certification shall be valid 
for the duration of the job opportunity for which certification is 
being requested by the employer. Except as provided for under paragraph 
(c) of this section, the validity period shall be the beginning and 
ending dates of certified employment, as listed on the Application for 
Temporary Employment Certification. The beginning date of certified 
employment cannot be earlier than the date certification was granted by 
the CO. The certification expires on the last day of authorized 
employment.
    (b) Scope of Validity. Except as provided for under paragraphs (c) 
and (d) of this section, a temporary labor certification is valid only 
for the number of H-2A workers, the area of intended employment, the 
specific occupation and duties, the beginning and ending dates of 
employment, and the employer(s) specified on the Application for 
Temporary Employment Certification and may not be transferred from one 
employer to another.
    (c) Scope of Validity--Associations. (1) Certified Applications. If 
an association is requesting temporary labor certification as a joint 
employer, the certified Application for Temporary Employment 
Certification shall be granted jointly to the association and to each 
of its employer members named on the application. Such workers may be 
transferred among its certified employer members to perform work for 
which the temporary labor certification was granted, provided the 
association controls the assignment of such workers and maintains a 
record of such assignments. All temporary agricultural labor 
certifications to associations may be used for the certified job 
opportunities of any of its employer members named on the application. 
If an association is requesting temporary labor certification as a sole 
employer, the certified Application for Temporary Employment 
Certification shall be granted to the association only.
    (2) Ineligible employer-members. Workers shall not be transferred 
or referred to an association's employer member, if that employer 
member has been debarred.
    (d) Extensions on Period of Employment. (1) Short-term extension. 
An employer who seeks an extension of 2 weeks or less of the certified 
Application for Temporary Employment Certification shall apply for such 
extension to DHS. If DHS grants such an extension, the corresponding 
Application for Temporary Employment Certification shall be deemed 
extended for such period as is approved by DHS.
    (2) Long-term extension. For extensions beyond the period which may 
be granted by DHS pursuant to paragraph (d)(1) of this section, an 
employer, after 50 percent of the work contract period has elapsed, may 
apply to the CO for an extension of the period of employment on the 
certified Application for Temporary Employment Certification, for 
reasons related to weather conditions or other external factors beyond 
the control of the employer (which may include unforeseen changes in 
market conditions), provided that the employer's need for an extension 
is supported in writing by the employer, with documentation showing 
that the extension is needed and could not have been reasonably 
foreseen by the employer. The CO shall grant or deny the request for 
extension of the period of employment on the Application for Temporary 
Employment Certification based on available information, and shall 
notify the employer of the decision on the request in writing. The CO 
shall not grant an extension where the total work contract period, 
including past temporary labor certifications for the job opportunity 
and extensions, would be 12 months or more, except in extraordinary 
circumstances. The CO shall not grant an extension where the 
Application for Temporary Employment Certification has already been 
extended by DHS pursuant to paragraph (d)(i) of this section.


Sec.  655.111  Required departure.

    (a) Limit to worker's stay. As defined further in DHS regulations, 
a temporary labor certification shall limit the authorized period of 
stay for any H-2A worker whose admission is based upon it. 8 CFR Sec.  
214.2(h). A foreign worker may not remain beyond the validity period of 
any labor certification under which the H-2A worker is employed nor 
beyond separation from employment, whichever occurs first, absent an 
extension or change of such worker's status pursuant to DHS 
regulations.
    (b) Notice to worker. Upon establishment of a program by DHS for 
registration of departure, an employer must notify any H-2A worker 
starting work at a job opportunity for which the employer has obtained 
labor certification that the H-2A worker, when departing the United 
States by land at the conclusion of employment as outlined in paragraph 
(a) of this section, must register such departure at the place and in 
the manner prescribed by DHS.


Sec.  655.112  Audits and Referrals.

    (a) Discretion. The Department shall, in its discretion, conduct 
audits of temporary labor certification applications, regardless of 
whether the Department has issued a certification or denial of the 
application.
    (b) Audit letter. In circumstances where an application is selected 
for audit, the CO shall issue an audit letter. The audit letter will:
    (1) State the documentation that must be submitted by the employer;
    (2) Specify a date, no more than 30 days from the date of the audit 
letter, by which the required documentation must be received by the CO; 
and
    (3) Advise that failure to comply with the audit process, including 
providing documentation within the specified time period, may result in 
a finding by the CO to
    (i) Revoke the labor certification and/or
    (ii) Debar the employer from future filings of H-2A temporary labor 
certification applications as outlined in Sec.  655.118.
    (c) Supplemental information request. During the course of the 
audit examination, the CO may request supplemental information and/or 
documentation from the employer in order to complete the audit.
    (d) Audit violations. If, as a result of the audit or otherwise, 
the CO determines the employer failed to produce required 
documentation, or determines a material misrepresentation was made with 
respect to the application, or if the CO determines it is appropriate 
for other reasons, the employer may be referred for revocation pursuant 
to Sec.  655.117 and/or debarment pursuant to Sec.  655.118. The CO may 
determine to provide the audit report and underlying documentation to 
DHS or another appropriate enforcement agency. With respect to any 
findings that an employer may have discouraged an eligible U.S. worker 
from applying, or failed to hire, discharged, or otherwise 
discriminated against an eligible U.S. worker, the CO shall refer those 
matters to the Department of Justice, Civil Rights Division, Office of 
Special Counsel for Unfair Immigration Related Employment Practices.


Sec.  655.113  H-2A applications involving fraud or willful 
misrepresentation.

    (a) Referral for investigation. If possible fraud or willful 
misrepresentation involving an Application for Temporary Employment 
Certification application is discovered by the CO or if the CO and/or 
Administrator become aware the employer, or its attorney or agent (with

[[Page 8576]]

respect to an application) is the subject of a criminal indictment or 
information filed in a court, the Administrator shall refer the matter 
to the DHS and the Department's Office of the Inspector General for 
investigation.
    (b) Continued processing. If a court finds an employer or agent not 
guilty of fraud or willful misrepresentation, or if the Department of 
Justice decides not to prosecute an employer or agent, the CO shall 
decide each pending temporary labor certification application on its 
merits related to that employer or agent.
    (c) Terminated processing. If a court or the DHS determines that 
there was fraud or willful misrepresentation involving an Application 
for Temporary Employment Certification, the application is thereafter 
invalid, consideration of the application shall be terminated and the 
Administrator shall return the application to the employer or agent 
with the reasons therefore stated in writing.


Sec.  655.114  Petition for higher meal charges.

    (a) Filing petitions. Until a new amount is set pursuant to this 
paragraph (a), the CO may permit an employer to charge workers up to 
$9.52 for providing them with three meals per day, if the employer 
justifies the charge and submits to the CO the documentation required 
by paragraph (b) of this section. In the event the employer's petition 
for a higher meal charge is denied in whole or in part, the employer 
may appeal such denial. Such appeals shall be filed with the Chief 
Administrative Law Judge. Administrative law judges shall hear such 
appeals according to the procedures in 29 CFR part 18, except that the 
appeal shall not be considered as a complaint to which an answer is 
required. The decision of the administrative law judge shall be the 
final decision of the Secretary. Each year the maximum charge allowed 
by this paragraph (a) will be changed by the same percentage as the 12 
month percent change for the Consumer Price Index for all Urban 
Consumers for Food between December of the year just concluded and 
December of the year prior to that. The annual adjustments shall be 
effective on the date of their publication by the Administrator as a 
Notice in the Federal Register. However, an employer may not impose 
such a charge on a worker prior to the effective date contained in the 
CO's written confirmation of the amount to be charged.
    (b) Required documentation. Documentation submitted shall include 
the cost of goods and services directly related to the preparation and 
serving of meals, the number of workers fed, the number of meals served 
and the number of days meals were provided. The cost of the following 
items may be included: food; kitchen supplies other than food, such as 
lunch bags and soap; labor costs which have a direct relation to food 
service operations, such as wages of cooks and restaurant supervisors; 
fuel, water, electricity, and other utilities used for the food service 
operation; and other costs directly related to the food service 
operation. Charges for transportation, depreciation, overhead and 
similar charges may not be included. Receipts and other cost records 
for a representative pay period shall be retained and available for 
inspection by the CO upon request for a period of one year.


Sec.  655.115  Administrative review and de novo hearing before an 
administrative law judge.

    (a) Administrative review. (1) Consideration. Whenever an employer 
has requested an administrative review before an administrative law 
judge of a decision by the CO not to accept for consideration an 
Application for Temporary Employment Certification, to deny an 
Application for Temporary Employment Certification, or to revoke a 
certified Application for Temporary Employment Certification the CO 
shall send a certified copy of the ETA case file to the Chief 
administrative law judge by means normally assuring next-day delivery. 
The Chief administrative law judge shall immediately assign an 
administrative law judge (which may be a panel of such persons 
designated by the Chief Administrative Law Judge from the Board of 
Alien Labor Certification Appeals established by 20 CFR part 656 of 
this chapter, but which shall hear and decide the appeal as set forth 
in this section) to review the record for legal sufficiency. The 
administrative law judge shall not remand the case and shall not 
receive additional evidence.
    (2) Decision. Within 5 business days after receipt of the ETA case 
file the administrative law judge shall, on the basis of the written 
record and after due consideration of any written submissions from the 
parties involved or amici curiae, either affirm, reverse, or modify the 
CO's decision by written decision. The decision of the administrative 
law judge shall specify the reasons for the action taken and shall be 
immediately provided to the employer, CO, the Administrator, and DHS by 
means normally assuring next-day delivery. The administrative law 
judge's decision shall be the final decision of the Secretary and no 
further review shall be given to the application or the determination 
by any Department official.
    (b) De novo hearing. (1) Request for hearing; conduct of hearing. 
Whenever an employer has requested a de novo hearing before an 
administrative law judge of a decision by the CO not to accept for 
consideration an Application for Temporary Employment Certification, to 
deny an Application for Temporary Employment Certification, or to 
revoke a certified Application for Temporary Employment Certification, 
the CO shall send a certified copy of the ETA case file to the Chief 
Administrative Law Judge by means normally assuring next-day delivery. 
The Chief Administrative Law Judge shall immediately assign an 
administrative law judge (which may be a panel of such persons 
designated by the Chief Administrative Law Judge from the Board of 
Alien Labor Certification Appeals established by 20 CFR part 656 of 
this chapter, but which shall hear and decide the appeal as set forth 
in this section) to conduct the de novo hearing. The procedures 
contained in 29 CFR part 18 shall apply to such hearings, except that:
    (i) The appeal shall not be considered to be a complaint to which 
an answer is required;
    (ii) The administrative law judge shall ensure that, at the request 
of the employer, the hearing is scheduled to take place within five 
business days after the administrative law judge's receipt of the ETA 
case file; and
    (iii) The administrative law judge's decision shall be rendered 
within10 business days after the hearing.
    (2) Decision. After a de novo hearing, the administrative law judge 
shall either affirm, reverse, or modify the CO's determination, and the 
administrative law judge's decision shall be provided immediately to 
the employer, CO, Administrator, and DHS by means normally assuring 
next-day delivery. The administrative law judge's decision shall be the 
final decision of the Secretary, and no further review shall be given 
to the application or the determination by any Department official.


Sec.  655.116  Job Service Complaint System; enforcement of work 
contracts.

    (a) Complaints arising under this subpart may be filed through the 
Job Service Complaint System, as described in 20 CFR part 658, subpart 
E, of this chapter. Complaints which involve worker contracts shall be 
referred by the SWA to the ESA for appropriate handling and resolution, 
as described in 29 CFR part 501. As part of this process,

[[Page 8577]]

the ESA may report the results of its investigation to the 
Administrator for consideration of employer penalties or such other 
action as may be appropriate.
    (b) Complaints alleging that an employer discouraged an eligible 
U.S. worker from applying, failed to hire, discharged, or otherwise 
discriminated against an eligible U.S. worker, or discovered violations 
involving the same, shall be referred to the U.S. Department of 
Justice, Civil Rights Division, Office of Special Counsel for Unfair 
Immigration Related Employment Practices (OSC), in addition to any 
activity, investigation, and/or enforcement action taken by ETA or an 
SWA. Likewise, if OSC becomes aware of a violation of these 
regulations, it shall provide such information to the appropriate SWA 
and the CO.


Sec.  655.117  Revocation of approved labor certifications.

    (a) Basis for DOL revocation. The CO, in consultation with the 
Administrator, may revoke a temporary agricultural labor certification 
approved under this subpart, if:
    (1) The CO finds that issuance of the temporary agricultural labor 
certification was not justified based on criteria set forth under the 
INA and enumerated at 8 CFR 214.2(h)(5);
    (2) The CO finds that the employer violated the terms and 
conditions of the approved temporary agricultural labor certification; 
or
    (3) Upon recommendation of the ESA WHD of the Department.
    (b) DOL procedures for revocation. (1) The CO shall send to the 
employer a Notice of Intent to Revoke an approved temporary 
agricultural labor certification, which contains a detailed statement 
of the grounds for the proposed revocation and the time period allowed 
for the employer's rebuttal. The employer may submit evidence in 
rebuttal within 14 calendar days of the date the notice is issued. The 
CO must consider all relevant evidence presented in deciding whether to 
revoke the temporary agricultural labor certification.
    (2) If rebuttal evidence is not timely filed by the employer, the 
Notice of Intent to Revoke shall become the final decision of the 
Secretary and take effect immediately at the end of the 14-day window.
    (3) If, notwithstanding the employer's timely filed rebuttal 
evidence, and if the CO determines the temporary agricultural labor 
certification should be revoked, the CO shall promptly notify the 
employer of this final determination and of the employer's right to 
appeal. The revocation takes effect immediately upon issuance of this 
notice and remains in place pending the outcome of any subsequent 
appeal proceedings. The employer may file an administrative appeal 
under Sec.  655.115 within 10 calendar days after the date of 
revocation.
    (4) The CO will inform the employer of the CO's final determination 
on the revocation within 14 calendar days of receiving timely rebuttal 
evidence.
    (5) If the temporary agricultural labor certification is revoked, 
the CO will also send a copy of the notification to DHS and DOS.


Sec.  655.118  Debarment.

    (a) No later than 2 years after an employer has substantially 
violated a material term or condition of its temporary agricultural 
labor certification, the Administrator may on that basis make a 
determination denying the employer and any successor in interest to the 
debarred employer future labor certifications under this subpart for a 
period of up to 3 years from the date of the determination.
    (b) For the purposes of this section, a substantial violation 
includes, but is not limited to:
    (1) One or more acts of commission or omission on the part of the 
employer or the employer's agent which:
    (i) Are significantly injurious to the wages, benefits, or working 
conditions of 10 percent or more of an employer's U.S. or H-2A 
workforce or of a substantial number of U.S. workers similarly employed 
in the area of intended employment;
    (ii) Reflect a significant failure to offer employment to all 
qualified domestic workers who applied for the job opportunity for 
which certification was being sought, except for lawful job-related 
reasons;
    (iii) Reflect a willful failure to comply with the employer's 
obligations to recruit domestic workers as set forth in this subpart;
    (iv) Reflect a failure to comply with one or more sanctions or 
remedies imposed by the ESA for violation(s) of obligations found by 
that agency (if applicable), or with one or more decisions or orders of 
the Secretary or a court pursuant to Sec.  218 of the INA (8 U.S.C. 
1188), this subpart, or 29 CFR part 501 (ESA enforcement of contractual 
obligations);
    (v) Reflect action(s) impeding an investigation of an employer 
pursuant to Sec.  218 of the INA (8 U.S.C. 1188), this subpart, or 29 
CFR part 501 (ESA enforcement of contractual obligations); or
    (vi) Reflect the employment of an H-2A worker outside the area of 
intended employment, or in an activity not listed on the job order, or 
after the expiration of the job order and any approved extension;
    (2) The employer's failure to pay the necessary fee in a timely 
manner; or
    (3) Fraud involving the Application for Temporary Employment 
Certification or the employer making a material misrepresentation of 
fact during the application process.
    (c) The Notice of Debarment shall be in writing; shall state the 
reason for the debarment finding, including a detailed explanation of 
the grounds for and the duration of the debarment, and shall identify 
administrative appeal rights under Sec.  655.115 and a timeframe under 
which such rights must be exercised. The debarment shall take effect on 
the start date identified in the Notice of Debarment, unless an 
administrative appeal request for review is properly filed. The timely 
filing of an administrative appeal stays the debarment pending the 
outcome of those appeal proceedings.
    (d) Debarment involving members of associations. If, after 
consultation with the Administrator, the CO determines a substantial 
violation has occurred, and if an individual producer member of a joint 
employer association is determined to have committed the violation, the 
determination to deny future labor certifications under this subpart 
for a period of up to three years from the date of the determination 
shall apply only to that member of the association unless the 
Administrator determines that the association or other association 
members participated in, had knowledge of, or had reason to know of the 
violation, in which case the debarment shall be invoked against the 
complicit association or other association members as well.
    (e) Debarment involving associations acting as joint employers. If, 
after consultation with the Administrator, the CO determines a 
substantial violation has occurred, and if an association acting as a 
joint employer with its members is determined to have committed the 
violation, the determination to deny future labor certifications under 
this subpart for a period of up to three years from the date of the 
determination shall apply only to the association, and shall not be 
applied to any individual producer member of the association unless the 
Administrator determines that the member participated in, had knowledge 
of, or reason to know of the violation, in which case the debarment 
shall be invoked against any complicit association members as well. 
Associations debarred from the H-2A

[[Page 8578]]

temporary labor certification program will not be permitted to continue 
to file as joint employers with their members.
    (f) Debarment involving associations acting as sole employers. If 
the Administrator determines a substantial violation has occurred, and 
if an association acting as a sole employer is determined to have 
committed the violation, the determination to deny future labor 
certifications under this subpart for a period of up to 3 years from 
the date of the determination shall apply only to the association and 
any successor in interest to the debarred association.

Subpart C--[Removed]

    5. Subpart C is removed and reserved.

Title 29--Labor

PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY 
ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE 
IMMIGRATION AND NATIONALITY ACT

    6. The authority citation for part 501 continues to read as 
follows:

    Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.


Sec. Sec.  501.0, 501.1, 501.3, 501.4, 501.5, 501.10, and 
501.15  [Amended]

    7. In part 501 all references to ``Section 216'' are revised to 
read ``Section 218'' in the following places:
    a. Section 501.0;
    b. Section 501.1(a), (b), (c)(1), and (c)(2);
    c. Section 501.3(a), (b), (c), (d), and (e);
    d. Section 501.4;
    e. Section 501.5(a) and (d);
    f. Section 501.10(a) and (s);
    g. Section 501.15.
    8. Section 501.0 is amended by revising the second sentence to read 
as follows:


Sec.  501.0  Introduction.

    * * * These regulations are also applicable to the employment of 
U.S. workers newly hired by employers of H-2A workers in the 
occupations during the period of time set forth in the labor 
certification approved by ETA as a condition for granting H-2A 
certification, including any extension thereof. * * *
    9. Section 501.1 is amended by revising paragraphs (b) and (c) to 
read as follows:


Sec.  501.1  Purpose and scope.

* * * * *
    (b) Role of the ETA. The issuance and denial of labor certification 
under section 218 of the INA has been delegated by the Secretary of 
Labor to the Employment and Training Administration (ETA). In general, 
matters concerning the obligations of an employer of H-2A workers 
related to the labor certification process are administered and 
enforced by ETA. Included within ETA's jurisdiction are issues such as 
whether U.S. workers are available, whether positive recruitment has 
been conducted, whether there is a strike or lockout, the methodology 
for establishing adverse effect wage rates, whether workers' 
compensation insurance has been provided, and other similar matters. 
The regulations pertaining to the issuance and denial of labor 
certification for temporary alien workers by the ETA are found in Title 
20 CFR, part 655.
    (c) Role of ESA, Wage and Hour Division. (1) The Secretary of Labor 
may take actions that assure compliance with the terms and conditions 
of employment under the H-2A, including the assessment of civil money 
penalties and seeking injunctive relief and specific performance of 
contractual obligations. (see 8 U.S.C. 1188(g)(2).)
    (2) Certain investigatory, inspection, and law enforcement 
functions to carry out the provisions of section 218 of the INA have 
been delegated by the Secretary of Labor to the ESA (ESA), Wage and 
Hour Division. In general, matters concerning the obligations under a 
work contract between an employer of H-2A workers and the H-2A workers 
and U.S. workers hired in corresponding employment by H-2A employers 
are enforced by ESA. Included within the enforcement responsibility of 
ESA, Wage and Hour Division are such matters as the payment of required 
wages, transportation, meals, and housing provided during the 
employment. The Wage and Hour Division has the responsibility to carry 
out investigations, inspections, and law enforcement functions and in 
appropriate instances impose penalties, recommend revocation of 
existing certification(s), debar from future certifications, and seek 
injunctive relief and specific performance of contractual obligations, 
including recovery of unpaid wages (either directly from the employer 
or in the case of an FLC, from the FLC directly or from the insurer who 
issued the surety bond to the FLC as required by 20 CFR part 655, 
subpart B).
* * * * *
    10. Section 501.2 is revised to read as follows:


Sec.  501.2  Coordination of intake between DOL agencies.

    Complaints received by ETA or any State Workforce Agency (SWA) 
regarding contractual H-2A labor standards between the employer and the 
employee will be immediately forwarded to the appropriate Wage and Hour 
Division office for appropriate action under these regulations.
    11. Section 501.3 is amended by redesignating the introductory text 
as paragraph (a) introductory text, existing paragraphs (a) through (e) 
as paragraphs (a)(1) through (5), revising newly designated paragraph 
(a)(5), and designating the undesignated paragraph at the end of the 
section as paragraph (b) and revising it.
    The revisions read as follows:


Sec.  501.3  Discrimination prohibited.

* * * * *
    (a) * * *
    (5) Consulted with an employee of a legal assistance program or an 
attorney on matters related to section 218 of the INA, or to this 
subpart or any other Department regulation promulgated pursuant to 
section 218 of the INA.
    (b) Allegations of discrimination in employment against any person 
will be investigated by the Wage and Hour Division. Where the Wage and 
Hour Division has determined through investigation that such 
allegations have been substantiated, appropriate remedies may be 
sought. The Wage and Hour Division may assess civil money penalties, 
seek injunctive relief, and/or seek additional remedies necessary to 
make the employee whole as a result of the discrimination, as 
appropriate, and may initiate action to debar any such violator from 
future labor certification. Complaints alleging discrimination against 
U.S. workers and immigrants based on citizenship or immigration status 
will be forwarded by the Wage and Hour Division to the Department of 
Justice, Civil Rights Division, Office of Special Counsel for 
Immigration-Related Unfair Employment Practices.
    12. Section 501.4 is revised to read as follows:


Sec.  501.4  Waiver of rights prohibited.

    No person shall seek to have an H-2A worker, or other U.S. worker 
hired in corresponding employment by an H-2A employer, waive rights 
conferred under Section 218 of the INA or under these regulations.
    13. Section 501.5 is amended by revising paragraphs (b) and (d) to 
read as follows:


Sec.  501.5  Investigation authority of Secretary.

* * * * *

[[Page 8579]]

    (b) Failure to cooperate with an investigation. Where any employer 
using the services of an H-2A worker does not cooperate with an 
investigation concerning the employment of H-2A workers or U.S. workers 
hired in corresponding employment, the Wage and Hour Division shall 
report such occurrence to ETA and may recommend that ETA revoke the 
existing certification, and the Wage and Hour Division may debar the 
employer from future certification for up to three years. In addition, 
the Wage and Hour Division may take such action as may be appropriate, 
including the seeking of an injunction and/or assessing civil money 
penalties, against any person who has failed to permit the Wage and 
Hour Division to make an investigation.
* * * * *
    (d) Report of Violations. Any person may report a violation of the 
work contract obligations of section 218 of the INA or these 
regulations to the Secretary by advising any local office of the State 
Workforce Agency, the ETA, the U.S. DOL's Wage and Hour Division, or 
any other authorized representative of the Secretary. The office or 
person receiving such a report shall refer it to the appropriate office 
of the U.S. DOL, Wage and Hour Division for the area in which the 
reported violation is alleged to have occurred.
    14. Section 501.6 is revised to read as follows:


Sec.  501.6  Prohibition on interference with DOL officials.

    No person shall interfere with any official of the DOL assigned to 
perform an investigation, inspection, or law enforcement function 
pursuant to the INA and these regulations during the performance of 
such duties. The Wage and Hour Division will take such action as it 
deems appropriate, including seeking an injunction to bar any such 
interference with an investigation and/or assessing a civil money 
penalty therefor. In addition, the Wage and Hour Division will report 
the matter to ETA, and the Wage and Hour Division may debar the 
employer from future certification and/or may make a recommendation 
that the person's existing labor certification be revoked. (Federal 
statutes that prohibit persons from interfering with a Federal officer 
in the course of official duties are found at 18 U.S.C. 111 and 18 
U.S.C. 1114.)
    15. Add new section 501.8 to read as follows:


Sec.  501.8  Surety bond.

    (a) Farm Labor Contractors (FLCs) shall obtain a surety bond to 
assure compliance with the provisions of this part and 20 CFR part 655 
Subpart B for each labor certification being sought. The FLC shall 
attest on the application for labor certification that such a bond 
meeting all the requirements of this section has been obtained and 
shall provide on the labor certification application form information 
that fully identifies the surety, including the name, address and phone 
number of the surety, and which identifies the bond by number or other 
identifying designation.
    (b) The bond shall be payable to the Administrator, Wage and Hour 
Division, U.S. DOL. It shall obligate the surety to pay any sums owed 
to the Administrator, for wages and benefits owed to H-2A and U.S. 
workers, based on a final decision finding a violation or violations of 
this part or 20 CFR part 655 subpart B for the labor certification the 
bond is intended to cover. The aggregate liability of the surety shall 
not exceed the face amount of the bond. The bond shall be written to 
cover liability incurred during the term of the period listed in the 
application for labor certification made by the FLC, and shall be 
amended to cover any extensions of the labor certification requested by 
the FLC. Surety bonds may not be canceled or terminated unless thirty 
days' notice is provided by the surety to the Administrator.
    (c) The bond shall be in the amount of $10,000 for a labor 
certification for which an FLC will employ fewer than 50 employees and 
$20,000 for a labor certification for which an FLC will employ 50 or 
more employees. The amount of the bond may be increased by the 
Administrator after notice and an opportunity for hearing when it is 
shown that the amount of the bond is insufficient to meet potential 
liabilities.
    16. Section 501.10 is revised to read as follows:


Sec.  501.10  Definitions.

    (a) Act and INA mean the Immigration and Nationality Act, as 
amended (8 U.S.C. 1101 et seq.), with reference particularly to section 
218.
    (b) Administrative Law Judge (ALJ) means a person within the 
Department of Labor Office of Administrative Law Judges appointed 
pursuant to 5 U.S.C. 3105.
    (c) Administrator means the Administrator of the Wage and Hour 
Division, Employment Standards Administration, U.S. Department of 
Labor, and such authorized representatives as may be designated to 
perform any of the functions of the Administrator under this part.
    (d) Work contract means all the material terms and conditions of 
employment relating to wages, hours, working conditions, and other 
benefits, including those terms and conditions attested to by the H-2A 
employer and required by the applicable regulations in subpart B of 20 
CFR part 655, Labor Certification for Temporary Agricultural Employment 
of H-2A Aliens in the United States (H-2A Workers), and those contained 
in the Application for Temporary Employment Certification and job offer 
under that subpart, which contract between the employer and the worker 
may be in the form of a separate written document. In the absence of a 
separate written work contract incorporating the required terms and 
conditions of employment, entered into between the employer and the 
worker, the work contract at a minimum shall be the terms of the job 
order included in the application for temporary labor certification, 
and shall be enforced in accordance with these regulations.
    (e) Adverse effect wage rate (AEWR) means the minimum wage rate 
that the ETA Office of Foreign Labor Certification Administrator has 
determined must be offered and paid to every H-2A worker employed in a 
particular occupation and/or area to ensure that the wages of similarly 
employed U.S. workers will not be adversely affected.
    (f) Agent means a legal entity or person, such as an association of 
agricultural employers, or an attorney for an association, that
    (1) Is authorized to act on behalf of the employer for temporary 
agricultural labor certification purposes, and
    (2) Is not itself an employer, or a joint employer, as defined in 
this section.
    (g) Agricultural association means any non-profit or cooperative 
association of farmers, growers, or ranchers, incorporated or qualified 
under applicable state law, that recruits, solicits, hires, employs, 
furnishes, or transports any H-2A worker. Agricultural associations may 
act as agents of an employer for purposes of filing an H-2A temporary 
labor certification application.
    (h) Agricultural employer means any person who owns or operates a 
farm or ranch, or otherwise engages in agriculture as defined in this 
part, and who either recruits, solicits, hires, employs, furnishes, or 
transports any H-2A worker. Agricultural employers may file H-2A 
applications either directly or through their agents or other legal 
representatives.
    (i) Application for Temporary Employment Certification means the 
form submitted by an employer to secure a temporary agricultural labor 
certification determination from the DOL.

[[Page 8580]]

    (j) Department of Homeland Security (DHS) through the United States 
Citizenship and Immigration Services (USCIS) means the Federal agency 
making the determination under the INA on whether to grant visa 
petitions filed by employers seeking H-2A workers to perform temporary 
agricultural work in the United States.
    (k) DOL means the United States Department of Labor.
    (l) Eligible worker means, with respect to employment, an 
individual who is not an unauthorized alien (as defined in Section 
274A(h)(3) of the Immigration and Nationality Act, 8 U.S.C. 
1324a(h)(3), or in this part) with respect to that employment.
    (m) Employ means to suffer or permit to work.
    (n) Employee means ``employee'' as defined under the general common 
law of agency. Some of the factors relevant to the determination of 
employee status include: the hiring party's right to control the manner 
and means by which the work is accomplished; the skill required; the 
source of the instrumentalities and tools for accomplishing the work; 
the location of the work; the hiring party's discretion over when and 
how long to work; and whether the work is part of the regular business 
of the hiring party. Other applicable factors should be considered and 
no one factor is dispositive.
    (o) Employer means a person, firm, corporation or other association 
or organization:
    (1) Which has a location within the U.S. to which U.S. workers may 
be referred for employment, or qualifies as a farm labor contractor 
(FLC) under this part;
    (2) Which has an employer relationship with respect to employees 
under this part as indicated by the fact that it may hire, pay, fire, 
supervise or otherwise control the work of any such employee; and
    (3) Which possesses a valid Federal Employer Identification Number 
(FEIN).
    (4) Where two or more employers each have the definitional indicia 
of employment with respect to an employee, those employers shall be 
considered to jointly employ that employee.
    (5) FLCs, for purposes of this part, shall be considered to be 
employers.
    (p) Employment Service (ES) refers to the system of Federal and 
state entities responsible for administration of the labor 
certification process for temporary and seasonal agricultural 
employment of nonimmigrant foreign workers. This includes the State 
Workforce Agencies (SWAs) and the Office of Foreign Labor Certification 
(OFLC), including the National Processing Centers (NPCs).
    (q) Employment Standards Administration (ESA) means the agency 
within the Department of Labor (DOL) that includes the Wage and Hour 
Division, and which is charged with carrying out certain investigative 
and enforcement functions of the Secretary under the INA.
    (r) Employment and Training Administration (ETA) means the agency 
within the Department of Labor (DOL) that includes the Office of 
Foreign Labor Certification (OFLC).
    (s) Federal holiday means a legal public holiday as defined at 5 
U.S.C. 6103.
    (t) Farm labor contracting activity means recruiting, soliciting, 
hiring, employing, furnishing, or transporting any migrant or seasonal 
agricultural worker as those terms are used in 29 U.S.C. 1801 et seq. 
and 29 CFR part 500 with the intent to contract those workers to fixed-
site employers.
    (u) Farm labor contractor means any person--other than an 
agricultural association, or an employee of an agricultural 
association--who, for any money or other valuable consideration paid or 
promised to be paid, performs any farm labor contracting activity.
    (v) H-2A worker means any nonimmigrant admitted to the United 
States for agricultural labor or services of a temporary or seasonal 
nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 
1101(a)(15)(H)(ii)(a)).
    (w) Job offer means the offer made by an employer or potential 
employer of H-2A workers to eligible workers describing all the 
material terms and conditions of employment, including those relating 
to wages, working conditions, and other benefits.
    (x) Job opportunity means a job opening for temporary, full-time 
employment at a place in the United States to which U.S. workers can be 
referred.
    (y) Office of Foreign Labor Certification (OFLC) means the 
organizational component of the Employment and Training Administration 
that provides national leadership and policy guidance and develops 
regulations and procedures to carry out the responsibilities of the 
Secretary of Labor under the Immigration and Nationality Act, as 
amended, concerning the admission of foreign workers to the United 
States in order to work under section 101(a)(15)(H)(ii)(a) of the 
Immigration and Nationality Act, as amended.
    (z) Positive recruitment means the active participation of an 
employer or its authorized hiring agent in recruiting and interviewing 
qualified and eligible individuals in the area where the employer's 
establishment is located and any other area designated by the Secretary 
as a multistate area of traditional or expected labor supply with 
respect to the area where the employer's establishment is located in an 
effort to fill specific job openings with U.S. workers.
    (aa) Prevailing means with respect to certain benefits other than 
wages provided by employers and certain practices engaged in by 
employers, that practice or benefit which is most commonly provided by 
employers (including H-2A and non H-2A employers) for the occupation in 
the area of intended employment.
    (bb) Representative means the official employed by or authorized to 
act on behalf of the employer with respect to activities entered into 
for and/or attestations made with respect to the Application for 
Temporary Employment Certification. In the case of an attorney who acts 
as an employer's representative and who interviews and/or considers 
U.S. workers for the job offered to the foreign worker(s), such 
individual must be the person who normally interviews or considers, on 
behalf of the employer, applicants for job opportunities such as that 
offered in the application, but which do not involve labor 
certifications.
    (cc) Secretary means the Secretary of Labor, the chief official of 
the U.S. Department of Labor, or the Secretary's designee.
    (dd) State Workforce Agency (SWA), formerly known as the State 
Employment Security Agency (SESA), means the State government agency 
that receives funds pursuant to the Wagner-Peyser Act to administer the 
public labor exchange delivered through the state's one-stop delivery 
system in accordance with the Wagner-Peyser Act. 29 U.S.C. 49, et seq. 
Separately, SWAs receive ETA grants, administered by the Office of 
Foreign Labor Certification, to assist them in performing certain 
activities related to foreign labor certification--including the 
conducting housing inspections.
    (ee) Temporary agricultural labor certification means the 
certification made by the Secretary of Labor with respect to an 
employer seeking to file with DHS a visa petition to employ a foreign 
national as an H-2A worker, pursuant to sections 101(a)(15)(H)(ii)(a), 
214(a) and (c), and 218 of the INA that
    (1) There are not sufficient workers who are able, willing, and 
qualified, and who will be available at the time and place needed, to 
perform the

[[Page 8581]]

agricultural labor or services involved in the petition, and
    (2) The employment of the foreign worker in such agricultural labor 
or services will not adversely affect the wages and working conditions 
of workers in the United States similarly employed (8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1188).
    (ff) Temporary agricultural labor certification determination means 
the written determination made by the OFLC Administrator to approve or 
deny, in whole or in part, an application for a temporary agricultural 
labor certification to import a foreign worker(s).
    (gg) United States, when used in a geographic sense, means the 
continental United States, Alaska, Hawaii, the Commonwealth of Puerto 
Rico, and the territories of Guam and the Virgin Islands of the United 
States.
    (hh) United States worker means any worker who is:
    (1) A citizen or national of the United States, or;
    (2) An alien who is lawfully admitted for permanent residence in 
the United States, is admitted as a refugee under Sec.  207 of the INA, 
is granted asylum under Sec.  208 of the INA, or is an immigrant 
otherwise authorized (by the INA or by DHS) to be employed in the 
United States.
    (ii) Wages means all forms of cash remuneration to a worker by an 
employer in payment for personal services.
    (jj) Definition of agricultural labor or services of a temporary or 
seasonal nature. For the purposes of this part, ``agricultural labor or 
services of a temporary or seasonal nature'' means the following:
    (1) ``Agricultural labor or services.'' Pursuant to Sec.  
101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), 
``agricultural labor or services'' is defined for the purposes of this 
part as:
    (i) ``Agricultural labor'' as defined and applied in Sec.  3121(g) 
of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g));
    (ii) ``Agriculture'' as defined and applied in Sec.  3(f) of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 203(f));
    (iii) The pressing of apples for cider on a farm;
    (iv) Logging employment; or
    (v) Handling, planting, drying, packing, packaging, processing, 
freezing, grading, storing, or delivering to storage or to market or to 
a carrier for transportation to market, in its unmanufactured state, 
any agricultural or horticultural commodity while in the employ of the 
operator of a farm; or
    (vi) Other work typically performed on a farm that is incidental to 
the agricultural labor or services for which the worker was sought.
    (2) An occupation included in either of the statutory definitions 
cited in paragraphs (jj)(1)(i) and (ii) of this section shall be 
``agricultural labor or services'', notwithstanding the exclusion of 
that occupation from the other statutory definition.
    (i) ``Agricultural labor'' for purposes of paragraph (jj)(1)(i) of 
this section means all services performed:
    (A) On a farm, in the employ of any person, in connection with 
cultivating the soil, or in connection with raising or harvesting any 
agricultural or horticultural commodity, including the raising, 
shearing, feeding, caring for, training, and management of livestock, 
bees, poultry, and furbearing animals and wildlife;
    (B) In the employ of the owner or tenant or other operator of a 
farm, in connection with the operation, or maintenance of such farm and 
its tools and equipment, or in salvaging timber or clearing land of 
brush and other debris left by a hurricane, if the major part of such 
service is performed on a farm;
    (C) In connection with the production or harvesting of any 
commodity defined as an agricultural commodity in section 15(g) of the 
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in 
connection with the ginning of cotton, or in connection with the 
operation or maintenance of ditches, canals, reservoirs, or waterways, 
not owned or operated for profit, used exclusively for supplying and 
storing water for farming purposes;
    (D)(1) In the employ of the operator of a farm in handling, 
planting, drying, packing, packaging, processing, freezing, grading, 
storing, or delivering to storage or to market or to a carrier for 
transportation to market, in its unmanufactured state, any agricultural 
or horticultural commodity; but only if such operator produced more 
than one-half of the commodity with respect to which such service is 
performed;
    (2) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
paragraph (jj)(2)(i)(A) of this section, but only if such operators 
produced all of the commodity with respect to which such service is 
performed. For purposes of this paragraph (jj)(2)(i)(D)(2), any 
unincorporated group of operators shall be deemed a cooperative 
organization if the number of operators comprising such group is more 
than 20 at any time during the calendar quarter in which such service 
is performed;
    (3) The provisions of paragraphs (jj)(2)(i)(A) and (B) of this 
section shall not be deemed to be applicable with respect to services 
performed in connection with commercial canning or commercial freezing 
or in connection with any agricultural or horticultural commodity after 
its delivery to a terminal market for distribution for consumption; or
    (4) On a farm operated for profit if such service is not in the 
course of the employer's trade or business or is domestic service in a 
private home of the employer.
    (E) As used in this subsection, the term ``farm'' includes stock, 
dairy, poultry, fruit, fur-bearing animal, and truck farms, 
plantations, ranches, nurseries, ranges, greenhouses or other similar 
structures used primarily for the raising of agricultural or 
horticultural commodities, and orchards. (See Section 3121(g) of the 
Internal Revenue Code of 1986 (26 U.S.C. 3121(g).)
    (ii) ``Agriculture.'' For purposes of paragraph (jj)(1)(ii) of this 
section agriculture means farming in all its branches and among other 
things includes the cultivation and tillage of the soil, dairying, the 
production, cultivation, growing, and harvesting of any agricultural or 
horticultural commodities (including commodities as defined as 
agricultural commodities in section 1141j(g) of Title 12), the raising 
of livestock, bees, fur-bearing animals, or poultry, and any practices 
(including any forestry or lumbering operations) performed by a farmer 
or on a farm as an incident to or in conjunction with such farming 
operations, including preparation for market, delivery to storage or to 
market or to carriers for transportation to market. (See Section 203(f) 
of title 29, U.S.C. (Sec.  3(f) of the FLSA of 1938, as amended.).
    (iii) ``Agricultural commodity''. For purposes of paragraph 
(jj)(1)(ii) of this section, ``agricultural commodity'' includes, in 
addition to other agricultural commodities, crude gum (oleoresin) from 
a living tree, and gum spirits of turpentine and gum rosin as processed 
by the original producer of the crude gum (oleoresin) from which 
derived. ``Gum spirits of turpentine'' means spirits of turpentine made 
from gum (oleoresin) from a living tree and ``gum rosin'' means rosin 
remaining after the distillation of gum spirits of turpentine. (See 
Section 1141j(g) of title 12, U.S.C.(Sec.  15(g) and 7 U.S.C. 92.)
    (3) ``Of a temporary or seasonal nature''
    (i) ``On a seasonal or other temporary basis''. For the purposes of 
this part, ``of

[[Page 8582]]

a temporary or seasonal nature'' means ``on a seasonal or other 
temporary basis'', as defined in the ESA's WHD's regulation at 29 CFR 
500.20 under the Migrant and Seasonal Agricultural Worker Protection 
Act (MSPA).
    (ii) MSPA definition. The definition of ``on a seasonal or other 
temporary basis'' found in MSPA, summarized as follows, is:
    (A) Labor is performed on a seasonal basis, where, ordinarily, the 
employment pertains to or is of the kind exclusively performed at 
certain seasons or periods of the year and which, from its nature, may 
not be continuous or carried on throughout the year. A worker who moves 
from one seasonal activity to another, while employed in agriculture or 
performing agricultural labor, is employed on a seasonal basis even 
though he may continue to be employed during a major portion of the 
year.
    (B) A worker is employed on ``other temporary basis'' where he is 
employed for a limited time only or his performance is contemplated for 
a particular piece of work, usually of short duration. Generally, 
employment which is contemplated to continue indefinitely is not 
temporary.
    (C) ``On a seasonal or other temporary basis'' does not include the 
employment of any foreman or other supervisory employee who is employed 
by a specific agricultural employer or agricultural association 
essentially on a year round basis.
    (D) ``On a seasonal or other temporary basis'' does not include the 
employment of any worker who is living at his permanent place of 
residence, when that worker is employed by a specific agricultural 
employer or agricultural association on essentially a year round basis 
to perform a variety of tasks for his employer and is not primarily 
employed to do field work.
    (iii) ``Temporary''. For the purposes of this part, the definition 
of ``temporary'' in paragraph (c)(2)(ii) of this section refers to any 
job opportunity covered by this part where the employer needs a worker 
for a position for a limited period of time, which shall be for less 
than 1 year, unless the original temporary agricultural labor 
certification is extended based on unforeseen circumstances, pursuant 
to 20 CFR 655.110 subpart B.
    16. Section 501.15 is amended by revising the first and last 
sentences of the section to read as follows:


Sec.  501.15  Enforcement.

    The investigation, inspections and law enforcement functions to 
carry out the provisions of section 218 of the INA, as provided in 
these regulations for enforcement by the Wage and Hour Division, 
pertain to the employment of any H-2A worker and any other U.S. worker 
hired in corresponding employment by an H-2A employer. * * * The work 
contract enforced includes the employment benefits which must be stated 
in the job offer, as prescribed in 20 CFR part 655, subpart B.
    17. Section 501.16 is amended by revising the section heading and 
paragraphs (a) and (b) to read as follows:


Sec.  501.16  Sanctions and Remedies--General.

* * * * *
    (a) Impose denial of labor certification against any person for a 
violation of the H-2A obligations of the INA or the regulations. ETA 
shall make all determinations regarding the issuance or denial of a 
labor certification in connection with the attestation process. The 
Wage and Hour Division shall make all determinations regarding the 
enforcement functions listed in paragraphs (b) through (d) of this 
section.
    (b) Institute appropriate administrative proceedings, including the 
recovery of unpaid wages (whether directly from the employer, or in the 
case of an FLC by claim against any surety who issued a bond to the 
farm labor contractor), the enforcement of any other contractual 
obligations, the assessment of a civil money penalty or denial of 
future certification(s) for up to three years against any person for a 
violation of the H-2A work contract obligations of the Act or these 
regulations. In the event of a denial of future certification, notice 
is provided to OFLC.
* * * * *
    18. Section 501.19 is amended by revising paragraph (c) to read as 
follows:


Sec.  501.19  Civil money penalty assessment.

* * * * *
    (c) A civil money penalty for violation of the work contract will 
not exceed $1,000 for each violation committed against each worker, 
with the following exceptions:
    (1) For a willful failure to meet a condition of the work contract, 
or for discrimination, the civil money penalty shall not exceed $5,000 
for each worker affected by the violation;
    (2) For a violation of a housing or transportation safety and 
health provision of the work contract that causes the death or serious 
injury of any worker, the civil money penalty shall not exceed $50,000 
per worker, unless the violation is a repeated or willful violation, in 
which case the penalty shall not exceed $100,000 per worker.
    (3) For purposes of paragraph (c)(3) of this section, the term 
``serious injury'' means:
    (i) Permanent loss or substantial impairment of one of the senses 
(sight, hearing, taste, smell, tactile sensation);
    (ii) Permanent loss or substantial impairment of the function of a 
bodily member, organ, or mental faculty, including the loss of all or 
part of an arm, leg, foot, hand or other body part; or
    (iii) Permanent paralysis or substantial impairment that causes 
loss of movement or mobility of an arm, leg, foot, hand or other body 
part.
    (d) A civil money penalty for interference with a Wage and Hour 
Division investigation shall not exceed $5,000 per investigation;
    (e) For a willful layoff or displacement of any similarly employed 
U.S. worker in the occupation that is the subject of the Application 
for Temporary Employment Certification in the area of intended 
employment within the period beginning 75 days before the date of need, 
except that such layoff shall be permitted where the employer also 
attests that it offered the opportunity to the laid-off U.S. worker(s) 
and said U.S. worker(s) either refused the job opportunity or were 
rejected for the job opportunity for lawful, job-related reasons, the 
civil penalty shall not exceed $15,000 per violation per worker.
    19. Section 501.20 is revised to read as follows:


Sec.  501.20  Debarment.

    (a) As a result of the Wage and Hour Division's authority to 
conduct investigations, inspections, and law enforcement functions to 
carry out the provisions of section 218 of the INA, if the Wage and 
Hour Division determines that an employer has substantially violated a 
material term or condition of a work contract, the Wage and Hour 
Division Administrator may debar the employer from future labor 
certifications for a period of up to three years from the date of the 
determination.
    (b) For the purposes of this section, a substantial violation 
includes but is not limited to:
    (1) Violations that through investigation by the Wage and Hour 
Division were determined to be significantly injurious to the wages, 
benefits, or working conditions of 10 percent or more of the employer's 
workforce of H-2A and U.S. workers hired in corresponding employment;

[[Page 8583]]

    (2) Reflect a failure to comply with one or more penalties imposed 
by the Employment Standards Administration Wage and Hour Division for 
violation(s) of contractual obligations, or with one or more decisions 
or orders of the Secretary or a court pursuant to Sec.  218 of the INA 
(8 U.S.C. 1188), 20 CFR part 655, subpart B, or 29 CFR part 501; or
    (3) Employment of an H-2A worker outside the area of intended 
employment, or in an activity not listed in the job order, or after the 
expiration of the job order and any approved extension.
    (c) The Notice of Debarment shall be in writing, shall state the 
reason for the debarment finding, including a detailed explanation of 
the grounds for and the duration of the debarment, and shall identify 
appeal opportunities under 29 CFR part 501.33. The debarment shall take 
effect on the start date identified in the Notice of Debarment, unless 
a timely request for review is filed. The timely filing of an 
administrative appeal stays the debarment pending the outcome of the 
appeal proceedings.
    (d) Debarment involving members of associations. If after 
investigation, the Wage and Hour Division determines a substantial 
violation has occurred, and if an individual producer member of a joint 
employer association is determined to have committed the violation, the 
determination to debar the employer from future labor certifications 
for a period of up to three years from the date of the determination 
shall apply only to that member of the association unless the Wage and 
Hour Division Administrator determines that the association or other 
association member participated in, had knowledge of, or had reason to 
know of the violation, in which case the debarment shall be invoked 
against the complicit association or other association members as well.
    (e) Debarment involving associations acting as joint employers. If 
after investigation, the Wage and Hour Division determines a 
substantial violation has occurred, and if an association acting as a 
joint employer with its members is determined to have committed the 
violation, the determination to debar the association from future labor 
certifications for a period of up to three years from the date of the 
determination shall apply only to the association, and shall not be 
applied to any individual producer member of the association unless the 
Wage and Hour Division Administrator determines that the member 
participated in, had knowledge of, or reason to know of the violation, 
in which case the debarment shall be invoked against the complicit 
association member as well.
    (f) Debarment involving associations acting as sole employers. If 
after investigation, the Wage and Hour Division determines a 
substantial violation has occurred, and if an association acting as a 
sole employer is determined to have committed the violation, the 
determination to deny future labor certifications under this part for a 
period of up to three years from the date of the determination shall 
apply only to the association and any successor in interest to the 
debarred association.
    20. Section 501.21 is revised to read as follows:


Sec.  501.21  Referral to ETA of interference with or refusal to permit 
investigation.

    Sections 501.5 through 501.7 of this part describe the 
investigation authority conferred by the Secretary upon the Wage and 
Hour Division for the purpose of enforcing the contractual obligations 
relating to wages, benefits, and working conditions of employers of H-
2A workers and U.S. workers hired in corresponding employment. The 
following sections describe the actions which may be taken by the Wage 
and Hour Division when an employer fails to cooperate with an 
investigation concerning the employment of H-2A workers or U.S. workers 
hired in corresponding employment. The Wage and Hour Division shall 
report such occurrence to ETA and may recommend revocation of an 
existing labor certification. No person shall interfere with any 
employee of the Secretary who is exercising or attempting to exercise 
this investigative or enforcement authority. As stated in Sec. Sec.  
501.5, 501.6 and 501.19 of this part, a civil money penalty may be 
assessed for each failure to permit an investigation or interference 
therewith, and other appropriate relief may be sought. In addition, the 
Wage and Hour Division shall report each such occurrence to ETA, and 
the Wage and Hour Division may debar the employer from future 
certification and recommend to ETA revocation of existing 
certification. The taking of any one action shall not bar the taking of 
any additional action.
    21. Section 501.30 is revised to read as follows:


Sec.  501.30  Applicability of procedures and rules.

    The procedures and rules contained herein prescribe the 
administrative process that will be applied with respect to a 
determination to impose an assessment of civil money penalties or 
debarment, and which may be applied to the enforcement of contractual 
obligations, including the collection of unpaid wages due as a result 
of any violation of the H-2A provisions of the Act or of these 
regulations. Except with respect to the imposition of civil money 
penalties or debarment, the Secretary may, in the Secretary's 
discretion, seek enforcement action in Federal court without resort to 
any administrative proceedings.
    22. Section 501.31 is revised to read as follows:


Sec.  501.31  Written notice of determination required.

    Whenever the Administrator determines to assess a civil money 
penalty, to debar, or to proceed administratively to enforce 
contractual obligations, including the recovery of unpaid wages, the 
person against whom such action is taken shall be notified in writing 
of such determination.
    23. Section 501.32 is amended by revising paragraph (a) to read as 
follows:


Sec.  501.32  Contents of notice.

* * * * *
    (a) Set forth the determination of the Administrator including the 
amount of any unpaid wages due or contractual obligations required, the 
amount of any civil money penalty assessment, whether to debar and the 
length of the debarment, and the reason or reasons therefor.
* * * * *
    24. Section 501.33 is amended by revising paragraph (a) and adding 
(d) to read as follows:


Sec.  501.33  Request for hearing.

    (a) Any person desiring review of a determination referred to in 
Sec.  501.32, including judicial review, shall make a written request 
for an administrative hearing to the official who issued the 
determination at the Wage and Hour Division address appearing on the 
determination notice, no later than 30 days after issuance of the 
notice referred to in Sec.  501.32.
* * * * *
    (d) The determination shall take effect on the start date 
identified in the determination, unless an administrative appeal 
request for review is properly filed. The timely filing of an 
administrative appeal stays the determination pending the outcome of 
the appeal proceedings.
    25. Section 501.42 is amended by revising paragraph (a) to read as 
follows:


Sec.  501.42  Procedures for initiating and undertaking review.

    (a) A respondent, the Administrator, or any other party wishing 
review,

[[Page 8584]]

including judicial review, of the decision of an administrative law 
judge shall, within 30 days of the decision of the administrative law 
judge, petition the Administrative Review Board (ARB) to review the 
decision. Copies of the petition shall be served on all parties and on 
the administrative law judge. If the ARB does not issue a notice 
accepting a petition for review within 30 days after receipt of a 
timely filing of the petition, or within 30 days of the date of the 
decision if no petition has been received, the decision of the 
administrative law judge shall be deemed the final agency action. If a 
petition for review is filed, the decision of the administrative law 
judge shall be inoperative unless and until the ARB issues an order 
affirming the decision, or declining review.
* * * * *


Sec. Sec.  501.22, 501.41 through 501.45  [Amended]

    26. In Sec.  501.22 and Sec. Sec.  501.41 through 501.45 all 
references to ``Secretary'' are revised to read ``Administrative Review 
Board''.

PART 780--EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF 
AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR 
STANDARDS ACT

    27. The authority citation for part 780 continues to read as 
follows:

    Authority: Secs. 1-19, 52 Stat. 1060, as amended; 29 U.S.C. 201-
219.

    28. Section 780.115 is revised to read as follows:


Sec.  780.115  Forest products.

    Trees grown in forests and the lumber derived therefrom are not 
``agricultural or horticultural commodities,'' for the purpose of the 
FLSA (See Sec.  780.205 regarding production of Christmas trees.) It 
follows that employment in the production, cultivation, growing, and 
harvesting of such trees or timber products is not sufficient to bring 
an employee within section 3(f) unless the operation is performed by a 
farmer or on a farm as an incident to or in conjunction with his or its 
farming operations. On the latter point, see Sec. Sec.  780.160 through 
780.164 discussing the question of when forestry or lumbering 
operations are incident to or in conjunction with farming operations so 
as to constitute ``agriculture.'' For a discussion of the exemption in 
section 13(b)(28) of the Act for certain forestry and logging 
operations in which not more than eight employees are employed, see 
part 788 of this chapter
    29. Section 780.201 is revised to read as follows:


Sec.  780.201  Meaning of ``forestry or lumbering operations.''

    The term ``forestry or lumbering operations'' refers to the 
cultivation and management of forests, the felling and trimming of 
timber, the cutting, hauling, and transportation of timber, logs, 
pulpwood, cordwood, lumber, and like products, the sawing of logs into 
lumber or the conversion of logs into ties, posts, and similar 
products, and similar operations. It also includes the piling, 
stacking, and storing of all such products. The gathering of wild 
plants and of wild Christmas trees is included. (See the related 
discussion in Sec. Sec.  780.205 through 780.209 and in part 788 of 
this chapter which considers the section 13(b)(28) exemption for 
forestry or logging operations in which not more than eight employees 
are employed.) ``Wood working'' as such is not included in ``forestry'' 
or ``lumbering'' operations. The manufacture of charcoal under modern 
methods is neither a ``forestry'' nor ``lumbering'' operation and 
cannot be regarded as ``agriculture.''
    30. Section 780.205 is revised to read as follows:


Sec.  780.205  Nursery activities generally and Christmas tree 
production.

    (a) The employees of a nursery who are engaged in the following 
activities are employed in ``agriculture'':
    (1) Sowing seeds and otherwise propagating fruit, nut, shade, 
vegetable, and ornamental plants or trees, and shrubs, vines, and 
flowers;
    (2) Handling such plants from propagating frames to the field;
    (3) Planting, cultivating, watering, spraying, fertilizing, 
pruning, bracing, and feeding the growing crop.
    (b) Trees produced through the application of extensive 
agricultural or horticulture techniques to be harvested and sold for 
seasonal ornamental use as Christmas trees are considered to be 
agricultural or horticultural commodities. Employees engaged in the 
application of agricultural and horticultural techniques to produce 
Christmas trees as ornamental horticultural commodities such as the 
following are employed in ``agriculture'':
    (1) Planting seedlings in a nursery; on-going treatment with 
fertilizer, herbicides, and pesticides as necessary;
    (2) After approximately three years, re-planting in lineout beds;
    (3) After two more seasons, lifting and re-planting the small trees 
in cultivated soil with continued treatment with fertilizers, 
herbicides, and pesticides as indicated by testing to see if such 
applications are necessary;
    (4) Pruning or shearing yearly;
    (5) Harvesting of the tree for seasonal ornamental use, typically 
within seven to ten years of planting.
    (c) Trees to be used as Christmas trees which are gathered in the 
wild such as from forests or uncultivated land and not produced through 
the application of agricultural or horticultural techniques are not 
agricultural or horticultural commodities for purposes of section 3(f). 
(See USDOL v. North Carolina Growers Association, Inc., et. al., 377 
F.3d 345.)
    31. Section 780.208 is revised to read as follows:


Sec.  780.208  Forestry activities.

    Operations in a forest tree nursery such as seeding new beds and 
growing and transplanting forest seedlings are not farming operations. 
For such operations to fall within section 3(f), they must qualify 
under the second part of the definition dealing with incidental 
practices. (See Sec.  780.201.)

PART 788--FORESTRY OR LOGGING OPERATIONS IN WHICH NOT MORE THAN 
EIGHT EMPLOYEES ARE EMPLOYED

    32. The authority citation for part 788 continues to read as 
follows:

    Authority: Secs. 1-19, 52 Stat. 1060, as amended; 29 U.S.C. 201-
219.

    33. Section 788.10 is revised to read as follows:


Sec.  788.10 ``Preparing * * *  other forestry products.''

    As used in the exemption, ``other forestry products'' mean plants 
of the forest and the natural properties or substances of such plants 
and trees. Included among these are decorative greens such as holly, 
ferns, roots, stems, leaves, Spanish moss, wild fruit, and brush. 
Christmas trees are only included where they are gathered in the wild 
from forests or from uncultivated land and not produced through the 
application of extensive agricultural or horticultural techniques. (See 
29 CFR 780.205 for further discussion.) Gathering and preparing such 
forestry products as well as transporting them to the mill, processing 
plant, railroad, or other transportation terminal are among the 
described operations. Preparing such forestry products does not include 
operations that change the natural physical or chemical condition of 
the products or that amount to extracting (as distinguished from 
gathering) such as shelling nuts, or that mash berries to obtain 
juices.


[[Page 8585]]


    Signed in Washington, DC, this 7th day of February, 2008.
Douglas F. Small,
Deputy Assistant Secretary, Employment and Training Administration.

Alexander Passantino,
Acting Administrator, Wage and Hour Division, Employment Standards 
Administration.
 [FR Doc. E8-2525 Filed 2-12-08; 8:45 am]
BILLING CODE 4510-FP-P