[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Rules and Regulations]
[Pages 77110-77262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29309]
[[Page 77109]]
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Part II
Department of Labor
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Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Parts 501, 780, and 788
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Temporary Agricultural Employment of H-2A Aliens in the United States;
Modernizing the Labor Certification Process and Enforcement; Final Rule
Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 /
Rules and Regulations
[[Page 77110]]
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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: Final rule.
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SUMMARY: The Department of Labor (DOL or Department) is amending its
regulations regarding the certification for the temporary employment of
nonimmigrant workers in agricultural occupations on a temporary or
seasonal basis, and the enforcement of the contractual obligations
applicable to employers of such nonimmigrant workers.
This final rule re-engineers the process by which employers obtain
a temporary labor certification from the Department for use in
petitioning the Department of Homeland Security (DHS) to employ a
nonimmigrant worker in H-2A (agricultural temporary worker) status. The
final rule utilizes an attestation-based application process based on
pre-filing recruitment and eliminates duplicative H-2A activities
currently performed by State Workforce Agencies (SWAs) and the
Department. The rule also provides enhanced enforcement, including more
rigorous penalties, to complement the modernized certification process
and to appropriately protect workers.
DATES: This final rule is effective January 17, 2009.
FOR FURTHER INFORMATION CONTACT: For further information about 20 CFR
part 655, subpart B, contact William L. Carlson, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312,
Washington, DC 20210. Telephone: (202) 693-3010 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
For further information regarding 29 CFR part 501, 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:
Table of Contents
I. Background Leading to the NPRM
A. Statutory Standard and Current Department of Labor
Regulations
B. Overview of the Proposed Redesign of the System
C. Severability
II. Discussion of Comments on Proposed Rule
A. Revisions to 20 CFR Part 655 Subpart B
Section 655.93 Special Procedures
Section 655.100 Overview and Definitions
Section 655.101 Applications for Temporary Employment
Certification
Section 655.102 Required pre-filing activity
Section 655.103 Advertising requirements
Section 655.104 Contents of job offers
Section 655.105 Assurances and obligations of H-2A employers
Section 655.106 Assurances and obligations of H-2A labor
contractors
Section 655.107 Processing of applications
Section 655.108 Offered wage rate
Section 655.109 Labor certification determinations
Section 655.110 Validity and scope of temporary labor
certifications
Section 655.111 Required departure
Section 655.112 Audits
Section 655.113 H-2A Applications Involving Fraud or Willful
Misrepresentation
Section 655.114 Setting Meal Charges; Petition for Higher Meal
Charges
Section 655.115 Administrative Review and De Novo Hearing before
an Administrative Law Judge
Section 655.116 Job Service Complaint System; enforcement of
work contracts
Section 655.117 Revocation of H-2A certification approval
Section 655.118 Debarment
Timeline for Anticipated Training and Education Outreach
Initiative Transition
B. Revisions to 29 CFR Part 501
Section 501.0 Introduction
Section 501.1 Purpose and scope
Section 501.2 Coordination of intake between DOL agencies
Section 501.3 Discrimination
Section 501.4 Waiver of rights prohibited
Section 501.5 Investigation authority of Secretary
Section 501.6 Cooperation with DOL officials
Section 501.8 Surety bond
Section 501.10 Definitions
Section 501.15 Enforcement
Section 501.16 Sanctions and remedies
Section 501.19 Civil money penalty assessment
Section 501.20 Debarment and revocation
Section 501.21 Failure to cooperate with investigations
Section 501.30 Applicability of procedures and rules
Section 501.31 Written notice of determination required
Section 501.32 Contents of notice
Section 501.33 Requests for hearing
Section 501.42 Exhaustion of administrative remedies
C. Revisions to 29 CFR Parts 780 and 788
Section 780.115 Forest products
Section 780.201 Meaning of forestry or lumbering operations
Section 780.205 Nursery activities generally and Christmas tree
production
Section 780.208 Forestry activities
Section 788.10 Preparing other forestry products
III. Administrative Information
A. Executive Order 12866--Regulatory Planning and Review
B. Regulatory Flexibility Analysis
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132--Federalism
E. Executive Order 13175--Indian Tribal Governments
F. Assessment of Federal Regulations and Policies on Families
G. Executive Order 12630--Protected Property Rights
H. Executive Order 12988--Civil Justice Reform
I. Plain Language
J. Executive Order 13211--Energy Supply
K. Paperwork Reduction Act
I. Background Leading to the NPRM
A. Statutory Standard and Current Department of Labor Regulations
The H-2A visa program provides a means for U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
agricultural labor or services when U.S. labor is in short supply.
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(INA or the Act) (8 U.S.C. 1101(a)(15)(H)(ii)(a)) defines an H-2A
worker as a nonimmigrant admitted to the U.S. on a temporary or
seasonal basis to perform agricultural labor or services. Section
214(c)(1) of the INA (8 U.S.C. 1184(c)(1)) mandates that the Secretary
of DHS consult with the Secretary of the Department of Labor (the
Secretary) with respect to adjudication H-2A petitions, and, by cross-
referencing Section 218 of the INA (8 U.S.C. 1188), with determining
the availability of U.S. workers and the effect on wages and working
conditions. Section 218 also sets forth further details of the H-2A
application process and the requirements to be met by the agricultural
employer.
[[Page 77111]]
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 INA (Pub. L. 82-144), of the ``H-2 program''--a
reference to the INA subparagraph that established the program. Today,
the H-2A nonimmigrant visa program authorizes the Secretary of DHS 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 the need for foreign labor is first certified by
the Secretary.
Section 218(a)(1) of the INA (8 U.S.C. 1188(a)(1)) states that a
petition to import H-2A workers may not be approved by the Secretary of
Homeland Security unless the petitioner has applied to the Secretary
for a certification 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.
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 contains certain worker protections, including the provision of
workers' compensation insurance and housing as well as minimum
recruitment standards to which H-2A employers must adhere. See 8 U.S.C.
1188(b) and (c). The INA does not limit the number of foreign workers
who may be accorded H-2A status each year or the number of labor
certification applications the Department may process.
The Department has 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 implementing its
enforcement responsibilities under the H-2A program. Regulations
relating to employer-provided housing for agricultural workers appear
at 20 CFR part 654, subpart E (Housing for Agricultural Workers), and
29 CFR 1910.142 (standards set by the Occupational Safety and Health
Administration); see also 20 CFR 651.10, and part 653, subparts B and
F.
The Department was charged with reviewing the efficiency and
effectiveness of its H-2A procedures in light of the increasing
presence of undocumented workers in agricultural occupations and
because of growing concern about the stability of the agricultural
industry given its difficulty in gaining access to a legal
workforce.\1\ The Department reviewed its administration of the program
and, in light of its extensive experience in both the processing of
applications and the enforcement of worker protections, proposed
measures to re-engineer the H-2A program in a Notice of Proposed
Rulemaking on February 13, 2008 (73 FR 8538) (NPRM or Proposed Rule).
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\1\ 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. (August
13, 2007).
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B. Overview of the Proposed Redesign of the System
The NPRM described a pre-filing recruitment and attestation process
as part of a re-engineered H-2A program. The Department proposed a
process by which employers, as part of their application, would attest
under threat of penalties, including debarment from the program, that
they have complied with and will continue to comply with all applicable
program requirements. In addition, employers would not be required to
file extensive documentation with their applications but would be
required to maintain all supporting documentation for their application
for a period of 5 years in order to facilitate the Department's
enforcement of program requirements. The Department's proposal also
contained new and enhanced penalties and procedures for invoking those
penalties against employers as well as their attorneys or agents who
fail to perform obligations imposed under the H-2A program. The program
also eliminates duplicative administration and processing by the State
Workforce Agencies (SWAs) and the Department by requiring filing of the
application only with the Department's National Processing Center (NPC)
in Chicago, Illinois. This program would also enable the SWAs to better
perform their mandated functions in processing H-2A agricultural
clearance orders, by enhancing their ability to conduct housing
inspections well in advance of the employer's application date. The
SWAs would also continue to clear and post intrastate job orders,
circulate them through the Employment Service interstate clearance
system and refer potential U.S. workers to employers.
Finally, the Department proposed additional processes for
penalizing employers or their attorneys or agents who fail to perform
obligations required under the H-2A program, including provisions for
debarring employers, agents, and attorneys and revoking approved labor
certifications.
C. Severability
The Department declares that, to the extent that any portion of
this Final Rule is declared to be invalid by a court, it intends for
all other parts of the Final Rule that are capable of operating in the
absence of the specific portion that has been invalidated to remain in
effect. Thus, even if a court decision invalidating a portion of this
Final Rule resulted in a partial reversion to the current regulations
or to the statutory language itself, the Department intends that the
rest of the Final Rule would continue to operate, if at all possible,
in tandem with the reverted provisions.
II. Discussion of Comments on Proposed Rule
The Department received over 11,000 comments in response to the
proposed rule, the vast majority of them form letters or e-mails
repeating the same contentions. Commenters included individual farmers
and associations of farmers, agricultural associations, law firms,
farmworker advocates, community-based organizations, and individual
members of the public. The Department has reviewed these comments and
taken them into consideration in drafting this Final Rule.
We do not discuss here those provisions of the NPRM on which we
received no comments. Those provisions were adopted as proposed. We
have also made some editorial changes to the text of the proposed
regulations, for clarity and to improve readability. Those changes are
not intended to alter the meaning or intent of the regulations.
A. Revisions to 20 CFR Part 655 Subpart B
Section 655.93 Special Procedures
The Department proposed to revise the current regulation on special
procedures to clarify its authority to establish procedures that vary
from those procedures outlined in the regulations. We received numerous
comments about this revised language on special procedures.
[[Page 77112]]
Several commenters questioned the effect the proposed language
would have on special procedures currently in use. Section 655.93(b) of
the current regulations provides for special procedures, stating that:
``the Director has the authority to establish special procedures for
processing H-2A applications when employers can demonstrate upon
written application to and consultation with the Director that special
procedures are necessary.'' The proposed rule provides that ``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.''
Four associations of growers/producers specifically requested
clarification of the phrase ``in the form of variances.'' These
associations asked the Department to confirm that the proposed language
does not pose a threat to the continued use of the special procedures
for sheepherders currently in place. One association expressed concern
that this revised language would require hundreds of employers engaged
in the range production of livestock to annually document their need
for special procedures.
The addition of the phrase ``in the form of variances'' is intended
to clarify that special procedures differ from those processes set out
in the regulation, which otherwise apply to employers seeking to hire
H-2A workers. The special procedures for sheepherders, for example,
arise from decades of past practices and draw upon the unique nature of
the activity that cannot be completely addressed in the generally
applicable regulations. The establishment of special procedures
recognizes the peculiarities of an industry or activity, and provides a
means to comply with the underlying program requirements through an
altered process that adequately addresses the unique nature of the
industry or activity while meeting the statutory and regulatory
requirements of the program. The special procedures do not enable
industries and employers to evade their statutory or regulatory
responsibilities but rather establish a feasible and tailored means of
meeting them while recognizing the unique circumstances of that
industry. The language in Sec. 655.93(b) affirms the Department's
authority to develop and/or revise special procedures. The Department
does not intend to require any industry currently using special
procedures to seek ratification of their current practice, nor does the
Department intend to require annual or periodic justifications of an
industry's need for special procedures. The Department does reserve the
right to make appropriate changes to those procedures after
consultation with the industry involved.
Section 655.93(b) in the NPRM enables the Administrator/OFLC ``to
establish or 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 contrast, the
current rule states that the subpart permits the Administrator/OFLC to
``continue and * * * revise the special procedures previously in effect
for the handling of applications for sheepherders in the Western States
(and to adapt such procedures to occupations in the range production of
other livestock) and for custom combine crews.''
The Department received several comments about the proposed
language, universally expressing concern that the new language provides
the Department with broader authority for changing or revoking existing
special procedures without providing due process with respect to
altering the procedures. An association of growers/producers stated
that the proposed rule uses ``more ominous terms'' and gives the
impression that the Administrator/OFLC has unilateral authority to make
changes without safeguards, review, or democratic procedures. One
association of growers and producers expressed the view that the
revocation language gives the Department authority to revoke the
procedures without advance notice and opportunity for comment and is,
therefore, a violation of the Administrative Procedure Act.
A law firm that provides counsel to agricultural employers stated
that the new language does not adequately solidify the Department's
commitment to existing special procedures and recommended that the
Department amend the regulation to affirm its commitment to continuing
such long-standing special procedures by providing that any proposed
changes to the existing special procedures and policies can be made
only after publication in the Federal Register with at least a 120-day
period for public comment. The firm also commented that the proposal to
empower the Administrator/OFLC to revoke special procedures would
violate Section 218(c)(4) of the INA, which requires the Secretary of
Labor to issue regulations addressing the specific requirements of
housing for employees principally engaged in the range production of
livestock.
The Department has decided, following consideration of these
concerns, to retain the NPRM language in the final regulation, but has
added language similar to that in the current regulation, to enumerate
those special procedures currently in effect as examples of the use of
special procedures. It is our belief that this provision, as it now
reads, provides both the Department and employers using the H-2A
program essential flexibility regarding special procedures, thus
permitting the Department to be far more responsive to employers'
changing needs, crop mechanization, and similar concerns. In addition,
the language on special procedures in the Final Rule reaffirms the
Department's continuing commitment to use special procedures where
appropriate. The Department has no present intent to revoke any of the
special procedures that are already in place, nor does the language of
the final regulation give the Department any new power to do so. While
it is possible that at some time in the future the Department may need
to revoke or revise existing special procedures, that step would be
taken with the same level of deliberation and consultation that was
employed in the creation of those procedures. To strengthen our
commitment to continue the current consultative process, we have
changed the word ``may'' in the last sentence of paragraph (b) to
``will.'' The provision also provides the Department with the authority
to develop new procedures to meet employer needs and, additionally,
provides employers with the opportunity to request that the Department
consider additional procedures or revisions to existing special
procedures. Proposed paragraph (c) has been deleted as unnecessarily
duplicative of the language in paragraph (b).
Two associations of growers and producers requested that the
Department formulate special procedures for dairy workers, stating that
these requested special procedures should not be different from those
already established for sheepherders. The associations stated the
provisions for sheepherders have ``special relevance to the current
dairy situation'' and also stated the ``special procedures relieve the
sheepherding industry from having to make a showing of temporary or
seasonal employment.'' The longstanding special procedures that allow
sheepherders to participate in the
[[Page 77113]]
H-2A program have their origins in prior statutory provisions dating
back to the 1950s. The Department is unaware of any comparable
statutory history pertaining to the dairy industry. The Department
would, of course, consider a specific request from dairy producers or
their representatives for the development of special procedures that
would be applicable to eligible H-2A occupations (see further
discussion on this point in the discussion of the definition of
``agricultural labor or services'' below). The Department does not
believe, however, that it would be appropriate to speculatively address
the merits of a specific special procedures request in this regulation,
particularly before a request making a detailed case for the
appropriateness of such special procedures has been received.
An individual employer commented that those involved in discussing
and considering changes to the H-2A program should preserve the special
procedures for sheepherders and extend them to all occupations engaged
in the range production of other livestock (cattle and horses). A
private citizen provided suggestions for improving the handling of
certification for sheep shearers.
The Department has previously established special procedures for
open range production of livestock and sheep shearers and does not have
any plans to change those procedures at this time and does not believe
that it would be appropriate to address in this regulation the merits
of the commenters' general suggestions for revising these special
procedures. The Department would, of course, be willing to consider a
specific request from livestock producers or their representatives for
the revision or expansion of special procedures consistent with its
authority and this regulation.
Section 655.100--Overview and definitions
(a) Overview
The Department included a provision in the NPRM, similar to a
provision in the current regulation, which provides an overview of the
H-2A program. This overview provides the reader, especially readers
unfamiliar with the program, a general description of program
obligations, requirements, and processes.
Only two commenters identified concerns with the overview as
written. Both expressed concern with the proposed earlier time period
for the recruitment of U.S. workers. They questioned whether U.S.
workers who agreed to work on a date far in advance would then be
available to work for the entire contract period. The overview,
however, simply describes in broad-brush fashion the regulatory
provisions that are discussed in detail later in the NPRM, and in and
of itself has no legal effect. The concerns and observations expressed
by commenters will be addressed in the context of the relevant
regulatory provision to which they apply rather than in the overview.
The overview has also been edited for general clarity and to reflect
changes made throughout the regulatory text.
(b) Transition
The Department, due to past program experience, has decided to add
a transition period in order to provide an orderly and seamless
transition to the new system created by these regulatory revisions.
This will allow the Department to make necessary changes to program
operations, provide training to the NPC, SWAs and stakeholder groups,
and allow employers and their agents/representatives to become familiar
with the new system. Employers with a date of need for workers on or
after July 1, 2009 will be obligated to follow all of the new
procedures established by these regulations. Prior to that time, the
Department has created a hybrid system involving elements of the old
and the new regulations as delineated in the new Sec. 655.100(b).
Even though the NPRM put current and future users of H-2A workers
on some notice regarding what this Final Rule will require, the rule as
a whole implements several significant changes to the administration of
the program. Several commenters requested that the Department allow
employers some period of time to prepare and adjust their requests for
temporary agricultural workers. These regulations implement new
application forms, new processes, and new time periods for conducting
recruitment for domestic workers to which current and new users of the
program will need to become accustomed.
The Department is accordingly adopting a transition period after
the effective date of this Final Rule. The transition period
establishes procedures that will apply to any application for which the
first date of need for H-2A workers is no earlier than the effective
date of this rule and no later than June 30, 2009.
During this transition period, the Department will accept
applications in the following manner: An employer will complete and
submit Form ETA-9142, Application for Temporary Employment
Certification, in accordance with Sec. 655.107, no less than 45 days
prior to their date of need. The employer will simultaneously submit
Form ETA-790 Agricultural and Food Processing Clearance Order (job
order), with the Application for Temporary Employment Certification
(application) directly to the Chicago NPC. Activities that are required
to be conducted prior to filing an application under the Final Rule
will be conducted post-filing during this transition period, much as
they are under the current rule. The employer will also be expected to
make attestations in its application applicable to its future
recruitment activities, payment of the offered wage rate, etc.
Employers will not be required to complete an initial recruitment
report for submission with the application, but will be required to
complete a recruitment report for submission to the NPC prior to
certification, and will also be required to complete a final
recruitment report covering the entire recruitment period.
The employer will not separately request a wage determination from
the Chicago NPC. Upon receipt of Forms ETA-9142 and ETA-790, the
Chicago NPC will provide the employer with the minimum applicable wage
rate to be offered by the employer, and will process the application
and job order in a manner consistent with Sec. 655.107, issuing a
modification for any curable deficiencies within 7 calendar days. Once
the application and job order have been accepted, the Chicago NPC will
transmit a copy of the job order to the SWA(s) serving the area of
intended employment to initiate intrastate and interstate clearance,
request the SWA(s) schedule an inspection of the housing, and provide
instructions to the employer to commence positive recruitment in a
manner consistent with Sec. 655.102. The NPC will designate labor
supply States during this transition period on a case-by-case basis,
applying the basic information standard for such designations that is
set forth in Sec. 655.102(i).
This transition period process will apply only to applications
filed on or after the effective date of this regulation with dates of
need no earlier than the effective date and no later than June 30,
2009. Employers with a date of need on or after July 1, 2009 will be
expected to fully comply with all of the requirements of the Final
Rule. Moreover, after the Final Rule's effective date, the requirements
of the Final Rule will fully apply except for those modifications that
are expressly mentioned as transition period procedures in Sec.
655.100(b); all other
[[Page 77114]]
provisions of the Final Rule will apply on the effective date of the
Final Rule.
These transition period procedures are designed to ensure that
employers seeking to utilize the program immediately after its
effective date, especially those with needs early in the planting
season, will not be prejudiced by the new pre-filing requirements
regarding wage determinations and recruitment, which might otherwise
substantially impact employers' application timing. Because the
Department's seasonal H-2A workload begins to peak in January of each
year, however, the Department deems it essential to the smooth and
continuous operation of the H-2A program throughout calendar year 2009
to make the rule effective as early in the year as possible.
(c) Definitions 655.100
Definition of ``agent,'' ``attorney,'' and ``representative''
The Department did not propose any changes to the definition of
``agent'' from existing regulations but added definitions for
``attorney'' and ``representative'' in the proposed rule. A major trade
association commented that the definitions of, and references to, the
terms ``agent,'' ``attorney'' and ``representative'' are confusing. The
association found the definitions of agent and representative to be
duplicative and the distinctions between these two terms, both of which
encompass the authority to act on behalf of an employer, unclear. The
association also commented that the definition of ``attorney'' is self-
evident and appears to be a vehicle for permitting attorneys to act as
``agents'' or ``representatives.'' Further, according to the commenter,
the term ``representative'' is also problematic and the Department
should consider revising it or eliminating it entirely. The association
believes the main purpose of the definition is to deem the person who
makes the attestations on behalf of the employer a ``representative,''
but the association believes it is not clear whether the intent of the
definition of ``representative'' is to also make the representative
liable for any misrepresentations made in an attestation on behalf of
an employer. The association recommended the proposed rule should
clarify the intent of the definition of ``representative'' and also
under what circumstances an agent will be liable for activities
undertaken on behalf of an employer. The association recommended a
clear set of standards for liability and suggested such standards
should not deviate from the current standards where agents, attorneys,
and representatives (under the proposed rule) are not liable if they
perform the administrative tasks necessary to file labor certification
applications and petitions for visas and do not make attestations that
are factually based. In addition, the association recommended that the
agents, attorneys, or representatives should not be liable for program
violations by the employer.
The Department understands the need for clarity in determining who
qualifies as a representative before the Department and what
responsibilities and liabilities attach to that role and has
accordingly simplified the definition of a representative. Although the
Department does distinguish between the different roles of attorneys
and agents, both groups are held to the same standards of ethics and
honesty under the Department's rules. Under the rules, attorneys can
function as agents, and either attorneys or agents can function as a
representative of the employer. The Department has, in addition,
replaced the word ``official'' with ``person or entity'' to parallel
the definition of agent.
However, the Department disagrees with the commenter's
interpretation of the extent to which an agent or attorney can be held
accountable by the Department for their own and their clients' conduct
in filing an application for an employer. While agents and attorneys
are of course not strictly liable for all misconduct engaged in by
their clients, they do undertake a significant duty in attestations to
the Department regarding their employer-clients' obligations. They are,
therefore, responsible for exercising reasonable due diligence in
ensuring that employers understand their responsibilities under the
program and are prepared to execute those obligations. Agents and
attorneys do not themselves make the factual attestations and are not
required to have personal knowledge that the attestations they submit
are accurate. They are, however, required to inform the employers they
represent of the employers' obligations under the program, including
the employers' liability for making false attestations, and the
prohibition on submitting applications containing attestations they
know or should know are false. The debarment provisions at Sec.
655.118 of the final regulations have accordingly been clarified to
state that agents and attorneys can be held liable for their employer-
clients' misconduct when they ``participated in, had knowledge of, or
had reason to know of, the employer's substantial violation.''
The same association also questioned why the Department is
``singling out attorneys'' in the definition of ``representative'' by
requiring an attorney who acts as an employer's representative and
interviews and/or considers U.S. workers for the job offered to the
foreign worker(s) to also be the person who normally considers
applicants for job opportunities not involving labor certifications.
The association found no apparent rationale justifying why the
Department should dictate who and under what circumstances an attorney
or any other person should interview U.S. job applicants. It further
recommended that the rule eliminate the reference to attorneys or, at a
minimum, clarify that the rule does not reach attorneys who merely
advise and guide employers through the H-2A program. The Department has
accordingly clarified the definition of representative by deleting the
sentence limiting the role attorneys can play in interviewing and
considering workers, primarily because, unlike other labor
certification programs administered by the Department, the relatively
simple job qualifications that apply to most agricultural job
opportunities render it unlikely that U.S. workers would be discouraged
from applying for those jobs by the prospect of being interviewed by an
attorney.
A specialty bar association urged that the definition of ``agent''
be changed in order to prevent abuses related to foreign nationals
paying recruiters' fees. The association suggested that the Department
limit representation of employers to that recognized by DHS: attorneys
duly licensed and in good standing; law students and law graduates not
yet licensed who are working under the direct supervision of an
attorney licensed in the United States or a certified representative; a
reputable individual of good moral character who is assisting without
direct or indirect remuneration and who has a pre-existing relationship
with the person or entity being represented; and accredited
representatives, who are persons representing a nonprofit organization
which has been accredited by the Board of Immigration Appeals.
The Department acknowledges that its allowance of agents who are
not attorneys and who do not fit into the categories recognized by DHS
creates a difference of practices between the two agencies. However,
the Department has for decades permitted agents who do not meet DHS's
criteria to appear before it. Agents who are not attorneys have
adequately represented claimants before the Department in a wide
variety of
[[Page 77115]]
activities since long before the development of the H-2A program. To
change such a long-standing practice in the context of this rulemaking
would represent a major change in policy that the Department is not
prepared to make at this time. The Department has, however, added
language to the definition of both ``agent'' and ``attorney'' to
clarify that individuals who have been debarred by the Department under
Sec. 655.118 cannot function as attorneys or agents during the period
of their debarment.
Definition of ``adverse effect wage rate''
The Department proposed a revised definition of ``adverse effect
wage rate,'' limiting its application to only H-2A workers. A law firm
commented that the proposed definition of ``adverse effect wage rate''
appears to apply only to H-2A workers and not to U.S. workers who are
employed in ``corresponding employment.'' The Department has clarified
the definition to make clear that those hired into corresponding
employment during the recruitment period will also receive the highest
of the AEWR, prevailing wage, or minimum wage, as applicable. The firm
also requested the same revision to 29 CFR Part 501 regulations. The
Department believes that this requirement is adequately explained in
the text of the regulations at Sec. 655.104(l) and Sec. 655.105(g).
Definition of ``agricultural association''
The Department added a definition for ``agricultural association''
in the proposed regulation. A major trade association commented that
the proposed definition does not acknowledge that associations may be
joint employers and suggests that the definition could cause confusion
because other sections of the proposed regulation acknowledge that
associations may have joint employer status. The association
recommended the definition clarify that agricultural associations may
serve as agents or joint employers and define the circumstances under
which joint employer arrangements may be utilized. A professional
association further commented that associations should not be exempt
from Farm Labor Contractor provisions if the associations are
performing the same activities as Farm Labor Contractors.
The Department agrees that agricultural associations play a vital
role in the H-2A program and seeks to minimize potential confusion
about their role and responsibilities. The regulation has been revised
to clarify that agricultural associations may indeed serve as sole
employers, joint employers, or as agents. The definition of ``H-2A
Labor Contractors'' has also been revised to clearly differentiate
labor contractors from agricultural associations and that an
agricultural association that meets the definition in this part is not
subject to the requirements attaching to H-2A Labor Contractors.
Finally, the regulation has been clarified by specifying that
``processing establishments, canneries, gins, packing sheds, nurseries,
or other fixed-site agricultural employers'' can all be encompassed by
agricultural associations.
Definition of Application for Temporary Employment Certification
The Department has added to the Final Rule a definition of
Application for Temporary Labor Certification. An Application for
Temporary Labor Certification is an Office of Management and Budget
(OMB)-approved form that an employer submits to DOL to secure a
temporary agricultural labor certification. A complete submission is
required to include an initial recruitment report.
Definition of ``date of need''
The Department slightly modified the definition of ``date of need''
to clarify that the applicable date is the one that is specified in the
employer's Application for Temporary Employment Certification.
Definition of ``employ'' and ``employer''
In the NPRM, the Department added a definition for ``employ'' and
made revisions to the existing definition of ``employer.'' A trade
association suggested that the Department eliminate the definition of
``employ'' but retain the definition of ``employer,'' stating that the
definition of ``employ'' adds nothing to clarify status or legal
obligations under the H-2A program. The association believes the status
of an employer under the H-2A program is defined by the labor
certification and visa petition processes and that the incorporation of
the broad FLSA and MSPA definitions of ``employ'' insinuate broad legal
concepts that add unnecessary confusion. The association further
recommended that the Department eliminate the fourth criterion related
to joint employment status in its proposed definition of ``employer''
and, instead, provide a separate definition of joint employer
associations and the respective liabilities of the association and its
joint employer members.
The Department agrees with these comments and has, accordingly,
removed the definition of ``employ'' as superfluous and created a
separate definition of ``joint employment'' (using that portion of the
definition of employer which discussed joint employers) to eliminate
any confusion between the two terms. The definition of ``employer'' has
also been revised. First, the Final Rule clarifies the proposal's
statement that an employer must have a ``location'' within the U.S. to
more specifically state that it must have a ``place of business
(physical location) within the U.S.'' Second, out of recognition that
some H-2A program users, such as H-2ALCs, are itinerant by nature, and
that SWA referrals may thus occasionally need to be made to non-fixed
locations, the Final Rule states that an employer must have ``a means
by which it may be contacted for employment'' rather than a specific
location ``to which U.S. workers may be referred.'' Finally, the Final
Rule clarifies that an employer must have an employment relationship
``with respect to H-2A employees or related U.S. workers under this
subpart'' rather than less specifically referring to ``employees under
this subpart,'' and deletes the references to specific indicia of an
employment relationship because the applicable criteria are spelled out
in greater detail in the definition of ``employee.'' The definition of
``joint employer'' is modified slightly from the concept that appeared
in the NPRM to clarify that the two or more employers must each have
sufficient indicia of employment to be considered the employer of the
employee in order to meet the test for joint employment.
Definition of ``farm labor contracting activity'' and ``Farm Labor
Contractor (FLC)''
The Department proposed adding definitions for ``farm labor
contracting activity'' and ``Farm Labor Contractor (FLC)'' to this
section. In the Final Rule, the Department has eliminated the
definition for ``farm labor contracting activity'' and revised the
definition for ``Farm Labor Contractor.'' The revised definition is now
contained under the heading ``H-2A Labor Contractor.''
A law firm commented that neither agents nor attorneys should be
required to register as H-2A Labor Contractors. The commenter did not
specifically address why it believed agents and attorneys would be
required to register under the proposed definitions, so the Department
is unable to respond to this point. As a general matter, however, an
agent or attorney, if performing labor contracting activities as they
appear in the revised definition of an H-2A Labor Contractor, would be
required to register
[[Page 77116]]
as, and would be held to the standards of, an H-2A Labor Contractor.
A group of farmworker advocacy organizations commented that the
definition proposed for Farm Labor Contractor (H-2A Labor Contractor)
would exclude recruiters of foreign temporary workers from the scope of
the rule, making enforcement impossible. This organization pointed out
that under the Migrant and Seasonal Agricultural Worker Protection Act
(MSPA), H-2A workers are not migrant or seasonal agricultural workers
and, therefore, a contractor recruiting workers to become H-2A visa
holders would not fit within the proposed regulatory definition. The
organization also commented that the reference to ``fixed-site''
employers in the ``farm labor contracting activity'' definition could
present problems in some employment situations, such as employment for
a custom harvester, where the employer would not have a fixed site. An
association of growers/producers suggested the MSPA definitions for
``farm labor contracting activity'' and ``Farm Labor Contractor''
should be used.
In response to the comments, the Department has deleted the
definition of ``agricultural employer'' and included a separate
definition for ``fixed-site employer.'' The Department also deleted the
definition of ``Farm Labor Contractor'' in the final regulation and
replaced it with a new definition for ``H-2A Labor Contractor.'' This
will differentiate the two terms since the definition of an ``H-2A
Labor Contractor'' does not match the definition of a ``Farm Labor
Contractor'' as used in MSPA, and the operational differences between
the H-2A program and MSPA do not allow perfect parallels to be drawn
between the two statutory schemes. The definition of ``farm labor
contracting activity'' has been deleted as redundant since the
activities have been made part of the definitions of ``fixed-site
employer'' and ``H-2A Labor Contractor.''
Definition of ``joint employment''
The Department included in its definition of ``employment'' a
reference to what would constitute ``joint employment'' for purposes of
the H-2A program. The Department received one comment suggesting the
inclusion of the definition of ``joint employment'' within the
definition of ``employment'' was confusing. The Department has
accordingly removed the last phrase from the proposed definition of
``employer'' and provided a separate definition for ``joint
employment.''
Definition of ``prevailing''
The Department proposed a revision to the definition of
``prevailing'' to include, ``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.'' This represented a change from the
current rule, which does not refer to ``commonly provided'' practices
or benefits but instead uses a percentage test (50 percent or more of
employers in an area and for an occupation must engage in the practice
or offer the benefit for it to be considered ``prevailing,'' and the 50
percent or more of employers must also employ in aggregate 50 percent
or more of U.S. workers in the occupation and area''). The Department
received comments on the change, specifically inquiring whether the
SWAs would continue to conduct prevailing wage and practice surveys,
and requesting that if the Department intends to no longer require SWAs
to conduct prevailing wage and practice surveys, the change should be
discussed in the preamble.
The Department has determined that, to provide greater clarity and
for ease of administration, the definition of ``prevailing'' will
revert to the definition in the current regulation that requires that
50 percent or more of employers in an area and for an occupation engage
in the practice or offer the benefit and that the 50 percent or more of
the employers in an area must also employ in aggregate 50 percent or
more of U.S. workers in the occupation and area.
The Department notes it does not intend to change the provision on
prevailing wage surveys currently undertaken by SWAs. The Department
has included specific definitions for the terms ``prevailing piece
rate'' and ``prevailing hourly rate,'' the two kinds of wage surveys
that have traditionally been undertaken by SWAs, and has included
express references to both types of surveys throughout the rule.
Definition of ``strike''
The Department has been added to the Final Rule a definition for
the term strike. The definition conforms to the changes explained in
the discussion of Sec. 655.105(c), and clarifies that the Department
will evaluate whether job opportunities are vacant because of a strike,
lockout, or work stoppage on an individualized, position-by-position
basis.
Definition of ``successor in interest''
The Department's proposal included a debarment provision allowing
for debarment of a successor in interest to ensure that violators are
not able to re-incorporate to circumvent the effect of the debarment
provisions. A national agricultural association commented that this
provision as drafted could result in an innocent third party buying the
farm of a debarred farmer and being subject to debarment, even though
the successor is free of any wrongdoing, and thus the rule would place
roadblocks on the sale of assets to innocent parties.
The Department agrees with this commenter. We have addressed this
issue by including a definition of ``successor in interest'' to make
clear that the Department will consider the facts of each case to
determine whether the successor and its agents were personally involved
in the violations that led to debarment in determining whether the
successor constitutes a ``successor in interest'' for purposes of the
rule.
Definition of ``United States''
The Consolidated Natural Resources Act of 2008, Public Law 110-229,
Title VII (CNRA), applies the INA to the Commonwealth of the Northern
Mariana Islands (CNMI) at the completion of the transition period as
provided in the CNRA, which at the earliest, would be December 31,
2014. Accordingly, the H-2A program will not apply to the CNMI until
such time. However, the CNRA amends the definition of ``United States''
in the INA to include the CNMI. It should be noted that the amendment
to the INA of the definition of ``United States'' does not take effect
until the beginning of the transition period which could be as early as
June 1, 2009, but may be delayed up to 180 days. Accordingly, the
Department has included CNMI in the definition of ``United States''
with the following qualification: ``as of the transition program
effective date, as defined in the Consolidated Natural Resources Act of
2008, Public Law 110-229, Title VII.'' The Department will publish a
notice in the Federal Register at such time that its regulations
regarding the foreign labor programs described in the INA, including
the H-2A program, will apply to the Commonwealth.
Definition of ``Within [number and type] days''
The Department has added to the Final Rule a definition of the term
within [number and type] days. The definition clarifies how the
Department will calculate timing for meeting filing
[[Page 77117]]
deadlines under the rule where that term, in some formulation, appears.
The definition specifies that a period of time described by the term
``within [number and type] days'' will begin to run on the first
business day after the Department sends a notice to the employer by
means normally assuring next-day delivery, and will end on the day that
the employer sends whatever communication is required by the rules back
to the Department, as evidenced by a postal mark or other similar
receipt.
Definition of ``Work contract''
The Department has added to the Final Rule a definition of the term
work contract. The definition was borrowed from the definition section
of 29 CFR part 501 of the NPRM, with minor modifications made for
purposes of clarification.
d. Definition of ``agricultural labor or services''
The Department proposed changes to the definition of ``agricultural
labor or services'' to clarify, as in the current regulation, that an
activity that meets either the Internal Revenue Code (IRC) or the Fair
Labor Standards Act (FLSA) definition of agriculture is considered
agricultural labor or services for H-2A program purposes and, more
significantly, to remove limitations on the performance of certain
traditional agricultural activities which, when performed for more than
one farmer, are not considered agricultural labor or services under the
IRC or the FLSA, including packing and processing.
The Department received several comments supporting these changes,
with some specific suggestions for additional changes. A major trade
association complimented the Department on providing ``bright line''
definitional guidance regarding the activities that constitute
agricultural work to be covered by the H-2A program as distinct from
the H-2B program. A number of these commenters mentioned that the
Department's inclusion of packing and processing activities in work
considered as agricultural provides an option for obtaining legal
workers, especially in light of the numerical limitations on H-2B
visas. One association of growers/producers supported the expansion of
the current definition to include packing and processing but suggested
that agricultural employers who have previously used the H-2B program
for packing or processing operations be allowed to continue using the
H-2B program. Another association of growers/producers suggested that
the definition be changed to allow product that is moving from on-farm
production directly to the end consumer be included as permissible work
for H-2A workers, and suggested that the definition provide that it is
a permissible activity for H-2A workers to work on production of a
purchased crop when the crop is purchased by a farm because of weather
damage to that farm's crops in a particular year.
The Department appreciates the general support for the proposed
changes and has retained them in the final regulation. Regarding
packing and processing activities, the proposed definition includes as
agricultural activities ``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.'' In response to the
request to allow employers who have used the H-2B program for packing
or processing operations to continue using the H-2B program, the
Department has revised the definition to clarify that while the
Department cannot permit H-2A workers and H-2B workers to
simultaneously perform the same work at the same establishment, the
distinctions between establishments at which operations of this nature
should be performed by H-2A workers and those at which the operations
should be performed by H-2B workers are too fine for the Department to
reasonably distinguish between them with sufficient precision to
establish a bright line test. The Department will therefore defer to
operators as to whether the ``handling, planting, drying, packing,
packaging, processing, freezing, grading, storing or delivering''
operations at their particular establishment are more properly governed
by the H-2A or the H-2B program, but will not accept applications for
both kinds of workers to simultaneously perform the same work at the
same establishment.
The Department agrees with the comment that H-2A workers should be
permitted to work in the production of a purchased crop, as well as
work in processing or packing a farm product that is moving from on-
farm production directly to the end consumer. Moreover, the Department
believes such activities are permitted by the definition in the
proposed rule and therefore the provision requires no additional
language in the Final Rule.
The Department has clarified the Final Rule to reflect existing
law, which provides that work performed by H-2A workers, or workers in
corresponding employment, which is not defined as agriculture under
Section 3(f) of the Fair Labor Standards Act, 29 U.S.C. 203(f), is
subject to the provisions of the FLSA as provided therein, including
the overtime provisions in Section 7(a)(29 U.S.C. 207(a)).
Incidental Activities
The Department also proposed 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. A number of
commenters, including a professional association, a major trade
association, and several associations of growers/producers supported
this change, stating that it was positive and would provide more
flexibility for employers. A major trade association commented this
change would allow employers to include duties in H-2A certified job
opportunities that reflect the actual duties performed by farm workers
and further commented that, ``[p]resumably the provision will cover a
farm worker who engages in incidental employment in the farm's roadside
retail stand, a farm worker who assists in managing `pick your own'
activities, and a farm worker who occasionally drives a tractor pulling
a hay wagon for a hay ride, to cite a few examples of incidental
activities customarily performed by farm workers that have been
disallowed in the past.'' This commenter's understanding of the
Department's interpretation is correct.
One association of growers/producers commented that allowing H-2A
workers to perform duties typically performed on a farm benefits the
employee as well as the employer. A trade association commented that
being able to use workers in other jobs not listed on the contract is
needed, particularly when weather prevents field work.
The Department has revised the wording in the definition of
``agricultural labor or services'' provided in Sec. 655.100(d)(1)(vi)
to provide additional clarity for employers. The definition now reads:
``Other work typically performed on a farm that is not specifically
listed on the Application for Temporary Employment Certification and is
minor (i.e., less than 20 percent of the total time worked on the job
duties that are listed on the Application for Temporary Employment
Certification) and incidental to the agricultural labor or services for
which the H-2A worker was sought.'' The Department recognizes that, due
to the unpredictable nature of weather
[[Page 77118]]
conditions and agricultural work itself, employers need some
flexibility in assigning tasks, and that it would be difficult if not
impossible to list all potential minor and incidental job
responsibilities of H-2A workers on the Application for Temporary
Employment Certification. The proposed amendment of the definition is
intended to recognize the reality of working conditions at agricultural
establishments and ensure that an H-2A worker's performance of minor
and incidental activity does not violate the terms and conditions of
the worker's H-2A visa status. The further revision to the definition
will assist employers in determining whether activities or work not
included on the Application for Temporary Employment Certification can
reasonably be considered as minor and incidental.
Inclusion of Other Occupations
The Department proposed to include logging employment in its
definition of ``agricultural labor or services'' for purposes of the H-
2A program. Two commenters voiced their support for this inclusion; we
received no comments in opposition. The Department also sought comments
as to whether there are other occupations that should be included
within the definition of agriculture used in the H-2A program. The
Department received several suggestions of other industries that should
be considered, including livestock and dairy producers, fisheries,
nurseries, greenhouses, landscapers, poultry producers, wine
businesses, equine businesses, turf grass growers, mushroom producers,
maple syrup producers, and employers engaging in seasonal food
processing as well as growers who operate processing and packing
plants.
Of those requesting expansion of the definition to include other
occupations, representatives of the dairy industry submitted the most
comments. A major trade association and a number of associations of
growers/producers commented that the dairy industry is unable to use
the H-2A agricultural worker visa program and that this exclusion is
unfair. They stated dairy farmers need and deserve the same access to
legal foreign workers as other sectors of the agricultural industry.
The association suggested that H-2A visas for dairy workers should last
at least three years rather than one. Two trade association commenters
stated they understood the importance under the statutory definition of
H-2A workers needing to be temporary or seasonal, but not why the jobs
themselves needed to be temporary or seasonal. A farm bureau provided
comments suggesting dairy and livestock operations should be allowed to
designate seasonal jobs within their operations for which H-2A workers
could be employed. This association commented that current worker
patterns suggest typical milkers stay in their positions for 9 to 10
months and then voluntarily leave, but return to seek a job after 2 to
3 months.
The Department also received comments from an association of
growers/producers and from two individual employers requesting that
reforestation work be considered as agricultural labor. These
commenters assert that there are reforestation activities including
planting, weed control, herbicide application and other unskilled tasks
related to preparing the site and cultivating the soil and that workers
who perform these tasks deserve consideration for eligibility for H-2A
visas, as do workers who perform the same or similar tasks in
cultivating other agricultural and horticultural commodities on many of
the same farms. These commenters also pointed out that workers
performing reforestation tasks for farmers or on farms are clearly
agricultural employees under the FLSA and, additionally, believed the
Internal Revenue Code supports their position for considering
reforestation work performed on a farm or for a farmer as agricultural
labor or services.
Following review of the comments discussed above, the Department
has decided the definition of agriculture should not be further
expanded at this time and no additional activities have been selected
for inclusion as agricultural activities beyond those included in the
NPRM. In most cases where there was the suggestion for the inclusion of
a particular industry or activity in the definition of agriculture
there was not strong support for the inclusion by representatives of
that industry, as indicated by the number and source of the comments
received. For example, one commenter supported adding maple syrup
harvesting and ancillary activities to the definition of agricultural
labor. The suggestion did not come from someone actually involved in
the maple syrup industry, however, but rather from a State Workforce
Agency. While the Department appreciates the input of such commenters,
it would be inappropriate to impose on those industries (most of which
currently qualify for the H-2B program rather than the H-2A program)
changes that the industry itself did not seek.
The two exceptions to this pattern in the comments were the dairy
industry and the reforestation industry, both of which, as discussed
above, submitted comments evidencing industry-based support. The
Department's analysis of the comments from the dairy industry, however,
indicates it is not the program's definition of agriculture, which
already includes dairy activities, that presents a potential barrier to
the industry's use of the H-2A program, but rather the statutory
requirement for the work to be temporary or seasonal in nature.
The H-2A program, by statute, provides a means for agricultural
employers to employ foreign workers on a temporary basis. Many dairy-
related job needs, however, appear to be year-round and permanent in
nature.
While the H-2A program is specially designed for agricultural
employers, they are not limited to using only the H-2A program. The
employment-based permanent visa program is also open to agricultural
employers with a permanent need for which they are unable to secure
U.S. workers. At the same time, year-round operations are permitted to
seek certification to utilize H-2A workers for seasonal or temporary
jobs within their industries when they can substantiate the temporary
or seasonal nature of the jobs. The Department recognizes that an
employer may have both permanent and temporary jobs in the same
occupation. However, employers should be aware that the Department does
not typically approve subsequent applications requesting foreign
workers for the same position when, taken together, those applications
would cover a continuous period of time in excess of 10 months, unless
exceptional circumstances are present.
The comments from the reforestation industry, while thoughtful,
represented the input of only two individual employers and a single
employer association who do not necessarily provide a representative
sample of the entire reforestation industry. The Department is
reluctant to overturn the regulatory practices of several decades and
impose the significant obligations of an H-2A employer on an entire
industry without significant input from that industry. While the
Department is willing to further explore whether to include the
reforestation industry in the definition of agriculture, it does not
believe a decision to do so is warranted at this time.
``On a seasonal or other temporary basis''
The Department proposed a definition of the key terms ``on a
seasonal or other temporary basis'' in the definition of
[[Page 77119]]
agricultural labor or services in the NPRM that continued the
interpretation of the current regulation. We received several comments
related to the phrase ``on a seasonal or other temporary basis.'' A
trade association suggested the rule borrow the temporary and seasonal
concepts from the Migrant and Seasonal Agricultural Workers Protection
Act (MSPA) definitions that are appropriate in an H-2A context without
incorporating the MSPA regulations and related judicial precedent. It
was the association's belief that this approach would allow an H-2A
worker to be admitted for longer than a 10-month period. An association
of growers/producers suggested the definition of temporary or seasonal
should apply to the worker rather than the job and also that year-round
farming operations/nurseries should be allowed to access a workforce to
provide year-round services by rotating ``shifts'' of workers with
different contract/visa periods. Another trade association also
suggested the definition and interpretation of temporary and seasonal
could be expanded.
The Department does not agree that the definition of temporary or
seasonal should focus on the worker rather than the job. The INA is
clear that the employer must have a need for foreign labor to undertake
work of a temporary or seasonal nature for which it cannot locate U.S.
workers. The Department's position has traditionally been that job
opportunities that are permanent in nature do not qualify for the H-2A
program. The controlling factor is the employer's temporary need,
generally less than 1 year, and not the nature of the job duties. See
Matter of Artee Corp., 18 I&N Dec. 366 (Comm. 1982); see also Global
Horizons, Inc. v. DOL, 2007-TLC-1 (November 30, 2006) (upholding the
Department's position that a failure to prove a specific temporary need
precludes acceptance of temporary H-2A application); see also 11 U.S.
Op. Off. Legal Counsel 39 (1987). An H-2A worker could, however, be
employed continuously by successive H-2A employers having a temporary
need for the worker's services and thus be employed and remain in the
U.S. for a period beyond one year.
In addition, the Department has made several edits to the
Definitions section of the NPRM to provide consistency with other
changes to the regulatory text and to clarify the Final Rule. For
example, the definition of ``Application for Temporary Employment
Certification'' has been amended to help ensure the public has a clear
understanding of what this regulation requires. Other definitions, such
as ``temporary agricultural labor certification determination'' and
``unauthorized alien,'' have been eliminated because they are not used
in this regulation. We have also made non-substantive changes to
provide clarity and to comport with plain English language
requirements.
Section 655.101 Applications for Temporary Employment Certification in
Agriculture
(a) Instituting an Attestation-based Process
The Department proposed instituting an application requiring
employers to attest to their adherence to the obligations of the H-2A
program. The Department received several comments in favor of the new
process, several opposed, and others generally in favor but suggesting
changes to the process as outlined in the Department's proposal.
Some commenters believed that attestations to future events should
not be required, and that attestations should be made under the
``applicant's best knowledge and belief'' standard and not the ``under
penalty of perjury'' standard because applicants cannot know what will
happen in the future.
The Department believes that the attestations the Final Rule
requires employers to make do not require employers to predict future
events, but rather represent straightforward commitments to comply with
program requirements. Such compliance is fully in the control of the
employer. It is, therefore, not necessary to delete or modify the
manner in which attestations are made.
(1) Support for an Attestation-based Process
Those commenters who favored the shift to an attestation-based
process generally believed the new process would make the H-2A
application more efficient and less burdensome for employers. One State
government agency commented that the process would enable the SWAs to
focus on job orders, referrals, and housing inspections while relieving
them of the burden to review the applications themselves. Another
commenter supported the shift but encouraged the Department to ensure
the ``Administrator * * * acquires the agricultural expertise necessary
to provide training and guidance to those who are reviewing and
overseeing the operating of a program that is critical to future U.S.
agricultural production.''
The Department appreciates support for its proposed process. As of
June 1, 2008, the Department has centralized the Federal processing of
all applications for H-2A temporary foreign workers in the Chicago
National Processing Center. This centralization will enhance the
Department's ability to handle the expected increases in the usage of
the H-2A program and ensure consistency in application of program
requirements. The Department recognizes the unique needs and timeframes
associated with this program and anticipates that centralization will
lead to the development of greater expertise to meet those needs and
timeframes. It also believes that centralized processing of
applications will facilitate the identification of areas where program
training should be enhanced and that the centralized environment will
maximize the effectiveness of such training.
An association of growers/producers supported the attestation-based
process but found the process, as described in the proposed regulation,
confusing and duplicative. This commenter requested that all of the
attestation requirements be consolidated into one rule clearly stating
which facts are to be verified.
The Department appreciates the commenter's suggestion about
consolidation of the attestation requirements and, as provided in the
proposal, has retained the comprehensive listing of the requirements in
Sec. 655.105, ``Assurances and Obligations of H-2A Employers'' and
Sec. 655.106, ``Assurances and Obligations of H-2A Labor
Contractors.'' It was not clear if this commenter was requesting a
consolidated listing of the attestations required by both the
Departments of Labor and Homeland Security. The Department of Labor is
including in the comprehensive lists only those attestations that DOL
requires. The commenter did not include specific examples of
duplication or confusing information and the Department, therefore, is
unable to provide any further response.
(2) Legality of the Attestation-based Process
Several of the commenters who opposed the change asserted an
attestation-based process conflicts with the statutory mandate in
Section 218 of the INA (8 U.S.C. 1188). These commenters interpreted
the INA to require the Department to make a determination based upon an
active verification of the H-2A application. One group commented that
the attestation process violates the statute's Congressional mandate.
Two organizations expressed the belief that the certification process
has always been understood to require active
[[Page 77120]]
oversight by the Department of the employer's recruitment and hiring of
U.S. workers as well as the details of the job offer. One commenter, an
advocacy organization, voiced the opinion that the statutory standard
is not whether the employer has made adequate assurances that it has or
will meet the obligations of the H-2A program but is whether the
employer has actually met them. Another commenter opined that labor
certifications were not meant to be attestation-based and that this
approach will dramatically reduce government oversight of this program.
These commenters believe that the Secretary will not be able to certify
that wages and working conditions have not been adversely affected and
that this regulation is contrary to the statute.
The attestation-based process implemented by the Final Rule is not
inconsistent with any statutory requirements, but rather is a
reasonable means selected by the Department to fulfill its statutory
responsibilities. The Department does not interpret Section 218 of the
INA to specify a particular methodology that the Department must employ
to determine that all of the statutory criteria have been met, and
indeed, various aspects of the Department's methodology have changed
through the years. The attestation-based system, backed by audits, that
is implemented by the Final Rule is an acceptable means, within the
reasonable discretion of the Secretary, for the Department to ensure
that the statutory criteria for certification are met and that program
requirements are satisfied. Similar approaches have been used by the
Department in other contexts (such as approval of permanent labor
certifications) to fulfill its statutory responsibilities. Indeed, as
discussed in greater detail in various sections below, under the
statutory time limits for filing applications and issuing
certifications the Department typically makes certification
determinations on applications prior to the completion of many of the
recruitment requirements and without any direct observation or
inspection by the Department or its SWA agents that rental housing
secured by employers complies with all of the applicable legal
standards.
No system for review and approval of applications, of course, is
foolproof, and the statute prescribes appropriate penalties for
situations in which the terms of approved labor certifications are
later violated. See 8 U.S.C. 1188(b)(2)(A). There will always be bad
actors who attempt to circumvent program requirements. Employers
sometimes violate program requirements under the current H-2A
application process, and the Department has also detected violations in
other foreign worker programs it administers. Under the final rule, the
Department will have more enforcement tools at its disposal than ever
before to deal with such violations. The Department believes that the
attestation-based process fully complies with all statutory
requirements and, when utilized in concert with a strong audit and
review process, represents the best means for the Department to deploy
its limited resources in a manner that ensures that statutory timelines
are met and that the program's integrity is maintained.
(3) Protections for U.S. Workers in an Attestation-based Process
Several commenters believed the proposed attestation-based process
would not provide adequate protections for U.S. and H-2A workers
because it would reduce the oversight responsibilities of the
Department. Some of these commenters also said the current system
should be maintained to ensure that the Department oversees worker
protection, especially in the areas of housing and wages. An
organization commented that while this change may ease the application
process for employers it ignores the damage that could be caused by
false attestations and a lack of active oversight of the job terms,
recruitment, and hiring of U.S. workers. A farmworker advocacy
organization questioned the change to an attestation-based process
claiming there is a long history of labor abuse in agriculture and
saying they believed that when ``self-inspection procedures'' are
implemented they are generally based upon a prior record of compliance
and an accompanying determination that resources would be better
utilized in another pursuit. Another farmworker advocacy organization
commented that the attestation-based process, as proposed, would
further remove and diminish the Department's role in assuring all
reasonable efforts to locate U.S. workers had been exhausted before
foreign guest workers could be certified. Another commenter voiced
concern that the proposed process would eliminate the current process
of follow-up correspondence that has been instrumental in ensuring that
employers have actually undertaken the required recruitment steps. A
worker advocacy organization commented the proposed process, with its
emphasis on meeting paper requirements, would be ``ill suited to deal
with the inherent disparities in bargaining power between U.S.
agricultural employers and impoverished workers from the developing
world.''
The Department believes these commenters' concerns, while not
invalid, are substantially resolved by the safeguards that have been
built into the new process. The new program model emphasizes compliance
through enforcement mechanisms such as audits, revocation of approved
certifications, and debarment from the program. In light of these
enforcement tools, employers will have a substantial incentive to be
truthful in their representations that they cannot find U.S. workers
willing to engage in agricultural work at the appropriate wage, because
good-faith compliance with program obligations is necessary to maintain
continued access to a legal nonimmigrant workforce. Because the rule
requires pre-filing recruitment, the Department will also have an
opportunity to review recruitment reports and (through its SWA
partners) to conduct housing inspections before applications are
approved. Job orders must also be reviewed, approved, and circulated by
the SWAs before labor certifications can be granted, making it
impossible for even bad actor employers to entirely circumvent the
program's core recruitment requirements. Finally, it is worth noting
that the bulk of the program's requirements, including requirements to
pay workers at prescribed rates, maintain housing conditions, and
provide transportation that complies with applicable safety
requirements, have always been, and must necessarily be, enforced by
the Department after the labor certification has been granted.
Although not a factor in our evaluation of the comments here, the
Department also notes that many commenters who opposed the attestation-
based system in this rulemaking, claiming that it will adversely affect
U.S. workers, have enthusiastically endorsed proposed legislation
before the U.S. Congress that would in fact mandate that the Department
adopt an attestation-based application system in the H-2A program.
Those organizations in their comments on this rulemaking made no
attempt to explain their contradictory public positions regarding the
merits of an attestation-based application system.
(4) Improvements for Employers in an Attestation-based Process
Several commenters questioned whether the proposed process would
yield a simplified process for employer applicants. These commenters
believed the new process requires the same amount of paperwork and only
relieves employers of submitting documentation while at the same time
imposes
[[Page 77121]]
additional requirements including post-filing audits, increased
penalties, and a five-year records retention requirement. Several
commenters were concerned that the attestation-based process would lead
to increased liabilities for employers.
The Department does not believe that employers, attorneys, and
agents wishing to comply with program obligations will be adversely
affected by the institution of an attestation-based process. The
process is designed to give employers specific notice of the assurances
they are making to the Department and what their obligations are. Once
the employer is on notice of those assurances, it is better able to
understand what it must do to comply with H-2A requirements and to
conform its conduct to those requirements.
A trade association of agricultural employers agreed with the shift
to an attestation-based process but believed the process as outlined in
the proposed regulations was not a true attestation-based process and
recommended the process used in the H-1B program serve as a model.
Other commenters also recommended use of a process similar to the one
used in the H-1B program. Several commenters also suggested that the
Department combine the Application for Temporary Employment
Certification with the I-129 petition for simultaneous submission to
the Departments of Labor and Homeland Security.
In response to the proposals to convert the proposed attestation-
based process into a process modeled after the H-1B labor condition
application, the statutory differences between the two programs are
sufficiently substantial to make such an idea impractical. In the H-1B
program, the Department is statutorily limited to reviewing the
attestations made by an employer for ``completeness and obvious
inaccuracies.'' 8 U.S.C. 1182(n)(1)(G)(ii). The Department believes the
different H-2A statutory language suggests that a different application
and review process is appropriate for the H-2A program. The Department
appreciates the suggestion that simultaneous submissions to the
Department and DHS could lead to further application efficiencies for
employers. However, the Department believes that the complexity of the
current statutory requirements for the H-2A program would make it
unworkable to combine the Department's application with the petition
submitted to DHS. A proposal presented by the Department several years
ago to employ such a process in the H-2B program for temporary
nonagricultural workers was met with significant opposition. To attempt
to undertake a similar process with the significantly more complex H-2A
program does not appear feasible at this time.
Some commenters appeared not to understand the proposed attestation
process. The Department received comments stating that it is not clear
what should be included with the attestation. The Department has
accordingly clarified in the Final Rule that the application must be
accompanied by the prevailing wage determinations obtained in
anticipation of the recruitment for the application as well as the
initial recruitment report. The employer will be required to keep all
other supporting documentation in case of an audit, which means the
employer should keep all records relating to compliance with the H-2A
program, including advertising, job orders, recruitment logs/reports,
and housing inspection requests. To eliminate any lingering confusion
over document retention requirements, the Department has spelled these
out in a new regulatory section (Sec. 655.119) in this Final Rule.
(b) SWA Involvement/Application Submission
The NPRM revised the application submission requirements by
proposing to have employers submit applications only to the NPC rather
than to both the NPC and SWA as currently required. Most of the
comments received about this proposal were in favor of it, but a few
commenters expressed concerns about the reduced role for SWAs. One
person commented that eliminating the SWA involvement would leave
employers who seek assistance and guidance from the government in
completing applications more disposed to making errors and would
increase their potential liability. A farmworker advocacy organization
commented that SWA knowledge has proven useful to workers in the past
and that the advantage of SWA involvement is the detailed knowledge
their experienced staff can bring to bear about local agricultural
practices and the use of agricultural labor in their area. The
commenter also believed that the proposed process, which requires the
employer to place a job order with the SWA, means that the SWA must
take on faith that the employer's job offer is consistent with the
terms of the H-2A application because the SWA will no longer receive a
copy of the application. This organization recommended that
applications should be filed with the SWA as well as the NPC so the SWA
could advise the NPC if the application did not appear legitimate. A
growers and producers association believed retaining responsibility for
the substantive review by the NPC staff could remain a problem because
of their lack of expertise related to agriculture.
A State governor suggested the process could be improved by
eliminating the Department from the process. The governor believes the
States know their agricultural industry better, can resolve issues more
quickly, and are in the best position to identify and enforce sanctions
against fraud. Conversely, a professional association of immigration
attorneys recommended the SWA be eliminated from the recruitment
process and, alternatively, the employer handle all recruitment for the
positions, including accepting applications received as a result of a
job order placed by the SWA in the interstate and intrastate system.
The Department remains committed to modernizing the application
process and continues to believe the submission of applications
directly to the NPC is the most effective way of accomplishing this
goal. Eliminating the SWAs' participation in the application review
process will provide more efficient review of applications, as well as
greater consistency of review. The Department disagrees that NPC staff
have insufficient knowledge of the agricultural industry; to the
contrary, NPC reviewers who have handled H-2A applications have, in
some cases, more experience with such applications than many SWA staff.
The SWAs will, moreover, continue to play an important role in the
H-2A application process. SWAs will be responsible for posting job
orders, both intrastate and interstate, under Sec. 655.102(e) and (f)
and 20 CFR Part 653, thus reducing the risk for employers to make
mistakes with respect to job descriptions, minimum requirements, and
other application particulars. SWAs will review the job offer, its
terms and conditions, any special requirements, and the justifications
therefor. As part of their duties to post job orders pursuant to 20 CFR
Part 653, SWAs will also refer eligible workers to employers as well as
conduct housing inspections and follow up on deficiencies in the job
order. Finally, SWAs will continue an active role in conducting
prevailing hourly wage, prevailing piece rate, and prevailing practice
surveys.
Two commenters noted potential coordination or communication issues
could result when the SWA did not also receive the application. One
commenter was concerned there would be no assurance that the job order
posted by
[[Page 77122]]
the SWA would be the same as that on the application. The other
commenter pointed out the proposed regulations provided that the SWA
receive a copy of the notice of deficiency when one was issued, but the
SWA would not have a copy of the submitted application and thus could
have inadequate information to be of assistance to the involved
employer. An association of growers/producers recommended the
Department provide training to H-2A employers about the need to send a
formal request to the SWA to request a housing inspection and also
recommended the Department notify the SWA when an application was
received for processing so the SWA could, in turn, contact the
employer.
The Department appreciates the concerns about the need for
communication between the NPC and the SWA and reiterates that there was
never any intent to eliminate the SWA from all H-2A activity. As
discussed above, SWAs remain an integral partner in key respects: The
placing of the intrastate/interstate job orders, conducting prevailing
hourly wage, prevailing piece rate, and prevailing practice surveys,
referring eligible workers, and conducting housing inspections, all
activities for which SWAs will continue to receive grants from the
Department. Moreover, nothing in the regulations precludes the
Department from contacting SWAs, where there is reason to believe that
it is necessary, to verify that the terms in the employer's Application
for Temporary Employment Certification are consistent with the terms of
the job offer.\2\ However, SWAs will no longer process H-2A
applications. Accordingly, to minimize confusion about roles and
responsibilities, the Department has removed from Sec. 655.107(a)(3)
(Sec. 655.107(b) of the Final Rule) the provision requiring that SWAs
be sent deficiency notices.
---------------------------------------------------------------------------
\2\ There is also no prohibition preventing a SWA from
contacting the Department to ensure that the employer's job order
and Application for Temporary Employment Certification are
consistent. As a practical matter, a SWA will rarely be able to do
so before posting a job order, because Applications for Temporary
Employment Certification generally are not filed with the Department
under the Final Rule until at least 15 days after the job order has
been submitted to the SWA. Communication between SWAs and the
Department has always been essential to identifying and putting a
stop to deceitful employer behavior, however, and the Department
expects that such communication will continue under the Final Rule.
---------------------------------------------------------------------------
(c) Electronic Filing
The Department invited comments on the concept of a future
electronic filing process for the H-2A program and received comments
supporting the concept, although some also included suggestions for on-
line training, the establishment of a toll-free help line, and an
outreach and education component. A trade association recommended that
a paper-based option should also remain available. One commenter noted
that the Department did not provide an effective date for the
electronic filing process.
The Department appreciates the support for electronic filing and is
in the process of developing a system that will include the ability to
complete and submit an application form online with sufficient security
(PIN numbers, features to deter fraud and maintain system integrity,
electronic notifications, etc.). The Department is aware of the need to
provide outreach and training prior to the implementation of electronic
filing and will involve user groups in these efforts. Additionally, the
Department will ensure an adequate notice process and timeframe for
transitioning to a new or revised electronic application system.
(d) H-2A Labor Contractor Applications
The Final Rule has been clarified slightly to more clearly state
the obligations of H-2A Labor Contractors in filing applications. The
proposed rule stated that H-2ALCs must have a place of business in the
United States ``to which U.S. workers may be referred.'' Because H-
2ALCs may be mobile, however, and because referrals during the season
may need to be made to whatever location an H-2ALC is working at rather
than to the physical location of the H-2ALC's place of business, the
final rule has been modified to state that H-2ALCs must have a place of
business in the United States ``and a means by which it may be
contacted for employment.'' This slightly modified requirement will
ensure that referrals can be made to H-2ALCs during the course of a
season (where such referrals are provided for by the Final Rule), and
that U.S. workers will have a means of contacting the H-2ALC to secure
employment. All other changes made to the paragraph on filing
requirements for H-2ALCs were purely stylistic and made for purposes of
clarity.
(e) Master Applications
Both the current and proposed regulations require an association of
agricultural producers filing an application to identify whether the
association is the sole employer, a joint employer with its employer-
members, or the agent of its employer-members. Although the current
regulations do not specifically describe a ``master application'' that
can be filed by associations, they are clearly contemplated by 8 U.S.C.
1188(d), and the Department has permitted them to be filed as a matter
of practice. See 52 FR 20496, 20498 (Jun. 1, 1987) (cited in ETA
Handbook No. 398).
The Department received several comments objecting to the omission
of a provision in the NPRM for the filing of master applications. An
association of growers/producers commented that the Department should
encourage agricultural employers in small commodity groups or large
associations of employers to jointly participate in the H-2A program,
as this will make processing more efficient for both the Department and
farmers. Another association of growers/producers stated that using an
association application is the only possible solution for the H-2A
program to accommodate growers who need harvest workers for a short
period of time (one month or less). A major trade association also
commented that the master application significantly reduces the
paperwork and bureaucratic burden for the associations and its members,
as well as for the Department.
A major trade association and other associations of growers/
producers recommended that the Department retain and improve the master
application process and fully incorporate it into the H-2A regulatory
structure. The association recommended the master application also be
simplified as part of the new H-2A application process. It recommended
the regulations include the essential components of the master
application process that has been followed in practice, including the
filing of one application on behalf of multiple employers seeking
workers in virtually the same occupation, permitting the association to
place the required advertisements and conduct the required positive
recruitment on behalf of all participants but without the listing of
every individual employer in the advertisement as currently required,
permitting referral of workers to the association, and allowing the
association to place workers in the job opportunities. The association
further recommended the master application process also apply to
applications filed by associations acting as agents.
The statute governing the H-2A program requires that agricultural
associations be permitted to file H-2A applications, see 8 U.S.C.
1188(d), and that they be permitted to do so either as agents or as
employers, see 8 U.S.C. 1188(c)(3)(B)(iv) and (d)(2). Consequently, the
Department has, as a matter of longstanding practice,
[[Page 77123]]
accepted master applications from agricultural associations. In
response to the comments received on this subject, the Department has
decided to include specific language concerning such applications in
the regulation text at Sec. 655.101(a)(3).
The basic theory behind master applications is that agricultural
associations should be able to file a single H-2A application on behalf
of all their employer members in essentially the same manner that a
single employer controlling all the work sites and all the job
opportunities included in the application would. Two important
limitations apply to such applications. First, all the workers
requested by the application must be requested for the same date of
need. If an agricultural association needs workers at different times,
it must file a separate Application for Temporary Employment
Certification for each date of need, just as a single employer would.
Second, the combination of job duties and opportunities that are listed
in the application must be supported by a legitimate business reason,
which must be provided as part of the application. The purpose of this
limitation is to prevent agricultural associations from creating
undesirable combinations of job duties and opportunities for the sole
purpose of discouraging U.S. workers from applying for the jobs. So
long as a legitimate business reason exists supporting the combination
presented, however, the Department will deem it acceptable. An
acceptable business reason for a combination of job duties and
opportunities could include, for example, the efficiencies that closely
proximate employers expect to gain from having access to a flexible,
readily available pool of workers, even though the employers in
question do not grow the same crops, which may be necessary for
agricultural employers to deal with uncertain and weather-dependent
planting and harvesting times.
The Department is aware that this may mean that at times a U.S.
worker wishing to perform only one type of job duty, such as picking
asparagus, may be required to perform an additional job duty, such as
harvesting tobacco, in order to secure an agricultural job with that
association. It is not at all uncommon, however, for jobs in the United
States to include multiple job duties, some of which workers may view
as more desirable than others. Indeed, many job opportunities offered
under the current H-2A regulations include multiple job duties, some of
which may be more desirable than others. There is nothing in the
statute governing the H-2A program indicating that Congress intended to
require agricultural employers to allow prospective workers to
selectively choose which job duties they want to perform and which job
duties they do not, with regard to a particular job opportunity. The
Department is requiring that combinations of job duties be supported by
a legitimate business reason to prevent the deliberate and unnecessary
discouragement of U.S. workers from applying for job opportunities, but
the Department does not believe that further restrictions on job duty
combinations are warranted or necessary to fulfill the statutory
criteria for certification.
(f) Timeliness of Filing Application
As required by statute, the provision stating a completed
application is not required to be filed more than 45 calendar days
before the date of need was retained in the proposed rule. The
Department has continued that requirement in Sec. 655.101(c). The
Department received some suggestions for changes to the proposed
timeframes for submitting applications. Two commenters suggested the
Department should at least provide the employer with the option of
applying not more than 45 days before the date of need, undertaking the
recruitment after the application has been accepted, and continuing to
accept referrals under the 50 percent rule.
The Department may not require an application to be filed more than
45 calendar days before the date of need under 8 U.S.C. 1188(c). The
Department does not agree with the suggestion for offering employers
the option of applying not more than 45 days prior to the date of need,
doing post-acceptance recruitment, and continuing to accept referrals
under the 50 percent rule. Given the need to maintain consistency in
the program's requirements, the Department cannot offer varying options
for recruitment timeframes.
(g) Emergency Situations
The NPRM did not contain the current regulatory provision
(currently found at Sec. 655.101(f)(2)) allowing the Administrator/
OFLC to waive the required timeframe for application submission for
employers who did not use the H-2A program during the prior
agricultural season or for any employer for good and substantial cause.
The Department received a number of comments objecting to its
elimination. A major trade association stated the elimination would
preclude many employers from legalizing their workforce simply because
their decision to join the program was made too late to meet the
required timeframes. Another major trade association commented that a
provision allowing filing after the deadline is even more essential
because the de facto deadline for meeting requirements under the final
regulation is further in advance of the date of need than the current
requirement. One association of growers/producers cited the situation
following Hurricane Katrina when many employers needed to secure
additional H-2A workers as an example of the need for an emergency
application process.
Most of those requesting that the provision for an emergency
application be reinstated also commented that if an emergency
application is filed in an area of intended employment and for a job
opportunity for which other employers have previously been certified
for the same time frame, the emergency application should be certified
immediately. These commenters also suggested that post-application
recruitment could be extended for emergency applications to ensure that
their availability would not create an incentive to avoid the pre-
filing recruitment efforts.
The Department agrees that a provision allowing the Certifying
Officer (CO) to waive the required timeframe for submission of
applications in emergency situations is necessary and has included such
a provision in the Final Rule at Sec. 655.101(d). The provision, which
substantially replicates the current regulatory provision governing
emergency situations, requires submission of a completed application,
except for the initial recruitment report that would otherwise be
required, and a statement of the emergency situation giving rise to the
waiver request. The emergency situation giving rise to a request for a
waiver may include a lack of experience with the H-2A program
obligations (including housing and transportation requirements) or for
other good and substantial cause. The Department anticipates that
employers who were non-users of the program during the previous year
may fail to meet the filing deadline due to miscalculation of the time
needed to complete the application. The Department will entertain
waiver requests from employers in this situation but will consider them
only after first verifying that the employer did not use the program
during the prior year.
The Department is not providing an explicit definition of good and
substantial cause in order to preserve flexibility when faced with
unanticipated situations or conditions.
[[Page 77124]]
We have provided some examples in the regulatory text to assist
employers in determining what might constitute sufficient cause
warranting a waiver. One example provided is a dramatic change in the
weather conditions resulting in a substantial change to the anticipated
date of need for H-2A workers with significant attendant crop loss
unless the waiver is granted. However, the employer must be able to
demonstrate that the situation or condition leading to the request for
a waiver was genuinely outside of the control of the employer.
The Department is requiring, in the Final Rule, that the employer
who requests a waiver must conduct some recruitment as a condition for
obtaining that waiver. The employer will be required to submit a job
order to the relevant SWA(s) and conduct positive recruitment from the
time of filing the application until the date that is 30 days after the
employer's date of need. The SWA must transmit the job offer for
interstate clearance as in a normal application process. We have also
added a provision that requires the CO to specify a date upon which the
employer must submit a recruitment report consistent with the
requirements of this part.
The Department recognizes that the suggestions that waivers be
approved if other applications for similar occupations and dates of
need in the same geographic locations have been previously certified
are intended to expedite the process. However, each application is
unique and the Department must consider each request on its own merits,
and therefore does not believe it should commit to approving requests
solely because there have been prior approvals for employers with
similar job opportunities and dates of need in the same area.
Finally, the Department made changes in Sec. 655.101 to conform to
other changes made to the rule. Such changes include, but are not
limited to, changes to clarify a potential electronic filing of future
applications. In addition, the Department has made non-substantive
changes to enhance readability.
Section 655.102 Required Pre-Filing Activity
The Department has changed the title of this section from
``Required Pre-filing Recruitment'' to ``Required Pre-filing Activity''
to include the activities other than recruitment that are discussed in
this section.
(a) Section 655.102(a) Time of Filing of Application
The NPRM proposed requiring that applications be filed at least 45
days before the employer's date of need (as required by statute) with a
pre-filing recruitment period commencing no more than 120 days prior to
the date of need and not less than 60 days prior to the date of need.
The Department received a number of comments on the change to a pre-
filing recruitment framework and the related timing for that
recruitment.
The Department received multiple comments opposing this proposed
timeframe; several commenters were generally opposed to the expanded
timeframe and others raised more specific concerns. Several commenters
questioned the Department's legal authority for a shift to pre-filing
recruitment. The Department also received comments arguing that the
proposed pre-filing recruitment requirement has the effect of moving
the deadline for filing an application. Several commenters argued that
the proposed requirement that employers begin recruitment earlier than
they are required to file applications would be inconsistent with the
Congressionally set timeframes and thus beyond the Department's
statutory authority.
The Department disagrees strongly with the premise that its revised
recruitment steps are a violation of the statute. The INA is clear that
the Department may not require an application for labor certification
to be filed more than 45 days prior to the date of need. See 8 U.S.C.
1188(c)(1). The statute is silent on how the Department implements the
certification process: It does not specify when the recruitment of U.S.
workers should take place, whether prior to or subsequent to filing.
The INA clearly contemplates at 8 U.S.C. 1188 that recruiting U.S.
workers is a separate activity from filing and considering
applications, and the statute does not provide any express timeframes
during which recruitment must be conducted. There is thus nothing in
the statute that prevents the Department from requiring employers to
recruit before filing an application, much as it requires that
recruitment be conducted prior to the filing of an application in other
immigration programs. The Department has determined that program
integrity would be improved by being able to review a preliminary
recruitment report at the time the application is filed, a requirement
that is consistent with both the intent and the language of the
statute.
Several commenters opined that it was not feasible for employers to
make accurate assessments of timeframes and the number of workers
needed so far in advance and many questioned how effective an early
recruitment period would be in helping employers to locate U.S. workers
who would still be available at the time the work actually began.
Additionally, many commenters believed the earlier recruitment would
not benefit U.S. agricultural workers seeking employment because it is
inconsistent with the traditional job-seeking patterns of these
workers.
Some commenters expressed concern that extending the recruitment
time would either not increase the number of U.S. worker applicants for
a position, or would increase the number of U.S. workers who applied
for a position but would not translate into more actual workers taking
the jobs, as many would not report to work. A trade association also
commented that the employer is put at risk because, by the time the
jobs begin, U.S. applicants may have long since changed their minds or
accepted other employment. A State government agency commented that
most agricultural workers would not make a commitment to a job so far
in advance of the start date. One individual employer believed the
proposed pre-filing recruitment would actually have the opposite effect
the Department anticipates because U.S. workers would be reluctant to
make commitments so far in advance of the start date. An employer
association recommended that the final regulation specifically permit
employers to ask workers identified during the recruitment process to
attest to or affirm their intentions to actually report to work to
perform the jobs.
An association of growers/producers shared its data from the 2006-
2007 season which shows only 9 percent of U.S. applicants applied
during the first 15 days of the current 45-day recruitment period and
questioned whether a longer timeframe would yield additional
applicants. The association also reported 83 percent of the applicants
who applied during the initial 15-days of the recruitment period failed
to report for work on the date of need, as compared to a 60 percent
failure-to-report rate for applicants who applied during the last 30
days of recruitment leading up to the date of need.
Some commenters stated that the current recruitment timeframes are
adequate for identifying and hiring U.S. workers and others advocated
alternate timeframes. Commenters presented a number of options for the
recruitment timeframe, including the current
[[Page 77125]]
timeframe, and options ranging between 90 to 75 days prior to the date
of need for beginning recruitment and 60 to 45 days prior to the date
of need for filing the application. In the words of one trade
association, which was representative of the comments received on this
point: ``For the sector for which H-2A is predominantly applicable--
fruits and vegetables--the ability to predict months in advance when
labor will be required is simply impossible.''
The Department takes seriously its twin obligations, consistent
with all H-2A statutory requirements, to ensure both that an adequate
workforce is available to U.S. agricultural producers and that U.S.
workers have a meaningful opportunity to apply for all open
agricultural job opportunities. The Department believes it can best
fulfill its statutory responsibilities by requiring employers to
recruit in advance of filing, which will enable employers to submit
preliminary recruitment reports with their applications, giving the
Department better information than it has ever had before about the
availability of U.S. workers before the Department is required by the
tight statutory timeframes to make a determination on an application.
The current pattern of forcing positive recruitment combined with the
Department's near simultaneous evaluation of the application into a
substantially narrow window of only 15 days is simply inadequate to
address these workforce and program integrity needs. Based on the
comments received, however, the Department has come to believe that
requiring employers to seek and secure a workforce 120 days in advance
of need may not be practicable, given the substantial likelihood that
over such an extended period variables such as weather conditions,
competition from other industries for available workers, and
competition among farms and crops could intervene and result in
increased labor uncertainty for employers.
The Final Rule accordingly shortens the pre-filing recruitment
period described in the NPRM. Employers will be required to initiate
recruitment no more than 75 days prior and no less than 60 days prior
to the anticipated date of need. Reducing the pre-filing recruitment
time period in this manner from the time period that was proposed,
while simultaneously adjusting the Department's proposal by extending
the referral period beyond the date of need (discussed further below),
will ensure U.S. workers have access to these job opportunities, and
enable employers to recruit effectively for U.S. workers without
adversely affecting planting and harvesting schedules. This revised
recruitment schedule, which is closer in time to the employer's actual
date of need, also addresses the commenters' concerns about the job
search patterns of likely U.S. workers. The Department declines, at
this time, to implement any requirement that U.S. workers affirm in
writing their intent to show up for work when needed, as that is a
contractual matter between the worker and the employer. The Department
notes that it has afforded employers some flexibility in the Final Rule
in Sec. 655.110(e), ``Requests for determinations based on
nonavailability of able, willing, and qualified U.S. workers,'' to
address situations where U.S. workers have failed to appear as
promised.
(b) Section 655.102(b) General Attestation Obligation
(1) General Comments Regarding the Attestations
A group of farmworker advocacy organizations commented on the
language in the proposed regulation that states ``the employer shall
attest that it will continue to cooperate with the SWA by accepting
referrals of all eligible U.S. workers who apply.'' The organization
stated it is the employer's duty to hire all qualified U.S. workers who
apply and believed the proposed language did not make this clear.
An association of growers requested that the language describing
the time period for acceptance of referrals be modified by adding the
word ``first'' before ``begin to depart'' because not all foreign
workers depart on the same date. A professional association requested
the regulation be changed to permit employers to stop local recruitment
efforts no more than five days prior to the date of need rather than
three days as proposed. This change was requested to accommodate the
actual transit time required for workers to arrive from abroad. As
discussed in more detail below, the points made by these commenters
have been rendered moot by changes made to this provision.
(2) The ``50 Percent Rule'' and the Cessation of Recruitment
The Department sought comments on program users' experience with
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. We received
numerous comments and several commenters offered alternative
approaches.
Several commenters questioned the Department's authority to make
changes to the 50 percent rule, citing the 1986 IRCA amendments which
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 regarding its continuation. 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. See 55 FR 29356, July 19,
1990. That rule was never finalized.
As the Department stated in the NPRM, since the 1990 publication of
the Interim Final Rule continuing the 50 percent rule, it has gained
substantial experience and additional perspective calling into question
whether the Department's 1990 decision was in fact supported by the
data contained in the 1990 study, and whether the rule is in fact a
necessary, efficient and effective means of protecting U.S. workers
from potential adverse impact resulting from the employment of foreign
workers.
The Department received several comments in support of retaining
the 50 percent rule as it is currently administered. Commenters
asserted that the rule is an important method for granting U.S. workers
job preference over foreign temporary workers and creates an incentive
for pre-season recruitment of U.S. workers. Some commenters stated
their belief that many U.S. workers gain jobs under the 50 percent rule
and that its elimination would deprive many U.S. workers of jobs
unfairly, although these commenters did not provide any data to support
their assertion.
Several commenters believed that few employers have had to lay off
H-2A workers under the 50 percent rule, and that the rule has enabled
many U.S. workers to secure jobs, and that elimination of the rule
would unfairly deprive them of those jobs. The commenters believed that
by eliminating this rule, the Department may keep U.S. farmworkers from
applying for jobs they would otherwise be able to take. Other
commenters believed that for those U.S. workers who learn of an H-2A
job, the proposal would eliminate the protections that safeguard
against employers rejecting qualified U.S. workers.
One commenter argued that the 50 percent rule provides an incentive
that should be maintained to create an attractive working environment,
and that it is critical to the integrity of the H-2A program. The
commenter asserted that it prevents growers from engaging in practices
that are tolerated by H-2A workers only because of their greater
economic vulnerability and in turn
[[Page 77126]]
ensures that labor standards are not driven down for U.S. workers
unable to compete with H-2A workers who have no choice but to endure
such conditions.
While one commenter admitted that they could not provide data
regarding the cost and benefits of the 50 percent rule, they expressed
the belief that employers will hire fewer domestic workers without it,
thereby adversely affecting an already vulnerable population. A number
of commenters noted that the elimination of the 50 percent rule would
make it more difficult for traditional farm workers who move with crops
along the traditional migrant streams to secure jobs. The commenter
believed that U.S. workers will be ``absolutely foreclosed'' from much
if not most H-2A related employment if they cannot be hired just
before, at, and past the date of need. An obligation to continue to
hire U.S. workers after the departure of any foreign workers to the
U.S. for employment was viewed by the commenter as critical to
maintaining and developing a U.S. agricultural workforce.
Finally, another commenter observed that the 50 percent rule has
served as an important tool for ensuring that the H-2A program does not
adversely affect U.S. workers, and that at a time of increasing
unemployment, the Department should not choose this particular moment
to abandon these long-standing labor protections for U.S. workers.
Several other commenters argued the 50 percent rule should be
abolished. These commenters argued that H-2A users have long considered
the 50 percent rule to be unfair and unreasonable. They observed that
no other temporary or permanent worker program has an even remotely
corresponding requirement. Commenters also observed that the 50 percent
rule was purportedly designed to enable domestic workers to accept
agricultural employment opportunities, but that its costs outweigh its
benefits. Commenters shared experiences that many of the domestic
workers who apply under the 50 percent rule do so to maintain
government benefits under the Unemployment Insurance program (the UI
program requires unemployed workers to show that they have actively
sought employment each week in order to continue benefits). They also
found that while the rule does not actually provide substantial
additional employment to domestic workers, it creates needless
insecurity and uncertainty for H-2A workers who are employed under H-2A
contracts.
A commenter from a state agency asserted that the elimination of
the rule would relieve the SWA from having to track these H-2A job
orders and would remove unnecessary burdens on employers. The commenter
believed that there is no tangible evidence that the rule produces the
desired results of increasing employment of domestic workers:
My experience is that it is rare for [U.S.] workers to search
our Internet postings for agricultural positions in the middle of a
growing season. Employers find this requirement confusing and
worrisome. Smaller employers have expressed concern that they could
lose their fully trained and settled foreign worker(s), suddenly
disrupting their operation. Unfortunately, their experience is that
U.S. workers who drop in during a season have a tendency to not stay
till the end of the contract period. If this practice had
historically produced significant results, the government-mandated
grower investment of time and money might be justifiable, but it has
not.
One commenter stated that there is no need for the 50 percent rule
where recruiting indicates that there are no or few local workers. The
commenter also found no need for the rule in situations where the
employers typically hire a large number of local workers. The commenter
went on to argue that if the Department wants to retain the rule, it
should do so only as a condition of approval of an application where
there is evidence indicating that there are a relatively large number
of local workers but the employer has indicated that it intends to hire
few if any local workers.
A number of commenters observed that all available data support the
view that relatively few U.S. workers desire employment in agriculture.
They argued that it necessarily follows from this fact that the 50
percent rule provides almost no benefit to U.S. workers, yet its
presence dissuades employers from participating in the program because
of the uncertainty it creates. These commenters concluded that the rule
should be abandoned. One commenter believed that if the Department
wished to retain the rule, it should reserve the right to do so on a
case by case basis, as a condition of approval for an application where
the CO and SWA believed that insufficient local recruiting has been
accomplished. The Department believes that this idea may have some
merit, but has not devised a means to implement it at this time.
A number of agricultural employers commented that the rule
requiring H-2A employers to hire any qualified U.S. worker during the
first 50 percent of the H-2A work contract makes it very difficult for
a producer to manage labor supply and costs over the life of the
contract. Commenters from state agencies found that the features of the
rule are seldom completely understood by the growers who need the H-2A
program, adding to their impression that the entire process is
complicated and rife with red tape. Another State commenter found the
rule to be antiquated and ineffective.
Another commenter observed that the rule has been disruptive and
non-productive for both workers and employers and that its elimination
will provide much-needed stability in the workforce obtained by the
employer. A commenter found that a cost-benefit analysis of the
situation indicates that continuing to recruit U.S. workers beyond the
date of need results in no corresponding benefit. One farmer observed,
It's just not right that after I have made the best attempt to
hire domestic workers that once halfway through the season I be
forced to replace a trained H-2A worker. I really would prefer to
hire local workers and keep that wage money at home, if I could find
them.
Commenters from various farm bureaus around the country argued that
under current conditions, the 50 percent rule is without foundation.
They argued that anecdotal evidence shows that few, if any, employees
referred for employment after the employer's date of need apply for or
maintain their work status. They believed that agricultural employers,
especially those with perishable crops, must be able to operate with
greater certainty. Once an operation begins, the success of the work
effort is the product of coordinated teamwork. Employers are willing to
make strong recruitment efforts before the date of need, but they seek
certainty and continuity once the work period has begun.
A commenter from a farming association found that the actual
benefits of the 50 percent rule for domestic workers are, to all
practical intent, illusory. The commenter strongly supported
eliminating the rule entirely, arguing that such an approach would
result in a substantial improvement in program operations. The
commenter argued that while the Department has a statutory obligation
to protect the rights of U.S. workers when implementing the program, it
is necessary to strike a balance between the priority given to U.S.
workers and the rights of employers, who have met all of the legal
obligations that attach to employing H-2A workers. It went on to argue:
The current 50 percent rule, while seemingly a provision to
protect U.S.
[[Page 77127]]
workers, is more disruptive to farm operations and a disincentive to
program participation than it is a true protection for workers.
There is no reason to mandate that a grower's obligations to find
and recruit eligible U.S. workers should extend past the recruitment
period; imposing such an obligation serves only to disrupt
operations of the producer and does little to protect U.S. workers *
* *. The fact is, and all available data support this view,
relatively few U.S. workers desire employment in agriculture * * *.
The work is arduous, episodic, taxing, requires relatively little
skill and virtually no education. Within the U.S. economy the pay--
while increasing--is relatively low. These jobs provide tremendous
economic opportunity for migrant workers but are not perceived as
offering the same benefit to U.S. workers. In fact, approximately 10
million individuals in the U.S. economy today choose to work in jobs
which pay them less than they could earn in agriculture. The 50
percent rule provides virtually no benefit to U.S. workers yet its
presence has clearly been a disincentive to program participation.
It should be abandoned.
Other commenters offered alternatives to the 50 percent rule
including a 25 percent rule, recognizing that referrals after the date
of need may serve a useful purpose but extending through 50 percent of
the contract completion might be too long. One farming association
suggested that the obligation to accept domestic referrals should
terminate not later than three days before the date of need.
A number of state agencies suggested that SWAs should leave job
orders open for 30 days after the date of need and employers should be
required to offer employment to any qualified and eligible U.S. workers
who are referred during that time, also recognizing that the current 50
percent of the contract period is too long and perhaps too uncertain to
manage.
Another commenter similarly recommended that employers be required
to begin recruitment no more than 60 days prior to the date of need and
continue until between one and 30 days after the date of need, with
adjustments made according to the expected duration of the job
opportunity. Under this commenter's proposal, the determination of the
end date for recruitment should be no earlier than the date of need,
but the 50 percent rule should be revisited and adjusted to lessen its
potential negative impact on the agricultural employer's workforce.
Finally, another commenter suggested a continued obligation of 50
percent of the work period or 30 days, whichever is longer.
It is clear to the Department from these comments that many view
the current 50 percent rule as a substantially burdensome requirement
that does not provide a corresponding benefit to U.S. workers.\3\
Others see the rule as benefiting U.S. workers by providing them
expanded job opportunities. Based on the comments it has received and
its substantial experience in operating the H-2A program, the
Department believes that the 50 percent rule clearly does provide some
benefits to U.S. workers, but that the rule creates substantial
uncertainty for employers in managing their labor supply and labor
costs during the life of an H-2A contract and serves as a substantial
disincentive to participate in the program.
---------------------------------------------------------------------------
\3\ In December 2007, the Department commissioned a survey of
stakeholder representatives to evaluate the effectiveness of the 50
percent rule as a mechanism to minimize adverse impacts of the H-2A
program on U.S. farm workers. The Department had conducted a similar
study of the impact of the 50 percent rule in 1990, but upon
reviewing that study as part of the H-2A review which led to this
recent NPRM the Department concluded that it was of limited utility
because it covered only two states--Virginia and Idaho--and because,
given the significant changes that have occurred in the field of
agricultural employment over the last two decades, it was
substantially out of date. The surveyors for the new study conducted
interviews with a number of stakeholders to gather information on
the impact of the 50 percent rule and how it is currently working.
The surveyors queried a far more representative sample of entities
affected by the 50 percent rule than the 1990 study had, including
employers, state workforce agencies, and farm worker advocacy
organizations.
While the new study identified a diversity of opinion about the
value and effectiveness of the current 50 percent rule, the
researchers found that the rule ``plays an insignificant role in the
program overall, hiring-wise, and has not contributed in a
meaningful way to protecting employment for domestic agricultural
workers.'' See ``Findings from Survey of Key Stakeholders on the H-
2A `50 Percent Rule','' HeiTech Services, Inc. Contract Number:
DOLJ069A20380, April 11, 2008. The researchers estimated that the
number of agricultural hires resulting from referrals to employers
during the 50 percent rule period was exceedingly small, with H-2A
employers hiring less than 1 percent of the legal U.S. agricultural
workforce through the 50 percent rule. All of the categories of
surveyed stakeholders, including employers, state workforce
agencies, and even farm worker assistance and advocacy
organizations, reported that U.S. workers hired under the 50 percent
rule typically do not stay on the job for any length of time when
hired, frequently losing interest in the work when they learn about
the job requirements. Many of the survey respondents, including
representatives from each of the three groups, suggested that the
rule should be either eliminated or modified.
The Department did not specifically rely on either of the two
surveys in crafting the Final Rule. It does, however, believe that
the information provided adds some additional depth to the
discussion contained in this preamble. Accordingly, it has posted
the studies on the Department's Web site.
---------------------------------------------------------------------------
Based on the comments it received, the Department has decided to
modify the rule. The requirements of 8 U.S.C. 1188(c)(3)(B)(iii) were
fully satisfied when the Department promulgated interim final
regulations on July 19, 1990. Nevertheless, the language of that
provision suggests that when issuing regulations dictating whether
agricultural employers should be required to hire U.S. workers after H-
2A workers have already departed for the place of employment, the
Department should weigh the ``benefits to United States workers and
costs to employers.'' After considering its own experience and the
experience of its SWA agents, the Department agrees, on balance, with
those commenters who argued that the costs of the 50 percent rule
outweigh any associated benefits the rule may provide to U.S. workers.
It is beyond dispute that the obligation to hire additional workers
mid-way through a season is disruptive to agricultural operations and
makes it difficult for agricultural employers to be certain that they
will have a steady, stable, properly trained, and fully coordinated
work force. It is also apparent from the comments received that the
current rule is poorly understood by employers, difficult for the SWAs
to administer, and a disincentive for employers to use the H-2A
program. Finally, the rule requires agricultural employers to incur
additional unpredictable and unnecessary expenses, forcing them to
choose between either hiring a greater number of workers than they
actually need to complete their work part-way through a season, or
discharging some or all of their H-2A workers, in which case the
employer will lose its entire investment in those workers and will be
required to incur the immediate additional expense to transport the
workers back to their home countries. It is for all of these reasons
that no other permanent or temporary worker program administered by the
Department contains such a burdensome requirement, even though most of
these programs are subject to similar statutory or regulatory
requirements that the Secretary certify (1) that there are not
sufficient workers in the United States who are able, willing, and
qualified to perform the labor or services needed and (2) that the
employment of the aliens in such labor or services will not adversely
affect the wages and working conditions of workers in the United States
similarly employed.
It is clear to the Department that the current 50-percent rule does
provide some benefits to U.S. workers, since at least some U.S. workers
secure jobs through referrals made pursuant to the rule. The number of
such hires, however, appears to be quite small. Moreover, the comments
indicate that many workers hired pursuant to the 50-
[[Page 77128]]
percent rule do not complete the entire work period, adding costs to
employers and further diminishing the total economic benefits derived
from the rule by U.S. workers. It is also relevant that under the Final
Rule, the period of time that a job order is posted by a SWA prior to
an employer's dates of need has been substantially expanded from the
current rule, which will provide U.S. workers with more up-front
information about agricultural job opportunities, rendering mandatory
post-date-of-need hiring less necessary.
In sum, after considering the best information currently available,
the Department has concluded that the benefits of the 50-percent rule
to U.S. workers are not, on balance, sufficient to outweigh its costs.
The Department has also determined that modifying or eliminating the
50-percent rule would not compromise the Department's ability to ensure
that U.S. workers are not adversely affected by the hiring of H-2A
workers, just as the absence of a 50-percent rule from the other
permanent and temporary worker programs administered by the Department
has never been thought to compromise the Department's ability to ensure
that U.S. workers are not adversely affected by the hiring of foreign
workers under those programs. If it is true, as some commenters
suggested, that some U.S. agricultural workers simply drift from
employer to employer without paying attention to actual advertising
about agricultural job opportunities, the Department is confident that
farm worker advocacy and assistance organizations will help to spread
the word about advertised agricultural job openings, much as they do
today. The available hiring and referral data strongly suggest,
however, that such workers only rarely secure their jobs through the
50-percent rule today. It is also worth noting that to the extent
workers can identify agricultural job openings before those jobs have
started, they will gain the additional benefit of a longer period of
employment.
Despite these conclusions, the Department is concerned that the
sudden and immediate elimination of the 50-percent rule might prove
disruptive to the access of some U.S. workers to agricultural
employment opportunities. If some U.S. workers have become accustomed
to the ability to secure H-2A-related employment after the jobs have
already started, those workers may benefit from a transition period
that will allow those workers to adjust their employment patterns. A
transition period would also allow the Department to collect additional
data about the costs and benefits of mandatory post-date-of-need hiring
under the new rule structure over a period of several years, allowing
the Department to assure itself that its initial conclusions regarding
the rule are sound.
For these reasons, the Department has created a five-year
transitional period under the Final Rule during which mandatory post-
date-of-need hiring of qualified and eligible U.S. worker applicants
will continue to be required of employers for a period of 30 days after
the employer's date of need. In determining precisely what form
mandatory hiring should take during this transitional period, the
Department considered all of the various options presented by
commenters. Several commenters suggested limiting the period during
which employers are required to engage in mandatory post-date-of-need
hiring to 30 days. The Department has adopted this suggestion as the
transitional period rule, both for ease of administration and to
minimize the extent to which the various costs and considerations
outlined above will burden employers during the transition. The
Department believes that the use of this 30-day post-date-of-need
mandatory hiring period during the five-year transition period will
allow a smooth adjustment of the expectations of U.S. workers and will
provide the Department additional time to collect data on the effect of
the rule. At the end of the transition period, the mandatory post-date-
of-need hiring requirements under the Final Rule will expire, and
employers will only be required to accept referrals of U.S. workers
until the first date the employer requires the services of H-2A
workers. However, the Department intends to conduct a study of the
impact of this transitional 30-day rule on U.S. workers and on
employers during the five-year transition period, and under the rule
retains the ability to indefinitely extend the 30-day rule by notice
published in the Federal Register should the Department's study
determine that the rule's benefits outweigh its costs.
We believe this framework addresses the concerns of many of the
commenters, both for and against continuation of the 50-percent rule,
and strikes an appropriate balance between the concerns of agricultural
employers and the need to protect U.S. workers' access to the
employment opportunities under the H-2A program. Having a set period of
time during the transition period, not tied to a percentage of the
contract length, will provide employers more predictability and be
easier to administer for employers, workers and SWAs making referrals.
The language of Sec. 655.102(b) as originally proposed implied that
mandatory post-date-of-need hiring would no longer be required by the
H-2A regulations. The language creating the transitional 30-day
mandatory hiring period outlined above may be found at Sec.
655.102(f)(3) of the Final Rule.
To the extent that the 30-day rule applies, the employer would
require similar safeguards as under the 50-percent rule so long as the
employer continues to have an affirmative obligation to hire U.S.
workers beyond the date of need. Accordingly, the Department has
included a provision in Sec. 655.102(f)(3)(ii) of the Final Rule on
the prohibition of withholding of U.S. workers. The provision is
similar to the provision in Sec. 655.106(g) of the current
regulations, but has been modified to reflect the centralization of the
application process with the NPC. Under the final rule, the CO, and not
the SWA, receives and investigates the complaint and makes a
determination whether the application of the 30-day rule should be
suspended with respect to the employer.
(c) Section 655.102(c) Retention of Documentation
The Department proposed in the NPRM a 5-year retention requirement
for all H-2A applications and their supporting documents. The vast
majority of commenters who provided observations on this provision
voiced concern with the proposed 5-year document retention period and
recommended 3 years, stating that they did not have adequate staff to
comply with the requirement or that it is not an industry standard and
not legally consistent with other regulations and might even discourage
use of the H-2A program. The Department has reconsidered its position
and has changed the retention requirement to 3 years.
One commenter suggested that all record retention requirements and
periods be combined into one section of the amended regulations to
provide program participants with clearer guidance for these
obligations. The Department agrees and has added a new Sec. 655.119 to
the regulatory text. The new section lists all the document retention
requirements.
Another commenter requested that the Department add a sentence to
the rule indicating that the employer is not liable for eliminating
records after the retention period expires. The Department has not
added an express provision to this effect, as we believe the cessation
of the employer's
[[Page 77129]]
responsibility to retain the records after the retention period expires
is self-evident. The Department suggests, however, that there may be
some benefits to employers keeping records beyond the required 3-year
period; if the employer later faces an allegation of fraud or some
other alleged violation that has a statute of limitations of longer
than 3 years, retained documents may help the employer defend itself.
Indeed, if a proceeding or investigation relating to the retained
records has already been initiated, it should be understood that the
employer is obligated to retain the records that are the subject of the
proceeding or investigation until it has come to a conclusion.
One commenter requested that the Department allow applicants who
are denied certification to discard records 180 days after the denial.
The Department has decided to eliminate the requirement to retain
records pertaining to denied certifications in its entirety. If an
application is denied on grounds of fraud or malfeasance, the
Department expects that it will have already obtained copies of any
documents necessary to prove the fraud or malfeasance during the
process of denying the certification, and thus the retention of such
documents by the employer would be needlessly duplicative. Under the
Final Rule, any employer who has been denied certification can discard
the records immediately upon receiving the denial notice, or, if the
employer appeals the decision, whenever the decision to deny
certification becomes final. If the denial is ultimately overturned on
appeal and certification is granted, the application of course becomes
subject to the document retention requirements for approved cases.
A SWA requested that we define who is responsible for monitoring
the documentation and ensuring compliance. This Final Rule places
responsibility squarely with the employer to maintain the
documentation. The NPC, through the audit function as well as the other
enforcement tools at its disposal, will ensure compliance. SWAs would
not be responsible for monitoring documentation or ensuring compliance
with this provision.
(d) Section 655.102(d) Positive Recruitment Steps
The Department proposed ``positive recruitment'' steps including
posting a job order with the SWA serving the area of intended
employment; placing three print advertisements; contacting former U.S.
employees who were employed within the last year; and recruiting in
additional States designated by the Secretary as States of traditional
or expected labor supply.
Many commenters, primarily employers and employer associations,
expressed concerns with the specific proposed pre-filing recruitment
steps. Many argued that the proposed longer recruitment period and
increased advertising would simply increase the cost of the recruiting
effort without increasing the benefits and that the increased steps
were duplicative. These commenters believe that their workforce
shortage problem is not due to a lack of awareness of available jobs,
but rather is because of a lack of willing and available U.S. workers.
They suggested that rules be promulgated to use only the current state
employment service system and not require agricultural employers to
perform a substantial prolonged search for U.S. workers before being
able to apply for an H-2A labor certification. According to these
commenters, the time required in the current rules is sufficient to
identify and notify the U.S. work force of the availability of
particular jobs.
Requiring pre-filing recruitment is, in the Department's view,
essential to the integrity of an attestation-based process. Only with
sufficient time for adequate recruitment can the Department ensure that
the potential U.S. worker pool is apprised of the job opportunity in
time to access that opportunity. The current recruitment time frame, in
which employers file applications 45 days prior to the date of need,
recruit for 15 days thereafter, and in which a CO must adjudicate the
application no later than 30 days prior to need, has proven unworkable.
COs are today certifying the absence of U.S. workers based on, at best,
a handful of days of recruitment activity, which is insufficient to
apprise U.S. workers of job opportunities through either the SWA
employment service system or other positive recruitment activities.
The belief of some commenters that the time allotted in the present
regulatory scheme for recruiting is sufficient to canvass the potential
U.S. workforce is, in the Department's view, incorrect. The Department
has heard significant concerns voiced by the farmworker advocate
community that there is an inability to access job opportunities within
the short recruitment period provided in the current system. The
Department takes seriously these concerns about the length of the
recruitment, particularly in light of the Department's modification of
the 50 percent rule (discussed above with respect to Sec. 655.102(b))
and the possibility that it will be phased out entirely after a period
of five years. The movement of the recruitment period to a time prior
to the filing of the application provides a clear and well-defined time
for the employer to make available and for the U.S. farmworker to
access job opportunities, and provides the Department with better
information with which to make its certification determination. The
establishment of a 30-day post-date-of-need referral period for the
next five years further ensures that the expectations of workers will
not be unduly disrupted.
A trade association recommended SWAs be removed from the
recruitment process altogether, and only be involved in the inspection
of worker housing and workplace conditions after approval of the labor
certification and visa and the commencement of work. A State agency
representative recommended the SWAs receive copies of the ETA-750
(Application for Temporary Employment Certification) and ETA-790 not
for review but to ensure the SWA would have access to accurate
information.
The Department notes that it is statutorily prohibited at this time
from amending the Wagner-Peyser regulations to remove SWAs from the H-
2A process. See Public Law 110-161, Division G, Title I, Section 110.
Nor does it believe such a step would be beneficial at this time. SWAs
provide an effective means of completing many required activities, such
as inspections of employer-provided housing. SWAs are also integral to
the process of receiving and posting agricultural job orders. The
Department declines to require that SWAs also receive the form ETA-750,
as they will receive far more significant information in the form ETA-
790 job clearance order request.
A group of farmworker advocacy organizations also claimed that the
proposed changes to the recruitment process were inconsistent with INA
requirements, portions of the Wagner-Peyser Act, and MSPA. The
organization believed the proposed regulations changed the standards
for employer recruitment efforts to the detriment of U.S. workers and
did not address recruitment violations that had been uncovered in the
past. Specifically, the organization objected to the elimination of the
standard for positive recruitment based on comparable efforts of other
employers and the H-2A applicant employer as found in the current
regulation at Sec. 655.105(a). This organization was also concerned
about the elimination of the current provision requiring that ``[w]hen
it is the prevailing practice in the area of employment and for the
occupation for
[[Page 77130]]
non-H-2A agricultural employers to secure U.S. workers through farm
labor contractors and to compensate farm labor contractors with an
override for their services, the employer shall make the same level of
effort as non-H-2A agricultural employers and shall provide an override
which is no less than that being provided by non-H-2A agricultural
employers.'' 20 CFR 655.103(f). The organization made several
recommendations for revisions regarding recruitment, including
preserving the burden on the employer (under Departmental review) to
identify and positively recruit in locations with potential sources of
labor, and the obligation to work with the SWA to do so; retaining
current regulatory provisions requiring that employers engage in the
same kind and degree of recruitment for U.S. workers as they utilize
for foreign workers; and requiring adequate compensation of farm labor
contractors who find U.S. workers. Additionally, it recommended
preserving the role of SWAs contained in the current regulations and
detailed in the internal Departmental H-2A Program Handbook.
Other commenters expressed concern that the Department's proposal
to reduce the scope and type of required recruitment efforts while
increasing the length of time to perform recruitment was primarily
intended to streamline the program, but would not actually benefit U.S.
workers. These commenters disagreed with the proposed rule's
elimination of the current regulatory requirement to contact farm labor
contractors, labor organizations, nonprofits and similar organizations
to recruit domestic employees. If the Department seeks to revise the
current recruitment practices, in the opinion of these commenters, it
would be more effective to maintain or increase current recruitment
standards, while giving agricultural employers additional time within
which to meet their obligations; otherwise the Department is reducing
opportunities for U.S. workers.
One commenter suggested that the Department bolster word-of-mouth
recruitment because it is, in the commenter's opinion, the only way
that U.S. workers find out about jobs in the agricultural sector and it
encourages free-market competition as long as the information is
accurate. This commenter believes too many H-2A employers do not
provide accurate information to U.S. workers because it is in their
best interests to hire H-2A workers who must stay tied to that employer
for the entire agricultural season.
While the Department appreciates the concerns expressed, it
believes these concerns are misplaced in light of the recruitment
methods that the Department will be requiring employers to undertake
under the Final Rule. The Department will continue, and in some
respects expand, those core positive recruitment requirements that have
a proven track-record of providing cost-effective information to U.S.
workers about available job opportunities. For example, the Final Rule
retains the current requirement that employers run two newspaper
advertisements in the area of intended employment, but expands that
requirement, as laid out more fully in Sec. 655.102(g), by requiring
that one of the advertisements be placed on a Sunday, which typically
is the newspaper edition that has the highest circulation. The
Department declines, however, to continue obscure and difficult-to-
administer provisions requiring employers and the Department to
abstractly measure the amount of ``effort'' that employers put into
their domestic positive recruitment, or to determine precisely what the
prevailing practice is in a given area with respect to the payment of
labor contractor override fees. Provisions that call for the
measurement of employer effort require the Department to make highly
subjective judgments and are extremely difficult to enforce. Moreover,
the Department's program experience has shown that most of the
discontinued recruitment methods cited by commenters--radio ads and
contacting fraternal organizations, for example--substantially add to
the burden of using the program, but add little to the total amount of
information about agricultural job opportunities that is made available
to U.S. workers through the positive recruitment methods that are
required by the Final Rule. The elimination of specific requirements to
contact entities such as fraternal organizations does not mean that
interested entities will be entirely deprived of information about open
agricultural job opportunities. Rather, it means that interested
entities should pay attention to newspaper advertisements and SWA job
orders.
The Department appreciates the suggestion that it should develop
methods for encouraging word-of-mouth as a recruitment tool, and that
word-of-mouth is frequently a successful way for U.S. workers to learn
about job opportunities. We do not believe that word-of-mouth
recruitment can effectively be mandated by regulation, however. Rather,
the Department anticipates that word-of-mouth communication will be
instigated by the positive recruitment efforts that the Final Rule
requires, particularly through the assistance of farm worker assistance
and advocacy organizations, which can spread the word about available
job openings.
The Department takes seriously its statutory obligation to
determine whether there are sufficient numbers of U.S. workers who are
able, available, willing, and qualified to perform the labor or
services involved in the petition and to ensure that U.S. workers'
wages and working conditions are not adversely affected by the hiring
of H-2A workers. The Department believes that the positive recruitment
methods it has selected for inclusion in the Final Rule--the use of
newspaper advertisements, the state employment service system, contact
with former workers, and recruitment in traditional or expected labor
supply States--provide notice of job opportunities to the broadest
group of potential applicants in an efficient and cost-effective
manner, while avoiding burdening employers with requirements that have
proven costly and at times difficult to administer without yielding
clear benefits. The Department notes that employers stand to gain a
great deal from recruiting eligible U.S. workers rather than incurring
the considerable time and expense of securing foreign workers from
thousands of miles away. The various provisions of these regulations,
including wage, housing, and transportation requirements, ensure that
it is virtually always more expensive for employers to hire H-2A
workers than it is for them to hire U.S. workers outside the H-2A
program. Thus, employers have significant incentives to use the
positive recruitment methods prescribed by these regulations to maximum
effect, and the Department is confident that these methods will
adequately spread the word to U.S. workers about available job
opportunities. The Department expects that many employers will also
engage in additional recruitment efforts that can, in the absence of
rigid and overly prescriptive regulatory requirements, be flexibly
tailored to the particular circumstances of local labor markets.
(e) Section 655.102(e) Job Order
Proposed Sec. 655.102(e) required that, prior to filing its
application with the NPC, the employer place a job order, consistent
with 20 CFR part 653, with the SWA serving the area of intended
employment. The NPRM also required the job order to be placed at least
75 but no more than 120 days prior to the anticipated date of need.
[[Page 77131]]
Several commenters focused on the requirements for placement of the
job order. Three commenters posited that the rule would create problems
for program users by establishing requirements for acceptable job
offers that are subject to the Department's discretion, while employers
would have to conduct the recruitment before the terms and conditions
of the employer's job offer have been reviewed and approved by the
Department. According to these commenters, the rule is silent on what
happens if, after the employer conducts the pre-filing recruitment, the
Department does not approve the employer's job offer. Under the current
program, the recruitment would be considered invalid, and the employer
would be required to revise the job offer and repeat the recruitment.
This situation, according to these commenters, introduces an
unacceptable degree of uncertainty and risk into the process. A trade
association further commented that, because there will be no prior
approval of the job offer by the NPC, all SWAs would be independently
interpreting and making decisions about the job offers, and believed
that such a process would lead to inconsistencies among SWAs. The
association was also concerned there would be inconsistency between
what a local SWA employee would accept and what the CO would later find
acceptable. The association recommended retaining the existing process
as an option for employers.
The Department requires that the employer submit an acceptable job
order (current form ETA-790) to the appropriate SWA for posting in the
intrastate and interstate clearance system. The ETA-790 describes the
job and terms and conditions of the job offer: the job duties and
activities, the minimum qualifications required for the position (if
any), any special requirements, the rate of pay (piece rate, hourly or
other), any applicable productivity standards, and whether the employee
is expected to supply tools and equipment. This form is submitted to
the SWA for acceptance prior to the employer's beginning positive
recruitment. As long as the employer's advertisements do not depart
from the descriptions contained in the accepted job order, the
advertisements will be deemed acceptable by the Department. Thus,
employers should place advertisements after the form ETA-790 has been
accepted for intrastate/interstate clearance, eliminating any chance
that recruitment will later be rejected by the NPC due to problems with
the job offer and corresponding advertisements.
The Department also does not anticipate significant problems in
uniform decision making among SWAs. SWAs will be, as they have been for
some time, the primary arbiter of whether job descriptions and job
orders are acceptable. In response to comments on the subject, however,
the Department has clarified in the text of the rule that employers may
seek review by the NPC of a SWA rejection, in whole or in part, of a
job description or job order. The regulations have also been revised to
permit the NPC to direct the SWA to place the job order where the NPC
determines that the applicable program requirements have been met and
to provide the employer with an opportunity for review if the NPC
concludes that the job order is not acceptable. This modification
renders concrete what has long been the informal practice with respect
to H-2A related job orders, as the NPC has worked hand-in-hand with the
SWAs to ensure that job orders comply with applicable requirements. It
is also implicit in the status of the SWAs as agents of the Department,
assisting the Department in the fulfillment of its statutory
responsibilities.
One trade association noted that the job order must be filed in
compliance with part 653, and that Sec. 653.501 requires that the
employer give an assurance of available housing as part of the job
offer. This commenter opined that this would be impossible to do since
employers cannot guarantee the availability of housing that far in
advance for purposes of using the proposed housing voucher. The
Department's disposition of the proposed housing voucher, discussed
below, renders this comment moot.
The same commenter noted that Sec. 653.501(d)(6) requires that the
SWA staff determine whether the housing to be provided by the employer
meets all of the required standards before accepting a job order, and
argued that this would be an impossible task 120 days before the actual
date of need, as the proposed rule purported to allow. As explained
above in the discussion of Sec. 655.102(a), the Department has amended
the timeframe for recruitment by moving the first date for advertising
and placement of the job order to no more than 75 days and no fewer
than 60 days prior to the date of need. Moreover, in response to the
comments received, the Department has specified in the Final Rule that
SWAs should place job orders into intrastate and interstate clearance
prior to the completion of the housing inspections required by 20 CFR
653.501(d)(6) where necessary to meet the timeframes required by the
governing statute and regulations. This will maximize the time that job
orders are posted, providing better information to workers. The Final
Rule further directs SWAs that have posted job orders prior to
completing a housing inspection to complete the required inspections as
expeditiously as possible thereafter. This provision is consistent with
the current regulations, which already permit job orders to be posted
prior to the completion of a housing inspection pursuant to Sec.
654.403. If a SWA notes violations during a subsequent housing
inspection, and the employer does not cure the violations after being
provided a reasonable opportunity to do so, the corresponding job order
may be revoked. With these amendments, the Department believes it has
adequately addressed the concerns contained in this comment.
In addition, a group of farmworker organizations objected to the
use of the language ``place where the work is contemplated to begin''
in describing which SWA should receive a job order when there are
multiple work locations within the same area of intended employment and
the area of intended employment is found in more than one State. It
believed this language would allow employers to choose where they
wanted to recruit U.S. workers simply by ``contemplating'' that the
work would begin in an area unlikely to have U.S. workers. The
Department received other comments that supported this requirement.
After considering these comments, the Department has revised the
language of the provision to state that an employer can submit a job
order ``to any one of the SWAs having jurisdiction over the anticipated
worksites.'' The revised language affords employers some flexibility in
determining where to initially send job orders, but it does not allow
employers to use this flexibility to avoid recruitment obligations, as
Sec. 655.102(f) provides that the SWA that receives the job order
``will promptly transmit, on behalf of the employer, a copy of its
active job order to all States listed in the job order as anticipated
worksites.'' Thus, no matter where the job order is initially sent, the
scope of required recruitment will be the same, covering all areas in
which anticipated worksites are located.
A sentence has also been added to the Final Rule, simply as a
procedural direction to the SWAs, that ``[w]here a future master
application will be filed by an association of agricultural employers,
the SWA will prepare a single job order in the name of the
[[Page 77132]]
association on behalf of all employers that will be duly named on the
Application for Temporary Employment Certification.''
(f) Section 655.102(f) Intrastate/Interstate Recruitment
The proposed regulation instructs the SWA receiving an employer's
job order to transmit a copy to all States listed as anticipated
worksites and, if the worksite is in one State, to no fewer than three
States. Each SWA receiving the order must then place the order in its
intrastate clearance system and begin referral of eligible U.S.
workers.
The Department received some general comments regarding the
referral process for U.S. workers. One group of farmworker advocacy
organizations expressed concern about the lack of referrals by SWAs to
H-2A employers in the past and believed the proposed regulation would
not cure this deficiency. One association of agricultural employers
expressed concern regarding the ability of the SWAs to adequately
handle the referral process.
The Department believes these concerns are misplaced, especially
under a modernized system in which SWA responsibilities with respect to
each H-2A application is reduced. A core function of the SWA system is
the clearance and placement of job orders and the referral of eligible
workers to the employers who placed those job orders. Past program
experience demonstrates the occurrence of a sufficient number of
referrals to sustain this requirement.
One SWA commented that although the NPRM states the purpose of
removing the SWA is to remove duplication of effort, one important
duplicative effort is retained--the requirement for sending job orders
to other labor supply States and neighboring States. This agency
suggested that if the job orders are uploaded to the national labor
exchange program, then the transmittal of job orders to other States is
unnecessarily duplicative. Other commenters recommended all
agricultural job orders be posted in an automated common national job
bank.
The Department acknowledges the potential benefits of a national
online system for posting job offers. However, automating interstate
job clearance would require regulatory reforms that the Department is
currently constrained from undertaking by Congress. See Public Law 110-
161, Division G, Title I, Section 110. There is currently no online
national exchange organized under the auspices of the Department to
which such jobs could be posted. The Department's former internet-based
labor exchange system, America's Job Bank, was disbanded in 2007
because the private sector provides much more cost-effective and
efficient job search databases than the federal government can provide.
The Department, however, does not wish to impose mandatory
participation in such job databases on SWAs or employers at this time.
Because the Department already has an existing system in place for
handling interstate job orders, and given the current legal and
operational constraints of changing that system, the Department has
determined that the only feasible and prudent approach at this time is
to continue to require SWAs to process the interstate job orders in
accordance with 20 CFR Part 653.
An association of growers/producers opposed the requirement for
transmitting job orders to additional States and recommended the job
orders be circulated only in the State where the job is located. This
association also suggested that any out of State notifications should
list only the location of the job offer and never list the employer's
name.
The Department's circulation of the job order to any States that
are designated by the Secretary as labor supply States is required by
statute. Section 218(b)(4) of the INA prohibits the Secretary from
issuing a labor certification after determining 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.'' The interstate recruitment must be
conducted ``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 Department does not have the
ability to eliminate or alter the requirement absent Congressional
amendment.
At the same time, the Department does not read the statutory
language to require the Secretary to designate traditional or expected
labor supply States with respect to all States in which H-2A
applications may be filed. Rather, the Department believes that the
statutory language is most reasonably read to require the Secretary to
make a determination for each area (which the Secretary has elected to
do on a State-by-State basis) whether, with respect to agricultural job
opportunities in that area, there are other areas (which the Secretary
has also elected to examine at the State-by-State level) in which
``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.'' In other words, the Department
reads the statute as contemplating that with respect to agricultural
job opportunities in certain States at certain times, as a factual
matter there simply will not be other States in which 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.'' Under this reading of the statute, the
word ``where'' in 8 U.S.C. 1188(b)(4) essentially means ``if'': If the
Secretary determines that the statutory criteria have been met, then
she is required by the statute to designate the area of traditional or
expected labor supply, but if the Secretary determines that the
statutory criteria have not been met, then the requirement is simply
inapplicable. This sensible reading of the statute comports with the
realities of the agricultural sector: The pattern of seasonal migrant
work has clearly changed over time, and in some cases older patterns
have become well-established while others have fallen away. The
changeable nature of the agricultural labor flow, which is highly
dependent upon weather patterns, crop distribution, the availability of
transportation, and even the price of gasoline, are all recognized
under this system of flexible, fact-specific designations by the
Secretary.
A group of farmworker advocacy organizations pointed out that the
proposed regulations do not provide a timeframe for how long the local
SWA can wait before placing the H-2A job order into interstate
clearance, and only require the SWA to ``promptly transmit'' the job
offer. The Department does not believe that its requirement of
``prompt'' transmission requires further clarification, however.
Posting job orders is one of the core functions of the SWAs, and the
Department is confident the SWAs will continue to act responsibly in
promptly transmitting and posting job orders as they have in the past.
The organization was also concerned about the clarity of the
instructions to be followed by SWAs for circulating job orders among
other States. The proposed regulations require the SWA to transmit a
copy of the open job order to all States listed in the employer's
application as anticipated worksites or, if the employer's anticipated
worksite is
[[Page 77133]]
within a single State, to no fewer than three States, including those
designated as traditional or expected labor supply States. However, the
organization believed the proposed regulation would be read to not
require any additional job order circulation by the SWA if the employer
has anticipated worksites in two States, and thus would provide less
circulation of job orders and no contact of labor supply States in such
situations. The Department agrees and has clarified the language of
Sec. 655.102(f)(1) by removing the phrase, ``If the employer's
anticipated worksite location(s) is contained within the jurisdiction
of a single State'' to make clear that job orders with locations in
more than one State must be circulated to any traditional or expected
labor supply States designated by the Secretary for either of the work
locations.
An attorney for an association of growers/producers suggested the
H-2A process could be further improved by allowing State officials to
affirm that employers need agricultural workers in their State. The
Department believes it cannot implement such an affirmation process, as
similar processes for determining the unavailability of U.S. workers
have been found to be insufficient for the factual determination
required by the Secretary. See First Girl, Inc. v. Reg. Manpower Admin.
DOL, 361 F. Supp. 1339 (N.D. Ill. 1973) (availability of U.S. workers
could not be determined by generic listing of available workers listed
with state agency).
A public legal service firm recommended that the Department require
employers to circulate all job orders in Texas, which they said is a
traditional agriculture labor surplus state. If the commenter's factual
assertions about labor availability in Texas are correct, the
Department would expect that Texas will frequently be designated as a
labor supply State. The Department is cognizant of the changeable
nature of worker flows, however, and therefore does not wish to require
the mandatory inclusion of one or more specific States in the
designation process. It is subject to question, for example, whether
significant numbers of agricultural workers in Texas would be willing
to accept seasonal employment in Alaska or Hawaii. Rather, the
Department will rely on annually updated information in designating
labor supply States to ensure the accuracy of the assertions that farm
workers are indeed available in the purported labor supply State and
that recruitment there for out of State jobs would not take needed
workers away from open agricultural jobs in the labor supply State. In
response to these concerns, however, the Department notes it will
announce, at least 120 days in advance of the Secretary's annual
designation, an opportunity for the public to offer information
regarding States to be designated.
Finally, a group of farmworker advocacy organizations expressed
concern regarding the content of job orders placed by agricultural
associations. It objected to the placement of job orders with a range
of applicable wage offers with a statement that ``the rate applicable
to each member can be obtained from the SWA.''
In promulgating this rule, the Department made no changes to
current practice. An association is permitted to pay a different wage
for each of its members, should it choose to do so, as long as that
wage meets the criteria established in the regulations (now found at
Sec. 655.108). U.S. workers seeking a job opportunity from or within
an association can acquire from the SWA a list of member locations and
the wages associated with each so that the worker can make a fully
informed decision as to which job, if any, the worker wishes to apply.
We made several minor edits that are consistent with the above
discussion to the language of Sec. 655.102(f) for purposes of clarity.
Some language was also moved to other sections or deleted, again for
purposes of clarity and without substantive effect. Section
655.102(f)(3), which describes the recruitment period during which
employers are required to accept referrals of U.S. workers, was added
to the rule for reasons described at length in the discussion of the 50
percent rule under Sec. 655.102(b).
(g) Section 655.102(g) Newspaper Advertisements
The Department proposed that in addition to the placement of a job
order with the SWA, employers be required to place three advertisements
(rather than the current two) with a newspaper or other appropriate
print medium. Most who commented on this suggestion believed the
additional advertising would result in additional costs without any
additional benefits. An association of growers/producers stated:
``Additional newspaper advertising is a very expensive alternative of
recruiting workers in today's world and should not be the only method
allowed.''
A trade association also questioned the expansion of the
advertising requirements in the proposed regulations and commented that
newspapers are not a usual or even occasional source of labor market
information for farm workers. The association and other commenters
referenced the National Agricultural Worker Survey (NAWS) which
reported that percent of seasonal crop workers (both legal and illegal)
learn about jobs from a friend or relative or already know about the
existence of the job (although how such knowledge is attained was not
reported). The association further commented that the proportion of
workers who learn about their jobs from a ``help wanted'' ad was
apparently too small even to warrant inclusion in the report. Several
of these commenters suggested it would be more efficient to simply
allow for posting to the SWA's job bank which is more practical, less
expensive, and reaches applicants more readily.
A few employers objected to the very concept of newspaper
advertising. One employer objected to having to advertise in a
newspaper, commenting that newspaper advertisement is ``not only
expensive, but doesn't find any hiding sheep shearers.'' Another
employer objected to the increase in required newspaper advertising for
U.S. workers ``when it is clear that local workers are simply not
available for seasonal jobs.'' Many commenters were particularly
concerned that increasing the number of ads from two to three in
addition to requiring that one be placed in a Sunday edition would
greatly increase employer costs. One trade association commented that
it is likely that in the typical situation an employer's advertising
costs would increase by three to four times under the proposed
regulations, adding hundreds to thousands of dollars to the employers'
application costs. That commenter did not provide data supporting this
conclusion, however.
Several commenters were in favor of the proposal to increase
advertising and expressed support for the additional ad in the
expectation it would provide additional notice to the target
population. An association of growers/producers supported the increase
in advertisements from two to three, believing it would enhance the
ability of an eligible U.S. worker to identify and apply for
agricultural job openings before the job begins. A farmworker/community
advocacy organization agreed that requiring three instead of two
advertisements would be a step toward improving the recruitment of U.S.
workers.
The Department appreciates that a newspaper ad frequently may not,
of itself, result in significant numbers of U.S. workers applying for
employment. However, such advertising has been required for decades and
remains the central mechanism by which jobs are
[[Page 77134]]
advertised, especially to workers who may have only limited access to
the Internet. The ads may not necessarily be seen by all farmworkers,
but may be, and indeed are, seen by those who participate in the
greater farm work community and who can pass along a description of the
jobs ads through ``word-of-mouth.'' Newspaper advertising remains,
along with the state employment service system network, an objective
mechanism by which notice of upcoming farm work can be assessed by the
Department and communicated to those who are interested.
The study referenced by many commenters suggesting that most
referrals in the agricultural sector take place through word-of-mouth
rather than through newspaper advertisements was actually conducted by
the Department, and, as noted above, the Department acknowledges that
word-of-mouth frequently results in U.S. workers learning about job
opportunities. However, the Department believes it would be nearly
impossible to effectively implement and enforce a word-of-mouth
regulatory standard. The Department believes the combination of job
orders and required newspaper advertisements are cost-effective, easily
administrable, and readily enforceable, and will make job information
available in ways that will result in word-of-mouth referrals.
Although it may be true that few agricultural workers themselves
read such advertisements, others do read them, including farm labor
advocacy organizations, community organizations, faith-based
organizations, and others who seek out such opportunities on behalf of
their constituents. The newspaper becomes a very visible source of
information for such organizations that are in turn able to spread the
word to workers. Through publication to this wide audience, the
information ultimately reaches those for whom it is intended.
The Department appreciates the substantial concern raised by a
number of commenters regarding the placement of multiple ads and has
thus revised its proposal on the number of ads that must be placed in
the area of intended employment. The Department has decided to revert
from the proposed three to the existing rule's requirement for two ads.
The Department is retaining its proposal, however, to require that one
of the newspaper advertisements be run on a Sunday, as that is
typically the newspaper edition with the broadest circulation and that
is most likely to be read by job-seekers.
In response to the various comments about the proposed advertising
requirements, the Department is also slightly modifying the language of
Sec. 655.102(g)(1) to provide some limited flexibility in selecting
the newspaper in which the job advertisement should be run. The Final
Rule clarifies that the newspaper must have a ``reasonable
distribution.'' Thus, advertisements need not be placed in the New York
Times, even if the New York Times is the newspaper of highest
circulation in a given area, but also cannot be placed in a local
newspaper with such a small distribution that it is unlikely to reach
local agricultural workers. The Final Rule also clarifies that the
newspaper must be ``appropriate to the occupation and the workers
likely to apply for the job opportunity,'' but deletes the modifier
requiring that the newspaper must be the ``most'' appropriate. This
change was made out of a recognition that in many areas there are
multiple newspapers with a reasonable distribution and that are likely
to reach U.S. workers interested in applying for agricultural job
opportunities, and that as long as these criteria are met, an
employer's positive recruitment should not be invalidated. If an
employer is uncertain whether a particular newspaper satisfies these
criteria, it can seek guidance from the local SWA or the NPC.
The Final Rule also instructs employers not to place the required
newspaper advertisements until after the job order has been accepted by
the SWA for intrastate/interstate clearance; this replaces the time
frame contained in the NPRM and shifts the initiation of recruitment
back to the submission to and clearance by the SWA of the job order.
This ensures that advertisements reflect the job requirements and
conditions accepted by the SWA and minimizes the risk that employers'
advertisements will later be determined to be invalid by the NPC.
One commenter suggested that a better alternative to employer-
placed advertisements would be for the Department to maintain an up-to-
date database listing advertisements for farming and ranching jobs and
directing interested workers to contact the SWA in the States where the
jobs were located. The commenter believed this approach would expand
the ability of U.S. workers to select more varied jobs in a larger
geographic area. The Department does not disagree; however, as noted
above, amending the current job order clearance process is not an
option at this time.
A private citizen commented that the SWA, not the employer, is in
the best position to know which newspaper is most likely to reach U.S.
workers, and that the SWA should, therefore, continue to have a role in
determining where advertising is conducted. Nothing, of course,
prevents an employer from consulting with the SWA regarding the most
appropriate publication in which to place advertising and thus ensure
compliance with the regulations, particularly in instances in which a
professional, trade or ethnic publication is more appropriate than a
newspaper of general circulation. In fact, a representative of a State
government agency suggested the advertising requirements should be
limited to local area media and trade publications where available, and
that the specific publications should be agreed to by the employer and
the SWA based on the potential for attracting candidates and historical
experience. While we are not incorporating this suggestion for
coordination into the regulation as a requirement, we note that the
regulation at Sec. 655.102(g)(1) already requires the ads to be placed
in the ``newspaper of general circulation serving the area of intended
employment that has a reasonable distribution and is appropriate to the
occupation and the workers likely to apply for the job opportunity.''
(h) Section 655.102(h) Contact With Former U.S. Workers
The Department proposed that employers be required to contact by
mail former U.S. workers as part of the recruitment process. A group of
farmworker organizations objected to the requirement and commented:
``if DOL had intended to come up with the least effective way of
contacting former employees, it could not have selected a better method
than by mail.'' This organization was concerned because they claimed a
majority of farm workers are not literate in English or their primary
language and, therefore, might not understand the written communication
and the regulation does not require the written communication to be in
any language other than English. The organization also recommended
contact by telephone or through crew leaders or foremen as alternative
methods of contact. In response, we have modified this provision in the
Final Rule to permit employers to also contact former U.S. workers
through alternative effective means, and document those means in some
manner (telephone bills or logs, for example).
Additionally, the organization believes many workers would be
missed by the proposed mailing effort because the proposed regulation
limits the requirement to contacting former
[[Page 77135]]
workers ``employed by the employer in the occupation at the place of
employment, during the previous year'' and does not require that H-
2ALCs contact a growers' former workers who did not work for the H-2ALC
during the previous season. The Department declines to adopt a
requirement that employers contact workers who did not work for them
during the previous season, as such a requirement would be quite
impractical, and the other positive recruitment requirement methods
included in the Final Rule are intended to reach such workers. It is
not at all clear how H-2ALCs would even gain access to the necessary
contact information for former employees of other employers, and in the
judgment of the Department such a requirement would be excessively
burdensome.
One association of growers/producers suggested the proposed rule be
modified to allow employers the ability to deny work to employees hired
in previous years who demonstrated an unsatisfactory work history/ethic
even if the worker was not terminated for cause. A trade association
and other commenters expressed concern about former employees who were
the subject of no-match letters from the Social Security Administration
and requested a safe harbor or common sense exception in such
situations.
The Department appreciates that employers that do not participate
in the H-2A program generally are not required to rehire employees who
have a poor work history. The Department also appreciates that
employers frequently may allow short-term workers who prove to be poor
performers to finish their job terms if it is easier and, in light of
potential litigation risks, less costly than firing them. There is a
countervailing concern, however, that if the Department allowed
employers to reject former workers who completed their previous job
term on the alleged ground that the workers were actually poor
performers, it would open the door for bad actor employers to reject
former workers on the basis of essentially pretextual excuses. The
Department has therefore decided to address employers' concerns about
poorly performing workers by creating an exception allowing employers
not to contact certain poor performers, but only in the narrow
circumstance where the employer provided the departing employee at the
end of the employee's last job with a written explanation of the
lawful, job-related reasons for which the employer intends not to
contact the worker during the next employment season. The employer must
retain a copy of the documentation provided to the worker for a period
of 3 years, and must make the documentation available to the Department
upon request. The Department will review the propriety of the
employer's non-contact in such situations on a case-by-case basis. The
Department believes that the insertion of this provision is responsive
to the comment in that it relieves employers from the burden of being
required to rehire truly poorly performing workers, while ensuring that
workers who will not be recontacted are aware of the employer's
intentions and reasons well in advance of the next employment season
and have the opportunity to bring reasons they regard as pretextual to
the Department's attention.
With respect to the comment about no-match letters, we note that
employers are not required to hire a worker who cannot demonstrate
legal eligibility to work. Receipt of a no-match letter may give rise
to a duty on the employer's part to inquire about work eligibility, but
the letter in and of itself is not sufficient legal justification to
refuse to hire a U.S. worker.
One trade association expressed concern about the related
requirement for documenting contact with former employees and stated,
``This requirement could reasonably be interpreted to mean that the
employer must maintain a copy of its correspondence with each former
employee demonstrating that it had been mailed. The only practical way
to do this would be to send each letter by certified mail or some other
means providing evidence of attempt to deliver. Such a requirement
would be unnecessarily burdensome and costly.'' The association
recommended this be simplified by requiring the employer to keep a copy
of the form of the letter sent and a statement attesting to the date on
which it was sent and to whom. Additionally, the association questioned
what kind of documentation would demonstrate that the employee ``was
non-responsive to the employer's request.'' The association suggested
the employer's recruitment report should be sufficient to document
which employees were responsive and requiring documentation of non-
responsiveness is unreasonable.
The Department does not intend this requirement to be overly
burdensome to employers and agrees that copies of form letters together
with the employer's attestation that the letters were mailed to a list
of former employees would be sufficient to meet the requirements of
this provision. The Department also agrees that the recruitment report
can be used to sufficiently document the non-responsiveness of former
employees. The Department inserted language into the Final Rule
clarifying the Department's expectations regarding the type of
documentation that should be maintained.
(i) Section 655.102(i) Additional Positive Recruitment
(1) Designation of Traditional or Expected Labor Supply States
In the NPRM, the Department continued to impose on employers the
requirement that the employer make ``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 U.S. workers who, if recruited, would be willing to make
themselves available for work at the time and place needed,'' as
mandated by 8 U.S.C. 1188(b)(4). The Department proposed that each year
the Secretary would make a determination with respect to each State in
which employers sought to hire H-2A workers whether there are other
States in which there a significant number of eligible, able and
qualified workers who, if recruited, would be willing to make
themselves available for work in that State. The Department also
proposed to continue the current regulatory provision stating that the
Secretary will not designate a State as a State of traditional or
expected labor supply if that State had a significant number of local
employers recruiting for U.S. workers for the same types of
occupations. The Department proposed to publish an annual determination
of labor supply States to enable applicable employers to conduct
recruitment in those labor supply States prior to filing their
application. The Department received several comments on this
provision.
A group of farmworker advocacy organizations opined that the
Department's proposal contravenes the H-2A statutory requirements
regarding positive recruitment. The organization believes the
Department's proposal will result in employers not competing with one
another for migrant workers and workers not receiving job information
even though a particular job in another State may offer a longer
season, a higher wage, or better work environment. Another farmworker
advocacy organization commented that it makes no sense in a market
economy which recognizes competition as good to stop requiring
employers to recruit for farmworkers in areas where other employers are
seeking farmworkers. A labor organization commented that this
[[Page 77136]]
provision demonstrates a lack of understanding of farmworker
recruitment and what it believes is an inappropriate desire to ease the
recruitment obligations for growers at the expense of U.S. farmworkers.
This organization recommended the current positive recruitment rules
should be retained and enforced. A U.S. Senator was concerned that the
NPRM would cost American workers jobs because they would not have
access to information about jobs in other areas.
Employers seeking farmworkers are statutorily required to recruit
out-of-State if the Secretary has determined that other States contain
a significant number of workers who, if recruited, would be willing to
pick up and move in order to perform the work advertised in accordance
with all of its specifications. The commenters referenced above appear
to believe that the Department's proposal is a new regulatory
provision. That is incorrect. The current regulations at 20 CFR
655.105(a), which have been in place for 20 years, specify that
Administrator, OFLC should ``attempt to avoid requiring employers to
futilely recruit in areas where there are a significant number of local
employers recruiting for U.S. workers for the same types of
occupations.'' This longstanding provision reflects two judgments on
the part of the Department. First, it reflects the Department's reading
that 8 U.S.C. 1188(b)(4) was intended to require out-of-State
advertising only in areas with a surplus labor supply, and was not
intended to deleteriously impact farmers in certain areas by
instituting federal program requirements that would draw away their
local workers. Second, it reflects the Department's judgment that where
a ``significant'' number of local employers are already recruiting U.S.
workers in a given area for the same types of occupations, there is
already significant competition for workers in that area and the
addition of further out-of-State advertising would likely be futile.
The Department's program experience in applying this limitation over a
long period of time leads it to believe that it has worked well in
practice to aid program administration and avoid the imposition of
unnecessary program expense. The Department notes that this limitation
does not mean that out-of-state recruitment will cease in States where
workers are being locally recruited, since SWAs will continue to have
discretion to post job orders in those States where appropriate.
Several commenters sought more information on the methodology that
would be used in making the determinations about labor supply States. A
group of farmworker/community advocacy organizations voiced its concern
that ``The annual survey is flawed in many respects and not designed to
identify sources of labor at the time of need.'' The organization was
also concerned about the timing and specificity of the survey to be
used. A representative of a State Workforce Agency requested additional
information about the designation of labor supply States for the
logging industry in her State. A trade association commented that ``the
same types of occupations'' should mean something more than merely
agricultural work. An individual commenter believed that just because
an employer in a State may request H-2A workers for a certain crop
activity for a certain time period should not mean that State should
not be considered a labor supply State for other crop activities and
time periods.
The Department has addressed many of these concerns by modifying
the provision to allow for notice to be published in the Federal
Register at least 120 days before the announcement of the annual
determination, allowing anyone to provide the Department with
information they believe will assist the Secretary in making her
determination about labor supply states. The Department will consider
all timely submissions made in response to this notice. In addition to
the information presented by the public, the Department expects that it
will continue to consult SWAs, farmworker organizations, agricultural
employers and employer associations, and other appropriate interested
entities. As discussed above, the ``same types of occupations''
language in the Final Rule has been carried over from the current
regulations, and the Department intends to apply the term in the same
manner that it has in the past. The Department agrees that the phrase
is not intended to lump all agricultural work together as the ``same
type of occupation.''
(2) Required Out-of-State Advertising
The Department proposed that each employer would be required to
engage in positive recruitment efforts in any State designated as a
labor supply State for the State in which the employer's work would be
performed. This recruitment obligation would consist of one newspaper
advertisement in each designated State.
Several commenters felt the newspaper advertisement requirements
were too burdensome on employers and that the additional time and
expense of recruiting in traditional or expected labor supply States
should be borne by the Department rather than the employer. An
association of growers/producers recommended that the regulation only
require SWAs to send the job orders to those States designated as labor
supply States as they do now. A United States Senator recommended that
after the employer has satisfied the intrastate recruitment
requirements and has attested that insufficient domestic workers are
available, the burden of proof that U.S. workers are unavailable should
shift to the Department.
The Department does not consider a requirement to place a single
out-of-state advertisement in each designated labor supply state to be
unjustifiably onerous on employers and is of the opinion at this time
that the potential benefit to be gained in locating eligible and
available U.S. workers outweighs the costs of the advertising. This is
required in the current program and the Department has received little
negative feedback on the burden of such advertising. The Department
does not agree that this is an expense the Department should bear,
beyond the expense of the interstate agricultural clearance system that
the Department already finances. The INA at sec. 218(b)(4) is clear
that it is an employer who must engage in such out-of-state positive
recruitment, not the Department.
Several associations of growers/producers commented that placing
newspaper advertisements should be limited to no more than three
States, to avoid the possibility that the Department could require
recruitment in 50 States and the additional territories because the
language in the companion recruitment provision for SWAs at Sec.
655.102(f) reads ``no fewer than 3 States.'' A United States Senator
also endorsed a limit on the number of States in which an employer is
required to recruit and suggested the Department should provide a means
of indemnifying employers from liability associated with mandatory out-
of-State advertising.
The Department anticipates the number of States to be so designated
will be no more than three for any one State, but that the number of
States designated will vary by State. In some cases, no State or only
one or two States may meet the relevant criteria. In response to these
comments, the Department has added to the Final Rule language
specifying that ``[a]n employer will not be required to conduct
positive recruitment in more than three States designated in accordance
with paragraph (i)(1) for each area of intended employment listed on
the employer's application.'' This is
[[Page 77137]]
generally consistent with past practice concerning required out-of-
State recruitment, as employers have only very rarely been required to
conduct advertising in more than three States of traditional or
expected labor supply. Providing this modest cap will provide employers
with needed certainty regarding expected advertising costs.
A farmworker advocacy organization believed the requirement should
be for three advertisements, not one, in each designated State and also
recommended that the Department require that the language predominant
among agricultural workers in the region be used. A representative of a
State government agency commented that the proposed regulations were
not clear as to how an employer's ad in another State would be handled.
The individual commented that the advertising instructions indicate
interested applicants should contact the SWA, but asserted that this
procedure would not work well for an ad placed out of State and
recommended the ads placed out of State should advise applicants to
contact the employer directly. Another commenter recommended the
newspaper ads in other States should direct all applicants to the SWA
and the SWA should then refer them to the employer's SWA. An
association of growers/producers recommended the required newspaper
advertisements should contain only the job specifications and the SWA
contact information.
The Department agrees that more clarity on the mechanics of out-of-
state recruitment is appropriate. The Department has added language to
the regulation to clarify that one advertisement is to be placed in
each State identified for the area of intended employment as a
traditional or expected labor supply State. The Department declines to
require more than one ad in each State, which would be a significant
departure from the advertising requirements under the current
regulations and would add additional program expense. In response to
comments, and out of recognition that employers often will not be well-
versed in the characteristics of out-of-State newspapers, the
Department has included language in the Final Rule specifying that its
annual Federal Register notice will not only announce the designation
of labor supply States, but will also specify the acceptable newspapers
in the designated States that employers may utilize for their required
out-of-State advertisements. In no case will an employer be required to
place an ad in more than one newspaper in a labor supply State. In
response to comments, the Final Rule has also been modified to specify
that ads should refer interested employees to the SWA nearest the area
in which the advertisement was placed. The SWA will then refer eligible
individuals to the SWA of the employer's State. The Department believes
these procedures will provide a workable advertisement-and-referral
system to provide farmworkers information about available jobs and to
supply needed labor to prospective users of the H-2A program.
(j) Section 655.102(j) Referrals of Verified Eligible U.S. Workers
The Department proposed to require SWAs to ``refer for employment
only those individuals whom they have verified through the completion
of a Form I-9 are eligible U.S. workers.'' These provisions are
consistent with the Department's statutory mandate. Although the INA
prohibits the referral of workers where it is known that they are
unauthorized to work in the United States, this rule clarifies and
spells out the Department's expectations. Based upon comments received
and the Department's experience with this requirement, which has been
in effect administratively since the issuance of TEGL 11-07, Change 1
on November 14, 2007, and with respect to which ETA has provided recent
training webinars for SWAs, the Department believes that SWAs should be
required to verify the identity and employment authorization of
referred workers by completing USCIS Form I-9 in accordance with DHS
regulations at 8 CFR 274a.2 and 274a.6. The NPRM, ETA's written
guidance, and an opinion by the Solicitor of Labor, all of which have
been shared with SWAs over the past year, explain both the rationale
for the SWA verification requirement.
Comments on this subject were received from a national association
representing state agencies, 12 individual SWAs, several civil rights
and labor advocacy organizations, members of Congress, and numerous
employer groups and individual employers. Commenters supporting the
proposal generally cited the longstanding need for a reliable
employment service system that is based on affirmative verification and
refers only workers who are authorized to work in the U.S. Commenters
opposing the proposal raised a variety of legal, programmatic,
resource-related, and policy-based concerns.
Many commenters considered the employment verification requirement
to be a change in policy after decades of contrary Departmental
interpretation. Another argued that the requirement runs afoul of the
Department's FY08 Appropriations Act, Public Law 110-161, Division G,
Title I, Section 110, in which Congress prohibited ETA from finalizing
or implementing any rule under the Wagner-Peyser or Trade Assistance
Acts until each is reauthorized.
The Department has always required that SWAs fulfill the
requirements of the INA to refer only eligible workers by verifying
their employment authorization. Recent instructions by the Department
(including TEGL 11-07, Change 1) have clarified the way that employment
verification is required to be accomplished. To the extent that these
requirements were thought by some to represent a shift in Departmental
policy, they are now being clearly stated in the Department's
regulations. The Department has not reviewed the H-2A regulations
comprehensively since the current program's inception in 1986. After a
top-to-bottom review of the program requested by the President in
August 2007, the Department is revising and modifying a number of
established practices based on program experience, years of feedback
from stakeholders, and changing economic conditions.
As discussed in the NPRM our clarification of SWAs' obligation to
affirmatively verify employment eligibility is in direct response to
longstanding concerns about the reliability of SWA referrals. The
referral of workers not authorized to work undermines the integrity of
the H-2A program, can harm U.S. workers, and can disrupt business
operations.
Many commenters argued that the requirement is inconsistent with
INA provisions at 8 U.S.C. 1324a, and DHS regulations at 8 CFR 274a.6,
which permit but do not require SWAs to verify employment eligibility
for individuals they refer. The USCIS regulations expressly permit SWAs
to verify the identity and employment authorization of workers before
making referrals, and certainly do not prohibit such verification. See
8 CFR 274a.6. The Acting General Counsel of DHS has issued an
interpretive letter stating that while the USCIS regulations do not
require SWAs to verify the eligibility of workers before referring
them, those regulations do not prevent other agencies with independent
authority from imposing such a requirement. See November 6, 2007 letter
from Gus P. Coldebella, DHS Acting General Counsel, to Gregory F.
Jacob, Senior Advisor to the Secretary of Labor. The Department is now
exercising its independent statutory authority under
[[Page 77138]]
the INA to require through regulation that SWAs verify employment
eligibility of referrals. Further, to ensure that the regulated
community has appropriate notice of the specific requirement, and to
ensure a standard process for verification remains in place consistent
with the procedures already approved by Congress, we have clarified in
the regulatory text that states must at a minimum use the I-9 process
for purposes of verification. The Department also strongly suggests
(but does not require), as it did in the NPRM, that States utilize the
DHS-administered E-Verify system. State agencies with procedures that
do not comply with the minimum requirements of the Form I-9, however,
such as verification through scanned documents transmitted over the
Internet, must revise their processes to ensure that agricultural
referrals are made only as a result of in-person verification.
The INA requires that employers execute a Form I-9 for all new
employees. Some commenters interpreted the NPRM to shift this employer
responsibility to SWAs. A subset of these commenters raised concern
that removing responsibility for verification from agricultural
employers alone would be unfair to other, non-agricultural employers
who would still be required to complete the Form I-9 form.
This Final Rule does not govern employment eligibility
verification, nor does it seek to change, for purposes of H-2A labor
certification, the basic responsibility of employers under the INA. As
we strongly cautioned in the NPRM, a SWA's responsibility to perform
threshold, pre-referral verification exists separate from an employer's
independent obligation under the Immigration Reform and Control Act of
1986 to verify the identity and employment authorization of every
worker to whom it has extended a job offer. However, the governing
statute does permit employers to rely on an employment verification
conducted by the SWA to fulfill their statutory responsibilities. The
INA--at sec. 274A(a)(5)--exempts employers from the verification
requirement and provides a ``safe harbor'' from legal liability to
employers, regardless of industry, who unwittingly hire an unauthorized
worker where the hire is based on a SWA referral made in compliance
with 8 CFR 274a.6, requiring appropriate documentation from the SWA
certifying that verification has taken place. As discussed more fully
below, the Department requires in this Final Rule that SWAs provide
documentation meeting the requirements of sec. 274A(a)(5) of the INA
and 8 CFR 274a.6 to each employer at the time the SWA refers the
verified worker to the employer. Employers must retain a copy of the
SWA certificate of verification just as it would retain a copy of Form
I-9. Employers must still verify employment eligibility for workers who
do not have a state certification that complies with all of the
applicable statutory and regulatory requirements.
Some commenters were concerned that employers who hire SWA-referred
workers may seek to hold SWAs responsible for referring unauthorized
workers. The Department expects that any referrals a SWA makes to
individual employers will comply with the requirements of Federal law,
including those established in this Final Rule. For example, the
preamble to the proposed rule directs SWAs to provide all referred
employees with adequate documentation that verification of their
employment has taken place, and clarifies that employers may invoke
``safe harbor'' protection only where the documentation complies with
all statutory and regulatory requirements. We have clarified in the
Final Rule the SWA's obligation to complete Form I-9 and provide
evidence of such completion by providing the employer with a
certification that complies with the DHS requirements for such
certificate at 8 CFR 274a.6. However, employers have no obligation to
hire a job applicant, whether or not referred by the SWA, who does not
present the employer with appropriate documentation evidencing the
applicant's work eligibility. As stated in the NPRM, an employer will
not be penalized by the Department for turning away applicants who are
not authorized to work. Additionally, as long as a SWA complies with
the process established by DHS for State Workforce Agencies and
undertakes good faith efforts to establish the employment eligibility
of referred workers, it will not incur any potential liability.
Although the Department certainly intends to hold SWAs responsible for
complying with all program requirements, just as it has in the past,
the Department is not aware of any basis under which SWAs could be held
liable to third parties for failing to properly perform their
employment verification responsibilities in the absence of willful or
malicious conduct.
Many commenters raised a concern that these new procedures would
have an unlawful, disparate impact on a protected class, or at least
make states vulnerable to legal claims of disparate impact that would
require the expenditure of significant resources to defend. More
specifically, these commenters felt that to the extent the verification
process is not applied to non-agricultural workers, it would have a
disparate impact on agricultural workers, many of whom are Hispanic,
and that could be perceived as unlawful discrimination on the basis of
race or ethnicity. Some commenters were concerned that states would be
forced to expend significant resources to defend lawsuits or,
alternatively, that in order to protect against lawsuits, would be
forced to apply the verification procedures to all job referrals.
The requirement to verify employment eligibility does not violate
constitutional prohibitions against disparate impact. The eligibility
requirement is established by statute and is similar to verification
requirements to gain access to other similar public benefits. See,
e.g., Section 432, Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, 110 Stat. 2105
(employment eligibility verification requirement for most federal
public benefits for needy families). As this regulation governs the H-
2A foreign labor certification program, the clarification made here is
limited to that program and to agricultural job referrals, but the
Department proposed an analogous provision in the H-2B NPRM published
on May 22, 2008, seeking to extend the same procedural employment
verification requirements to that program. More generally, the
clarification of the requirement in this regulation does not mean the
Department's policy is limited only to agricultural referrals, as the
Department's expectation is that SWAs will do what they can, including
exercising their authority under 8 U.S.C. 1324a, to avoid expending
public resources to refer unauthorized workers to any job
opportunities, regardless of program area. The employment verification
provisions included in this regulation are part of a much broader,
concerted effort--one that includes regulation, written guidance, and
outreach and education--to address longstanding weaknesses in the
system and to strengthen the integrity of foreign labor certification
activities.
Some commenters opined that the employment eligibility verification
requirement presents an obstacle to employment for, and will reduce the
pool of, the U.S. workers it is designed to protect. For example, these
commenters stated that States are increasingly moving toward web-based
employment services. The commenters believe an in-person verification
requirement will require potentially
[[Page 77139]]
onerous visits by job seekers who they believe currently could be
referred to work without ever visiting a workforce center. The
commenters stated that, especially in the larger States, this will
present a greater and perhaps insurmountable hurdle for a larger number
of U.S. workers, who will be discouraged from travelling great
distances to obtain a job referral.
In practice, an in-person verification requirement will not
significantly change the operation of referrals in most States. In the
Department's program experience, States often require that agricultural
job applicants visit the workforce center to receive information on the
terms and conditions of the job, which must be provided prior to
referral. See 20 CFR 653.501(f) (placement of the form within local
offices). While we do not disagree that an in-person verification
requirement may impact the decisions of a limited number of otherwise
eligible workers, at this juncture the impact is speculative and does
not outweigh the significant value of verification. Moreover, it is a
problem that SWAs may be able to adjust to by designating or creating
additional in-person locations where eligibility can be verified. This
is not a problem unique to SWAs given that workers often must travel
great distances to reach a prospective employer, who then (absent a SWA
certification) would be required to verify work eligibility. Although
employment eligibility verification does require some amount of time
and effort, Congress has determined that simple convenience must cede
to the overarching goal of achieving a legal workforce and the
Department has drafted its regulations accordingly.
Commenters opposing the eligibility provision uniformly complained
that the verification requirement would add potentially significant
workload and strain the already inadequate resources of many State
Workforce Agencies. Many saw it as an unfunded federal mandate in
violation of the Unfunded Mandates Reform Act. More than one referred
to the Department's recent inclusion of the requirement as a condition
for receiving further labor certification grant funding.
As stated in the preamble to the NPRM, the Department is not
insensitive to the resource constraints facing state agencies in their
administration of the H-2A program. However, as we stated in the NPRM,
we do not believe that the requirement will result in a significant
increase in workload or administrative burden. We have provided
training to SWAs to meet their obligations in this context and will
continue to do so.
In addition, notwithstanding funding limitations, there is a
strong, longstanding need for a consistent and uniform verification
requirement at the state government level. Verification is a statutory
responsibility of the Department and the SWAs under the INA and the
Wagner-Peyser Act, and the Department has further determined employment
verification is a logical and necessary condition for the issuance of
foreign labor certification grants to states. Precisely to ensure that
available federal funding supports verification activities, the
Department has added the verification requirement as an allowable cost
under the foreign labor certification grant agreement. While cognizant
of the challenges posed by funding limitations, we expect states to
comply as they do with other regulatory requirements and other terms
and conditions of their grant.
Commenters raised a number of concerns with the use of E-Verify,
including potential system problems, delays and inaccuracies. The
Department strongly encourages state agencies to use the system, which
provides an additional layer of accuracy and security over and above
the basic I-9 process, but it has not mandated use of E-Verify. SWAs
can comply with this Final Rule without the use of E-Verify.
One commenter pointed out that the regulation does not describe the
penalties to SWAs for non-compliance or delayed compliance with this
requirement, or the implications for H-2A employers who may seek
services from SWAs that are not in compliance with the requirement. For
instance, the commenter inquired whether, if the Department were to
suspend Foreign Labor Certification grant funding, employers would be
required to accept referrals funded exclusively by Wagner-Peyser
funding. The commenter also inquired whether the SWA in an employer's
state would be required to verify the work eligibility of a worker that
was referred to it by a non-compliant out-of-State SWA. As the
verification requirement is implemented, the Department's guidance will
evolve in response to the experience of the regulated community and our
own. We do note that these problems already exist under the
Department's current regulations and policies, and the Department is
working through them as they arise. The problems are substantially
alleviated by the fact that virtually every State and territory
administering the H-2A program has already agreed to come into
compliance with the employment eligibility verification requirements
established by current Departmental policies, minimizing the chance
that a State will need to be de-funded due to non-compliance or that
non-compliant referrals will be made by out-of-State SWAs.
Nevertheless, we do not discount the importance of the questions posed
by the commenter, but see them as issues of implementation that should
be addressed, as they arise, through appropriate guidance.
In addition, we note that 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 yet have
generated a final confirmation of employment eligibility.
(k) Section 655.102(k) Recruitment Report
The Department proposed requiring employers to submit an initial
recruitment report with their applications and to supplement that
report with a final recruitment report documenting all recruitment
activities related to the job opportunity that took place subsequent to
the filing of the application. The Department proposed that the initial
recruitment report to be filed with the application be prepared not
more than 60 days before the date of need, and that the supplemental,
final report be completed within 48 hours of the date H-2A workers
depart for the worksite or 3 days prior to the date of need, whichever
is later. Many individuals and members of agricultural associations
expressed concern that recruitment reports will not simplify the
application process and will instead inflict an undue burden on
employees of small farms. Some agricultural associations argued that
having two recruitment reports will double the work for employers and
stated that the supplemental report is not justified because of its
limited utility in resolving compliance issues.
The Department disagrees that a supplemental recruitment report
will have limited benefit, given the Department's intended use of
supplemental reports in the event of an audit. The supplemental
recruitment report will provide assurance to the Department that an
employer has complied with all of its obligations with respect to the
domestic workforce. Compliance throughout the program, including after
filing of an application,
[[Page 77140]]
is necessary for the appropriate enforcement of the H-2A program and
its requirements. By requiring a supplemental report, the Department is
not requiring a duplicative effort but is in fact effectively requiring
employers to split the current comprehensive total report (of all
referrals that are required to be reported) into two smaller, more
manageable reports. The Department does not believe that this splitting
of the comprehensive total report will require significantly more
effort on the part of employers.
Several commenters specifically mentioned the timing of the
recruitment report as the biggest problem with the requirement. One
farm association noted that since the initial application cannot be
submitted without the recruitment report, and the recruitment report
must be prepared not more than 60 days prior to the date of need, the
application itself cannot be filed until 60 days ahead of time. In
order to rectify this issue, the commenter believed the application
itself should be required to be filed not more than 60 days prior to
the date of need. Another farm association suggested that the timeline
for the recruitment report be moved up to no later than 45 days before
the date of need, rather than 60 days before the date of need. The
Department also received comments in support of the supplemental
recruitment reports.
The Department has learned through experience that if recruitment
is begun no more than 45 days before the date of need, it is virtually
impossible for the Department to receive an adequate recruitment report
by the time it is statutorily required to make a certification
determination 30 days before the date of need. As discussed above, we
have in response to comments amended the timeframe for pre-filing
recruitment to reflect a recruitment period closer to the date the
workers are needed. In addition, in accordance with the revisions to
the time frame specified in Sec. 655.102(e) for submitting job orders,
the original proposal regarding the timing of the filing of recruitment
reports has been revised in the Final Rule and now provides that the
initial recruitment report may not be prepared more than 50 days prior
to the employer's date of need. The Final Rule also revises the
proposed timing for the completion of the supplemental recruitment
report, and now requires the employer to update the recruitment report
within 2 business days following the last date that the employer is
required to accept referrals; that is, the end of the recruitment
period as specified in Sec. 655.102(f)(3). With respect to employers
who wish to file an Application for Temporary Employment Certification
prior to 50 days before the date of need, they are welcome to do so to
initiate processing of the application, but the application will not be
considered to be complete, and thus eligible for a final determination,
until the initial recruitment report is submitted.
Finally, the Department has made additional clarifying edits to the
regulatory text. These edits are to ensure this provision comports with
other sections of this Final Rule, to improve readability, and to
clarify its requirements. These include the deletion of the redundant
phrase ``who applied or was referred to the job opportunity'' which
appeared twice in the NPRM paragraph (k)(2) (which is now (k)(1)(iii));
simplifying the reference to the contents of the supplemental
recruitment report through the use of cross-references; and placing the
paragraph regarding the updating of recruitment reports before the
paragraph regarding document retention requirements. In addition, the
Department has added a requirement that the recruitment report must
contain the original number of openings advertised. This last addition
will enable the Department to grant an employer a partial certification
in the event it can meet part but not all of its need through the
recruitment of U.S. workers.
Section 655.103 Advertising Requirements
The Department proposed detailed instructions for the content of
the newspaper advertisements to be placed by employers as part of the
required pre-filing recruitment in Sec. 655.103. A few comments were
received on the specific contents of the ads. Other comments regarding
the rule's advertising requirements are discussed in the section of the
preamble pertaining to Sec. 655.102(g).
An association of growers/producers commented that the advertising
requirements are inefficient and wasteful, particularly when ``numerous
virtually identical ads are appearing at the same time.'' Another
association suggested that employers be allowed to advertise jobs by
simply referencing the job order placed with the SWA, and suggested
that employers should not be required to include all of the detailed
information contained in the proposed regulation. Another association
suggested that if more than one grower is simultaneously recruiting in
an area covered by only one newspaper, their ads should be combined and
placed by the SWA. The association suggested that the names of the
growers could all be provided in the ad, but applicants would be
directed to the SWA to get additional information about the jobs and
referrals to the employers.
The Department has considered but declines to adopt these
suggestions at this time. The Final Rule significantly clarifies the H-
2A advertising requirements. The Department believes that it has struck
a careful and appropriate balance, based on its program experience,
between the expense of advertising to employers and workers' need for
basic job information when considering whether to pursue advertised
employment opportunities.
The Final Rule contains several clarifying and conforming changes
to the proposed text for Sec. 655.103, none of which are substantive.
The Final Rule also paraphrases in Sec. 655.103 the equal treatment
requirement already stated in Sec. 655.104(a). Section 655.103
requires that an employer's recruitment ``must contain terms and
conditions of employment which are not less favorable than those that
will be offered to the H-2A workers.''
Section 655.104 Contents of Job Offers
(a) Section 655.104(a) Preferential Treatment of Aliens
The Department's proposed regulation stated: ``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.'' A group of farmworker advocacy organizations
opposed the removal of the words ``U.S. worker'' from this section of
the rule. This commenter believes that the proposed wording allows
employers to treat U.S. workers less favorably than H-2A workers.
While the Department does not agree that the new wording would have
allowed employers to treat U.S. workers any less favorably than H-2A
workers, the words ``U.S. worker'' have been reinserted.
(b) Section 655.104(b) No Less Than Minimum Offered
The NPRM proposed that the ``job duties and requirements specified
in the job offer shall be consistent with the normal and accepted
duties and requirements of non-H2A 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.'' Several
commenters expressed concern that the proposed requirements would prove
unworkable,
[[Page 77141]]
unadministrable, and exceedingly difficult for employers to comply
with, as what is ``normal'' and ``accepted'' are substantially
subjective determinations. All of the commenters who provided input on
this provision suggested that the Department should not second guess an
employer's business decision regarding an occupation's job duties when
they are unique to that employer. These commenters believe that the
Department's proposal would give the Department more discretion to deny
an application than is contemplated by the statute.
The Department agrees with the basic thrust of these comments.
Section 218(c)(3)(A) of the INA requires the Department, when
determining whether an employer's asserted job qualifications are
appropriate, to apply ``the normal and accepted qualifications required
by non-H-2A employers in the same or comparable occupations and
crops.'' There is a substantial difference, however, between job duties
and job qualifications; job qualifications typically describe the
minimum skills and experience that an employee must have to secure a
job, while job duties describe the tasks that qualified workers are
expected to perform. The Department agrees that, as a general matter,
employers are in a far better position than the Department to assess
what job duties workers at a particular establishment in a particular
area can reasonably be required to perform in an H-2A eligible
position.
The Department is therefore altering this provision to conform more
closely to the language of the statute, and is limiting the restriction
in Sec. 655.104(b) to job qualifications. The Department is aware that
this may mean that at times a U.S. worker wishing to perform one type
of job duty, such as picking asparagus, may be required by an employer
to perform an additional job duty, such as harvesting tobacco, in order
to secure an agricultural job. It is not at all uncommon, however, for
jobs in the United States to include multiple job duties, some of which
workers may view as more desirable than others. There is nothing in the
statute governing the H-2A program indicating that Congress intended to
require agricultural employers to allow prospective workers to
selectively choose which job duties they want to perform and which job
duties they do not, with regard to a particular job opportunity. In the
Final Rule, this provision states that ``[e]ach job qualification
listed in the job offer must not substantially deviate from the normal
and accepted qualifications required by employers that do not use H-2A
workers in the same or comparable occupations and crops.''
The Department is sensitive, however, that in certain circumstances
a listed job duty may act as a de facto job qualification, because the
listed duty requires skills or experience that agricultural workers may
not typically possess. When such circumstances arise, the Department
reserves the right to treat the listed job duty as a job qualification,
and to apply the ``normal'' and ``accepted'' standard that is set forth
in the statute and restated in the regulations in determining whether
the qualification is appropriate.
One commenter suggested that this provision should be made
consistent with those in the PERM regulations at 20 CFR 656.17. The
Department declines to apply the PERM standard to the H-2A program, as
that standard is based on a substantially different statutory
structure. The Department is confident that the revised standard for
Sec. 655.104(b) that is set forth in the Final Rule, which hews
closely to the language of sec. 218(c)(3)(A) of the INA, is
appropriately tailored to the H-2A program and will prove workable in
practice.
(c) Section 655.104(c) Minimum Benefits
A group of farmworker advocacy organizations pointed out that
proposed Sec. 655.104 does not correlate exactly to current Sec.
655.102(b). Specifically, in this commenter's opinion the proposed
section does not require the employer to pay the worker at least the
adverse effect wage rate in effect at the time the work is performed,
the prevailing hourly wage rate, or the legal federal or State minimum
wage rate, whichever is highest, for every hour or portion thereof
worked during a pay period as required in the current regulation.
According to this commenter, under the proposed rule, H-2A workers
would have only contract law as their primary enforcement tool. With
proposed Sec. 655.104(c) stating that every job offer must include the
wage provisions listed in paragraphs (d) through (i) of this section
but no longer requiring precisely what the current Sec.
655.102(b)(9)(i) requires, this commenter argued that workers will be
left at a disadvantage if the employer fails to specify the required
wage provisions in the work contract.
The Department appreciates this commenter's analysis. However, we
do not agree that the employer will no longer be bound to pay the
employee the wage promised, nor that the only enforcement tool
available is through contract law. Under the new program the employer's
attestation required under Sec. 655.105(g) is an enforceable program
requirement. The failure of an employer to comply with any program
requirement subjects the employer to the Department's enforcement
regime.
A commenter pointed out the illogical consequences of rigid rules
governing wages for agricultural workers. It is the commenter's
contention that the Department should add a phrase at the end of Sec.
655.104(c) that would not force employers to pay the NPC prescribed
wage until the date of need and instead would allow employers to pay
U.S. workers a mutually agreed upon wage between the time they recruit
the workers and the date the H-2A workers are needed in order to train
the U.S. worker and retain them until and throughout the period of the
H-2A contract. The commenter reports that if they do not offer those
U.S. workers employment immediately, they will most likely not be
available when the H-2A work begins. The commenter believes that any
employment prior to the date of need and prior to the date that foreign
H-2A workers arrive should not be governed by the H-2A contract or its
wage provisions.
The Department agrees that the H-2A required wage takes effect on
the effective start date of the H-2A contract period. However, the
Department does not believe that any changes to the regulatory text
need to be made under this section because Sec. 655.105(g) provides
that the requirement to pay the offered wage applies only during the
valid period of the approved labor certification. U.S. workers who are
hired in response to H-2A recruitment and who perform work for an
employer before the date of need specified in the H-2A labor
certification are not required by these regulations (but may be
required by contract) to be paid the H-2A wage until the period of the
H-2A contract begins, without regard to the type of work performed.
A group of farmworker advocacy organizations argued that under the
proposed rule, employers would no longer be required to disclose in job
offers their obligation to provide housing to workers. That is
incorrect. Section 655.104(c) provides that ``[e]very job offer
accompanying an H-2A application must include each of the minimum
benefit, wage, and working condition provisions listed in paragraphs
(d) through (q) of this section.'' Paragraph (d) of that section
provides, in turn, that ``[t]he employer must provide housing at no
cost to the worker, except for those U.S. workers who are reasonably
able to return to
[[Page 77142]]
their permanent residence at the end of the work day.''
(d) Section 655.104(d) Housing
Section 218(c)(4) of the INA requires employers to furnish housing
in accordance with specific regulations. The employer may fulfill this
obligation by providing housing which meets the applicable Federal
standards for temporary labor camps or providing housing which meets
the local standards for rental and/or public accommodations or other
substantially similar class of housing. In the absence of local
standards, the rental and/or public accommodations or other
substantially similar class of housing must meet State standards, and
in the absence of State standards, such housing must meet Federal
temporary labor camp standards. By statute, the determination of
whether employer-provided housing meets the applicable standards must
be made no later than 30 days before the date of need. The Department
proposed three changes to the current housing requirements.
First, the Department proposed allowing employers to request
housing inspections no more than 75 and no fewer than 60 days before
the date of need. The Department further proposed that the NPC would,
as required by statute, make determinations on H-2A applications 30
days before the employer's date of need, even if the housing referenced
in the application had not yet been physically inspected by the SWA, so
long as (1) the employer requested a housing inspection within the time
frame specified by the regulations and (2) the SWA failed to conduct
the inspection for reasons beyond the employer's control. Under the
Department's proposal, SWAs would have the authority and the
responsibility under such circumstances to conduct post-certification
housing inspections prior to or during occupancy. If such a post-
certification housing inspection identified deficiencies that the
employer failed to act promptly to correct, the proposal provided that
the SWA would inform the NPC of the deficiencies in writing so that the
NPC could take appropriate corrective action, potentially including
revocation of the labor certification. The Department proposed these
changes in part to alleviate the problems SWAs currently face in trying
to conduct large numbers of required housing inspections during the
short 15-day window provided by the statute between the time that
applications are required to be filed (45 days before the date of need)
and the time that the Department is required to make a determination on
the application (30 days before the date of need). The changes were
also intended to avoid penalizing employers for the failure of SWAs to
comply with their legal duty to meet the timeframes established by the
statute.
The Department heard from a number of SWAs on the issue of timely
housing inspections, many of which declared their ability to conduct
housing inspections within the 15-day window. One SWA acknowledged that
at times delays may occur in conducting housing inspections, but
attributed those delays to incomplete or inaccurate information being
provided to inspectors. This SWA suggested that providing a copy of the
job order with the housing inspection request would alleviate the
problem of inspectors investigating the wrong housing. Finally, an
anonymous commenter tied the delays in housing inspections to a lack of
funding at the state level.
The Department recognizes that many SWAs conduct housing
inspections in advance of the statutory deadline of 30 days before the
date of need, but cannot ignore the fact that SWA delays in conducting
housing inspection have in many instances resulted in labor
certification determinations being made by the Department outside of
the statutorily required timeframes. This result is not acceptable to
the Department or to employers seeking H-2A certification. As one
employer commenter stated:
[u]ntimely housing inspections are one of the most common reasons
for delays in making labor certification determinations. Therefore,
the provision in the proposed regulations for making a pre-
application housing inspection, and the provision that certification
will not be delayed if a timely housing inspection is not made, and
that occupancy of the housing is permitted, are important
improvements in the program.
While employers and employer associations favored the proposed
conditional labor certifications, several commenters representing
employer interests had concerns with the proposed requirement that
housing inspections be requested no fewer than 60 days before the date
of need. Employers stated that in some parts of the U.S., housing may
still be winterized 60 days before the date of need and therefore may
be unavailable for inspection, or unable to pass inspection. In certain
areas, inspection agencies require that the employer rent the housing
before an inspection is conducted and the earlier time frame for
requesting an inspection requires employers to pay an additional month
or two of rent for the housing, substantially adding to the cost of
providing housing. Other growers stated that current inspection
procedures prohibit the inspection of occupied housing and therefore
this proposal would require that regulations be adjusted to permit
inspection of occupied housing. Some said that the earlier time frame
for requesting housing inspections may be before many farmers plant
their crops, let alone know the dates of the harvest.
Commenters representing employer interests also included questions
concerning implementation of the proposal. Many argued that employers
should be provided a specific and reasonable period of time for
abatement of violations found in post-determination inspections
conducted by SWAs, and that employers who correct violations within the
specified period should not be penalized for the violations. One
employer association argued that ``the fact that employers continue to
face consequences for having deficient housing will prevent any adverse
effects for workers.'' Employers also questioned the proposed
requirement that housing inspection requests be made in writing, and
some employers recommended that the Department provide training to SWA
staff on conducting housing inspections of occupied housing. Finally,
one employer commented that in the state in which he operates, the
state's Department of Health conducts inspections of temporary labor
camps and that to require SWAs to conduct these inspections would
result in confusion.
Employee advocacy organizations and state agencies expressed
concern that the granting of pre-inspection labor certification
determinations could potentially result in cases where housing is not
inspected prior to occupancy, which in turn could result in workers
being housed in substandard conditions. Several commenters objected to
this proposed revision stating that pre-occupancy housing inspections
are an effective incentive for employers to take corrective action,
thus ensuring that workers are housed in safe and sanitary housing.
Other commenters urged the Department to continue the requirement that
housing be inspected before workers arrive.
A few comments from both organizations representing employer
interests and from organizations representing employee interests
questioned the Department's legal authority to establish a requirement
that housing inspections be requested more than 45 days before the date
of need, which is the earliest date that the
[[Page 77143]]
Department may under the statute require applications to be filed. One
commenter asserted that the proposed changes contradict the
Department's Wagner-Peyser regulations requiring that the housing be
inspected to determine compliance with applicable housing safety and
health standards before a job order can be posted (and, thus, before
the housing can be occupied).
The Department has carefully considered the comments and has
determined that the framework of the Department's original proposal
strikes an appropriate balance between the need to ensure that housing
for H-2A workers meets all applicable safety and health standards, that
agricultural employers are able to secure H-2A workers in a timely
manner, and that the Department complies with the statutory requirement
to render a determination no fewer than 30 days before the date of
need. To ensure that SWAs have adequate time to complete housing
inspections before the statutory deadline of 30 days before the date of
need, the Final Rule requires employers to request housing inspections
no fewer than 60 days before the date of need, except when the
emergency provisions contained in Sec. 655.101(d) are used. The
Department is eliminating in the Final Rule the proposed restriction on
housing inspections being requested more than 75 days before date of
need. Eliminating this restriction will provide SWAs additional
flexibility to manage the workload of completing required inspections
with respect to those cases where an employer's housing is ready for
inspection well in advance of the date of need.
The INA at 8 U.S.C. 1188(c)(3)(A) expressly requires the Secretary
of Labor to make a determination on an employer's application for
temporary labor certification no fewer than 30 days before the
employer's date of need. The INA also requires that the Secretary make
a determination as to whether employer-provided housing meets the
applicable housing standards by the same deadline--no fewer than 30
days before the employer's date of need. Although the Department has
delegated its statutory housing inspection responsibilities to the
SWAs, the statutory deadline applicable to that responsibility
continues to apply. This is made explicit by Sec. 655.104(d)(6)(iii)
of the Final Rule, which states that ``[t]he SWA must make its
determination that the housing meets the statutory criteria applicable
to the type of housing provided prior to the date on which the
Secretary is required to make a certification determination under sec.
218(c)(3)(A) of the INA, which is 30 days before the employer's date of
need.''
Some commenters read the language of sec. 218(c)(4) of the INA as
prohibiting the Secretary from making a determination on an employer's
application for temporary labor certification until the employer's
housing has been physically inspected. The Department strongly
disagrees with that interpretation. The language of sec. 218(c)(4) is
not phrased as a limitation on the Secretary's duty under sec.
218(c)(3)(A) to make determinations on applications no later than 30
days before the employer's date of need. In fact, the language of sec.
218(c)(4) does not require that housing inspections be completed prior
to the Secretary's certification determination, although Congress
certainly could have phrased the requirement that way had it wanted to
do so. Instead, the language of sec. 218(c)(4) is most naturally read
as imposing a statutory duty on the Department to complete required
housing inspections ``prior to the date specified in paragraph
(3)(A)''--which, as noted previously, is 30 days before the employer's
date of need. The provision does not specify what consequence should
follow in the event that the Department fails to comply with this
mandate. Presumably, however, if Congress had intended that the primary
consequence of the government's failure to meet its statutory
responsibility to complete housing inspections in a timely manner would
be to penalize employers by releasing the Department from its
independent statutory responsibility to make determinations on
applications no later than 30 days before the employer's date of need--
a deadline that was indisputably established to ensure that employers
can secure needed H-2A workers in a timely fashion without undue delays
caused by the government--it would have said so explicitly.
Of course, the Department greatly prefers that housing inspections
be conducted prior to certification, as this gives the Department the
strongest possible assurance that ``the employer has complied with the
criteria for certification'' as required by sec. 218(c)(3)(A)(i) of the
INA. To this end, the Final Rule requires that employers make requests
for housing inspections no fewer than 60 days before the employer's
date of need, ensuring that SWAs have adequate time to meet the
statutory deadline for conducting housing inspections. Moreover, SWAs
remain under an express statutory and regulatory mandate to complete
housing inspections by 30 days before the employer's date of need, an
obligation that the Department expects SWAs will not take lightly. The
Department therefore believes that under the Final Rule, post-
certification housing inspections will be the very rare exception
rather than the rule.
The Department has never read sec. 218(c)(3)(A)(i), however, as
requiring that the government directly observe for itself that the
employer has satisfied all of the statutory criteria for certification.
For example, under the current regulations a substantial portion of
required recruitment takes place after a certification has been made,
and SWAs typically do not conduct pre-certification inspections of
rental housing or public accommodations secured by employers pursuant
to sec. 218(c)(4). It is important to note that under the Final Rule
employers are required to provide or secure housing that meets all
applicable standards, and that a certification cannot be granted, with
or without an inspection, unless the employer has attested that its
housing fully complies with those standards. Sanctions and penalties
may be imposed for violations of the attestation requirements and the
housing standards, including revocation of a labor certification,
regardless of whether a pre-certification housing inspection was
conducted.
As to commenters who argued that it is unacceptable that housing
might in some rare circumstances be occupied by H-2A workers before it
is inspected, the Department notes that under MSPA, U.S. workers often
occupy agricultural housing before it is inspected, and the Department
has not seen any data indicating that this arrangement has caused harm
to U.S. workers. The Department does not believe that H-2A workers will
be harmed by this rule when being afforded the same level of protection
that Congress has afforded to U.S. workers. Moreover, the Department
believes that any chance that H-2A workers would be placed in
substandard housing under the Final Rule--a possibility that can never
fully be guarded against as a practical matter, and occurs on occasion
even under the current rule--is minimized by the fact that a
certification cannot be granted unless the employer has attested that
its housing fully complies with all applicable standards. If this
attestation is later shown to be false, the employer risks substantial
penalties, including the possibility of a revoked labor certification
and/or debarment.
The Department is not persuaded by employers' arguments for
specific language allowing employers in all cases to abate housing
violations
[[Page 77144]]
without penalties where the housing has already been occupied.
Penalties for failing to meet the applicable standards help ensure
compliance. As with all Department investigations to determine
compliance with Federal safety and health standards for housing,
however, the employer is as a matter of practice provided a reasonable
opportunity to correct or abate any violations that are found. This
also is true when the SWA or other state agency conducts the
inspection. Time frames for abatement are directly related to the
severity of the violation and its potential impact on the safety and
health of the workers. Therefore, language in this regulation
specifying an abatement period for the correction of housing violations
is unnecessary. Current regulations at 29 CFR 501.19(b) and the Final
Rule at Sec. Sec. 655.117 and 655.118 address the factors considered
by the Department in determining the appropriateness of penalties and
sanctions. The Department will continue to ensure that the penalties
assessed and sanctions imposed for violations of housing safety and
health standards are appropriate to the violation.
The Department is cognizant that requiring employers to request
housing inspections no fewer than 60 days before the date of need may
present a challenge to some employers. However, we believe that overall
this requirement will be beneficial to employers, workers and the SWAs
by allowing more time for the SWAs to schedule and conduct pre-
occupancy housing inspections, and more time for employers to correct
any deficiencies prior to the arrival of the workers. The Department
expects that SWAs will continue to work with employers on the
scheduling of housing inspections and that SWAs will endeavor to
minimize the expense to the SWA and maximize the benefit to the
employer and workers by avoiding scheduling inspections of facilities
at times that they are not winterized or otherwise unlikely to pass
inspection. In response to comments about obstacles that currently
exist in some jurisdictions to securing timely housing inspections, the
Department has also included an instruction to SWAs in the Final Rule
not to adopt rules or restrictions that would inhibit their ability to
conduct inspections by 30 days before the date of need, such as
requirements that rental housing already be formally leased by the
employer before the SWA will conduct an inspection, or rules that
occupied housing will not be inspected. It is solely the employer's
responsibility, however, to ensure that the SWA has access to the
housing to be inspected so that the inspection may take place. For the
reasons set forth in the discussion of Sec. 102(a) concerning the
Final Rule's pre-filing recruitment requirements, the Department does
not agree that the statute prohibits the Department from requiring that
housing inspection requests be submitted to SWAs prior to the date that
applications must be submitted to the NPC.
The Department also disagrees that the possibility that some
housing inspections will take place after certification under the Final
Rule violates the Wagner-Peyser regulations. The current regulations at
20 CFR 654.403 already permit job orders to be posted prior to the
completion of a housing inspection. If an SWA identifies violations
during a subsequent housing inspection, and the employer does not cure
the violations after being provided a reasonable opportunity to do so,
the corresponding job order may be revoked. Although some commenters
expressed the view that the regulatory process under Sec. 654.403 is
more protective of workers because Sec. 654.403(e) requires that the
SWA ``shall assure that the housing is inspected no later than the date
by which the employer has promised to have its housing in compliance
with the requirements of this subpart,'' that provision is actually
less protective of workers than the Final Rule. The Final Rule
unequivocally recapitulates the statutory requirement that housing
inspections be completed no later than 30 days before the employer's
date of need, a date that is actually earlier than that required by the
conditional access provisions set forth in Sec. 654.403. Thus, both
the Final Rule and Sec. 654.403 contain clear mandates for pre-
occupancy inspections. Significantly, however, Sec. 654.403 does not
specify any particular consequence if an SWA fails in its duty to
conduct the required pre-occupancy inspection; under that provision, it
is only if the SWA fulfills its duty to conduct the required inspection
and finds violations that the employer's job order is removed from
clearance. Thus, in specifying that the Department will adhere to its
statutory obligation to make certification determinations on
applications no later than 30 days before the employer's date of need
even where an SWA has failed in its statutory duty to conduct the
required housing inspection in a timely fashion, the Department is not
depriving workers of any protections that they have under Sec.
654.403. Both provisions fundamentally depend on SWAs to protect
workers by fulfilling their responsibilities under the law--and the
Department notes that in its experience, the SWAs take those
responsibilities very seriously.
The Department is retaining the proposed requirement that the
employer's request for housing inspections must be in writing. This
requirement provides the employer with the documentation necessary to
demonstrate that their request for a housing inspection was made within
the required time frame.
While the Department refers to the SWAs as the entities responsible
for making housing inspections related to labor certification
determinations, the Department does not intend to limit the flexibility
afforded SWAs in fulfilling this requirement. For example, some SWAs
have agreements with other State agencies for conducting housing
inspections and it is not the Department's intention to change such
arrangements.
Finally, in response to concerns that SWA staff is not sufficiently
trained to conduct inspections of occupied housing, the Department
anticipates that there will be additional training of SWA staff on the
conduct of housing inspections.
The Department's second housing-related proposal was the creation
of a housing voucher as an additional option employers could use to
meet the H-2A housing requirements. The Department did not explain in
detail in the NPRM how such a voucher program would work, but instead
requested suggestions and comment from the public about how the program
should be constructed and operated. The Department's NPRM did, however,
propose to include several safeguards in the voucher program to ensure
that workers would be provided housing meeting the applicable safety
and health standards, including requirements that the voucher could 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. Other safeguards included the provision that the voucher
could only be redeemed for cash paid by the employer to a third party,
that the housing obtained with the voucher had to be within a
reasonable commuting distance of the place of employment and that
workers could ``pool'' their vouchers to secure housing (e.g., to
secure a house instead of a motel room) but that such pooling may not
result in a violation of the applicable safety and health standards.
The Department also included as a safeguard the requirement that if
acceptable housing could not be obtained with the voucher, the employer
would be required to provide
[[Page 77145]]
housing meeting the applicable safety and health standards to the
worker. The Department requested comments on whether such a program
would adequately balance the needs of employers and workers and how
such a program should operate. The Department received a number of
comments from employers, employer associations, employee advocacy
organizations and State agencies on the housing voucher option.
A number of comments from stakeholders representing both employer
and employee interests led us to conclude that the proposal was not
well understood. Several commenters stated that ``the voucher program
would effectively eliminate the requirement that all housing for H-2A
workers must meet health and safety standards.'' Some employer
associations stated that they supported the concept of ``using vouchers
to provide housing in lieu of actually providing housing'' while
another commenter asserted that the housing voucher option would
``undermine Congressional intent by eliminating the requirement that
employers provide non-local workers with free housing that meets the
basic safety and health standards.''
While noting a few concerns with the proposal (e.g., the employer's
responsibility for violations of safety and health standards at housing
obtained by the voucher), employers and employer associations generally
praised the Department for the much needed flexibility a voucher
program would create. Some commenters opined that the use of housing
vouchers would ``greatly stimulate H-2A participation'' and ``would
encourage others to use legal workers.'' Other commenters stated that
the H-2A current requirement to provide housing to workers is a serious
impediment to program participation and that the implementation of a
housing voucher option would make the H-2A program more usable and
effective.
Comments from individuals and organizations representing employee
interests criticized the voucher option, stating that the proposed
safeguards were illusory and provided no substantive protections to
workers. Virtually all criticism of the proposal, including from SWAs,
misunderstood the Department's position and assumed health and safety
standards would not apply to housing obtained with a voucher. Many
commenters argued that the voucher idea ``ignores the reality of the
situation for both U.S. and H-2A workers'' in that many farmworkers,
particularly H-2A workers, do not have the resources to conduct a long-
distance housing search, such as access to the Internet, knowledge of
the area, and language difficulties. Several found it unreasonable to
expect that a worker will travel from another country, or even across
the State, for employment and be able to quickly find a motel or
landlord that will accept vouchers for a short-term stay.
The comments received from SWAs on the housing voucher option were
generally opposed to the proposal and also reflected a misunderstanding
of the Department's proposal. One SWA cited concerns that a voucher
would eliminate established standards that ensure safety and healthful
conditions of housing. Another SWA argued that ``[t]he use of vouchers
and the failure to cover the full cost of housing reflects an
unrealistic understanding of the housing market for seasonal workers.''
Another SWA suggested that it would be impossible for the Governor to
determine whether there was inadequate housing available in the area
since the SWAs would not be the recipient of the labor condition
applications, and therefore, would not know the number of workers in
need of housing.
Some commenters criticized the Department's proposal on the grounds
that many basic questions about how the voucher would function were not
adequately addressed in the NPRM, including the lack of: A mechanism
for determining the amount or value of the voucher; a definition of
``reasonable commuting distance;'' criteria to be used in determining
whether the employer made a good faith effort to assist the worker in
identifying, locating and securing housing in the area of intended
employment; and standards to be used in the Governor's certification of
insufficient housing for migrant workers and H-2A workers in the area
of intended employment. Other commenters took issue with the
Department's proposal to allow workers to ``pool'' the vouchers,
claiming that such pooling would result in workers overpaying for
overcrowded and/or substandard housing. Several commenters questioned
the Department on the rationale for not allowing the voucher to be
redeemed for cash by the employee to a third party.
The requirement that employers furnish housing that meets
applicable safety and health standards is a statutory requirement in
the INA. The Department does not have authority to waive this statutory
requirement, nor did the Department intend to do so in proposing a
voucher option. In proposing a voucher option, the Department sought
comment on how best to provide much needed flexibility to employers in
fulfilling their obligation to furnish housing while ensuring that
workers are not housed in substandard conditions. After reviewing the
comments received on this proposal, the Department is persuaded that it
should drop the proposal at this time because it would be extremely
difficult to implement. The extent to which the Department's proposal
was misunderstood by commenters on all sides also caused the Department
concern that, if implemented, the proposal would result in numerous
program violations and become a substantial enforcement problem. If, in
the future, the Department is able to design an effective, enforceable
and viable alternative, it will develop a proposal and request public
comment.
We are sympathetic to the concerns of many growers and employer
associations who supported the proposal and noted that the cost of
providing housing is a major deterrent for many to participate in the
H-2A program and that in many parts of the country, restrictive
building and zoning codes can prevent growers from building housing to
accommodate workers. The Department notes that many of these problems
can be overcome by employers under the statute and the Final Rule by
securing ``housing which meets the local standards for rental and/or
public accommodations or other substantially similar class of
habitation.'' These options do not require employers to build and
furnish their own housing. As is noted in ETA Handbook No. 398, there
is nothing to preclude an employer who does not actually own housing on
his/her property from renting non-commercial housing from other
individuals or entities. If there are areas where rental and public
accommodation options, including non-commercial housing, are not
readily available, it is difficult to imagine how workers could have
secured housing in those areas through the use of a voucher, such that
the voucher program would not have been viable in those areas anyway.
Third, the Department proposed in the NPRM to clarify and codify
additional limited flexibility under certain circumstances to make
post-certification changes to housing. The Department's current policy
\4\ allows the employer to substitute rental or public accommodations
for certified housing in the event that certified housing becomes
unexpectedly unavailable for reasons
[[Page 77146]]
outside of the employer's control. The employer is required to notify
the SWA in writing of the housing change and the qualifying reason(s)
for the change, and provide evidence that the substituted housing meets
the applicable safety and health standards. The SWA may inspect the
substitute housing to determine compliance with applicable safety and
health standards. The NPRM sought to clarify and codify this policy and
included a provision for the SWA to notify the CO of any housing
changes and the results of housing inspections conducted on substitute
housing. Employer commenters and commenters representing employer
interests universally favored the clarification in the proposal:
---------------------------------------------------------------------------
\4\ Training and Employment Guidance Letter 11-07, Change 1
(November 14, 2007).
The inclusion of language that permits employers to use
substitute housing in the event that their approved housing becomes
unavailable for reasons beyond their control will be beneficial for
the obvious reason that in the rare circumstances where this occurs,
---------------------------------------------------------------------------
an employer has a housing option without being in violation.
Commenters on behalf of employees questioned the Department's
authority to propose such a change and thought the proposed change
would result in workers being housed in substandard housing saying:
[T]his change is not permitted by the statute [INA 218(c)(4)]
and would encourage potentially fraudulent ``bait and switch''
tactics perpetrated by H-2A employers with respect to employer-
provided housing.
Commenters also questioned which standards are the applicable standards
to the substitute housing.
The Department maintains that this additional limited flexibility
with respect to substitute housing is the best approach in those rare
circumstances where the certified housing becomes unavailable for
reasons beyond the employer's control. The Department believes that the
requirements that the substitute housing be rental or other public
accommodations and that the employer provide evidence that the new
housing meets the applicable safety and health standards offer workers
the necessary protections. Indeed, the proposal in no way lessens the
applicable housing standards, as substitute housing must meet the
standards that typically apply to H-2A housing of the same type.
Failure to create a substitute housing provision could leave H-2A
employers in the untenable position of having workers arrive at the
worksite and having no permissible place to house them. Therefore, the
Department has included this provision in the Final Rule. This Final
Rule specifically references the applicable standards to which rental
or public accommodation housing, including substitute housing, is
subject.
The Department has made several modifications to this provision in
the Final Rule for purposes of clarity and to conform the standard to
the structure of the rest of the Final Rule. First, the proposal states
that the unavailability provision would apply in ``situations in which
housing certified by the SWA later becomes unavailable.'' To ensure
that the full range of applicable situations is covered, the Final Rule
provides that the unavailability provision applies where housing
becomes unavailable ``after a request to certify housing (but before
certification), or after certification of housing.'' There is no reason
to exclude housing that has not yet been inspected from the scope of
the provision, since the initially designated housing has become
unavailable anyway. Second, the phrase ``applicable housing standards''
has been replaced in the Final Rule with ``the local, State, or Federal
housing standards applicable under paragraph (d)(1)(ii) of this
section,'' which is more specific. Third, the phrase ``in accordance
with the requirements of paragraph (d)(1)(ii) of this section'' has
been added to the end of the second sentence of the provision, and the
phrase ``from the appropriate local or State agency responsible for
determining compliance'' has accordingly been deleted as unnecessary;
as noted in the discussion of paragraph (d)(1)(ii), that paragraph has
been separately modified to reflect the evidentiary standard that is
currently in place in ETA Handbook No. 398. For the same reason, the
proposal's admonition that SWAs ``should make every effort to inspect
the accommodations prior to occupation, but may also conduct
inspections during occupation, to ensure that they meet applicable
housing standards'' has been removed in the Final Rule. As current ETA
Handbook No. 398 explains at page II-15, ``[i]f DOL standards are not
applicable, no pre-occupancy inspections need be conducted, and the
employer need only document to the RA's satisfaction that the housing
complies with the local or State standards which apply to the
situation.'' To the extent that some SWAs may typically inspect rental
or public accommodation housing despite the fact that they are not
required by these rules to do so, they should make every effort to
inspect substitute housing prior to occupation.
The Department received comments on other housing-related issues
for which no changes were proposed. A number of commenters noted that
the text of proposed Sec. 655.104(d)(1)(i) referred to employer-owned
housing, whereas the current regulation at Sec. 655.102(b)(1)(i) and
the preamble to the proposed rule referenced employer-provided housing.
The Department did not intend to change the current requirements for
employer-provided housing and has corrected this inadvertent reference
to ``employer-owned'' housing in the regulatory text.
A group of farmworker advocacy organizations commented that, in its
view, all rental and/or public accommodations should be required by the
Department, at a minimum, to meet the Federal standards for temporary
labor camps. The commenter asserted that State and local standards for
rental and/or public accommodation housing may in many instances be
grossly inadequate, and that the application of Federal minimum
standards is therefore essential. The Department does not believe,
however, that it has the authority under the INA to impose such a
minimum requirement. Section 218(c)(4) of the INA expressly provides
that to satisfy their housing obligation employers may, at their
option, either ``provide housing meeting applicable Federal standards
for temporary labor camps'' or ``secure housing which meets the local
standards for rental and/or public accommodations or other
substantially similar class of habitation.'' An employer that secures
rental and/or public accommodations that meet all of the applicable
local standards has satisfied its housing obligation under the statute.
The statute provides that rental and/or public accommodation housing
does not need to meet Federal temporary labor camp standards unless
there are no ``applicable local or State standards.'' The Department is
not at liberty to issue regulations that are inconsistent with the
structure of employer housing obligations under the INA.
A few commenters urged the Department to relieve employers in
certain border communities (e.g., Yuma, AZ) of the requirement to
provide housing to H-2A workers from Mexico who are able to commute
back to their homes across the border on a daily basis. According to
one association commenter, Yuma, Arizona employers have traditionally
attracted tens of thousands of seasonal workers daily, approximately
half of whom reside in the U.S. while the other half choose to maintain
their residences in Mexico. This association believes that requiring
employers in such instances to provide housing and transportation not
only hinders participation but ignores reality.
[[Page 77147]]
The INA at sec. 218(c)(4) requires employers to provide housing to all
H-2A workers. The Department does not believe it has a legal basis upon
which to permit employers to employ H-2A workers without providing
those workers with housing. Of course, there is no statutory
requirement that workers actually reside in the employer-provided
housing. So, an H-2A worker who resides within commuting distance of a
home across the border could presumably return home each night if the
worker wanted to, provided the employer didn't require its workers to
reside in specific housing as a condition of the work agreement.
Nevertheless, the employer would be required by statute to make
appropriate housing available to the worker.
Some commenters suggested that U.S. Department of Agriculture sec.
514 Farm Labor Housing Loans should be made available for the
construction of housing used for H-2A workers. The Department has no
authority to allocate Farm Labor Housing Loans, but has passed along
the comment to the USDA.
Several commenters raised specific concerns about the attestation
process as related to housing for agricultural workers. These
commenters believe that the attestation process will lead to abuses in
housing because there is no process in place for establishing
compliance with the housing inspection request. Pursuant to the Final
Rule, housing inspections are still required to be completed by SWAs.
The Department believes that the extended timeframes for required pre-
certification housing inspections will give the housing inspectors more
time to complete inspections and should actually lead to more thorough
inspections that in turn will help ensure violations are corrected.
So as not to inadvertently alter the availability of the
conditional access provisions of Sec. 654.403, which were cited
favorably by some commenters, the Department has added language to
Sec. 655.104(d)(6)(i) clarifying that the required attestation ``may
include an attestation that the employer is complying with the
procedures set forth in Sec. 654.403.''
Finally, the Department notes it has made several non-substantive
changes to the text of Sec. 655.104(d) to provide clarity. For
example, the NPRM noted the obligation to provide housing to those
workers who are not reasonably able to return to their permanent
residence ``within the same day.'' The Department has amended this
phrase to ``at the end of the work day'' to clarify that a work day may
go beyond the same 24-hour period (for example, a late shift may not
necessarily end within the same day but would still be considered part
of the same work day after which an H-2A worker could not be reasonably
expected to return to the home residence). For the same reason, the
term ``without charge'' has been amended to read ``at no cost to the
worker,'' in order to ensure clarity and understanding. The Department
has also included language in Sec. 655.104(d)(1)(ii) to clarify the
kind of documentation that employers are expected to retain if they
secure rental and/or public accommodations for their workers to show
that the accommodations comply with the applicable legal standards. The
language is taken directly from ETA Handbook No. 398, which provides at
page I-26 that such documentation ``may be in the form of a certificate
from the local or State Department of Health office or a statement from
the manager or owner of the housing.'' In addition, non-substantive
changes have been made to comport with plain English standards (for
example, the use of active voice, such as the change in Sec.
655.104(d)(6)(iii) to read ``The SWA is required by Section 218(c)(4)
of the INA to make its determination''). Finally, a provision that is
in the current regulation regarding charges for public housing, which
was inadvertently omitted from the NPRM and whose absence was noted by
several commenters, has been restored.
(e) Section 655.104(e) Workers' compensation
The NPRM proposed to continue the current requirement that the job
offer must contain a statement promising that workers' compensation
insurance will be provided. This is a statutory requirement. The INA at
Section 218(b)(3) requires the employer to provide the Secretary with
satisfactory assurances that ``if the employment for which
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.'' One commenter noted the State of Washington has an
unusual Worker's Compensation statute that requires workers to
contribute 50 percent of the premium unless the employer is self-
insured, whereas the NPRM required the employer to provide such
insurance at no cost to the worker. The intent of the workers'
compensation provision in the INA is to ensure that no worker is left
without insurance in those States that exclude agricultural work from
coverage. In fact, Section 218(b)(3) provides that if ``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 workers' employment which will provide benefits at least equal
to those provided under the State workers' compensation law for
comparable employment'' (emphasis added). Where the employment in
question is covered by State workers' compensation law, but subject to
certain rules applied by the State, the statutory provision is
inapplicable. Therefore, the Department has modified language in Sec.
655.104(e) to clarify that the employer should follow State law, but if
the State excludes the type of employment for which the certification
is being sought, then the employer must purchase the insurance at no
cost to the worker.
Other commenters complained that the Department no longer requires
submission of proof of Worker's Compensation Insurance. These
commenters believe that employers circumvent this requirement by having
inadequate coverage or by allowing the coverage to lapse after
receiving certification, or by not buying it at all because State law
does not require it. The Department is confident that the attestation-
based application system will allow the Department to enforce these
provisions because these attestations are made under penalty of
perjury. If it is revealed during an audit that an employer
fraudulently claimed to have met all program requirements, the employer
would be subject to penalties, including debarment from the program.
Other changes made to the language of this provision were non-
substantive, and made for purposes of clarification, or (as in the case
of the recordkeeping language) to conform to changes made elsewhere in
the rule.
(f) Section 655.104(f) Employer-Provided Items
The NPRM proposed to continue the current requirement that
employers provide workers with ``all tools, supplies, and equipment
required'' to perform the duties of the job. The NPRM allowed employers
to require workers to provide tools or equipment where the employer can
demonstrate such a practice was ``common'' in the area of employment.
The Department received one comment relating to its proposal,
asserting that the Department should
[[Page 77148]]
not have deleted the current language mandating approval from the
Department if employers seek to require employees to purchase any tools
and equipment because it is common practice to do so. The ``common
practice'' standard is not new, but has been carried over from the
current regulation. Whether a common practice exists will still be a
determination of fact to be decided by the Department and not by the
employer. The only change in this determination is that the employer
will now bear the burden of proof in the event of an audit or
investigation to show that the practice claimed is common. In
determining whether a practice is ``common'' in a particular area, the
Department will apply a simple mathematical formula. If an employer can
demonstrate that 25 percent of non-H-2A workers in the crop activity
and occupation in the particular area are required to provide tools or
equipment, the Department will consider the practice to be ``common.''
This simple standard will be relatively easy to administer, and will
ensure that employers have fair notice of their legal obligations.
Clarifying language was also inserted referencing the requirements
of sec. 3(m) of the Fair Labor Standards Act, 29 U.S.C. 203(m) (FLSA),
which does not permit deductions for tools or equipment primarily for
the benefit of the employer that reduce an employee's wage below the
wage required under the minimum wage, or, where applicable, the
overtime provisions of the FLSA.
(g) Section 655.104(g) Meals
Section 655.104 (g) concerns the provision of meals to workers and
the amount employers may charge workers for meals each day. Although
the Department proposed no changes to this section, a few comments were
received stating that the amount allowed to be charged/reimbursed does
not reflect the true cost of the employer's providing or the worker's
purchase of meals. Section 655.114 provides for annual adjustments of
the previous year's allowable meal charges based upon Consumer Price
Index (CPI) data. Each year the maximum charges allowed are adjusted
from the charges allotted the previous year by the same percentage as
the twelve-month percent change in the CPI for all Urban Consumers for
Food (CPI-U for Food) between December of the year just concluded and
December of the year prior to that. The Department reminds employers of
their ability to petition for higher meal charges, a practice that has
been continued in the Final Rule in Sec. 655.114. The amount of the
meal charge, which in the NPRM was listed in Sec. 655.104(g), has for
purposes of clarity been listed instead in Sec. 655.114.
(h) Section 655.104(h) Transportation
Existing regulations at Sec. 655.102(b)(5) require employers to
provide or pay for workers' daily subsistence and transportation from
the place from which the worker has come to the place of employment.
The employer is to advance these costs to the worker when it is the
prevailing practice of non-H-2A employers in the occupation and area to
do so. If the employer has not advanced transportation and subsistence
costs or otherwise provided or paid for these costs and the worker
completes 50 percent of the work contract period, the employer is
required to reimburse the worker for these costs at that time. The
Department proposed no change to this requirement, but sought comments
and information on the costs and benefits to employers and workers of
continuing to require employers to pay for the workers' inbound and
outbound (return) subsistence and transportation costs.
The Department received several comments on this requirement. Some
comments from employers and employer associations advocated that
employers and employees should share the costs of workers' inbound
subsistence and transportation. These commenters argued that both
employees and employers benefit from the H-2A employment relationship
and therefore should share the costs. Others suggested that the
employees should bear the full cost of their inbound subsistence and
transportation, arguing that the inbound travel employment once they
are in the country. Some commenters also noted that no other
nonimmigrant work-related program requires employers to pay for the
workers' inbound subsistence and transportation.
Comments from employee advocates urged the Department to continue
the requirement that employers provide or pay for workers inbound
subsistence and transportation costs, asserting that inbound
subsistence and transportation costs:
[a]re necessary for many reasons--to attract U.S. workers; to
encourage employers to fully employ the workers in whom they have
invested and to recruit only those workers needed; * * * and,
because farmworkers wages are so low, to prevent farmworkers from
becoming even more deeply indebted (and more exploitable) or from
seeking low-cost transportation that is often unregulated and
deadly.
While there was disagreement among commenters on the current
requirement that employers pay inbound subsistence and transportation,
there was agreement that employers should continue to pay for workers'
outbound transportation. Employer and worker advocate commenters agreed
that payment of outbound travel is a critical means to help ensure that
workers depart the U.S. at the end of their H-2A contract.
Many comments addressed the timing of reimbursement to workers for
inbound subsistence and transportation costs. Most commenters
referenced the appellate court's decision in Arriaga v. Florida Pacific
Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002), which held that growers
violated the minimum wage provisions of the FLSA by failing to
reimburse farmworkers during their first workweek for travel expenses
(and visa and immigration fees) paid by the workers employed by the
growers under the H-2A program. Under the FLSA, pre-employment expenses
incurred by workers that are properly business expenses of the employer
and primarily for the benefit of the employer are considered ``kick-
backs'' of wages to the employer and are treated as deductions from the
employees' wages during the first workweek. 29 CFR 531.35. Such
deductions must be reimbursed by the employer during the first workweek
to the extent that they effectively result in workers' weekly wages
being below the minimum wage. 29 CFR 531.36. Although the employer in
the Arriaga case did not itself make direct deductions from the
workers' wages, the Court held that the costs incurred by the workers
amounted to ``de facto deductions'' that the workers absorbed, thereby
driving the workers' wages below the statutory minimum. The Eleventh
Circuit reasoned that the transportation and visa costs incurred by the
workers were primarily for the benefit of the employer and necessary
and incidental to the employment of the workers and stated that
``[t]ransportation charges are an inevitable and inescapable
consequence of having H-2A foreign workers employed in the United
States; these are costs which arise out of the employment of H-2A
workers.'' Finally, the court held that the growers' practices violated
the FLSA minimum wage provisions, even though the H-2A regulations
provide that the transportation costs need not be repaid until the
workers complete 50 percent of the contract work period. The Eleventh
Circuit noted that the H-2A regulations require employers to comply
with applicable federal laws, and in accepting the contract orders in
this case, the ETA Regional Administrator informed the growers in
writing that their obligation
[[Page 77149]]
to pay the full FLSA minimum wage is not overridden by the H-2A
regulations.
Comments from employers recommended continuing the Department's
requirement that workers be reimbursed at the 50 percent point of the
work contract, stating that the current policy appropriately balances
the interests of employers and employees by creating an incentive for
employees to complete at least half of the contract. Many employers
urged the Department not to require immediate reimbursement to workers
and that the Department:
should explicitly state that an employer of H-2A workers does not
have an obligation under the INA, the Fair Labor Standards Act
(``FLSA''), or DOL regulations to reimburse a worker's in-bound
transportation expense until the 50 percent point of the work
contract and that if a worker's payment of inbound transportation
and subsistence costs reduces his/her first week's wage below the
minimum wage, such reduction does not result in a violation of the
FLSA.
Employee advocates, on the other hand, pressed the Department to
require employers to comply with the FLSA which, they state, requires
the reimbursement of costs at the beginning of employment when those
costs are for the benefit of the employer and effectively reduce the
workers' weekly income below the minimum wage. Another employee
advocate suggested that the Department consider requiring H-2A
employers to advance to workers inbound costs and to pay referral fees
to domestic labor contractors to encourage the movement of low-wage
U.S. workers to labor shortage areas.
After due consideration of the comments, the Department has
determined to continue the current policy of requiring employers to
provide or pay for workers' inbound and outbound subsistence and
transportation and the corresponding requirement for reimbursement of
such inbound costs upon the worker's completion of 50 percent of the
work contract period. Thus, reimbursement at the 50 percent point is
all that the Final Rule requires pursuant to the Department's
rulemaking authority under the INA. Moreover, the Department believes
that the better reading of the FLSA and the Department's own
regulations is that relocation costs under the H-2A program are not
primarily for the benefit of the employer, that relocation costs paid
for by H-2A workers do not constitute kickbacks within the meaning of
29 CFR 531.35, and that reimbursement of workers for such costs in the
first paycheck is not required by the FLSA.
The FLSA requires employers to pay their employees set minimum
hourly wages. 29 U.S.C. 206(a). The FLSA allows employers to count as
wages (and thus count toward the satisfaction of the minimum wage
obligation) the reasonable cost of ``furnishing [an] employee with
board, lodging, or other facilities, if such board, lodging, or other
facilities are customarily furnished by such employer to his
employees.'' 29 U.S.C. 203(m). The FLSA regulations provide that
``[t]he cost of furnishing `facilities' found by the Administrator to
be primarily for the benefit or convenience of the employer will not be
recognized as reasonable [costs within the meaning of the statute] and
may not therefore be included in computing wages.'' 29 CFR 531.3(d)(1).
The FLSA regulations further provide examples of various items that the
Department has deemed generally to be qualifying facilities within the
meaning of 29 U.S.C. 203(m), see 29 CFR 531.32(a), as well as examples
of various items that the Department has deemed generally not to be
qualifying facilities, see 29 CFR 531.3(d)(2), 29 CFR 531.32(c).
Separate from the question whether items or expenses furnished or
paid for by the employer can be counted as wages paid to the employee,
the FLSA regulations contain provisions governing the treatment under
the FLSA of costs and expenses incurred by employees. The regulations
specify that wages, whether paid in cash or in facilities, cannot be
considered to have been paid by the employer and received by the
employee unless they are paid finally and unconditionally, or ``free
and clear.'' 29 CFR 531.35. Thus, ``[t]he wage requirements of the Act
will not be met where the employee `kicks-back' directly or indirectly
to the employer or to another person for the employer's benefit the
whole or part of the wage delivered to the employee. This is true
whether the `kick-back' is made in cash or in other than cash. For
example, if the employer requires that the employee must provide tools
of the trade that will be used in or are specifically required for the
performance of the employer's particular work, there would be a
violation of the Act in any workweek when the cost of such tools
purchased by the employee cuts into the minimum or overtime wages
required to be paid him under the Act.'' Id. The regulations treat
employer deductions from an employee's wages for costs incurred by the
employer as though the deductions were a payment from the employee to
the employer for the items furnished or services rendered by the
employer, and applies the standards set forth in the ``kick-back''
provisions at 29 CFR 531.35 to those payments. Thus, ``[d]eductions for
articles such as tools, miners' lamps, dynamite caps, and other items
which do not constitute `board, lodging, or other facilities' '' are
illegal ``to the extent that they reduce the wages of the employee in
any such workweek below the minimum required by the Act.'' 29 CFR
531.36(b).
In sum, where an employer has paid for a particular item or
service, under certain circumstances it may pursuant to 29 U.S.C.
203(m) count that payment as wages paid to the employee. On the other
hand, when an employee has paid for such an item or service, an
analysis under 29 CFR 531.35 is required to determine whether the
payment constitutes a ``kick-back'' of wages to the employer that
should be treated as a deduction from the employee's wages.
The Arriaga court seems to have assumed that all expenses
necessarily fall into one of these two categories--that either they
qualify as wages under 29 U.S.C. 203(m) or they constitute a ``kick-
back'' under 29 CFR 531.35. See Arriaga, 305 F.3d at 1241-42 (stating
that if a payment ``may not be counted as wages'' under 29 U.S.C.
203(m), then ``the employer therefore would be required to reimburse
the expense up to the point the FLSA minimum wage provisions have been
met'' under 29 CFR 531.35 and 29 CFR 531.36). That is incorrect. For
example, if an employer were to give an employee a valuable item that
was not ``customarily furnished'' to his or her employees, the employer
would not be able to count the value of that item as wages under 29
U.S.C. 203(m) unless the employer ``customarily furnished'' the item to
his or her employees. Nevertheless, since the employee paid nothing for
that item, it clearly would not constitute a ``kick-back'' of wages to
the employer that would have to be deducted from the employee's wages
for purposes of determining whether the employer met its minimum wage
obligations under 29 U.S.C. 206(a). Similarly, if a grocery employee
bought a loaf of bread off the shelf at the grocery store where he or
she worked as part of an arms-length commercial transaction, the
payment made by the employee to the employer would not constitute a
``kick-back'' of wages to the employer, nor would the loaf of bread
sold by the employer to the employee be able to be counted toward the
employee's wages under 29 U.S.C. 203(m). Both parties would presumably
benefit equally from such a transaction--it would neither be primarily
for the benefit of the employer, nor would it be primarily for the
benefit of the employee.
[[Page 77150]]
Expenses paid by an employer that are primarily for the employer's
benefit cannot be counted toward wages under 29 U.S.C. 203(m). See 29
CFR 531.3(d). Similarly, expenses paid by an employee cannot constitute
a ``kick-back'' unless they are for the employer's benefit. See 29 CFR
531.35. An analysis conducted under 29 U.S.C. 203(m) determining that a
particular kind of expense is primarily for the benefit of the employer
will thus generally carry through to establish that the same kind of
expense is primarily for the benefit of the employer under 29 CFR
531.35. Each expense, however, must be analyzed separately in its
proper context.
The question at issue here is whether payments made by H-2A
employees for the cost of relocating to the United States, whether paid
to a third party transportation provider or paid directly to the
employer, constitutes a ``kick-back'' of wages within the meaning of 29
CFR 531.35. If the payment does constitute a ``kick-back,'' then the
payment must, as the Arriaga court decided, be counted as a deduction
from the employee's first week of wages under the FLSA for purposes of
determining whether the employer's minimum wage obligations have been
met.
The Department does not believe that an H-2A worker's payment of
his or her own relocation expenses constitutes a ``kick-back'' to the
H-2A employer within the meaning of 29 CFR 531.35. It is a necessary
condition to be considered a ``kick-back'' that an employee-paid
expense be primarily for the benefit of the employer. The Department
need not decide for present purposes whether an employee-paid expense's
status as primarily for the benefit of the employer is a sufficient
condition for it to qualify as a ``kick-back,'' because the Department
does not consider an H-2A employee's payment of his or her own
relocation expenses to be primarily for the benefit of the H-2A
employer.
Both as a general matter and in the specific context of guest
worker programs, employee relocation costs are not typically considered
to be ``primarily for the benefit'' of the employer. Rather, in the
Department's view, an H-2A worker's inbound transportation costs either
primarily benefit the employee, or equally benefit the employee and the
employer. In either case, the FLSA and its implementing regulations do
not require H-2A employers to pay the relocation costs of H-2A
employees. Arriaga misconstrued the Department's regulations and is
wrongly decided.
As an initial matter, any weighing of the relative balance of
benefits derived by H-2A employers and employees from inbound
transportation costs must take into account the fact that H-2A workers
derive very substantial benefits from their relocation. Foreign workers
seeking employment under the H-2A nonimmigrant visa program often
travel great distances, far from family, friends, and home, to accept
the offer of employment. Their travel not only allows them to earn
money--typically far more money than they could have in their home
country over a similar period of time--but also allows them to live and
engage in non-work activities in the U.S. These twin benefits are so
valuable to foreign workers that these workers have proven willing in
many instances to pay recruiters thousands of dollars (a practice that
the Department is now taking measures to curtail) just to gain access
to the job opportunities, at times going to great lengths to raise the
necessary funds. The fact that H-2A farmworkers travel such great
distances and make such substantial sacrifices to obtain work in the
United States indicates that the travel greatly benefits those
employees. Many of the comments received by the Department support this
conclusion.
Most significantly, however, the Department's regulations
explicitly state that ``transportation furnished employees between
their homes and work where the travel time does not constitute hours
worked compensable under the Act and the transportation is not an
incident of and necessary to the employment'' are qualifying
``facilities'' under 29 U.S.C. 203(m). 29 CFR 531.32(a). As qualifying
facilities, such expenses cannot by definition be primarily for the
benefit of the employer. 29 CFR 531.32(c). The wording of the
regulation does not distinguish between commuting and relocation costs,
and in the context of the H-2A program, inbound relocation costs fit
well within the definition as they are between the employee's home
country and the place of work.
The Arriaga court ruled that H-2A relocation expenses are primarily
for the benefit of the employer in part because it believed that under
29 CFR 531.32, ``a consistent line'' is drawn ``between those costs
arising from the employment itself and those that would arise in the
ordinary course of life.'' 305 F.3d at 1242. The court held that
relocation costs do not arise in the ordinary course of life, but
rather arise from employment. Id. Commuting costs and relocation costs
cannot be distinguished on those grounds, however. Both kinds of
expenses are incurred by employees for the purpose of getting to a work
site to work. Moreover, an employee would not rationally incur either
kind of expense but for the existence of the job. Both the employer and
the employee derive benefits from the employment relationship, and,
absent unusual circumstances, an employee's relocation costs to start a
new job cannot be said to be primarily for the benefit of the employer.
That is not to say that travel and relocation costs are never
properly considered to be primarily for the benefit of an employer. The
regulations state that travel costs will be considered to be primarily
for the benefit of the employer when they are ``an incident of and
necessary to the employment.'' 29 CFR 531.32(c). This might include,
for example, a business trip, or an employer-imposed requirement that
an employee relocate in order to retain his or her job. Relocation
costs to start a new job will rarely satisfy this test, however.
In a literal sense it may be necessary to travel to a new job
opportunity in order to perform the work, but that fact, without more,
does not render the travel an ``incident'' of the employment. Inbound
relocation costs are not, absent unusual circumstances, any more an
``incident of * * * employment'' than is commuting to a job each day.
Indeed, inbound relocation costs are quite similar to commuting costs
in many respects, which generally are not considered compensable. Cf.
DOL Opinion Letter WH-538 (August 5, 1994) (stating that travel time
from home to work is ``ordinary home-to-work travel and is not
compensable'' under the FLSA); Vega ex rel. Trevino v. Gasper, 36 F.3d
417 (5th Cir. 1994) (finding travel to and from work and home not
compensable activity under Portal-to-Portal Act). In fact, there is no
reason to believe that the drafters of 29 U.S.C. 203(m) and 206(a) ever
intended for those provisions to indirectly require employers to pay
for their employees' relocation and commuting expenses. To qualify as
an ``incident of * * * employment'' under the Department's regulations,
transportation costs must have a more direct and palpable connection to
the job in question than merely serving to bring the employee to the
work site.
Taking the Arriaga court's logic to its ultimate conclusion would
potentially subject employers across the U.S. to a requirement to pay
relocation expenses for all newly hired employees--or at least to pay
relocation expenses for all newly hired foreign employees, since
international relocation is perhaps less ``ordinary'' than
intranational
[[Page 77151]]
relocation. That simply cannot be correct. The language of 29 U.S.C.
203(m) and 206(a) and their implementing regulations provide a very
thin reed on which to hang such a seismic shift in hiring practices,
particularly so many years after those provisions have gone into
effect. Nor does the fact that H-2A workers are temporary guest workers
change the equation. Even assuming that H-2A workers derive somewhat
less benefit from their jobs because they are only temporary, that fact
alone would not render the worker's relocation expenses an ``incident''
of the temporary job. If it did, ski resorts, camp grounds, shore
businesses, and hotels would all be legally required to pay relocation
costs for their employees at the beginning of each season--again, a
result that is very difficult to square with the language and purpose
of 29 U.S.C. 203(m) and 29 CFR 531.35.
A stronger argument could be made, perhaps, that employers derive a
greater-than-usual benefit from relocation costs when they hire foreign
guest workers such as H-2A workers, because employers generally are not
allowed to hire guest workers unless they have first attempted but
failed to recruit U.S. workers. Thus, such employers have specifically
stated a need to hire non-local workers. Given the substantially
greater benefit that foreign guest workers generally derive from work
opportunities in the United States than they do from employment
opportunities in their home countries, however, the Department believes
that this at most brings the balance of benefits between the employer
and the worker into equipoise. Moreover, the employer's need for non-
local workers does nothing to transform the relocation costs into an
``incident'' of the job opportunity in a way that would render the
employee's payment of the relocation expenses a ``kick-back'' to the
employer. If it did, courts would soon be called upon every time an
employer hired an out-of-state worker to assess just how great the
employer's need for the out-of-state employee was in light of local
labor market conditions. Conversely, the courts would also have to
inquire into the employee's circumstances, and whether the employee had
reasonably comparable job prospects in the area from which the employee
relocated. Again, the Department does not believe such a result is
consistent with the text or the intent of the FLSA or the Department's
implementing regulations.
It is true, of course, that H-2A employers derive some benefit from
an H-2A worker's inbound travel. To be compensable under the FLSA,
however, the question is not whether an employer receives some benefit
from an item or paid-for cost, but rather whether they receive the
primary benefit. Significantly, despite the fact that employers nearly
always derive some benefit from the hiring of state-side workers as
well, such workers' relocation costs generally have not been considered
to be ``primarily for the benefit of the employer.'' That is so because
the worker benefits from the travel either more than or just as much as
the employer.
The Department obligated H-2A employers to pay H-2A workers'
transportation costs not because it believed that the workers were
entitled to such payments under the FLSA, but rather in the discharge
of its responsibilities under the INA to insure the integrity of the H-
2A program. The Department carefully crafted its regulation to give H-
2A workers a strong incentive to complete at least 50 percent of their
work contract. The practical effect of the Arriaga decision, however,
is to require H-2A employers to pay for H-2A workers' inbound
transportation costs without any reciprocal guarantee that the workers
will continue to work for the employer after the first workweek. The
Department believes that the payment of such transportation costs
unattached to a reciprocal guarantee that the needed work will
ultimately be performed substantially diminishes the benefit of the
travel to the employer, and certainly would not allow the travel to be
considered primarily for the employer's benefit.
In sum, the Department believes that the costs of relocation to the
site of the job opportunity generally is not an ``incident'' of an H-2A
worker's employment within the meaning of 29 CFR 531.32, and is not
primarily for the benefit of the H-2A employer. The Department has
publicly stated that ``in enforcing the FLSA for H-2A workers, the
Department's general policy is to ensure that workers receive
transportation reimbursement by the time they complete 50 percent of
their work contract period (or shortly thereafter) rather than
insisting upon reimbursement at the first pay period.'' The Department
continues to believe that this is the appropriate interpretation of the
interplay between the H-2A program regulations and the FLSA in regards
to transportation reimbursement. The Department states this as a
definitive interpretation of its own regulations and expects that
courts will defer to that interpretation.
The current regulation uses the phrase ``place from which the
worker has departed'' to describe the beginning point from which
employers are required to provide or pay for inbound transportation and
subsistence, and, if the worker completes the work contract period, the
ending point to which employers are required to provide or pay for
outbound transportation and subsistence. This phrase has at times been
interpreted by the Department to mean the worker's ``home,'' or the
place from which the worker was recruited. Most recently, the phrase
was addressed in ETA Training and Employment Guidance Letter No. 23-01,
Change 1 (August 2, 2002): `` `Home' is where the worker was originally
recruited.'' While the Department proposed no changes to this
regulatory language or interpretation, comments were received on this
point. One agricultural association suggested that the Department
clarify that transportation from and back to the place from which the
worker came to work should be considered to require transportation from
or to the site of the U.S. Consulate that issued the visa. This
commenter stated:
For the past 20 years the phrase ``from the place from which the
worker has come to work for the employer to the place of
employment,'' has meant payment of transportation from the location
of the U.S. Consulate which issued the H-2A visa to the place of
employment of the petitioning employer. Although the Department in
its memoranda refers to ``place of recruitment'' its examples of how
this rule works speaks only of transportation from and back to the
worker's home country. There is no mention of the worker's village.
This interpretation is in line with the INA and DHS regulations
which do not allow a worker to enter the U.S. until that foreign
worker has an H-2A visa. Thus, the worker cannot ``come to work for
the employer'' until he or she has an H-2A visa. It is at the point
that the worker has the H-2A visa that he or she is eligible to go
to work for the employer.
The Department finds this to be a compelling argument. It is the
Department's program experience that workers, particularly H-2A
workers, gather in groups for processing and transfer to the U.S. The
logical gathering point for these workers is at the U.S. Consulate
location where the workers receive their visa. In most countries that
send H-2A workers to the U.S., such processing is usually centrally
located (in Monterrey, Mexico, for example, rather than in Mexico City
or another Consulate location). Designating the Consulate location
where the visa is issued provides the Department with an
administratively consistent place from which to calculate charges and
[[Page 77152]]
obligations. We have therefore made corresponding changes in the
regulatory text to clarify that the ``place from which the worker has
departed'' for foreign workers outside of the U.S. is the appropriate
U.S. Consulate or port of entry.
Finally, the Department sought to clarify that minimum safety
standards required for employer provided transportation between the
worker's living quarters (provided or secured by the employer pursuant
to INA sec. 218(c)(4)) and the worksite are the standards contained in
MSPA (29 U.S.C. 1841). The Department does not seek to apply MSPA to H-
2A workers and has no authority to do so. This clarification is
intended to remove any ambiguity concerning the appropriate minimum
vehicle safety standards for H-2A employers and should simplify
compliance for those H-2A employers that also employ MSPA workers.
Other changes to the language of the proposed provision--most
significantly, the notation that an employer's return transportation
obligation under Sec. 655.104(h)(2) applies where ``the worker has no
immediately subsequent H-2A employment''--are non-substantive and have
been made for purposes of clarification.
(i) Section 655.104(i) Three-Fourths Guarantee
The Department chose, in the NPRM, to continue the so-called
``three-fourths guarantee,'' by which it ensures that H-2A workers are
offered a certain guaranteed number of hours of work during the
specified period of the contract, and that if they are not offered
enough hours of work, that they are paid as though they had completed
the specified minimum number of work hours. In doing so, the Department
suggested some minor changes to make the guarantee easier to apply in
practice.
One grower association objected to the continuation of the three-
fourths guarantee. They stated that it needs to be eliminated because
it is arcane, is seldom understood by the growers, and complicates the
system by creating more ``red tape'' for the growers. Other commenters
supported the rule, but commented on the nuances of the changes made to
the rule under the NPRM. A few commenters expressed the view that the
guarantee deters employers from over-recruiting, which may create an
oversupply of workers and drive wages down, and also assures long-
distance migrants that attractive job opportunities exist. However,
some commenters also believe that the guarantee requirement results in
employer abuses, such as employers misrepresenting the length of the
season. They suggested the Department add language to allow workers to
collect the three-fourths guarantee ``based on the average number of
hours worked in a particular crop region and upon a showing of having
worked through the last week in which the employer offered work to a
full complement of his workforce.''
The Department believes the rule provides essential protection for
both U.S. and H-2A workers, in that it ensures their commitment to a
particular employer will result in real jobs that meet their reasonable
expectations. The Department also believes the rule is not easy to
abuse or circumvent, as it is based on a simple mathematical
calculation. For those employers that might try to evade their
responsibilities, the Department has enforcement measures and penalties
to act as a deterrent.
Changing the three-fourths guarantee to be based on a per-crop
harvest calculation using an average of hours worked rather than a
contract period would make it nearly impossible to track and enforce
the guarantee. To require employers to keep track of workers on a per-
crop basis and allow the workers to collect money based on the three-
fourths guarantee when the U.S. workers transition from one employer to
another during the peak harvesting times appears patently unfair and
the Department is not willing to create such an option.
Two commenters also suggested that the Department take out the
reference to ``work hours'' and return the term ``workday'' because the
commenters believed that the employer might otherwise submit job orders
based on a ``bogus'' hourly work day or work week. The Department
believes that this concern is misplaced. The new terminology proposed
by the Department is no more susceptible to abuse than the old
terminology is; under either phrasing, employer fraud requires
submitting false calculations of work. The Department purposely added
the sentence with ``work hours'' and kept the old references to
``workday'' in the NPRM to make the formula for calculation of the
total amount guaranteed easier to understand and calculate. The end
result is the same under either phrasing, however.
A farm bureau requested that we insert language at the end of Sec.
655.104(i)(1) to protect employers from the costs resulting from U.S.
workers who voluntarily abandon employment in the middle of the
contract period and then return at the end of the contract period or
from those U.S. workers who show up in the middle of the contract
period. This commenter does not believe that an employer should have
any liability under the three-fourths guarantee rule for such
unreliable employees. The guarantee has never applied to workers who
voluntarily abandon employment or who never show up for the work,
provided notice of such abandonment or no-show is provided to DOL
within the time frames for reporting an abandonment that are set forth
in Sec. 655.104(n). The Department has further clarified that
provision in the Final Rule by defining abandonment of the job as the
worker failing to report for work for 5 consecutive days.
Farmworker advocates expressed concern that the Department would
not enforce this provision. The Department appreciates the concerns
raised and assures the public it intends to enforce this provision
fully, as it intends to implement the entire rule.
Another commenter requested clarification on what hours an employer
may count toward the three-fourths guarantee when an employee
voluntarily works more than the contract requires. The commenter asked
for language to be inserted into Sec. 655.104(i)(3) stating that all
hours of work actually performed including voluntary work over and
above the contract requirement can be counted by the employer. The
Department believes that this principle was already made clear by Sec.
655.104(i)(1), but it has added the requested language for purposes of
clarification.
In proposed Sec. 655.104(i)(4) the Department sought to reiterate
the employer's obligation to provide housing and meals to workers
during the entire contract period, notwithstanding the three-fourths
guarantee. The proposed paragraph, while properly entitled ``Obligation
to provide housing and meals,'' inadvertently discussed an obligation
to provide meals and transportation. Two comments were received on this
paragraph. One employer association suggested that the text of the
paragraph be revised to reflect that employers are not obligated to
provide housing to workers who quit or are terminated for cause. One
employee advocacy organization commented that the clarification that
the employer is not allowed to shut down the labor camp or the camp
kitchen during the contract period is a positive change. The Department
has modified the paragraph to clarify that it is the employer's
obligation to provide housing and meals during the contract period that
is not affected by the three-fourths guarantee,
[[Page 77153]]
and to clarify that employers are not obligated to provide housing to
workers who voluntarily abandon employment or are terminated for cause.
Finally, in the NPRM the Department inadvertently deleted some
qualifying phrases from this provision that are contained in the
current regulation, and has accordingly in the Final Rule reverted to
the language of the current regulation. Section 655.104(i)(3) discusses
an employee's failure to work in the context of calculating whether the
period of guaranteed employment has been met. The Final Rule reinserts
the phrase currently in the regulations at Sec. 655.102(b)(6)(iii)
permitting an employer to count ``all hours of work actually performed
(including voluntary work over 8 hours in a workday or the worker's
Sabbath or Federal Holidays).'' The Final Rule also reinserts as Sec.
655.104(i)(4) the statement found in the current regulation at Sec.
655.102(b)(6)(iv) that an employer is not liable for payment of the
three-quarters guarantee to an H-2A worker whom the CO certifies has
been displaced because of the employer's compliance with its obligation
under these rules, where applicable, to accept referrals of U.S.
workers after its date of need.
(j) Section 655.104(j) Records
The NPRM proposed continuing the ``keeping of adequate and accurate
records'' with respect to the payment of workers, making only minor
modifications to the current regulation. The Department received
several comments specific to the provisions of this section.
A commenter requested that the Department eliminate the requirement
for employers to provide information to the worker through the worker's
representative upon reasonable notice. The Department does not believe
this requirement should be eliminated because it is the Department's
goal to encourage the availability of information to workers. Another
commenter suggested refinements to the provision, including suggesting
that a ``worker's representative'' be defined and documented in some
manner so as to prevent the theft of information under the guise of
disclosure to worker's representatives, and also to require disclosure
of records within five days instead of upon ``reasonable'' notice.
The Department agrees that it did not clarify in sufficient detail
how a designated worker's representative should be identified so as to
prevent unauthorized disclosure of records, and it accordingly has
added language to the Final Rule stating that appropriate documentation
of a designation of representative status must be provided to the
employer.
Instead of changing the term ``reasonable'' notice in the Final
Rule to refer to a specific number of days, however, the Department has
instead decided to adopt in Sec. 655.104(j)(2) of the Final Rule the
standard for production of records that is currently found at 29 CFR
516.7 and that the WHD uses under the FLSA. The Secretary can already
request most H-2A records kept pursuant to this rule under the FLSA,
and having one standard will help to avoid confusion in the regulated
community.
(k) Section 655.104(k) Hours and Earnings Statements
The Department did not receive any comments on this section.
However, the Department made non-substantive punctuation changes to the
provision in the Final Rule to reflect plain language standards.
(l) Section 655.104(l) Rates of Pay
In the NPRM, the Department proposed to require employers to pay
the highest of the adverse effect wage rate, the prevailing wage rate,
or the Federal, State, or local minimum wage. The Final Rule retains
this requirement, with some minor non-substantive clarifications to the
text of the provision; comments specific to the issue of actual rates
that will be required and the timing of their application are dealt
with in the discussion of Sec. 655.108.
Because this provision discusses the use of piece rates, several
commenters took the opportunity to suggest changes to how piece rates
are treated within the H-2A program. Worker advocates argued for
reinstitution of the pre-1986 rules regarding piece rate adjustments.
Some employers argued that the Department should not attempt to
regulate piece rates at all. As the NPRM did not propose changes to the
now long-standing procedures for the regulation of piece rates, the
Department did not adopt any of these suggested changes in the Final
Rule.
The NPRM proposed a modest change to the regulation governing
productivity standards. Under existing regulations, an employer who
pays on a piece rate basis and utilizes a productivity standard as a
condition of job retention must utilize the productivity standard in
place in 1977 or the first year the employer entered the H-2A system
with certain exceptions and qualifications. The NPRM proposed to
simplify this provision by requiring that any productivity standard be
no more than that normally required by other employers in the area.
No commenter explicitly opposed the change in the methodology by
which acceptable productivity standards are determined, but several
employers asked for additional flexibility to be allowed to use a
productivity standard even if the majority of employers in the area do
not utilize one. We believe the ``normal'' standard, which the
Department will retain in the Final Rule, will provide adequate
flexibility for employers while ensuring that the wages and working
conditions of U.S. workers are not adversely affected by the use of
productivity rates not normal in the area of intended employment.
Clarifying language has been added to the provision supplying the
Department's interpretation of the term ``normal'' to mean ``not
unusual.'' The Department has long applied this meaning of the term
``normal'' In the H-2A context. See, e.g., ETA Handbook No. 398 at II-7
(``The terms `normal' and `common', although difficult to quantify, for
H-2A certification purposes mean situations which may be less than
prevailing, but which clearly are not unusual or rare.''); id. at I-40
(noting that the Department will carefully examine job qualifications,
which are required by statute to be ``normal'' and ``accepted,'' if the
qualifications are ``unusual''). It is also within the range of
generally accepted meanings of the term. See, e.g., Black's Law
Dictionary 1086 (8th ed. 2004) (``The term describes not just forces
that are constantly and habitually operating but also forces that
operate periodically or with some degree of frequency. In this sense,
its common antonyms are unusual and extraordinary.''); Webster's
Unabridged Dictionary 1321 (2d ed. 2001) (supplying ``not abnormal'' as
one of several definitions). Thus, ``normal'' does not require that a
majority of employers in the area use the same productivity standard.
If there are no other workers in the area of intended employment that
are performing the same work activity, the Department will look to
workers outside the area of intended employment to assess the normality
of an employer's proposed productivity standard.
With respect to other provisions in the NPRM, some commenters
argued that the Department is required by statute to use a
``prevailing'' standard with respect to all practices permitted by the
regulations. These commenters argued that the use of anything less than
a ``prevailing practice'' standard necessarily adversely affects U.S.
workers. The Department disagrees. The Department notes that with
respect to
[[Page 77154]]
many types of practices, it may not even be possible to determine what
the ``prevailing'' practice is. For example, there may be a wide range
of productivity standards used by employers in a given area, none of
which is used by 50 percent of employers or with respect to 50 percent
of workers. Furthermore, many practices are not readily susceptible to
averaging: For example, with respect to practices regarding the
frequency with which workers are paid, some employers may pay workers
at the end of each week, others at the end of every two weeks, and
others twice a month. If one third of employers used each method, which
practice would be ``prevailing''?
The Department has examined each type of employment practice and
each type of working condition that is addressed by this rule to
determine what parameters or limits are necessary to ensure that U.S.
workers will not be adversely affected. With respect to productivity
standards, the Department has determined that a range of practices are
acceptable, and that it is unlikely that U.S. workers will be adversely
affected if H-2A employers use a productivity standard that is not
unusual for non-H-2A employers to apply to their U.S. workers. The
Department will not, however, certify applications containing unusual
productivity standards that are clearly prejudicial to U.S. workers.
(m) Section 655.104(m) Frequency of Pay
The Department proposed in the NPRM to continue the requirement of
the current regulation that the employer must state in the job offer
the rate of frequency that the worker is to be paid, based upon
prevailing practice in the area but in no event less frequently than
twice a month. The Department received one comment on this provision
noting that weekly or daily earnings are ``always'' the prevailing
practice in agriculture, never bi-weekly, and that the Department
should accordingly require weekly payment. After considering this
comment, the Department has determined that it would be difficult, and
not at all cost-effective, to use surveys to determine the frequency
with which employers in a given area typically pay their employees. The
Department has therefore decided to retain the minimum requirement that
employees must be paid at least twice monthly, but has dropped the
reference to the use of prevailing practices. The Department notes that
this modest change affects only the frequency with which workers are
paid, and not the amount to which they are entitled.
(n) Section 655.104(n) Abandonment of Employment
The NPRM included a provision stating that the employer is not
required to pay the transportation and subsistence expenses of
employees who abandon employment, provided the employer notifies the
Department or DHS within 2 workdays of abandonment. One association of
farm employers argued that this requirement was unreasonable in that
the typical practice is termination 3 days beyond the abandonment or
``no show'' of the worker. An employer opined that this requirement
should create an obligation on the part of the Department to help
employers locate and pursue remedies against employees who voluntarily
abandon employment without returning to their home country.
The Department acknowledges the need for clarification in the
provision to ensure that the requirement begins to run only when the
abandonment or abscondment is discovered. The Department has therefore
added language to the provision clarifying that the employer must
notify DOL and DHS no later than 2 workdays ``after such abandonment or
abscondment occurs.'' The Department has added further clarification to
ensure that employers must meet the identical standards for
notification to DOL as to DHS, so that a worker is deemed to have
absconded when the worker has not reported for work for a period of 5
consecutive work days without the agreement of the employer. The
Department has extended this standard to a worker's failure to report
at the beginning of a work contract. This is intended to clarify for
the employer that the same standard of reporting applies for both
agencies. The Department declines to include provisions prescribing new
employer remedies against workers who abandon the job, but notes that
abandonment of a job may result in a worker being ineligible to return
to the H-2A program.
(o) Section 655.104(o) Contract Impossibility
The current and proposed regulations contain a provision that
allows an employer to ask permission from the Department to terminate
an H-2A contract if there is an extraordinary, unforeseen, catastrophic
event or ``Act of God'' such as a flood or hurricane (or other severe
weather event) that makes it impossible for the business to continue.
One commenter noted that the proposed regulation eliminates a
current requirement that ``the employer will make efforts to transfer
the worker to other comparable employment acceptable to the worker,''
and stated that U.S. workers, in particular, would benefit from such an
effort. The Department declines to adopt this suggestion, as it
believes the workers themselves will be in a better position to find
alternative job opportunities than an employer whose business
enterprise has been substantially impacted by an Act of God. In
response to this comment, the Department has, however, added language
to the Final Rule specifying that the H-2A worker may choose whether
the employer terminating the H-2A contract should pay to transport them
``to the place from which the worker (disregarding intervening
employment) came to work for the employer, or transport the worker to
the worker's next certified H-2A employer (but only if the worker can
provide documentation supporting such employment).'' The limitation
providing that a worker who requests transportation to the next
employer must provide documentation of that employment will help to
ensure that H-2A workers who do not have subsequent employment inside
the United States return to the country from which they came to the
United States rather than remaining in the United States illegally.
To conform to similar changes made elsewhere in the rule, the Final
Rule clarifies that ``for an H-2A worker coming from outside of the
U.S., the place from which the worker (disregarding intervening
employment) came to work for the employer is the appropriate U.S.
consulate or port of entry.''
Other changes to the language of the proposed rule are non-
substantive and have been made for purposes of clarifying the provision
or to conform to changes made elsewhere in the Final Rule.
(p) Section 655.104(p) Deductions
The Department, in the NPRM, proposed requiring employers to make
assurances in their application that they will make all deductions from
the workers' paychecks that are required by law. A group of farmworker
advocacy organizations asserted that the Department was skirting its
responsibility under Arriaga by allowing ``reasonable'' deductions to
be taken from a worker's paycheck without any mention of the FLSA. This
commenter believes that the Department inappropriately removed
clarifying language in the current regulation that
[[Page 77155]]
``an employer subject to the Fair Labor Standards Act (FLSA) may not
make deductions which will result in payments to workers of less than
the federal minimum wage permitted by the FLSA.'' This commenter opined
that workers under the H-2A program are entitled to full coverage under
the FLSA, and that the Department should not make regulatory changes
which suggest otherwise. By eliminating this language from the rule,
this commenter believes the Department would effectively undermine the
rights of farm workers to be paid the minimum wage free and clear of
costs imposed on them for inbound transportation and visa costs, as
established by case law.
The Department does not agree with this commenter's
characterization of the applicability of the FLSA to H-2A workers,
including regarding inbound transportation. Nevertheless, we have
returned the deleted language to the Final Rule to clarify that
employers must of course comply with all statutory requirements
applicable to them.
(q) Section 655.104(q) Copy of Work Contract
The NPRM contained the provision found in the current regulation
specifying that a copy of the work contract must be provided to the
worker no later than the date the work commences. One group of
farmworker advocacy organizations pointed out that this proposed
regulation does not require that the work contract be given to the
employee in the employee's native language and believed that these
regulations as proposed are contrary to the requirements in MSPA for
domestic workers. The Department has decided to make no substantive
changes to this provision. Employers seeking to hire H-2A workers, as
with all employers seeking to recruit agricultural workers under the
Wagner/Peyser system, must file a Form ETA 790 with the SWA. This Form
provides the necessary disclosures for MSPA purposes. The form itself
is bilingual. In addition, section 10(a) of the Form specifically
requires that the summary of the material job specifications be
completed by the employer in both English and Spanish. The changes made
to the language of the provision in the Final Rule are non-substantive
and were made to provide better clarity.
Section 655.105 Assurances and Obligations of H-2A Employers
The Department proposed instituting an application requiring
employers to attest to their adherence to the obligations of the H-2A
program. The Department received many comments expressing approval of
the new attestation-based process, and others opposed to such a change.
Still other commenters expressed general approval of the new
attestation-based approach but suggested changes to the attestations
and the process of submitting such attestations.
The Department received two comments regarding the substantive
obligations imposed on employers through the attestations. One
commenter requested that the Department add another attestation that
employers will not confiscate workers' passports. Another commenter
requested that the Department impose substantial penalties on employers
who lure H-2A workers away from contract jobs before the termination of
their contracts. This commenter believes that such a practice
victimizes both the employer, who loses laborers, and the employee, who
loses status under U.S. law when they prematurely terminate a contract.
The Department is not aware that the confiscation of passports is a
widespread practice among agricultural employers hiring H-2A workers.
However, where evidence of such practice is found, it would likely
indicate the presence of other practices prohibited by the H-2A
regulations, such as the withholding of pay and other program
entitlements. In such situations, the Department possesses mechanisms
under this Final Rule to investigate and take appropriate action
against such unscrupulous employers, both through program actions
including revocation and debarment and through direct enforcement with
civil fines and debarment.
On the subject of changes of employment, the proposed companion
regulation to the Department's NPRM, issued by USCIS at 73 FR 8230,
Feb. 13, 2008, underscored that H-2A workers are free to move between
H-2A certified jobs, and proposed to provide even greater mobility
toward that end. The ability of workers to move to new H-2A employment
when the current H-2A contract is completed is not something the
Department wishes to discourage. A worker who abandons a job before its
conclusion must be reported to DOL and DHS, and, depending on the
reason for the abandonment, such abandonment may result in a violation
of H-2A status and the consequent inability to commence employment with
another employer. Such abandonment may also adversely affect a worker's
future eligibility to participate in the H-2A program.
One commenter requested that we allow substitution of H-2A workers
at the port of entry without having to file a new petition. An
Application for Temporary Employment Certification is filed without the
names of the foreign workers. Substitution of workers is permitted by
the DHS companion rule.
(a) Section 655.105(a)
The attestation obligation set forth in Sec. 655.105(a) in the
NPRM requires the employer to assure the Department that the job
opportunity is open to any U.S. worker and that the employer conducted
(or will conduct) the required recruitment, and was still unsuccessful
in locating qualified U.S. applicants in sufficient numbers to fill its
need. This assurance was criticized by a farm bureau because it
believes that it is impossible for employers to state they ``will
conduct'' recruitment as required in the regulations and at the same
time attest that they were unsuccessful in finding any U.S. workers.
The Department has clarified this language in the Final Rule to enable
employers to attest that the employer ``has been'' unsuccessful in
locating U.S. workers sufficient to fill the stated need.
One group of advocacy organizations believes the Department should
retain the language from the current Sec. 655.103(c), which states:
``Rejections and terminations of U.S. workers. No U.S. worker will be
rejected for or terminated from employment for other than a lawful job-
related reason, and notification of all rejections or terminations
shall be made to the SWA.'' (Emphasis supplied.) This commenter
requests that the provision against termination should be added to the
assurance found in the new Sec. 655.105(a), specifically where it
states: ``Any U.S. workers who applied for the job were rejected for
only lawful, job-related reasons.''
The Department declines to add language regarding terminations at
this location in the regulations. The provision at issue is an
attestation by an employer regarding the hiring of U.S. workers, not
their termination. The termination of U.S. workers for inappropriate
reasons is already covered under the regulations by the prohibition in
Sec. 655.105(j), discussed below.
The Department added several clarifications and conforming changes
to the text of the proposed provisions. First, the Department added
language clarifying that the employer must attest that it will keep the
job opportunity open to qualified U.S. workers ``through the
recruitment period,'' which is defined at Sec. 655.102(f)(3). Second,
the Department added language clarifying that the employer must attest
that it has
[[Page 77156]]
hired and will hire all U.S. workers who apply for the job and are not
rejected for lawful, job-related reasons. Third, and relatedly, the
Department added language stating that an employer must attest that
``it will retain records of all rejections as required by Sec.
655.119.'' Other changes to the language of the provision were minor
and non-substantive, and made for purposes of providing additional
clarity.
(b) Section 655.105(b)
The Department proposed in the NPRM that employers be required to
offer terms and conditions that are ``normal to workers similarly
employed'' and ``which are not less favorable than those offered to the
H-2A workers.'' One commenter believed that this standard is not
sufficiently protective of the wages and working conditions of U.S.
farmworkers to meet the statutory precondition that the employment of
foreign workers will not adversely affect the wages and working
conditions of U.S. workers. According to this commenter, a practice
applying to a small percentage of workers may still be considered
``normal.'' This commenter opined that this criterion violates the
statute, because requiring anything less than the prevailing practices
of non-H-2A employers with respect to job terms will necessarily harm
U.S. workers, either by putting downward pressure on wages and
conditions and/or by facilitating job offers that are meant to deter
U.S. workers from applying and accepting work.
For reasons that have already been discussed above, the Department
disagrees. Where the Department has identified particular terms or
working conditions that have an important impact on U.S. workers--such
as wages or the obligation to provide tools--it has inserted provisions
addressing them directly. Not every term or condition attaching to a
job, however, threatens to negatively impact the wages and working
conditions of U.S. workers simply because it is not a ``prevailing''
condition. An employer may, for example, be the only employer in the
area that grows a particular crop, or that requires the use of a
particular tool. Such requirements generally do not threaten to
adversely affect U.S. workers and are not improper for employers to
impose. Moreover, as noted above, it is often very difficult, if not
impossible, to determine what the ``prevailing practice'' is with
respect to certain types of job terms and working conditions. Other
specific provisions in the regulations safeguard against job
qualifications, terms, and working conditions that are deliberately
designed by employers to discourage U.S. workers from applying for job
openings.
Because the Department has indicated in the Final Rule the specific
standard (i.e., ``common,'' ``normal,'' ``prevailing'') that applies to
each type of covered job term and working condition, the Department has
deleted language from the proposed rule that might have been understood
to apply a catch-all requirement to all job terms and working
conditions that they be ``normal to workers similarly employed in the
area of intended employment.'' Retaining this language would have
resulted, in some instances, in application of different standards to
the same job requirements, potentially creating substantial confusion.
The deleted language might also have been misconstrued as applying to
job terms and working conditions that are not elsewhere addressed in
the Final Rule. The Department never intended for the deleted language
to apply to such peripheral job requirements; those job terms and
working conditions that the Department considers to be central to H-2A
work and to preventing an adverse effect on U.S. workers--such as
wages, housing, transportation, tools, and productivity requirements--
have each been specifically addressed elsewhere in the Final Rule. The
Final Rule retains the requirement that employers must offer job terms
and working conditions that ``are not less than the minimum terms and
conditions required by this subpart.'' This language ensures that
employers must attest to their adherence to the standard specified in
the Final Rule for each covered job term and working condition.
(c) Section 655.105(c)
The Department proposed in the NPRM to continue to require that the
employer submitting an application attest that the job opportunity
being offered to H-2A workers is not vacant because the former
occupants are on strike or locked out in the course of a labor dispute
involving a work stoppage. The language of the proposed provision has
been modified in the Final Rule by reverting to the language in the
current regulation at Sec. 655.103(a), which provides that the
employer must assure the Department that ``[t]he specific job
opportunity for which the employer is requesting H-2A certification is
not vacant because the former occupant is on strike or being locked out
in the course of a labor dispute.'' The Department is reverting to the
current regulatory language to clarify that the Department will
evaluate whether job opportunities are vacant because of a strike,
lockout, or work stoppage on an individual case-by-case basis. As the
Department's current ETA Handbook No. 398 explains at page II-23, the
Department must ensure that ``the specific positions vacant because of
the dispute will not be included in any otherwise positive H-2A
certification determination or redetermination.''
The purpose of the strike/lock-out provision is to ensure that
striking U.S. workers are not replaced with temporary foreign workers,
thereby adversely affecting such workers. However, if an agricultural
employer needs twenty workers, and only ten of the positions are vacant
because workers are on strike, the employer should not be prohibited
from hiring H-2A workers to fill the ten job openings that are not
strike-related. Hiring foreign workers to fill positions of U.S.
workers that are on strike is likely to adversely affect the U.S.
workers, but hiring H-2A workers to fill positions that are not vacant
because of a strike would not. The language of this provision in the
Final Rule is also more consistent with the Department's statutory
authority to withhold a labor certification where granting the
certification would adversely affect the wages and working conditions
of U.S. workers.
Comments regarding the NPRM's labor dispute provisions, which
overlap with the contents of Sec. 655.109(b)(4)(i) of the NPRM, are
addressed in the discussion of that section below.
(d) Section 655.105(d)
The NPRM included a provision that required the employer to attest
it would continue to cooperate with the SWA by accepting referrals of
all eligible and qualified U.S. workers who apply (or on whose behalf
an application is made) for the job opportunity until the date the H-2A
workers departed or three days prior to the date of need, whichever was
later. The language of the provision in the Final Rule has been
modified to render it consistent with Sec. 655.102(f)(3), which
specifies that employers must continue to accept referrals until the
``end of the recruitment period'' as defined in that provision.
The only comment that the Department received on this section is
discussed in greater detail under the Department's discussion of the 50
percent rule in Sec. 655.102(b), above.
(e) Section 655.105(e)
No comments were received on Sec. 655.105(e)(1) regarding the
attestation promising to comply with all labor laws. Comments received
on Sec. 655.105(e)(2)
[[Page 77157]]
pertaining to the housing attestation are addressed in the discussion
of Sec. Sec. 655.102(e) and 655.104(d). Comments received on Sec.
655.105(e)(3) pertaining to the workers' compensation attestation are
addressed in the discussion of Sec. 655.104(e). Finally, comments
received with respect to Sec. 655.105(e)(4) about the transportation
attestation are addressed in the discussion of Sec. 655.104(h) and the
comments received in connection with Sec. 655.105(e)(4) regarding
worker protections are addressed in the discussion of the section on
revocation at Sec. 655.117. Several minor non-substantive
modifications have been made to the text of the provision for purposes
of clarity and to conform to changes made elsewhere in the Rule.
(f) Section 655.105(f)
Several comments were received on Sec. 655.105(f), which as
published in the NPRM required employers to notify the Department and
DHS within 48 hours if an H-2A worker leaves the employer's employ
prior to the end date stipulated on the labor certification. The
commenters thought that 48 hours was not enough time to accomplish this
especially in light of DHS' requirement that proof of notification be
kept for up to one year. The commenters thought it was unfair to
require the employer to comply with this requirement and incur the
added expense of sending the notice by certified mail. One commenter
went on to say that such notice is not needed in all cases. The
commenter cited the example of an employee transferring to another
employer with approval to do so by the Department and DHS and asks why
the employer should still be required to provide notification in such
cases. According to this commenter, notification should only be
required if the H-2A worker absconds from the work site.
The notification is necessary in all circumstances because the
early separation of a worker impacts not only the rights and
responsibilities of the employer and worker but also implicates DOL's
and DHS's enforcement responsibilities. For instance, an employer would
no longer be responsible for providing or paying for the subsequent
transportation and subsistence expenses or the ``three-fourths
guarantee'' for a worker who has separated prior to the end date
stipulated on the labor certification, either through voluntary
abandonment or termination for cause. There is no requirement that the
notification be made by certified mail, however. A file copy of a
letter sent by regular U.S. mail, with notation of the posting date,
will suffice. In addition, the Department revised the notification
requirement in the Final Rule to reflect that a report must be made no
later than 2 workdays after the employee absconds, which, consistent
with DHS, has been defined as 5 consecutive days of not reporting for
work. The text of this provision has been modified accordingly.
The Department also received comments on this section relating to
notification when H-2A workers leave their home country for the first
place of intended employment. The Department believes those comments
pertain to requirements in the DHS NPRM published February 13, 2008
rather than the Department's NPRM of the same date.
(g) Section 655.105(g) Offered Wage Assurances
Comments received pertaining to the offered wage are addressed in
the response to comments on Sec. 655.108. The Department added
language to the text of this provision in the Final Rule to clarify
that, as a matter of enforcement policy, the adverse effect wage rates
that are in effect at the time that recruitment is initiated will
remain valid for the entire period of the associated work contract.
This enforcement policy will honor the settled expectations of workers
and employers regarding their respective earnings and costs under an H-
2A work contract and will avoid surprises that might give rise to
disputes. It will also be an easy rule for the Department to
administer, particularly when calculating payments due under the three-
quarters guarantee. Because H-2A contracts never last more than a year,
locking in wage rates for the duration of a contract in this manner
will not significantly prejudice workers or employers in the event that
wage rates happen to rise or fall during the middle of a work contract.
(h) Section 655.105(h) Wages Not Based on Commission
Comments pertaining to the offered wage are addressed in the
response to comments on Sec. 655.108.
(i) Section 655.105(i)
The NPRM contained an assurance requiring the employer to attest
that it was offering 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 or crops.'' This was a continuation of current obligations.
The Department received several comments relevant to this
provision. One commenter opined that the Department should scrutinize
employer applications that offer U.S. workers a 30-hour work week
arguing that such a requirement is not normal and is meant to dissuade
U.S. workers from applying when in reality H-2A workers would work 50-
60 hours a week. The commenter argues, under the new rule, it will
become impossible for the Department to deny an application because the
standard for what is ``normal'' is so lax.
The word ``normal'' in Sec. 655.105(i) does not refer to the
requirement that the jobs be full-time, but rather to the
qualifications provision in that section. Thirty hours a week is the
minimum to be considered full-time employment in the H-2A program and
the Department has, as a clarification, provided that definition of
full-time in this section in the Final Rule. Moreover, other provisions
in these regulations (see, e.g., Sec. Sec. 655.103, 655.105(b))
prohibit giving H-2A workers more favorable job terms than were
advertised to U.S. workers, which include the number of hours of
employment.
Another commenter noted that requirements that the job duties be
normal to the occupation and not include a combination of duties not
normal to the occupation has led to frequent disputes, particularly in
specialty areas of agriculture. This commenter noted that there is a
distinction between restrictive requirements that are clearly contrived
for the purpose of disqualifying domestic workers and those directly
designed to producing specialized products, utilizing unusual
production techniques or otherwise seeking to distinguish their
products in the marketplace.
The Department agrees that the INA was not meant to require
employers to adhere to timeworn formulas for production in the H-2A or
any other employment-based category, and that job duties for which
there is a legitimate business reason are permissible. The requirement
that job qualifications be ``normal'' and ``accepted,'' however, is
statutory and cannot be altered. Section 218(c)(3)(A) of the INA
requires the Department, when determining whether an employer's
asserted job qualifications are appropriate, to apply ``the normal and
accepted qualifications required by non-H-2A employers in the same or
comparable occupations and crops.'' For the reasons provided in the
discussion of Sec. 655.104(b) of the Final Rule above, the Department
has deleted the phrase ``in that they shall not require a combination
of duties not normal to the
[[Page 77158]]
occupation'' from the NPRM to conform to the language of the statute.
In the Final Rule, the language of this provision has been modified
in one additional respect to conform to the language of Sec.
655.104(b). The provision now states that job qualifications must not
``substantially deviate from the normal and accepted qualifications
required by employers that do not use H-2A workers in the same or
comparable occupations or crops.''
(j) Section 655.105(j) Layoffs
The Department in its NPRM added a new provision prohibiting
employers from hiring H-2A workers if they laid off workers within a
stated time frame, unless such laid-off workers were offered and
rejected the H-2A positions. Two commenters saw the new provision on
layoffs as unnecessary and unworkable. One commenter saw this as
contrary to the section on unforeseeable events and also illogical
because many employers request a contract period of ten months. This
would mean that employers would be unable to lay off workers at the end
of one season, because the new season begins within 60 days and the
proposed 75-day requirement will not have lapsed. Another commenter
suggested a change to the language in this section to include a caveat
that such layoffs shall be permitted where the employer also attests
that it will offer or has offered the opportunity to the laid-off U.S.
worker(s) beginning on the date of need, and said U.S. worker(s) either
refused the job opportunity or were rejected for the job opportunity
for lawful, job-related reasons.
The Department agrees, in general, with the changes proposed by the
commenters. We have accordingly modified the language of the provision
in the Final Rule to limit the effect of the provision to 60 days on
either side of an employer's date of need. This modification is also
consistent with the revised timetables for recruitment in the Final
Rule. This 120-day protective period will provide U.S. workers
important protections during the period of time that H-2A workers are
being recruited and through the beginning of the work season, which is
the period of time that U.S. workers are most vulnerable to layoffs
related to the hiring of H-2A workers, while avoiding most of the
problems cited by the commenters. We also agree that a laid off worker
must be qualified for the opportunity and that U.S. workers may only be
rejected for lawful, job-related reasons, a limitation that preserves
an employer's right to reject those workers it knows to be unreliable.
(k) Sections 655.105(k) and (l) Retaliation and Discharge
One commenter reasoned that the Department has weakened its own
enforcement ability by eliminating the word ``discharge'' from the list
of prohibited retaliatory acts against a worker who files a complaint
or testifies against the employer, consults with an attorney, or
asserts any rights on behalf of himself/herself or other workers.
The Department believes it has, in fact, strengthened its
enforcement ability by addressing discharge separately in Sec.
655.105(l). By making this a separate assurance, the employer
acknowledges even more obviously the prohibition against discharge as
retaliation.
One group of farmworker advocacy organizations commented that the
NPRM's proposed language requiring employers to attest that they will
not discharge any person ``for the sole reason'' that they engaged in
protected activity under Sec. 655.105(k) would substantially weaken
the anti-retaliation language in the current regulations. The
Department agrees with this commenter that a ``sole reason'' standard
would impose an inappropriately high burden on retaliation claimants. A
retaliation claimant should only be required to prove that protected
activity was a contributing factor to the discharge. Thus, the
Department has modified the language of Sec. 655.105(l) to require
employers to attest that they will not discharge any person ``because
of'' protected activity under Sec. 655.105(k).
Section 655.104(k)(4) provides that an employer may not retaliate
against an employee who has consulted with an employee of a legal
assistance program. This provision does not, however, provide employees
license to aid or abet trespassing on an employer's property, including
by persons offering advocacy or legal assistance. No matter how
laudable the intent of those offering advocacy or legal services, an
employee does not have the legal right to grant others access to the
private property of an employer without the employer's permission. A
farm owner is entitled to discipline employees who actively aid and
abet those who engage in illegal activity such as trespassing. Absent
any evidence of a workers' actively aiding or abetting such activity,
however, an employer's adverse action against an employee in response
to that employee meeting with a representative of an advocacy or legal
services organization, particularly on the worker's own time and not on
the employer's property, would be viewed as retaliation.
Several minor non-substantive modifications were made to the text
of the provision for purposes of clarity and style.
(l) Section 655.105(m) Timeliness of Fee Payment
The Department received one comment on this section and has
addressed it in the comments on Sec. 655.118 on debarment, below.
(m) Section 655.105(n) Notification of Departure Requirements
The Department did not receive any comments on this provision. For
purposes of simplicity, and to avoid any potential conflict with DHS's
regulations, the phrase ``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'' has been deleted from the
Final Rule and replaced with the terms ``another subsequent employer.''
This change is non-substantive; subsequent employers still cannot
legally employ H-2A workers without an approved labor certification.
(n) Section 655.105(o) and New Section 655.105(p) Prohibition on Cost-
Shifting
The Department included in the NPRM a provision prohibiting
employers from shifting costs for activities related to obtaining labor
certification to the worker and further requiring the employer to
contractually forbid its agents from accepting money from the H-2A
worker for hiring him or her. The Department received several comments
in relation to this provision.
A State Workforce Agency expressed concern that this prohibition
will create another disincentive for U.S. employers to use the program
because it gives the impression that workers will be able to request
reimbursement from the employer for any monies paid to a recruiter. The
Department notes in response that the H-2A rule does not require the
employer to reimburse the H-2A worker for any recruitment-related fees
he or she may pay. Rather, with an exception discussed below, the rule
requires the employer to contractually forbid any foreign recruiters it
hires from charging the H-2A worker any fees in order to be hired or
considered for employment. This may mean that employers are required to
pay foreign recruiters more than they do today for the services that
they render, but the Department considers this a necessary step toward
preventing
[[Page 77159]]
the exploitation of foreign workers, with its concomitant adverse
effect on U.S. workers.
One group of farmworker advocacy organizations believes this rule
does not go far enough to protect workers from exploitation by
recruiters. The commenter specifically suggested that DOL should
require employers to attest that they are ``directly paying the entire
recruiting/processing fee charged to any foreign labor contractor whom
they engage to perform international recruitment of H-2A workers.''
Employers are permitted to pay fees to recruiters for their recruiting
services, and indeed the Department expects that they will have to do
so, as it is unlikely that recruiters will work for free. The
Department sees little value, however, in an over-complicated and over-
prescriptive rule allowing foreign recruiters to charge H-2A workers
recruiting fees, but then requiring the employer to pay the fee
directly. Moreover, this rule represents the Department's first effort
to regulate in this area under the H-2A program and we decline to go
further, at this time. We will consider further actions if experience
dictates that they are necessary, if specific actions are identified
that would be effective, and if those actions are within the
Department's enforcement authority, taking into account limits on the
Department's territorial jurisdiction.
Several farmers commented that they need agents to find H-2A
workers because they are unable to travel to different countries to
find employees, interview them, and help them process all the necessary
paperwork to obtain their visas. Employer commenters believe that an H-
2A worker receives a substantial benefit from the job, including more
money than he or she is able to earn in his or her home country.
Therefore, workers should also bear some of the financial
responsibility for the opportunity in the form of paying for the
services that enable that worker to find his or her way through the
bureaucratic maze both in the worker's country and the U.S. Consulate.
According to these commenters, many of these workers would never be
able to apply for H-2A visas without help because they do not have
passports from their own countries and they may not have the required
computer and internet access for applying to the U.S. Consulate for the
visa.
While the Department does not disagree that this provision will
result in an additional expense for employers, the Department is
adamant that recruitment of the foreign worker is an expense to be
borne by the employer and not by the foreign worker. Examples of
exploitation of foreign workers, who in some instances have been
required to give recruiters thousands of dollars to secure a job, have
been widely reported. The Department is concerned that workers who have
heavily indebted themselves to secure a place in the H-2A program may
be subject to exploitation in ways that would adversely affect the
wages and working conditions of U.S. workers by creating conditions
resembling those akin to indentured servitude, driving down wages and
working conditions for all workers, foreign and domestic. We believe
that requiring employers to incur the costs of recruitment is
reasonable, even when taking place in a foreign country. Employers may
easily band together for purposes of recruitment to defray costs. To
ensure that employers do not attempt to use surrogates to attempt to
extract recruitment fees from H-2A workers, the Final Rule has been
modified to specify that employers must attest that they and their
``agents'' have not sought or received payment of any kind for any
activity related to obtaining labor certification, including payment of
the employer's attorneys' fees, application fees, or recruitment costs.
The Department notes, however, that it is only prohibiting
employers and their recruiter agents from shifting to workers the cost
of recruiting for open job opportunities. This rule does not prevent a
person or entity (which could be a ``facilitator'' under the DHS Final
Rule) from charging workers reasonable fees for rendering assistance in
applying for or securing services related to passports, visas, or
transportation, so long as such fees are not made a condition of access
to the job opportunity by the recruiter, employer, or facilitator. The
Department will, however, monitor such activities to the extent
possible to ensure that any such charges are not ``de facto''
recruitment fees charged for access to the H-2A program. In addition,
government processing fees and document preparation fees related to
securing a passport and visa to prepare for travel to the United States
are the responsibility of the worker and the employer is not required
to pay those fees. We note that the DHS Final H-2A Rule also precludes
the approval of an H-2A petition, and provides for possible revocation
of an already approved H-2A petition, if the employer knows or has
reason to know that the worker has paid, or has agreed to pay fees to a
recruiter or facilitator as a condition of gaining access to the H-2A
program. Many employer advocates noted that there is no definition of
``recruiter'' and it is unclear whether ``facilitators'' who help the
H-2A workers apply for visas are included in this prohibition. This is
a concern to employers because DHS, in its companion H-2A proposed
regulation, requires disclosure of payments to ``facilitators,''
whether by the alien or the employer. The Department, on the other
hand, forbids employers and their agents from receiving remuneration
from the H-2A worker for access to job opportunities and further
requires the employer to contractually forbid its agents from accepting
money from the H-2A worker for hiring him or her. To allay any
confusion, we note that our own proposed regulation was intended to
prohibit foreign labor contractors or recruiters, with whom an employer
in the U.S. contracts, from soliciting or requiring payments from
prospective H-2A workers to secure job opportunities in the U.S. The
Department believes that this is consistent with the DHS position of
disclosure, which is presumably intended to deter such payments. The
Department has not defined ``recruiter'' as we believe this term is
well understood by the regulated community. Many commenters believe
that the new rule prohibits the use of foreign recruiters. It does not.
It requires employers to contractually forbid foreign recruiters from
receiving payments directly or indirectly from the foreign worker.
Employers who would be unable to find workers without recruiters are
not prohibited from hiring such recruiters. When they do, they must
make it abundantly clear that the recruiter and its agents are not to
receive remuneration from the alien recruited in exchange for access to
a job opportunity. As noted above, reasonable payments from workers in
exchange for rendering assistance in applying for or securing services
related to passports, visas, or transportation is not prohibited by
this rule.
Some commenters opined that the Department does not have the
authority to regulate cost-shifting abroad. The Department recognizes
that its power to enforce regulations across international borders is
constrained. However, it can and should do as much as possible in the
U.S. to protect workers from unscrupulous recruiters. Consequently, the
Department is requiring that the employer make, as a condition of
applying for labor certification, and therefore, as a condition to
lawful H-2A employment within the U.S., the commitment that the
employer is contractually forbidding any foreign
[[Page 77160]]
labor contractor or recruiter whom the employer engages in
international recruitment of H-2A workers to seek or receive payments
from prospective employees in exchange for access to job opportunities.
As stated above, we will examine program experience in this area and
will consider further actions as experience dictates.
One commenter suggested that we certify recruiting agencies to
ensure against exploitation of workers whereas two other commenters
thought we should make employers attest that the fee employees paid to
foreign recruiters was reasonable or did not go above a reasonable
market-based ceiling set by the Department. The Department simply does
not have the infrastructure or expertise to assess on a country-by-
country basis what a reasonable fee would be. The prophylactic rule
adopted by the Department guards against worker exploitation in a
manner that is enforceable. If a U.S. employer cannot find foreign
workers without the help of a recruiter, then the U.S. employer must
bear the cost of such recruitment efforts.
One commenter requested that we provide clarification on several
terms used in this section. The first is ``received payment * * * as an
incentive or inducement to file * * *.'' The second is ``* * * from the
employee or any other party, except when work to be performed by the H-
2A worker * * * 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.'' For reasons discussed below, we have
removed this language from the Final Rule to provide greater clarity to
the provision's effect.
Some commenters expressed concern that the rule passed on too many
costs in recruitment to the employer. One commenter estimated that the
recruitment cost to each employer would be $1,000 per H-2A worker. We
believe these estimates were not supported by data and note that
employers can collaborate with respect to recruitment to defray costs.
A farmworker advocate argued that new labor contractors are often
undercapitalized and can barely meet their payroll obligations. The
commenter claimed that labor contractors' primary source of income is
from the foreign recruiters who give them payments from the recruitment
fees paid by the aliens. It is precisely this type of activity that the
employer assurances are meant to prevent, for all of the reasons
previously mentioned.
In addition, and based upon the comments received, the Department
has revised the provision on cost-shifting to provide for greater
clarity. As mentioned above, the Department has added language to the
Final Rule clarifying that the provision only applies to payments by
employees. This rendered the language providing an exemption for
certain payments to employers by third-parties unnecessary, and it has
accordingly been deleted to avoid confusion. We have also eliminated
the qualifying language stating that the provision applied to payments
made as an ``incentive and inducement to filing,'' again for purposes
of simplification and clarity. By simplifying the provision to prohibit
employers from seeking or receiving payment for any activity related to
the recruitment of H-2A workers, the Department hopes to achieve
consistent and enforceable compliance.
In the Final Rule the Department has separated the provision on
cost-shifting into two sections, again to achieve clarity regarding the
use of foreign contractors. The Rule's new Sec. 655.105(p) now
contains the language that requires the employer to contractually
forbid any foreign labor contractor whom they engage from seeking or
receiving payments from prospective employees in exchange for access to
job opportunities. In this manner the Department hopes to achieve clear
and consistent compliance with the prohibitions contained in the Rule.
To make the provision on cost-shifting by recruiters consistent with
DHS's Final Rule, we have added clarifying language stating that the
prohibition does not apply where ``provided for in DHS regulations at 8
CFR 214.2(h)(5)(xi)(A).'' This language clarifies that the prohibition
does not apply to worker expenses such as the cost of transportation
and passport, visa, and inspection fees, except where such shifting of
expenses to the worker is expressly forbidden by law.
Paragraph (p) from the NPRM has now been redesignated as paragraph
(q). The Department did not receive any comments specifically
addressing this provision. Several minor non-substantive modifications
have been made to the text of the provision for purposes of clarity and
to conform to changes made elsewhere in the Rule. We have deleted what
was paragraph (q) in the NPRM, an assurance on housing vouchers,
because, for the reasons given in the discussion of Sec. 655.104(d),
we have decided not to implement housing vouchers.
Section 655.106 Assurances and Obligations of Farm Labor Contractors
(a) General Comments
As discussed earlier, the definition of Farm Labor Contractor in
the Proposed Rule has been rewritten and is for purposes of H-2A now an
H-2A Labor Contractor (H-2ALC). The Farm Labor Contractor definition in
the NPRM was borrowed from MSPA and the Department has determined that
definition causes confusion when applied to the H-2A program. A
fundamental distinction between these two terms is the requirement that
an H-2A Labor Contractor must employ the workers. This distinction
addresses the concerns of commenters who mistakenly believed that
agents and attorneys would have to register as Farm Labor Contractors
(FLC) as a requirement of the H-2A program. In order for a person or
entity under H-2A to meet the definition of an H-2ALC, that person or
entity would have to employ the workers who are subject to Section 218
of the INA.
Other commenters believed that the definition of farm labor
contractor also includes the activities of the foreign recruiters and
obligates the employers to take on liabilities for the acts of the
foreign recruiters because the definition of FLC in the NPRM was taken
directly from the MSPA. The definition of an H-2ALC is no longer taken
directly from MSPA.
While the Department cannot reach the conduct of foreign recruiters
abroad, it can regulate the conduct of U.S. employers participating in
the foreign labor certification process who do business with these
recruiters. The Department cannot by regulation impose strict liability
on employers for labor contractors' activities abroad, but the
Department, as a condition for an employer to obtain approval of a
temporary labor certification application, can require the employer to
contractually forbid foreign recruiters that an employer uses as its
agent from seeking or receiving payments from prospective employees, as
discussed in the discussion of Sec. 655.105(o) and (p), addressing the
prohibition on cost shifting.
There was considerable comment about the lack of a provision in the
NPRM addressing ``override fees,'' which is essentially the commission
paid by employers to labor contractors for their services. One
commenter elaborated on this point by explaining that employers in an
area where labor contractors with U.S. workers are well established
could bypass the labor contractor by hiring H-2A workers
[[Page 77161]]
directly and thus not have to pay an override fee.
Labor contractors operate in the free market system, both in hiring
workers and in providing contract labor services, and do not require
any special government provisions to ensure they are paid for the
services they provide. Whether an employer chooses to utilize a farm
labor contractor or hire workers directly is a decision to be made by
the employer based on what best suits his business needs. Labor
contractors typically enter into contracts with fixed site employers in
advance of the season. The Department does not seek to regulate private
transactions between employers and labor contractors with regard to the
appropriate price of contract services. Employers are required to
advertise before they can apply for H-2A workers, and both H-2ALCs and
the U.S. workers employed by the H-2ALCs will have an opportunity to
take the advertised jobs at the wage rates and subject to the terms and
working conditions required by the Department. The Department is
confident that the required wage rates, job terms, and working
conditions are sufficient to prevent any adverse effect on U.S.
workers.
One group of farmworker advocacy organizations complained that the
Department has eliminated all requirements that employers contact and
recruit through established FLCs (now H-2ALCs). This commenter believes
that the elimination of this requirement allows growers to bypass H-
2ALCs in favor of filing H-2A applications. The Department disagrees.
As previously mentioned, employers are required to spread information
about job opportunities in a variety of ways, and there is nothing that
would prevent an H-2ALC from responding to such advertisements by
offering its services.
Many commenters advocated the removal of labor contractors from the
H-2A program. The use of labor contractors to supply workers, however,
is a reality in the agricultural industry, and reflects the substantial
need for a flexible labor supply in a sector characterized by many
different crops requiring different work at different times, all of
which are subject to seasons, weather, and market conditions. To forbid
labor contractors from utilizing the H-2A program would only encourage
them to operate outside the system and potentially use undocumented
workers to fill their ranks. Labor contractors desiring to hire H-2A
workers must apply for a labor certification, recruit for U.S. workers,
and attest to the terms and conditions of H-2A employment, just like
any other employer desiring to hire H-2A workers, and must also list
the sites where work will occur.
One group of farmworker advocacy organizations commented that H-
2ALCs, under the new rule, are not required to have a physical presence
in the U.S. This commenter points out that even under the current
system, which does require physical locations in the U.S., there is
still room for deception by H-2ALCs. The commenter misreads the rule.
The definition of an H-2ALC in the Final Rule requires H-2ALCs to meet
the definition of an ``employer,'' and the definition of employer
requires a place of business in the United States.
(b) Description of H-2ALC obligations
The Department's review of comments regarding the obligations of
labor contractors under the proposed rule persuaded the Department that
these obligations were poorly understood. To provide a clearer
description of those obligations, and to avoid confusion on the part of
employers, SWAs, workers, and worker advocates alike, the Final Rule
has collected, consolidated, and refined the NPRM's description of H-
2ALC pre-filing recruiting obligations. The Final Rule therefore splits
proposed Sec. 655.106 into two separate parts. Section 655.106(a) of
the Final Rule consolidates, refines, and explains H-2ALCs' recruitment
obligations under the H-2A program. Section 655.106(b) of the Final
Rule contains all of the provisions proposed in the NPRM that impose
additional obligations on H-2ALCs that do not apply to other types of
H-2A employers.
Although the language of Sec. 655.106(a) of the Final Rule is new,
the substantive obligations it imposes on H-2ALCs are derived from the
basic requirements that apply to other H-2A employers under the NPRM.
The fact that H-2ALCs do not stay at one fixed location but travel from
one worksite to another over the course of a season, and the fact that
they frequently rely on the fixed site employers with whom they
contract to provide housing and transportation to their workers, makes
it operationally problematic to shoehorn H-2ALCs into the exact same
recruitment framework that applies to fixed site employers. New Sec.
655.106(a) refines for H-2ALCs the core recruitment requirements that
apply to all other H-2A employers, including requirements that job
orders be submitted to SWAs, that referrals of qualified U.S. workers
be accepted during the recruitment period, that positive recruitment be
conducted in advance of H-2A workers performing work in a given area of
intended employment, that workers from the previous season be contacted
and offered employment before H-2A workers can be hired, and that
housing inspections be conducted in a timely manner.
New Sec. 655.106(a)(1) acknowledges that, because of the itinerant
nature of H-2ALCs, their job orders ``may contain work locations in
multiple areas of intended employment.'' As with other employers with
multiple work locations, H-2ALCs may submit job orders ``to any one of
the SWAs having jurisdiction over the anticipated work areas.'' The SWA
receiving the job order is responsible for circulating the job order to
``all States listed in the application as anticipated worksites, as
well as those States, if any, designated by the Secretary as
traditional or expected labor supply States for each area in which the
employer's work is to be performed.'' The provision further clarifies
how long SWAs receiving multiple-area job orders should keep the job
orders posted, and specifies that they ``may make referrals for job
opportunities in any area of intended employment that is still in an
active recruitment period.''
New Sec. 655.106(a)(2) clarifies that H-2ALCs with multiple work
locations in multiple areas of intended employment are required to
conduct separate positive recruitment, following all of the normal
rules specified in Sec. 655.102(g)-(i), but are not required to
conduct separate positive recruitment for each work location within a
single area of intended employment. Instead, positive recruitment
within each area of intended employment is required to ``list the name
and location of each fixed-site agricultural business to which the H-2A
Labor Contractor expects to provide H-2A workers, the expected
beginning and end dates when the H-2A Labor Contractor will be
providing workers to each fixed site, and a description of the crops
and activities the workers are expected to perform at such fixed
site.'' Positive recruitment for each area of intended employment,
including positive recruitment in any designated labor supply states
associated with each area of intended employment, must, in accordance
with the standard rule under these regulations, be conducted no more
than 75 and no fewer than 60 days before the listed arrival date
applicable to that area of intended employment.
New Sec. 655.106(a)(3) specifies that H-2ALC recruitment,
including both positive recruitment and job orders, may require that
workers applying for jobs in any given area of intended employment
``complete the remainder of the H-
[[Page 77162]]
2ALC's itinerary.'' H-2ALCs are by nature itinerant, and the work that
they offer is thus itinerant as well. Workers applying for labor
contractor jobs cannot expect to selectively choose which work
locations they are willing to work at, unless the H-2ALC permits them
to do so. Certainly, U.S. workers applying to work for farm labor
contractors that are not H-2ALCs have no ability to selectively choose
which portion of a job offer they want to accept and which they will
reject.
Without this rule, H-2ALCs would at times be placed in impossibly
difficult hiring situations. For example, an H-2ALC might enter into
contracts to serve work locations in three different areas of intended
employment, requiring twenty workers in each area. If the H-2ALC is
unable to recruit any U.S. workers in the first and third areas of
intended employment, but finds ten U.S. workers in the second area of
intended employment who are willing to complete its itinerary, then the
H-2ALC should be allowed to hire ten H-2A workers for the duration of
its itinerary, and ten H-2A workers for the dates of need applicable to
the first area of intended employment (or, if these ten H-2A workers
were initially hired with the expectation that they would complete the
itinerary, the H-2ALC would be permitted to release them at the time
its subsequent positive recruitment for the second area of intended
employment resulted in the hiring of ten additional U.S. workers),
ensuring that the H-2ALC would at all times have the twenty workers
needed to fulfill its contracts. If, however, the ten U.S. worker
applicants for jobs in the second area of intended employment were not
willing to complete the H-2ALC's itinerary, and if these regulations
nevertheless required the H-2ALC to hire those workers, the H-2ALC
would be forced to choose between releasing ten of its H-2A workers at
the time it hired the ten U.S. workers since only twenty workers were
needed in the second area of intended employment. As a result, the H-
2ALC would be left with only ten workers total to fulfill its contracts
when it got to the third area of intended employment, or, to avoid this
consequence, would have to keep all thirty workers on its payrolls
during its work in the second area of intended employment, thereby
incurring the significant additional cost of paying ten unnecessary
workers. The Department declines to force H-2ALCs to make that
unnatural choice, which would place them at a competitive disadvantage
vis-[agrave]-vis farm labor contractors that hire all U.S. workers and
that are thus free to require prospective workers to complete their
remaining itinerary.
The Department considered, as an alternative, requiring H-2ALCs to
file a separate application for work to be performed in each separate
area of intended employment, but rejected the idea for several reasons.
First, it is far more administratively convenient for both the
Department and the employer if all of the employer's seasonal work for
the year with the same initial date of need is included in a single
application. Filing multiple applications in such a situation is
needlessly duplicative, wasting valuable time and resources. In theory,
an H-2ALC could be conceived of as having a separate date of need for
each new work site or for each new area of intended employment, but the
reality of labor contract work is that the responsibilities of workers
to the labor contractor employer, as well as their associated job
duties, continue from work location to work location and do not re-
start with each new work site. Second, the ``single application''
method will maximize recruitment of U.S. workers through posted job
orders, since the SWAs for all the areas of intended employment will
refer workers for jobs opportunities in all of the other areas of
intended employment. Third and finally, the ``single application''
method will better manage the expectations of incoming H-2A workers,
who will know at the outset whether the H-2ALC expects to employ them
for the entire season, or rather only for a more limited duration.
H-2ALCs are free to file separate applications for separate areas
of intended employment where it makes sense for them to do so. Indeed,
they may be required to file separate applications where, for example,
they need extra workers with a different date of need to report for
work in areas of intended employment that they will reach later in the
season. For purposes of administrative convenience, however, and to
comport with the realities of the nature of the underlying job
positions, the Department will permit single applications to be filed
by H-2ALCs covering extended itineraries.
New Sec. 655.106(a)(4) provides that H-2ALCs that hire U.S.
workers part-way through the season, whether through referrals or some
other form of recruitment, may discharge a like number of H-2A workers
and, in accordance with Sec. 655.104(i)(4), are released from the
three-quarters guarantee with respect to those workers.
New Sec. 655.106(a)(5) explains the rules that apply to an H-
2ALC's amendment of its application under Sec. 655.107(d)(3). Because
H-2ALCs are itinerant and because the timing of agricultural work is
difficult to predict with precision, H-2ALCs may often need to amend
their applications mid-season to include additional work locations or
additional areas of intended employment. Amendments will be readily
permitted, but special responsibilities attach to such amendments for
H-2ALCs. Where an amendment adds a new area of intended employment, or
where an amendment adds a new work site in an already-listed area of
employment and the job duties at the new work site(s) are substantially
different from those already listed, additional recruitment will be
required. Because amendments of H-2ALC applications may often need to
be made at the last minute to take into account changing weather
conditions, the required additional recruitment may be completed on an
expedited schedule. Housing inspections of any new housing arrangements
that have not yet been inspected must also be secured in a timely
fashion.
H-2ALCs are encouraged to attempt to avoid needing to make last-
minute amendments to their applications by listing all reasonably
probable work locations in their original application and job order. In
doing so, H-2ALCs are reminded that the ``reasonably probable''
standard should be closely adhered to--purely speculative employment
should not be listed on an application. While U.S. workers benefit from
seeing in an advertisement or job order a list of all the locations
that the H-2ALC is reasonably likely to service, information that is
intentionally misleading detracts from the ability of U.S workers to
make intelligent decisions about whether to apply. The Department
assumes that H-2ALCs will be deterred from listing purely speculative
work sites on their applications by the three-quarters guarantee and by
the requirement that H-2ALCs secure written statements from fixed-site
employers regarding housing and transportation if the H-2ALC will not
be providing the required housing and transportation itself.
New Sec. 655.106(a)(6) reiterates the obligation of SWAs to
complete required housing inspections ``no later than 30 days prior to
the commencement of employment in each area of intended employment in
the itinerary of an H-2ALC.''
New Sec. 655.106(a)(7) provides that H-2ALCs must contact all U.S.
workers that worked for the H-2ALC during the previous season, and must
advise each such worker ``that a separate job opportunity exists for
each area of
[[Page 77163]]
intended employment that is covered by the application.'' A worker who
applies for a job opportunity in an area of intended employment may be
required to complete the remainder of the itinerary.
The additional obligations that the Department proposed in the NPRM
to impose on H-2ALC employers have been consolidated in new Sec.
655.106(b). Each provision is discussed separately below.
(c) Proposed Sections 655.106(a) and (b), New Sections 655.106(b)(1)
and (2) Provide MSPA Farm Labor Contractor Certificate of Registration
Number and Identify Authorized Activities
One commenter opined that MSPA is not explicitly included in the
rule even though it is mentioned throughout. This commenter believes
that legal services groups that file lawsuits under these regulations
will be able to include claims based on MSPA as well. This commenter
believes there are enough protections in the H-2A rule without
including MSPA.
While references to certain specific provisions of MSPA have been
included in the H-2A regulations, such language is not intended to
apply MSPA to H-2A workers or employers. The provisions of H-2A and
MSPA operate independently from one another and the inclusion of terms
used in MSPA does not provide a legal basis upon which to hold H-2A
employers to MSPA standards. Nothing in this rule expands the scope of
MSPA or increases liabilities under it.
Some clarifying, non-substantive modifications have been made to
the language of these provisions in the Final Rule, and a statutory
citation to MSPA has been added.
(d) Proposed Section 655.106(c), New Section 655.106(b)(3) Disclosure
of All Locations
One agricultural employer association asserted that it is not
reasonable to require H-2ALCs to disclose all customers, clients,
dates, and services, and that providing evidence that the customers and
clients of H-2ALCs are established business operations should be
sufficient because the proposed requirement would otherwise subject the
labor contractor to disclosure of its clientele should an FOIA request
be made, and also because a labor contractor should not have to know
all of the locations so far in advance and should have the flexibility
to change plans. The disclosure requirement is contained in the current
regulations and has been for many years. The Department requires such
information not for the purpose of forcing a labor contractor to
disclose its clientele, but to ensure that the labor contractor has
real employment opportunities available for the prospective worker. A
good-faith compilation of the roster of clients and dates of
arrangements with each is integral to ensure there is work available
requiring the use of H-2A workers. It is also essential to ensure that
recruiting is properly performed and that U.S. workers are given access
to all job opportunities. With respect to the commenter's concerns
about disclosure, if the list of clientele is properly considered
confidential business information under FOIA, it would be exempt from
disclosure.
One commenter suggested that wording should be added to allow labor
contractors to add or change out growers during the season by informing
the Department. These comments have been addressed in the discussion of
Sec. 655.106(a)(5), pertaining to the amendment of H-2ALC
applications, above.
(e) Proposed Section 655.106(d), New Section 655.106(b)(4) Surety Bonds
The Department required in its NPRM that FLCs (now H-2ALCs) secure
a surety bond as proof of their ability to discharge their financial
obligations under the H-2A program. We received some comments opposing
the surety bond requirement, and others insisting that the requirement
did not go far enough.
One commenter suggested that the Department has no statutory
authority to require H-2ALCs to be bonded. This commenter believes that
the Department has plenty of methods available to it to weed out the
abusive H-2ALCs and does not need the provision for bonding. The
bonding requirement for labor contractors, who may be transient and
undercapitalized, provides a basis to assure compliance with an
attestation-based program. The language in the INA in Section 218(g)(2)
which authorizes the Secretary to take such action as may be necessary
to assure employer compliance with the terms and conditions of the Act
provides the authority for the bonding requirement.
Another commenter believes that the surety bond required is
woefully inadequate to guarantee H-2ALC compliance with program
requirements, and that it only applies to those cases that come before
the Administrator of the Wage and Hour Division (herein referred to as
Administrator/WHD) and not to civil actions filed in state or Federal
court. Another commenter believes that all H-2A employers should be
required to post a bond.
The Department believes that the procurement of a surety bond will
show that an H-2ALC is serious about doing business legitimately, and
that a surety bond gives the Department leverage over the employer so
that if the employer fails in performing its obligations, the bond will
be available for the government to recover unpaid wages. The surety
bond is simply a device to ensure the Department has reasonable
assurance that the labor contractor will adhere to its program
obligations; the labor contractor's ability to retain its interest in
the bond depends entirely upon its adherence to performance
obligations. The commenter is correct that the surety bond applies only
to those cases that come before the Administrator/WHD. We have no
authority to require it for actions beyond the Department's
jurisdiction.
One agricultural employer association states that the bonding
requirement is unrealistic because underwriters will not provide the
bonds to anyone but the largest labor contractors. This in effect will
eliminate smaller labor contractors from the program. This commenter
proposes that this requirement be eliminated or in the alternative that
the discretion of the Administrator/WHD to increase the bond
requirements should be limited to the use of reasonable and objective
criteria.
There is no evidence that only large labor contractors will be able
to obtain surety bonds. The bond is a necessary compliance mechanism to
ensure compliance with program obligations, namely the assurance of
payment of the wages of H-2A workers covered by Section 218 of the INA.
The Department can adjust bonds as necessary through notice and comment
rulemaking to balance the requirement against the financial constraints
faced by smaller employers.
(f) Proposed Section 655.106(e), New Section 655.106(b)(5) Positive
Recruitment in Each Fixed-Site Location of Services
In Sec. 655.106(e) of the NPRM, the Department proposed to impose
additional recruitment obligations on FLCs (now H-2ALCs). One
commenter, a large agricultural employer association, believes that the
positive recruitment requirements should be the same as they are for
non-H-2ALCs who have several fixed-site locations. The Department
believes that the recruitment standards for H-2ALCs in the Final Rule
spring from the same principles that apply to fixed-site employers, but
that some modification was necessary because of the level of mobility
of H-2ALCs. To ensure that
[[Page 77164]]
U.S. workers are provided notice of all available job opportunities, H-
2ALCs are expected to recruit in all areas in which employment will
take place, rather than just the area where the work will begin or the
greatest concentration of work will take place. The modified
recruitment obligations of H-2ALCs under the Final Rule are examined at
greater length in the discussion of new Sec. 655.106(a) above.
(g) Proposed Section 106(f), New Section 106(b)(6) Housing and
Transportation
The NPRM required a labor contractor to attest that it has obtained
written assurances from fixed-site providers of housing and
transportation that such housing and transportation complies with the
applicable standards. One agricultural employer association observed
that housing and transportation provided by H-2ALCs should be required
to meet the same standards as the housing provided by any other H-2A
employer. The Department agrees that H-2ALCs are to be held to the same
standards, but disagrees that an H-2ALC can simply attest, without
more, that housing it has not secured itself meets all of the
applicable standards. Because many H-2ALC s rely upon the activities of
others in meeting their own obligations, the Department requires the
contractor to obtain written assurances so that the contractor can, in
turn, fully attest to the conditions required to employ H-2A workers.
The Department also deleted the reference to H-2A workers in this
section to conform to Sec. 655.104(d) and to clarify the issue raised
by commenters on Sec. 655.104(d) regarding the need to have housing
meet local, State, and Federal standards and guidelines for all
agricultural workers, not just H-2A workers. Other minor, non-
substantive modifications have been made to the language of this
provision to conform to other provisions of the Final Rule.
Section 655.107 Processing of Applications
The Department promulgated in its proposed rule the general
parameters for the submission and processing of applications. Section
655.107 of the NPRM laid out the process by which the Department
intends to review applications and included provision for the
modification of deficient applications as well as the amendment of
pending and approved applications. Several commenters expressed concern
with this section, specifically in the area of deficient applications.
These specific areas of concern are addressed below.
As a general matter, one employer suggested that Sec. 655.107
should include a provision that the Department will have an adequately
staffed information service to answer employer questions and help
employers comply with the process. The Department appreciates the need
for such services, particularly among first-time program users.
However, existing program resources are limited and the funding of such
a specialized information service does not appear possible at this
time. The Department is committed to conducting briefings for users of
the program to acquaint them with the terms and processes of the
regulation prior to its implementation. The Department is also
examining other ways to make program information and instructions
available to users on an ongoing basis, particularly through its Web
site.
(a) Proposed Sections 655.107(a)(1) and (a)(2) Review Criteria
The Department, in describing the review process for each
application, stated in the NPRM that each application ``will be
substantively reviewed for compliance with the criteria for
certification'' and further defined criteria for certification to
``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.'' A major trade association of agricultural
employers believed this language contained ambiguous phrases,
particularly ``include but not be limited to'' and ``errors * * * which
would make the application otherwise non-certifiable'' and, as a
result, the phrase ``criteria for certification'' was largely
undefined. A farmworker/community advocacy organization commented the
language incorporates no actual determination of whether the
application complies with the statutory requirements for labor
certification unlike the current regulations, which require a
determination at the outset as to whether an application is
``acceptable for consideration'' based on compliance with the adverse
effect and timeliness criteria. This organization maintains that the
lack of substantive review in processing attestation-based applications
violates the statute. The Department has previously addressed that
argument in the discussion of Sec. 655.101, which has now been
rewritten to address many of these concerns. To avoid the possibility
that vague and ambiguous terminology in the provision could cause
confusion, however, proposed Sec. 655.107(a)(1) and (a)(2) have been
combined in the Final Rule, and the applicable criteria for
certification have been listed through cross-references. Furthermore,
to avoid confusion regarding the timing requirements set forth in the
NPRM, Sec. 655.107(a)(2) of the Final Rule specifies that when the
Department issues a notice or a request requiring a response by an
employer, it will use means normally assuring next-day delivery, which
may include e-mail and fax. It further specifies that an employer's
response to such a notice or request will be considered to be filed
with the Department on the date that it is sent to the Department,
which may be established, for example, by a postmark.
The trade association also pointed out that, although the language
related to the nature of the employer's need included ``temporary,'' it
did not also include ``seasonal.'' In addition, the association
suggested the phrase ``assurances and obligations related to the
recruitment of U.S. workers'' in proposed Sec. 655.107(a)(3) [new
Sec. 655.107(b)] be clarified and recommended that if the language is
intended to be construed broadly, the Department should include all of
the required assurances and obligations to make this clear.
The Department, as mentioned above, agrees this section of the NPRM
was confusing and has accordingly clarified the regulatory text. The
new Sec. 655.107 references the general criteria for certification
that ensures the application will be evaluated for whether the employer
has ``established the need for the agricultural services or labor to be
performed on a temporary or seasonal basis; made all the assurances and
met all the obligations required by Sec. 655.105, and/or, if an H-2ALC
by Sec. 655.106; complied with the timeliness requirements in Sec.
655.102; and complied with the recruitment obligations required by
Sec. 655.102 and Sec. 655.103.'' By referencing back to these
sections rather than enumerating the assurances and obligations in this
provision, the Department both provides a clear frame of reference for
the evaluation of obligations and also puts employers on notice of the
review process.
New language has been inserted in Sec. 655.107(a) in the Final
Rule stating that ``[a]pplications requesting that zero job
opportunities be certified for H-2A employment because the employer has
been able to recruit a sufficient number
[[Page 77165]]
of U.S. workers must comply with other requirements for H-2A
applications and must be supported by a recruitment report, in which
case the application will be denied.'' The reasons for the insertion of
this new language are explained below in the discussion of Sec.
655.110(e) of the Final Rule.
(b) Proposed Section 655.107(a)(3), New Section 655.107(b) Notice of
Deficiencies
Several minor, non-substantive modifications were made to the
language of the proposed provision for purposes of clarity and to
conform it to changes made elsewhere in the Final Rule. One significant
clarification was also added at Sec. 655.107(b)(2)(iv) of the Final
Rule to specifically address the handling of applications initially
rejected for failure to comply with the Final Rule's recruitment
obligations. Some employer and trade association commenters noted that
the structure of the processing procedures in the NPRM would have
required an employer whose application was rejected for failing to
recruit properly to begin the entire pre-filing recruitment sequence
over again. As a result, approval of the re-filed application would
have been substantially delayed by the minimum period specified that
positive recruitment must be conducted in advance of the date of need
(75 days in the NPRM, 60 days in the Final Rule).
Recruitment is an essential part of the H-2A program, and is
necessary for the Department to be able to certify that no qualified
U.S. workers are able, willing, and available for the job opportunity,
and that hiring H-2A workers would not adversely affect the wages and
working conditions of U.S. workers similarly employed. Although the
positive recruitment requirements will not be waived, the Department
will allow re-recruitment to be conducted on an expedited schedule so
that employers can secure H-2A workers in a timely fashion where no
U.S. workers are available. Even with an expedited schedule, however,
failure to properly recruit will inevitably delay approval of an
application to at least some extent, and the Department encourages
employers to be mindful of all of the recruitment requirements
specified in the Final Rule.
(c) Proposed Section 655.107(a)(5), New Section 655.107(c)
Modifications
The proposed regulations retain the process for issuance of a
Notice of Deficiency by the CO and the submission of a modified
application by the employer. However, under the current regulations,
applications are received, modified if required, and accepted prior to
the employer's recruitment efforts. Under the proposed rule,
recruitment will be conducted prior to submission of the application.
A major trade association requested clarification on the effect a
modification will have on the validity of the recruitment effort and
recommended the regulations state that if an application is ultimately
accepted, even after modification, any required modifications to the
application will not invalidate any recruitment conducted based on the
application as originally submitted. A professional association
recommended that if an initial application contains a deficiency
related to recruitment, the CO could require remedial recruitment
efforts to be completed prior to the final determination and the
remedial recruitment efforts and the date of need extended to
accommodate the required recruitment efforts. This association believed
such a process would be better than the issuance of a denial, which
would require the employer to begin the process, including the pre-
filing recruitment, over again and, therefore, be unable to complete
the process in time to meet the employer's actual date of need. As
discussed above, the Department has clarified the effect of deficient
recruitment in Sec. 655.107(b)(2)(iv) of the Final Rule. This revised
procedure will allow modified applications to move forward after the
application originally submitted is found to have deficient
recruitment.
The NPRM proposed to revise the current timeframe for an employer
to submit a modification to the application from 5 calendar days to 5
business days, and this change was supported by a major trade
association. However, the association commented that 5 business days
still is not sufficient time for an employer to decide whether to
modify the application or submit a request for an expedited
administrative judicial review. The association requested the timeframe
for requesting an expedited review should be extended to 7 business
days. The Department has decided to retain the requirement for
submission of either a modification or a request for administrative
review within 5 business days, as proposed, which will allow the
Department to meet the timeframes for review that are established by
statute. The Department believes that due to the time-sensitive nature
of the H-2A program, the majority of employers also prefer a speedy
timeline that ensures disputes and deficiencies are resolved as quickly
as possible.
The Department also deleted the word ``amendment'' from the
regulatory text in this section to prevent confusion. Modifications and
amendments are, in fact, different actions under this Rule and
amendments are described in Sec. 655.107(d).
(d) Proposed Section 655.107(a)(6), New Section 655.107(d) Amendments
The Department did not propose to change the requirements from the
current regulation for amendments to an application seeking additional
workers. An association of growers/producers requested that the
requirement in proposed Sec. 655.107(a)(6)(i) limiting the increase in
the number of workers to not more than 20 percent (or 50 percent for
employers of fewer than 10 workers) be changed to allow employers of
fewer than 10 workers to increase the number of workers in their
initial application by up to 10 workers. A State government agency
noted its agreement with retaining the current limitations.
The Department has decided to retain the provisions from the NPRM
regarding the number of workers that may be requested through
amendments. Our experience indicates these limits are necessary to
discourage employers from requesting a lower number of workers than
actually needed and subsequently submitting an amendment to increase
the number. Moreover, the exception for employers of 10 or fewer H-2A
workers has not been changed, as interest in such a change was not
widespread.
In the NPRM the Department included new provisions relating to
amendments to reflect the shift to an attestation-based process. A
group of farmworker advocacy organizations commented that they believed
the new language is weaker than the language in the current
regulations. The organization objected to the deletion of language
making explicit that labor certifications are subject to the conditions
and assurances made during the application process and recommended this
language be included. The Department did not deem this change
necessary, as it is already clear from the text and structure of the
Final Rule. The organization also recommended the language prohibiting
changes to the benefits, wages, and working conditions as contained in
the current regulation should be included in the new rule. The
Department believes the language in the Final Rule specifying that in
deciding whether to accept an amendment, the CO must ``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''
fulfills
[[Page 77166]]
this function. An amendment to effect a non-trivial increase in the
offered wages, for example, would likely render the job more attractive
to U.S. workers, and such an amendment would not be approved without
new recruitment being conducted. However, the Final Rule clarifies that
amendments should be approved by the CO ``if the CO determines the
proposed amendment(s) are justified by a business reason and will not
prevent the CO from making the labor certification determination
required under Sec. 655.109.''
Finally, the organization believed that the provision in proposed
Sec. 655.107(a)(6) (now Sec. 655.107(d)(2)), which allows minor
changes in the period of employment, and also requires an assurance
that U.S. workers will be provided with housing and subsistence costs
under certain circumstances when the season is delayed, does not go far
enough because it does not address problems that H-2A workers might
encounter related to housing, subsistence, lost work opportunities, and
an employer's failure to meet its obligation under the three-fourths
rule. The Department does not agree with this characterization. Both
the DOL and DHS Final Rules allow for minor modifications in the period
of employment that do not change any of the employer's responsibilities
with respect to its workers. All of an employer's obligations, attested
to in the original application, apply to any amendment thereto.
A sentence was added to the Final Rule clarifying that the CO will
transmit accepted amendments to SWAs, where necessary, so that posted
job orders can be modified. A further sentence was added clarifying
that the Department will review proposed amendments as quickly as
possible, ``taking into account revised dates of need for work
locations associated with the amendment.''
(e) Proposed Section 655.107(a)(7), New Section 655.107(e) Appeal
Procedures
Some minor, non-substantive changes were made to the language of
this provision in the Final Rule for purposes of clarity and
consistency. The language has also been modified to specify that ``the
denial of a requested amendment under paragraph (d) of this section''
and ``a notice of denial issued under Sec. 655.109(e)'' do not
constitute final agency action, and may be appealed pursuant to the
procedures set forth in Sec. 655.115.
Section 655.108--Offered Wage Rate
A number of commenters questioned the continued need for an adverse
effect wage rate (AEWR). An association of growers commented that
``there is no valid basis for setting an adverse effect wage rate,
separate and distinct from the prevailing wage for the occupation in
the area of intended employment, and requiring the payment of such a
wage if it is higher than the prevailing wage.'' An association of
growers commented that ``DOL's discussion in the preamble to the
proposed regulation makes the case against an AEWR.'' Another grower's
association doubts the Department's assertion ``in the preamble that
the wages and working conditions of agricultural workers are depressed
by the presence of a high proportion of illegal aliens.'' This
organization further asserts that field and livestock workers' average
wages have increased at a faster rate than those for non-farm workers.
Other comments focused on an apparent inconsistency between the H-2A
program and other temporary worker programs, none of which requires an
AEWR in addition to a prevailing wage.
Congress did not mandate the creation of an adverse effect wage
rate for the H-2A program. Rather, Congress provided in sec.
218(a)(1)(B) of the INA that before an employer is permitted to hire an
H-2A worker, the Secretary of Labor must certify that the hiring of the
H-2A worker ``will not adversely affect the wages and working
conditions of workers in the United States similarly employed.'' This
language is identical to the general labor certification language in
sec. 212(a)(5)(A)(i) of the INA, which provides that ``[a]ny alien who
seeks to enter the United States for the purpose of performing skilled
or unskilled labor is inadmissible, unless the Secretary of Labor has
determined'' that hiring that alien ``will not adversely affect the
wages and working conditions of workers in the United States similarly
employed.''
For most of its temporary and permanent foreign worker programs,
the Department applies the assumption that U.S. workers in the same
occupation will be adequately protected from having their wages
adversely affected by the hiring of foreign workers so long as the
workers are paid prevailing wage rates. Congress itself has applied
this assumption by statute with respect to the granting of labor
certifications under the H-1B program. See Sections 212(n)(1)(A) and
212(p) of the INA. For historical reasons, however, the Department
established special ``adverse effect'' wage rates for the H-2A program.
The Department comprehensively recounted the history of adverse effect
wage rates in its last major rulemaking on the H-2A program in 1989. 54
FR 28037, 28039-28041 (July 5, 1989).
Adverse effect wage rates were established for the first time in
1961 pursuant to an agreement with Mexico, which provided that the
wages offered under the Bracero program could be no less than an
adverse effect wage rate determined by the Secretary of Labor. The H-2
program, which is the predecessor to the H-2A program, was initially
created in 1952. H-2 workers were initially required to be paid only
prevailing wage rates. Adverse effect wage rates were extended to the
H-2 program for the first time, however, in 1963, as the Bracero
program was being phased out. Two circumstances motivated the creation
of these wage rates. First, the federal minimum wage had not yet been
extended to agricultural workers. Second, concerns were raised that
large numbers of foreign workers, many of whom were undocumented, had
depressed wage rates in the agricultural sector. 54 FR 28041.
Between 1963 and 1989, the Department applied a variety of
methodologies to determine how adverse effect wage rates should be set.
It is clear that the Department has always been motivated in setting
adverse effect wage rates to counteract the potential impact on the
wages of U.S. workers of the large numbers of foreign workers,
particularly undocumented workers, in the agricultural sector. Id. The
Department's comprehensive 1989 study of adverse effect wage rates came
to several important conclusions, however. First, none of the
methodologies employed by the Department ``ever has purported to add an
enhancement'' to wage rates calculated by the United States Department
of Agriculture (USDA). 54 FR 28040. Second, although some adverse
effect wage rates did exceed the wage rates set by the USDA, that was
``an unintended result of the application of the various methodologies
used in the 1960s'' and ``cannot in any way be viewed as a measurement
of the quantum of adverse effect.'' Id. Indeed, the Department
concluded that some of its past methodologies for calculating adverse
effect wage rates ``led to AEWRs which were higher than Statewide
agricultural earning in some states and lower in others,'' a result
that the Department labeled ``erratic.'' 54 FR 28041.
The Department stated in 1989 that the adverse effect wage rate
``is a `method of avoiding wage deflation.' '' 54 FR 28045, citing
Williams v. Usery, 531 F.2d 305, 306 (5th Cir. 1976). Thus, the
Department performed a comprehensive study of the then-existing
literature on agricultural wages
[[Page 77167]]
to determine whether wage depression in fact existed in the
agricultural sector, and if so, what its likely sources were. The
Department concluded that ``there is a tendency for illegal alien
workers to adversely affect wage rates.'' 54 FR 28041. The Department
relied in part on a General Accounting Office report finding that
``illegal aliens do, in some cases, exert downward pressure on wages
and working conditions with low-wage low-skilled jobs in certain labor
markets.'' 54 FR 28042, quoting General Accounting Office, Illegal
Aliens: Influence of Illegal Workers on Wages and Working Conditions of
Legal Workers (GAO/PEMD-88-13BR) (March 1988). The Department also
relied on a study published by the National Commission for Employment
Policy, which found that ``[u]ndocumented workers do displace some
native-born U.S. workers and do lower wages and working conditions in
some occupations and geographical areas.'' 54 FR 28042, quoting
National Commission for Employment Policy, Illegal Immigrants and
Refugees--Their Economic Adaptation and Impact on Local U.S. Labor
Markets: A Review of the Literature (October 1986). The Department also
relied on a study conducted by Dr. Phillip L. Martin, Professor of
Agricultural Economics, University of California at Davis, who
concluded that ``[t]he removal of illegal alien workers should raise
farm wages.'' 54 FR 28043, quoting Dr. Phillip L. Martin, IRCA and the
U.S. Farm Labor Market (February 1988).
There were, however, countervailing findings indicating that any
adverse effects on agricultural wages caused by illegal alien workers
at that time were ``minor and localized.'' 54 FR 28041. The Department
noted that ``the only wage depression shown in agricultural employment
in the GAO report appeared in two limited, localized studies of San
Diego County, California, pole tomatoes and Ventura County, California,
citrus,'' and that ``GAO itself noted that these studies were probably
atypical.'' 54 FR 28042. The National Council for Employment Policy
study found that ``[t]he evidence regarding the labor market impact of
undocumented entrants is mixed and somewhat inconclusive.'' Id.,
quoting Illegal Immigrants and Refugees, supra. And Dr. Martin noted
that ``the evidence of these possible wage-depressing effects of
illegals is sparse.'' 54 FR 28043, quoting Martin, supra.
The Department thus drew three significant conclusions in the 1989
rulemaking. First, ``DOL views the data and literature as inconclusive
on the issue of adverse effect or wage depression from the presence of
illegal alien workers on the USDA data series.'' 54 FR 28043. Second,
``[t]o the extent that there is some anecdotal evidence of wage
depression from these sources, the evidence also suggests that the
adverse effects are highly localized and concentrated in specific areas
and crop activities.'' Id. Third, an ``explicit enhancement'' to
agricultural wages can only be justified ``if the extent of the
depression can be measured.'' Id.
In 1989, the Department decided that, taking all of these
considerations into account, ``setting the AEWR at the level of average
agricultural wages, as determined by the USDA survey, is the correct
approach.'' 54 FR 28043. The Department noted that the ``new
methodology ties AEWRs directly to the average wage, as opposed to the
old methodology which resulted in AEWRS substantially higher than
agricultural earnings in many States, and lower for some States.'' 54
FR 28038. The Department found that the use of an average wage rate as
the adverse effect wage rate was particularly appropriate because
``AEWRs, if set too high, might be a disincentive to the use of H-2A
and U.S. workers, and could undermine efforts to eradicate the
employment of illegal aliens.'' 54 FR 28044.
Having determined to use average agricultural wage rates to set the
H-2A program's adverse effect wage rates, the Department chose the USDA
survey to measure average agricultural wage rates for two main reasons.
First, the Department found that at that time the USDA survey of farm
and livestock workers ``presents the best available data on hourly
wages in the agricultural sector.'' 54 FR 28041. The Department noted
in this regard that ``all crops and activities now covered by the H-2A
program will be included in the survey data and the peak work periods
also will be covered.'' Id. Second, although the Department had found
that evidence concerning wage depression in the agricultural sector
caused by undocumented workers was inconclusive, ``[t]o the extent the
wage depression does exist on a concentrated local basis, the average
agricultural wage does not appear to be significantly affected by wage
depression. Further, none of the studies reviewed by DOL here
quantifies or measured any wage depression that might exist in the USDA
series.'' 54 FR 28043. Thus, although ``the evidence is not conclusive
on the existence of past adverse effect,'' any adverse effect ``which
might have occurred may not be reflected in the USDA data series.'' Id.
The Department's decisions to use average agricultural wage rates
to set the H-2A program's wage rates, and to use the USDA survey to
measure average agricultural wage rates, were challenged but were
upheld by the DC Circuit. AFL-CIO v. Dole, 923 F.2d 182 (DC Cir. 1991).
The Court noted that there is no ``statutory requirement to adjust for
past wage depression,'' and that in determining appropriate wage rates
there is a ``range of reasonable methodological choices open to the
Department.'' Id. at 187. The Court further noted that the Department
had expressed that one of its objectives in adopting the new wage
methodology was to avoid impeding ``IRCA's goal of replacing illegal
aliens with documented foreign workers.'' Id. at 186. Where ``the data
is inconclusive,'' the Department merely needs to ``identify the
considerations it found persuasive in making its decision'' as to what
methodology to apply. Id. at 187.
(a) Retaining the Adverse Effect Wage Rate
Many commenters who opposed retaining the adverse effect wage rate
seemed to believe that the AEWR is intended to be an enhanced wage
rate, and that its existence must be predicated on the existence of
wage depression in the agricultural sector. Both of those views were
squarely rejected by the Department in the 1989 rulemaking, when the
Department expressly declined to adopt any form of enhancement to the
average agricultural hourly wage rate, and when it retained the adverse
effect wage rate despite its finding that evidence of generalized wage
depression in the agricultural sector was inconclusive.
The Department is retaining the concept of the adverse effect wage
rate, despite the fact that is adopting a methodology that will
actually set AEWRs at prevailing wage rates, for three reasons. First,
by definition, the adverse effect wage rate is the wage rate at which
the wages of U.S. workers will not be adversely affected. The
Department is firmly committed to the principle that the wage rates
required by the H-2A program should ensure that the wages of U.S.
workers will not be adversely affected by the hiring of H-2A workers,
and therefore declines to jettison the ``adverse effect wage rate''
concept. Second, as is explained further below, the Department was
guided in its choice of methodologies for determining prevailing wage
rates, and in its ultimate selection of the Bureau of Labor Statistics
(BLS) Occupational Employment Statistics (OES) survey, by its
commitment to selecting the methodology that will best prevent an
adverse effect on the wages of U.S.
[[Page 77168]]
workers. Thus, the adverse effect concept will continue to exert an
important influence on the wage rates actually supplied by the H-2A
program. Finally, Sec. 655.108(a) of the Final Rule requires employers
to pay ``the highest of the AEWR in effect at the time recruitment for
a position is begun, the prevailing hourly wage or piece rate, or the
Federal or State minimum wage.'' The ``prevailing hourly wage rate''
referred to in this provision is defined to mean ``the hourly wage
determined by the SWA to be prevailing in the area in accordance with
State-based wage surveys.'' A similar formulation is used under the
current rule. Retaining the phrase ``adverse effect wage rate'' to
describe the wage level that is determined by the Department to be
prevailing in accordance with Federal wage surveys will retain this
traditional State/Federal distinction and avoid the confusion that
might result from calling two different wage levels both the
``prevailing'' wage rate.
(b) Evidence of Wage Depression at the National Level
In 1989, the Department concluded that evidence of wage depression
in the agricultural sector was inconclusive. 54 FR 28043. The
Department noted that some studies had identified wage depression in
specific agricultural labor markets, but labeled that evidence
``anecdotal.'' Id. The Department further noted that even this
anecdotal evidence of wage depression was ``highly localized and
concentrated in specific areas and crop activities.'' Id.
Evidence developed during the last 20 years has not added any
additional clarity on the issue of wage depression. Some experts
continue to claim that undocumented workers cause wage depression. See,
e.g., Michael J. Wishnie, Prohibiting the Employment of Unauthorized
Immigrants: The Experiment Fails, 2007 U.Chic.Leg. For. 193, 215 (2007)
(``[T]his has almost certainly contributed to the depression of wages
and working conditions for U.S. workers.''). One comment submitted by a
group of farmworker advocacy organizations acknowledged that the impact
of undocumented workers on wages at a broad national level ``is under
dispute,'' but asserted that wage depression is clearly evident in the
agricultural sector. This commenter did not provide any wage data
supporting this assertion, however. Rather, the commenter relied on
data indicating that undocumented workers are more prevalent in the
agricultural sector than they are in most other sectors of the labor
force. In fact, none of the comments that were submitted to the
Department and none of the studies that the Department reviewed in
response to those comments provided a methodology that would allow for
the quantification of any agricultural wage depression that might
exist.
On the other hand, many experts assert that evidence indicating
that undocumented workers cause wage depression remains mixed. For
example, Jeffrey S. Passel of the Pew Hispanic Center recently stated
that ``I don't know if there's anything in the data that clearly points
one way or the other. At one level, it's a lot of people: 11.5 million
to 12 million. But it's about one in 20 workers, so it's not a huge
share of the labor market.'' The Immigration Debate: Its Impact on
Wages, Workers, and Employers, in Knowledge@Wharton at p. 4 (May 17,
2006). Bernard Anderson, who served as Assistant Secretary for the
Employment Standards Administration during the Clinton Administration,
has opined that with respect to the question of ``what impact there is
on wages, economic status and employment for American workers * * * you
get a clear divide in the economic literature. The evidence produced by
economists who have studied this question is mixed.'' Id. See also
several studies on the effects of immigration generally: Robert D.
Emerson, Agricultural Labor Markets and Immigration at p. 57 (Choices,
1st Quarter 2007) (``While some economists suggest that increased
immigration has reduced wage rates for native-born, unskilled workers *
* * most have found negative wage effects of increased immigration
extremely difficult to demonstrate once all appropriate adjustments are
made.''); Pia Orrenius, The Impact of Immigration, Commentary, The Wall
Street Journal (April 25, 2006) (``[M]ost studies find immigrants have
little effect on average wages.''); Gianmarco I.P. Ottaviao and
Giovannit Peri, Rethinking the Gains from Immigration: Theory and
Evidence from the U.S. at 28 (August 2005) (``It turns out empirically
and theoretically that immigration, as we have known it during the
nineties, had a sizeable beneficial effect on wages of U.S born
workers.''). Several grower and employer groups commented that they do
not believe there is reliable evidence of wage depression in the
agricultural sector. They did not, however, provide any data or
analysis of existing studies to support this assertion.
The assertion of one group of farmworker advocacy organizations
that the unusually high concentration of undocumented workers in the
agricultural sector must necessarily result in a particularly
depressive effect on the wages in that sector does not appear to be
borne out by the facts. A study analyzing changes in the median weekly
earnings for selected occupations between 1988 and 1999 found that
median weekly earnings for ``farm occupations, except managerial'' had
increased 21 percent between 1988 and 1993, and 20 percent between 1994
and 1999, while median earnings for ``farm workers'' increased 22
percent between 1988 and 1993, and 20 percent between 1994 and 1999.
This compared favorably to increases in the median weekly earnings for
all workers, which increased 20 percent between 1988 and 1993, and 18
percent between 1994 and 1999, as well as to workers in many other
specific low-wage occupational categories (cooks: 17 percent and 19
percent; butchers: 13 percent and 22 percent; laundry and dry cleaning
operators: 17 percent and 16 percent; sewing machine operators, 17
percent and 19 percent). See Philip Martin, Guest Workers: New
Solution, New Problem? at Table A3-4 (Pew Hispanic Center Study, March
21, 2002). Although the Department assumes that it is true that
undocumented workers are more prevalent in the agricultural sector than
they are in many other sectors, the available data does not support the
notion that they have had a disproportionately depressive impact on
wages in the agricultural sector.
In sum, after considering the comments received on the subject of
wage depression, and after reviewing relevant literature in an attempt
to identify empirical support for the assertions made in those
comments, the Department reaffirms its conclusion in the 1989
rulemaking that evidence of wage depression in the agricultural sector
is inconclusive.
(c) Evidence of Wage Depression at the Local Level
In the 1989 rulemaking, the Department found that ``[t]o the extent
that there is some anecdotal evidence of wage depression * * *, the
evidence also suggests that the adverse effects are highly localized
and concentrated in specific areas and crop activities.'' The
Department did not find that there was in fact wage depression in local
markets, specific areas, or specific crop activities, but rather noted
that the anecdotal evidence of wage depression that existed at that
time was confined to those settings. The relevant facts concerning
concentrations of illegal workers in specific local markets and crop
activities have changed substantially in the intervening 20 years,
however.
[[Page 77169]]
A group of farmworker advocacy organizations commented that
``[t]imes have changed since 1987.'' This group stated that
undocumented workers in the agricultural sector are now ``spread
throughout the nation.'' This group noted that ``undocumented workers
now dominate in the agricultural sector'' and ``constitute a majority
of the farmworkers in the United States.'' This group argued that the
factual change in the prevalence of undocumented workers in the
agricultural sector is so significant that ``DOL may not legally ignore
[it].'' It further provided an impressive compilation of statistics
from a variety of studies showing that undocumented workers are now
pervasive in the agricultural sector, rather than a sparse or localized
phenomenon. Specifically, the studies cited found that ``[i]n
California, where 35 percent of the nation's farmworkers are employed,
57 percent of farmworkers were undocumented as of 2003-05,'' that in
Florida, ``50 percent of farmworkers were unauthorized immigrants [in
2004] and the percentage was increasing,'' that ``[m]ore than 60
percent of agricultural workers in Washington are believed to be
undocumented,'' that ``in New York State approximately 70 percent of
farmworkers are undocumented,'' and that ``45 percent of the Mountain
region's farmworkers report they were working illegally in the U.S.''
A variety of experts have similarly concluded that the presence of
undocumented workers in the United States is now a widespread
phenomenon rather than a localized one. A 2005 study by the Pew
Hispanic Center found that ``since the mid-1990s, the most rapid growth
in the immigrant population in general and the unauthorized population
in particular has taken place in new settlement areas where the
foreign-born had previously been a relatively small presence.'' Jeffrey
S. Passel, Unauthorized Migrants: Numbers and Characteristics at p. 11
(Pew Hispanic Center, June 14, 2005). ``The geographic diversification
of the unauthorized population since 1990 is very evident * * * .'' Id.
at p. 13. A 2006 study by the Department of Homeland Security reached a
similar conclusion. See Michael Hoefer, Nancy Rytina, and Christopher
Campbell, Estimates of the Unauthorized Immigrant Population Residing
in the United States: January 2006 at p. 4 (Office of Immigration
Statistics, August 2007) (``Growing geographic dispersion of the
unauthorized immigrant population is reflected by an increase in the
share of the population living in all other states.''). In many
respects the growing dispersion of unauthorized workers is
unsurprising, as the number of unauthorized workers in the United
States has dramatically increased from an estimated 2.5 million in the
late 1980s to an estimated 12 million or more today. See Passel,
Unauthorized Migrants: Numbers and Characteristics at p. 10, supra;
Hoefer et al. at p. 1, supra.
Recent literature also suggests that, even if there are some areas
in the agricultural sector in which particularly high concentrations of
illegal immigrants remain, such concentrations may not adversely affect
U.S. workers. Jeffrey S. Passel of the Pew Hispanic Center has noted
that high concentrations of illegal workers in particular markets are
generally correlated with lower local unemployment rates for native
workers:
The presence of illegals is not associated with higher
unemployment among natives and it seems to me you would have to see
that kind of thing for there to be true displacement in any sense.
Geographically, it tends to be the reverse: Places with large
numbers of illegals tend to have lower unemployment than places
without illegals.
The Immigration Debate: Its Impact on Wages, Workers, and Employers, in
Knowledge@Wharton at pp. 4-5 (May 17, 2006). And David Card concluded
in a study analyzing the effects of immigration generally (rather the
effects of unauthorized immigration in particular) on U.S. workers that
``[a]lthough immigration has a strong effect on relative supplies of
different skill groups, local labor market outcomes of low skilled
[U.S.] natives are not much affected by the relative supply shocks.''
David Card, Is the New Immigration Really So Bad?, National Bureau of
Economic Research (August 2005).
The Department concludes that there is no conclusive evidence one
way or the other regarding the existence of wage depression in
localized agricultural labor markets. There is strong evidence that
there has been a seismic shift in the demographics of the agricultural
labor market in the United States since the Department's last
rulemaking in 1989, and that undocumented workers have in the
intervening years come to dominate that market throughout the United
States. In light of the pervasive presence of undocumented workers in
the agricultural sector today, it is substantially less likely than it
was in 1989 that wage depression could uniquely be found in highly
localized agricultural labor markets and specific crop activities.
Moreover, even if pockets of unusually high concentrations of illegal
workers continue to exist in some places in the agricultural sector,
the evidence concerning the effect high concentrations of illegal
workers have on the wages of U.S. workers itself remains equivocal.
(d) Inability To Measure Wage Depression
None of the commenters and none of the literature reviewed by the
Department suggested a reliable methodology for measuring any wage
depression that may exist in the agricultural sector. Indeed, one group
of farmworker advocacy organizations submitted an analysis prepared by
a PhD economist from the University of California, Berkeley, that
concluded that ``[g]iven the extremely large share of illegal
immigrants working in agriculture, it is unknowable, absent them, how
many U.S. workers would be willing to and at what price work in the
agricultural sector.'' As the Department explained in 1989, ``an
explicit enhancement could only be justified if alien agricultural
employment has depressed average agricultural earnings, and if the
extent of the depression can be measured at the aggregate level.'' 54
FR 28043. With no conclusive evidence showing that wage depression
exists in the agricultural sector, and with no reliable methodology to
measure any wage depression that does exist, the Department declines to
adopt an adverse effect wage rate that is deliberately set above market
rates.
(e) The Impact of Undocumented Workers vs. Guest Workers on U.S. Worker
Wages
To the extent that wage depression may exist in the agricultural
sector, the evidence does not indicate that it has been caused by the
H-2A program. Rather, all of the information available to the
Department strongly indicates that the presence of large numbers of
illegal, undocumented workers in the agricultural sector poses a much
greater potential threat to the wages of U.S. workers than guest
workers do.
The Department has reviewed anew the studies that it relied on in
1989 when it issued the last rule governing the adverse effect wage
rate. Virtually all of those studies focused on the effect that
undocumented alien workers have on the wages of U.S. workers. See,
e.g., National Commission for Employment Policy, supra (``Undocumented
workers do displace some native-born U.S. workers and do lower wages
and working conditions in some occupations and geographical areas.'');
Martin, IRCA
[[Page 77170]]
and the U.S. Farm Labor Market, supra ( ``[t]he removal of illegal
alien workers should raise farm wages.''). Indeed, the GAO study that
was relied upon by the Department examined the impact of undocumented
workers not just on the wages of U.S. citizen workers, but on all legal
workers in the United States with low-wage, low-skilled jobs, including
guest workers. See Illegal Aliens: Influence of Illegal Workers on
Wages and Working Conditions of Legal Workers (GAO/PEMD-88-13BR) (March
1988) (``illegal aliens do, in some cases, exert downward pressure on
wages and working conditions with low-wage low-skilled jobs in certain
labor markets.'').
Other sources also support the notion that any threat that foreign
workers may pose to the wages and working conditions of U.S. workers is
primarily caused by direct competition from a large undocumented
workforce within the United States. Illegal aliens may be willing to
work for illegally low wages that are paid off the books, and may be
reluctant to report an employer's violations of the labor and
employment laws. A group of farmworker advocacy organizations submitted
an analysis prepared by a PhD economist from the University of
California, Berkeley, which stated that:
There are other reasons that employers in the U.S. hire
undocumented workers over U.S. workers. Undocumented workers--afraid
of deportation--are perceived to be less demanding in terms of non-
pecuniary benefits and are less likely to form unions or make
demands from employers, as well as accept pay below legal standards.
Senators from both political parties remarked upon this phenomenon
during the recent immigration debates in Congress.\5\ As Senator
Kennedy stated in May 2007,
---------------------------------------------------------------------------
\5\ 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).
[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.\6\
---------------------------------------------------------------------------
\6\ 153 Cong. Rec. S6590 (2007).
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) (``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 * * *'').
A group of farmworker advocacy organizations suggested that guest
worker programs may also threaten the wages and working conditions of
U.S. workers. These organizations primarily cited studies finding that
between 1950 and 1964, the period of time during which the Bracero
Program was operating, real wages for agricultural workers remained
flat. Even if these studies are correct about the impact of the Bracero
Program, however, the Department does not consider the Bracero Program
to be representative of the impact of guest worker programs generally.
The Bracero Program was notorious for rampant employer abuses and lack
of government enforcement. See, e.g., Alma M. Garcia, The Mexican
Americans at pp. 30-33 (2002). If employers are regularly able to get
away with violating program requirements and paying sub-standard wages,
such rogue activity may of course have a depressive effect on overall
wage rates. H-2A program enforcement, however, is more rigorous than
Bracero Program enforcement was, and is substantially aided by watchdog
farmworker advocacy organizations that help to ensure that workers
hired through the H-2A program are paid properly.
The commenter cited only one other supposed example of wage
depression caused by the H-2A program: The Florida sugar cane industry.
The commenter noted that the sugar cane harvest in Florida was
mechanized in the early 1990s, and that the industry therefore no
longer uses substantial numbers of H-2A workers. The commenter
asserted, however, that in the late 1980s and early 1990s, while H-2A
workers were still being used, their presence depressed the wages of
U.S. workers. As support for this proposition, the commenter cited
statistics indicating that sugar cane producers that hired only U.S.
workers paid their employees substantially more per hour than producers
that hired H-2A workers. The Department does not consider this to be
evidence of wage depression; if anything, the wage gap between U.S.
workers and H-2A workers shows that the AEWR paid to H-2A sugar cane
workers did not function as the maximum hourly rate that U.S. workers
in the area could make. Rather, U.S. workers were able to secure jobs
that paid substantially higher wages than H-2A workers. Economically
speaking, that result is not at all surprising; employers generally
should be willing to pay U.S. workers higher wages than the required
wage rate for H-2A workers, since H-2A workers impose a number of
additional costs on employers, including housing, transportation, and
application fees, that make them relatively more expensive to employers
than U.S. workers.
Whatever effect guest workers may have on the wages of U.S.
workers, however, there appears to be virtually unanimous agreement
among the experts and commenters that undocumented workers have a
greater impact and pose a greater threat. Indeed, the very same group
of farmworker advocacy organizations that argued that guest worker
programs have a depressive effect on wages submitted a PhD economist's
analysis concluding that ``the H-2A program and the AEWR are severely
undermined by the employment of hundreds of thousands of undocumented
immigrant workers.'' The economist further opined that ``[f]irst and
foremost, it is in the best interest of U.S. domestic and H-2A workers
to mitigate the effects that such a large share of illegal workers has
on wages and employment conditions in the agricultural industry.'' See
also Peter Cappelli, The Immigration Debate: Its Impact on Wages,
Workers, and Employers, in Knowledge@Wharton at p. 3 (May 17, 2006)
(``While it is true that low-skill workers who enter the United States
legally also exert downward pressure on wages, there is a significant
difference between them and their undocumented counterparts.''). Of
course, guest worker programs could, in the abstract, pose a
significant threat to the wages of U.S. workers, if, for example, the
required wage rate was set substantially below the prevailing market
rates, or if enforcement of the required wage rates was so lax that
substantially below-market wages were regularly paid. There is no
indication, however, that those conditions currently exist in the H-2A
program, nor does the Department have any intention of allowing them to
occur under the Final Rule.
Thus, the Department concludes that while evidence of wage
depression in the agricultural sector remains inconclusive, it is quite
clear that the most likely source of any wage depression that does
exist is the hundreds of thousands of undocumented workers in the
agricultural labor market.
(f) The Department's Decision To Use More Precise Adverse Effect Wage
Rates
Although evidence of actual wage depression in the agricultural
sector is equivocal, the Department believes it is appropriate to
select a wage-
[[Page 77171]]
determination methodology that will help to prophylactically guard
against wage depression. As the Department noted in the NPRM, 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 that agricultural employers will hire H-2A
workers, with all their accompanying legal protections, rather than
hiring undocumented workers. The Department has concluded that this can
best be achieved by setting adverse effect wage rates that (1) are not
below the prevailing wages being earned by U.S. workers and (2) are not
so far above local market rates that they encourage employers to hire
undocumented workers instead. Achieving these objectives requires
setting AEWRs that appropriately reflect market realities and labor
costs.
There are currently not nearly enough U.S. workers in the
agricultural sector to perform all of the agricultural work that needs
to be performed. When agricultural employers cannot find U.S. workers,
they must of necessity turn to some other labor source. The H-2A
program was created by Congress to be the alternate source of choice
for agricultural labor. The program is clearly failing to fill the role
envisioned for it, however, as approximately ten times more
undocumented workers than H-2A workers are employed in the agricultural
sector today. Agricultural employers may or may not realize that
specific individuals they are hiring are in the United States
illegally, but undocumented workers have clearly become the
agricultural sector's alternate labor market of choice. The Department
believes that the current methodology for determining adverse effect
wage rates, which is not keyed to actual local labor market conditions,
may be partly responsible for the program's failure.
It is obvious that an AEWR that is set too low 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
lower wages to secure jobs. As will be discussed later, there is reason
to believe that in some geographic areas and for some occupations,
current AEWRs are set artificially low, resulting in an adverse effect
on U.S. workers similarly employed. See Gerald Mayer, Temporary Farm
Labor: The H-2A Program and the U.S. Department of Labor's Proposed
Changes in the Adverse Effect Wage Rate (``CRS Report'') at 8 (CRS
Report for Congress, November 6, 2008) (``Currently, the AEWR applies
equally to all crop workers, livestock workers, and farm equipment
operators in a region or state. However, within a region or state,
[market] wages for the same occupation may vary because of differences
in the cost of living or in the relative supply of or demand for
workers.'').
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 does
not reflect actual local labor market conditions, many agricultural
employers may be priced out of participating in the H-2A program. When
employers cannot find U.S. workers, and also cannot afford H-2A workers
because they are required to pay them above-market wage rates, some
will inevitably end up hiring undocumented workers instead.
The resulting influx of undocumented foreign workers into the
agricultural sector threatens to erode the earnings and employment
opportunities of U.S. workers in agricultural occupations. U.S. workers
may have a difficult time fairly competing against undocumented
workers, who may accept work at below-market wages, are viewed by
employers as less troublesome and less likely to assert their rights,
and are cheaper to employ than H-2A workers because they do not require
the additional payment of H-2A program costs such as transportation and
housing. Although the threat of legal sanctions and attendant risks of
work disruption will constrain some employers from knowingly employing
undocumented workers,\7\ the greater the gap between the true market
rate for farm labor and the total cost to employers of H-2A workers,
including artificially inflated wage rates plus all other attendant H-
2A program costs, the greater the likelihood that employers will forego
using the H-2A program and will instead risk hiring undocumented
foreign labor. The undocumented foreign 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.
---------------------------------------------------------------------------
\7\ Some commenters noted that the Department's discussion of
this point in the NPRM preamble appeared to suggest that the
Department believed agricultural employers intentionally set out to
hire illegal workers. The Department did not intend to suggest such
motives. As noted above, many illegal workers in the U.S. possess
documentation indicating they are legally authorized to work and all
employers (not just those in agriculture) are required by current
law to accept at face value documentation that appears valid.
---------------------------------------------------------------------------
The Department was concerned about precisely this phenomenon in the
1989 rulemaking. The Department presciently observed that ``AEWRs, if
set too high, might be a disincentive to the use of H-2A and U.S.
workers, and could undermine efforts to eradicate the employment of
illegal aliens.'' 54 FR 28044. The Department's choice of the USDA
average agricultural wage to set AEWRs at the time was predicated on
the assumption ``that IRCA will achieve its states purpose of removing
illegal aliens from the labor force. * * * Agricultural employers who
have employed illegal alien workers in the past then must fill their
labor needs with U.S. workers * * * or with H-2A workers.'' Id. IRCA
did not, of course, succeed in eradicating the employment of illegal
aliens in the agricultural sector, a fact that the Department must now
take into account in determining what wage-setting methodology is most
appropriate.
As noted above, there is demand for hundreds of thousands of
agricultural workers beyond what the domestic labor market is able to
supply. If any wage depression does currently exist in the agricultural
sector, the presence of a large number of undocumented workers is the
most likely cause. Replacing the hundreds of thousands of undocumented
agricultural workers currently employed in the U.S. either with U.S.
workers or with H-2A program workers who are paid a legally required
wage would substantially help to protect U.S. workers from adverse
effects caused by the undocumented work force. For this reason, the
Department believes that it should select a methodology for setting
adverse effect wage rates that is as precise and refined as possible.
A group of farmworker advocacy organizations commented that rather
than adopt a wage-setting methodology that may reduce required wage
rates in some areas, the government should get rid of undocumented
workers by more vigorously enforcing the immigration laws. Primary
enforcement responsibility in these areas is entrusted to DHS and the
Department of Justice. The Department notes, however, that during the
last several years the federal government has in fact embarked upon
unprecedented efforts to enforce the immigration laws, both at the
border and in the interior. In fact, this rulemaking effort is part of
a comprehensive 26-point immigration reform plan that was announced by
the present Administration in August 2007.
[[Page 77172]]
See Fact Sheet: Improving Border Security and Immigration Within
Existing Law, http://www.whitehouse.gov/news/releases/2007/08/20070810.html (August 10, 2007). This rulemaking is designed to work in
tandem with those enforcement efforts. The Department does not believe
that it is necessary to choose between a functional H-2A program and
effective immigration enforcement; we can and should have both, as
having both will maximize protections for U.S. workers.
The same commenter argued that if agricultural employers
substantially hiked their wage rates, U.S. workers would re-enter the
agricultural labor market to secure the higher wages, thus
substantially reducing the need to resort to foreign labor in the
agricultural sector. Although the Department assumes that substantially
higher agricultural wages would indeed induce some reentry by U.S.
workers into the agricultural labor market, the commenter did not
provide any data suggesting what level of wage increases would be
required to make such a re-entry phenomenon substantial, or whether
agricultural employers could remain competitive if required to pay
those wages. As the Department noted in 1989, there is an upper ceiling
to how much U.S. agricultural employers can even theoretically afford
to pay in labor costs, as they must ultimately compete not only with
other U.S. producers, but also ``with foreign imports.'' 54 FR 28044.
The Department believes that it is also relevant that U.S. workers have
steadily left the agricultural sector over the last two decades,
despite the fact that agricultural wages have increased during that
time, suggesting that factors other than wages may be causing many U.S.
workers to view agricultural jobs as undesirable.
Finally, the same commenter argued that the Department's rationale
effectively calls for a continuous lowering of agricultural wage rates,
because in this commenter's view (1) the Department's real objective is
to lower wage rates and (2) the only way to actually replace
undocumented workers with H-2A workers is to set adverse effect wage
rates at the level of wages that undocumented workers are willing to
accept. As an initial matter, the commenter misunderstands the
Department's objective. The Department seeks to ensure that AEWRs are
precisely tailored to the conditions of specific agricultural
occupations in specific labor markets. Although it is true that the
Department's preamble analysis in both the NPRM and the Final Rule
explains in detail how artificially high AEWRs can hurt U.S. workers,
that does not reflect any belief on the part of the Department that all
AEWRs are currently artificially high and that they therefore should
all be lowered. In fact, the Department's preamble analysis also
explains how AEWRs that are set too low hurt U.S. workers. The
Department seeks to avoid both effects by adopting a more precise
methodology. Because the USDA survey that is currently used is an
average wage rate that is set across broad, typically multi-state
regions, the actual wages of individual labor markets within the USDA
regions are necessarily in some instances above, and in some instances
below, the USDA average. In fact, the statistics provided by this
commenter show that even according to the commenter's calculations, the
average BLS OES wage for crop workers is higher than the average USDA
wage for field workers in several States, including three of the ten
biggest H-2A using States (Louisiana, New York, and Virginia). A recent
report of the Congressional Research found that even OES Level I wages
are higher than the current AEWR for some occupations in some
geographic areas. CRS Report at 13-17.
The Department also rejects the notion that the only way to replace
undocumented workers with U.S. workers and H-2A workers is to lower
AEWRs to the levels that undocumented workers are willing to accept.
That might be true if agricultural employers viewed U.S. workers, H-2A
workers, and undocumented workers as completely fungible, but they do
not. Many employer and grower association commenters emphatically
stated that they want to comply with the law, and that in fact they
would generally prefer to hire U.S. workers over H-2A workers or
undocumented workers if U.S. workers were available. Moreover,
agricultural employers who even unknowingly hire undocumented workers
risk losing their labor force part way through the season due to an
immigration raid, and those who knowingly hire undocumented workers
risk criminal penalties. These risks are particularly pronounced today
because of the government's recent highly publicized increased worksite
immigration enforcement efforts. For all of these reasons, agricultural
employers are generally willing to pay substantially more to hire a
U.S. worker or an H-2A worker than they are to hire an undocumented
worker. This observation is borne out by actual data showing that
undocumented workers typically make less than U.S. workers and H-2A
workers do.
After reviewing the comments received, the Department continues to
believe that precise tailoring of H-2A wages to local labor market
conditions is the most critical factor in preventing an adverse effect
on the wages of 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. If the AEWR in any given area does not reflect market
wages, it will either 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. 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. Improving the geographic precision of the AEWR is essential
to ensuring that the AEWR meets its statutory objective.
The Department is aware that its rationale for establishing
precise, localized wage rates is quite different than the rationale
that motivated it in 1989 to establish aggregated, regional wage
rates.\8\ That decision was reached under very different factual
circumstances, however. In 1989, the Department found that there was no
conclusive evidence of generalized wage depression in the agricultural
sector, but noted that there was some anecdotal evidence suggesting
that wages in particular local labor markets might be depressed. The
Department chose at that time to use USDA data to set AEWRs largely
because it believed that USDA's aggregation of wage data at broad
regional levels would immunize the survey from the effects of any
localized wage depression that might exist. 54 FR 28043. As discussed
above, however, undocumented workers are substantially more dispersed
throughout the agricultural sector today than they were in 1989. Not
only are undocumented workers no longer confined to particularized
local labor markets, but recent studies have also called into question
whether the concentration of undocumented workers in particular labor
markets actually causes localized wage depression.
---------------------------------------------------------------------------
\8\ The Department's underlying motivation--to protect the wages
and working conditions of U.S. workers--remains the same.
---------------------------------------------------------------------------
In light of these developments, the one key advantage the
Department believed in 1989 was afforded by the USDA survey's broadly
aggregated data--its ability to avoid localized wage
[[Page 77173]]
depression effects--has been substantially diminished. On the other
hand, the fact that undocumented workers have come to dominate the
agricultural labor force in the intervening years has rendered the
imprecision of USDA wage data vis-[agrave]-vis local labor market
conditions a substantial drawback that may sometimes actually encourage
employers to hire undocumented workers. In fact, the Department
expressed concern in the 1989 rulemaking that precisely this phenomenon
might develop, stating that ``AEWRs, if set too high, might be a
disincentive to the use of H-2A workers and U.S. workers, and could
undermine efforts to eradicate the employment of illegal aliens.'' 54
FR 28044. Many commenters argued that the large numbers of undocumented
workers in the agricultural sector adversely affects U.S. workers.
After weighing all of these considerations, the Department has
determined that under the present factual circumstances, the advantages
of tailoring AEWRs to better reflect the actual wages earned by
specific occupational categories in specific local labor markets
outweigh the potential disadvantages.
(g) The Department's Decision To Use the Occupational Employment
Statistics Survey
Having determined that the Department can best safeguard the wages
and working conditions of U.S. workers from adverse effect by
encouraging employers to replace undocumented workers with either U.S.
workers or H-2A workers, and having further determined that tailoring
AEWRs to local labor market conditions is the best way to foster this
replacement process, the Department made two independent decisions.
First, the Department decided to use the BLS OES survey to set AEWRs,
rather than the USDA Farm Labor Survey (FLS). Second, the Department
decided to attain further precision in setting AEWRs by breaking the
OES wage rates down into four different skill levels, rather than using
a single average OES wage rate for each agricultural occupation. While
the Department viewed the ability to break OES data into four separate
skill levels as an advantage of that survey, its decision to use the
OES survey to set AEWRs was not dependent on this feature.
The FLS and the OES survey are the leading candidates among
agricultural wage surveys potentially available to the Department to
set AEWRs. Neither survey is perfect. In fact, both surveys have
significant shortcomings. On balance, however, the Department has
concluded that in light of the current prevalence of undocumented
workers in the agricultural labor market, AEWRs derived from OES survey
data will be more reflective of actual market wages than FLS data, and
thus will best protect the wages and working conditions of U.S. workers
from adverse effects.
The present methodology for settings AEWRs, which was established
by the 1989 final rule, 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 FLS Reports. 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.\9\
---------------------------------------------------------------------------
\9\ 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
655.731(a)(2)(ii)(A)(3).
---------------------------------------------------------------------------
The Department's reliance on USDA FLS data creates several problems
for functional program administration. The USDA quarterly FLS does not
provide refined wage data by occupations or geographic locale.
Additionally, the USDA FLS does not account at all for different skill
levels required by agriculture occupations. Moreover, the wage levels
reported in the USDA FLS are skewed by the inclusion of wages that are
paid to many agricultural occupations that are not typically filled by
H-2A workers, such as inspectors, animal breeding technicians, and
trained animal handlers.
The accuracy of AEWRs based on the USDA FLS is further diminished
because the FLS is not based on reported hourly wage rates. Instead,
USDA's FLS 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.
Moreover, the USDA FLS 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, 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. USDA's control
over the survey also prevents the Department from making improvements
to it that could help to correct its shortcomings and set more market-
reflective AEWRs.
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 OES wage survey is among the largest on-going
statistical survey programs of the Federal Government. The OES program
surveys approximately 200,000 establishments every 6 months, and over 3
years collects the full sample of 1.2 million establishments. The OES
program collects occupational employment and wage data in every State
in the U.S. and the data are published annually. The 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,
statistically valid, 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 nearly 20 years the OES
program has in several respects
[[Page 77174]]
surpassed the USDA Labor Survey as a source for agricultural wage data.
Farm labor comprises a number of occupations and skills, and both
the demand for and supply of farm workers with a particular skill or
experience level 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
competition by undocumented workers by setting an AEWR that is neither
too high nor too low requires that the AEWR be specifically tailored to
the local labor markets, and must take into account such factors as
specific occupation, skill or experience, and geographic location. The
Department thus strongly values the geographic and occupational
precision of the OES estimates as well as the ability to establish four
wage-level benchmarks commonly associated with the concepts of
experience, skill, responsibility, and difficulty within a given
occupation. These features are unique to the OES survey, and it is in
part for this reason that the survey is also used in other foreign
worker programs administered by the Department, including the H-1B and
H-2B programs.
The Department acknowledges that OES agricultural wage data is far
from perfect. Perhaps most significantly, as several opposed commenters
pointed out, ``BLS OES data do not include wages paid by farms.''
Rather, ``[t]he OES focuses on establishments that support farm
production, rather than engage in farm production, and many of these
establishments are farm labor contractors.'' These commenters argued
that ``[t]he employees of such non-farm establishments constitute a
minority of the overall agricultural labor supply and are not
representative of the farm labor supply.'' They argued that this effect
is exacerbated by the fact that ``BLS OES results are obtained by using
the results of a separate BLS survey, the National Compensation Survey
(NCS),'' which ``does not survey any agricultural establishments.''
The Department is confident in the quality of the agricultural
workers wage estimates calculated using the OES survey, even with its
lack of direct coverage of agricultural establishments. As noted by one
major farm association, ``the OES's agricultural wage information is
based on data collected from farm labor suppliers, individuals who
specialize in finding, pricing, and placing agricultural workers with
local farm employers.'' Indeed, workers provided by farm labor
suppliers are for most agriculture employers the closest substitute for
H-2A workers; both represent an alternate labor source to which an
agricultural employer can turn if it is unable to locate a sufficient
numbers of U.S. workers through its own direct recruiting efforts.
Moreover, as one group of farmworker advocacy organizations noted,
the USDA FLS shows that ``[a]gricultural service employees on farms and
ranches made up * * * about 30 percent of hired workers.'' Such workers
appear to be spread across virtually all geographical areas and crop
activities, and 30 percent is certainly a statistically valid sample
size. Nonetheless, the Department recognizes that it is reasonable to
consider the survey's nonfarm scope to be a shortcoming, and the
Department will work with BLS to expand the coverage of the OES to
include agricultural establishments, in keeping with recommendations
from various commenters, including such disparate entities as growers'
associations and state workforce agencies. One significant advantage of
the BLS OES is that because it is within the control of the Department,
it can be refined and improved over time with the specific needs of the
H-2A program in mind.
One opposed commenter argued that the high concentration of FLCs in
the OES survey data will necessarily lead to depressed AEWRs, because
FLCs employ disproportionately high concentrations of undocumented
workers and typically pay their employees low wages. If this assertion
was true, one would expect that average OES wage rates for crop workers
would always be below, and in many cases substantially below, the
average FLS wage rates. The data presented by this commenter, however,
show that this is not the case. According to that data, the average OES
crop worker wage rates in many States (although not in a majority of
States) are actually higher than average FLS field worker wage rates,
including Idaho (12.16 percent higher), Louisiana (13.3 percent
higher), New York (6.73 percent higher), Washington (5.78 percent), and
Virginia (5.45 percent higher). Louisiana, New York, and Virginia are
all in the top ten States among H-2A users. Unsurprisingly, because OES
data is more refined than FLS data, it produces wage rates that are
higher than FLS wage rates in some places, and lower than FLS wage
rates in other places. For example, a recent CRS Report found that FLS
data ``may overestimate the wages of crop workers and underestimate the
wages of livestock workers and farm equipment operators.'' CRS Report
at 16. Because the OES survey disaggregates this wage data, it would be
expected that moving from the FLS to the OES survey for the calculation
of AEWRs would result in crop worker wage rates going down in some
places, and livestock and farm equipment operator wages going up in
some places. In fact, this is precisely the effect that the CRS Report
concluded was likely to occur. Id. at 15-17.
The data simply does not support the picture painted by the
commenter of an OES survey producing wage rates that are uniformly low
and severely depressed. Although the Department assumes that it is true
that the wages paid to unauthorized workers are reflected in some OES
data, see CRS Report at 18 (``In labor markets with a large
concentration of unauthorized farmworkers, wage data from the OES
survey may, to some extent, reflect the wages paid to unauthorized
workers.''), that is undoubtedly true of FLS data as well. The PhD
economist's analysis submitted by one commenter, for example, found
that ``[a] second limitation regarding the FLS is that undocumented
workers are no doubt in the survey and their wage is used in the
calculation of AEWRs.'' This does not provide a sound basis for
choosing between the two surveys.
Some commenters questioned the statistical reliability of OES wage
estimates for detailed geographic areas, noting that more detailed
areas have reduced samples and high relative standard errors. The
Department's Foreign Labor Certification Data Center takes data quality
into account when updating its Online Wage Library and adjusts the
geographic areas used to derive wage estimates as needed to ensure data
reliability. A ``GeoLevel'' variable indicates the kind of adjustment,
if any, that has been made:
If the data used to calculate the wage estimate came from the
actual metropolitan statistical area (MSA) or balance of state (BOS)
area the GeoLevel code will equal ``1.''
If there were no releasable estimates for the desired area then
the wages are for the area indicated plus its contiguous areas. This
is signified by a GeoLevel ``2.''
If there were no releasable estimates for the area, or for the
area plus contiguous areas the wage is calculated from statewide
data, indicated by a GeoLevel equaling ``3.''
Finally, if there is no releasable estimate for the state, the
national average is used. This is indicated by GeoLevel ``4.''
The application of these statistically sound methodologies takes into
account the fact that wage data in some local labor markets is limited,
and provides the best wage rate approximations available. No wage
survey is perfect. The OES accounts for those places
[[Page 77175]]
where data is limited by borrowing aggregate data to produce the best
local wage rate approximation possible. The OES surely is not always
precisely correct as to the going wage rates for every occupation in
every geographic locale, but its statistically sound methodology will
on the whole produce wage rates that are far more refined and accurate
than the broad, region-based FLS.
One commenter considered the Department's criticism of the multi-
state nature of the USDA surveys to be misplaced: ``[w]hile
agricultural labor markets for seasonal, labor-intensive crops have a
local component, an interstate character to these markets emerges in
the presence of migratory workers that move from State-to-State and
crop-to-crop.'' The commenter went on to note that ``Broad regional
wage standards are appropriate in this context, where more localized
rates might unfairly disadvantage workers employed in areas with only a
small number of potential employers, who can collude to keep wages
low.'' Even if the commenter's view about an interstate market for
wages of migratory workers were correct, however, the current structure
of the AEWR offers no support for the argument that the USDA survey
should be retained. The FLS's regional divisions bear virtually no
resemblance to any traditional interstate agricultural markets or
traditional migratory work patterns or flows. Wage estimates from the
OES are well suited to capture substate wage differences such that the
Department may tailor H-2A certification decisions and required wage
rates to reflect local labor market conditions.
A group of farmworker advocacy organizations criticized the
Department for failing to provide a better explanation of how AEWRs
will be calculated using OES data. The calculation of OES wage rates is
no great mystery, as OES wage rates are currently used for both the H-
1B and H-2B programs. A recent CRS report explains how wage rates are
determined using FLS and OES survey data. See CRS Report at 3-10. The
underlying statistical methodologies for determining OES wage rates
are, of course, quite complex. Nevertheless, the Department will
attempt to distill the process for determining wage rates using both
the FLS and the OES survey here:
The FLS surveys between 11,000 and 13,000 farms and ranches each
quarter on multiple subjects, including the number of hired farm
workers, the gross wages paid to workers, and their total hours worked.
Only farms and ranches with value of sales of $1,000 or more are within
the scope of the survey. ``Hired farm workers'' are defined as
``anyone, other than an agricultural service worker, who was paid for
at least one hour of agricultural work on a farm or ranch.'' The survey
seeks data on four types of hired workers: field workers, livestock
workers, supervisors, and other workers.
USDA, through the National Association of State Departments of
Agriculture, uses four collection methods for the FLS: mail, CATI
(computer-assisted telephone interviews), personal visits (for larger
operations), and online (only about 2 percent of respondents). The FLS
sample is distributed across the entire country; however, the
geographic detail covers just 15 multi-state regions and 3 stand alone
states and thus is much more limited than the OES survey. The table
below lists the sample size by region.
Quarterly Farm Labor Sample Size, by Region, 2008-09 \1\ (October,
January, and April) \2\
------------------------------------------------------------------------
Region Sample
------------------------------------------------------------------------
Northeast I.................................................. 570
Northeast II................................................. 498
Appalachian I................................................ 546
Appalachian II............................................... 654
Southeast.................................................... 588
Florida...................................................... 604
Lake......................................................... 846
Corn Belt I.................................................. 840
Corn Belt II................................................. 672
Delta........................................................ 534
Northern Plains.............................................. 846
Southern Plains.............................................. 960
Mountain I................................................... 354
Mountain II.................................................. 309
Mountain III................................................. 263
Pacific...................................................... 526
California................................................... 1,329
Hawaii....................................................... 404
U.S.......................................................... 11,343
------------------------------------------------------------------------
\1\ Includes Ag Services for CA and FL
\2\ July sample is approximately 13,000 at U.S. level.
Source: National Agricultural Statistics Service, USDA.
USDA calculates and publishes average wage rates for four
categories of workers each quarter. Wage rates are not calculated and
published for supervisors or other workers, but just for field workers,
livestock workers, field and livestock workers combined, and total
hired workers. Within the FLS, the ``wage rates,'' or average hourly
wage, by category are defined as the ratio of gross wages to total
hours worked. To the extent workers receive overtime or other types of
incentive pay, the average wage rate would exceed the workers actual
wage rate. Because the ratio of gross pay to hours worked may be
greater than a workers' actual wage rate, other statistics agencies,
such as BLS, refer to the ratio as ``average hourly earnings,'' and not
as hourly wages or wage rate.
The FLS-derived wage rate estimate for the four categories is
published quarterly, and annual averages are published as well. With
wage information on just two agricultural occupation categories, the
FLS has very little occupational detail relative to OES. The FLS also
calculates average wage rates in two other categories by combining the
average wages of other types of workers. The Department uses the
regional annual average for the category ``field and livestock workers
combined'' as the annual AEWR for each state within a given geographic
region.
In contrast, the OES survey directly collects a wage rate (within
given intervals) by occupations defined by the Office of Management and
Budget's (OMB) occupational classification system, the Standard
Occupational Classification (SOC) system code. Specifically, ``wages
for the OES survey are straight-time, gross pay, exclusive of premium
pay. Base rate, cost-of-living allowances, guaranteed pay, hazardous-
duty pay, incentive pay including commissions and production bonuses,
tips, and on-call pay are included. Excluded is back pay, jury duty
pay, overtime pay, severance pay, shift differentials, nonproduction
bonuses, employer cost for supplementary benefits, and tuition
reimbursements.''
The OES survey collects occupational employment and wage data by
means of a matrix in which employers report the number of employees in
an occupation and in a given wage range. The wage intervals used for
the May 2007 estimates are as follows:
------------------------------------------------------------------------
Interval Hourly wages Annual wages
------------------------------------------------------------------------
Range A......................... Under $7.50....... Under $15,600
Range B......................... $7.50 to $9.49.... $15,600 to $19,759
Range C......................... $9.50 to $11.99... $19,760 to $24,959
[[Page 77176]]
Range D......................... $12.00 to $15.24.. $24,960 to $31,719
Range E......................... $15.25 to $19.24.. $31,720 to $40,039
Range F......................... $19.25 to $24.49.. $40,040 to $50,959
Range G......................... $24.50 to $30.99.. $50,960 to $64,479
Range H......................... $31.00 to $39.24.. $64,480 to $81,639
Range I......................... $39.25 to $49.74.. $81,640 to
$103,749
Range J......................... $49.75 to $63.24.. $103,480 to
$131,559
Range K......................... $63.25 to $79.99.. $131,560 to
$166,399
Range L......................... $80.00 and over... $166,400 and over
------------------------------------------------------------------------
The mean hourly wage rate for all workers in any given wage interval
cannot be computed using grouped data collected by the OES survey.
Instead, the mean hourly wage rate for each of the 12 intervals is
calculated using data from BLS's National Compensation Survey (NCS).
Although smaller than the OES survey in terms of sample size, the NCS
program, unlike OES, collects individual wage data.
Once the mean hourly wage rates for the 12 intervals are
determined, the mean hourly wage rate for a given occupation is
calculated. It is defined as:
Total weighted wages that all workers in the occupation earn in
an hour/ total weighted survey employment of the occupation.
Because the OES wage data are collected in intervals (grouped), it does
not capture the exact wage of each worker. Therefore, some components
of the wage variance are approximated using factors developed from NCS
data. A Taylor Series Linearization technique is used to develop a
variance estimator appropriate for OES mean wage estimates. The primary
component of the mean wage variance, which accounts for the variability
of the observed OES sample data, is estimated using the standard
estimator of variance for a ratio estimate. Within each wage interval,
there are also three types of variance estimated from the NCS. They
represent the variability of the wage value imputed to each worker; the
variability of wages across establishments; and the variability of
wages within establishments. In short, the estimates of OES relative
standard errors for wages take into account the sampling error
associated with OES components of the wage estimator and also error
associated with the NCS components of the estimator that are used for
the mean wages for each interval.
The Department hopes this explanation helps.
Some commenters critiqued the OES survey as not being as timely as
the FLS. A group of farmworker advocacy organizations claims that ``OES
is out of date and harms U.S. workers.'' It is true that the lag
between the survey reference period and data publication can be greater
for OES than for FLS. But such lag simply reflects the greater scope of
the OES survey, which collects detailed employment and wage data from
approximately 200,000 establishments every six months. The rolling
three-year sample used in OES reduces year-to-year volatility in the
wage estimates, and as a result, it is highly unlikely that the one-
year period between the reference period and data publication would
result in substantively different wage estimates if the lag were
reduced.
One commenter considered it problematic that the OES reference
months are May and November, which they said ``may not be the best
approach if one is interested in farm workers.'' This commenter's
presumption appears to be that farm workers on payrolls in some other
unspecified months may have higher wages than those during the OES
reference months. The Department did not identify any evidence,
however, to support this hypothesis. The criticism could be equally
applied to the reference months used in the USDA FLS. Available data
indicates that virtually all workers are paid a constant minimum hourly
rate during their tenure and are not paid different rates in different
months. Estimates from the FLS do not show a clear cyclical pattern in
wage rates, suggesting that there is little seasonal variation at an
aggregate level.
The Department has considered these comments and re-examined the
wage surveys. Taking into account the pros and cons of both surveys,
the Department concludes that the advantages to the OES survey make it
the best data source available for determining applicable wages in the
H-2A program. In fact, a recent CRS Report found that the Department's
proposal to use the OES survey to calculate AEWRs would likely have
precisely the effect the Department intends it to. The report concluded
that ``[u]nder the proposed rule, the AEWR should more closely reflect
the wages of farmworkers in local labor markets.'' CRS Report at 18.
Furthermore, in those local labor markets where AEWRs are currently
above true market rates, and the Final Rule's new wage-setting
methodology therefore results in lower AEWRs, ``the rule should create
an incentive for employers to hire more H-2A, as opposed to
unauthorized, workers.'' Id. at 13. While the full impact of the new
wage-setting methodology cannot be forecast with precision, id. at 18,
the Department on the whole believes that these predicted changes will
better protect the wages and working conditions of U.S. workers.
Therefore, the Final Rule adopts the NPRM's proposal 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. Under the Final Rule, the Department will
utilize the BLS OES data instead of USDA FLS data.
(h) The Department's Decision To Set Wages for Four Skill Levels
Independent of its decision to use the OES survey to set AEWRs, the
Department has decided to take advantage of the OES data feature that
allows wage levels for each occupational category in each geographic
locale to be set at four skill levels. The Department made this
decision for a variety of legal and policy reasons.
First, the Department believes that it is required by statute to
supply wages at the four separate skill levels. Section 212(p)(4) of
the INA states that ``[w]here the Secretary of Labor uses, or makes
available to employers, a governmental survey to determine the
prevailing wage, such survey shall provide at least 4 levels of wages
commensurate with experience, education, and the level of
supervision.'' Although this provision was enacted in the context of H-
1B
[[Page 77177]]
reform, it is the only paragraph in Section 212(p) that does not
reference any specific immigration programs to which it applies, and
there is no legislative history indicating that it was meant to apply
only to the H-1B program. Although OES data is being used in this
particular instance to set AEWRs, the provision on its face still seems
to apply, since the OES is ``a governmental survey to determine the
prevailing wage,'' and since the Department has decided to set AEWRs at
prevailing wage rates. Thus, the Department believes that it is bound
by Section 212(p)(4) to offer four wage levels.
Second, even if the Department were not legally required by Section
212(p)(4), the provision does represent a congressionally approved
method for setting prevailing wage rates. The Department uses four wage
levels both in the H-1B program, which is limited to skilled workers,
and the H-2B program, which primarily serves low-skilled jobs. The
Department is thus familiar with the administration of a four-level
wage system, and believes that its use in these other programs has
proved successful.
Finally, the use of four wage levels that are roughly tied to
skills and experience will add further precision to the AEWRs, thus
serving the Department's above-discussed objectives. Although the four
wage levels are determined arithmetically rather than by surveying the
actual skill levels of workers, the resulting wage rates reflect the
Department's experience that within occupational categories, workers
that are more skilled and more experienced tend to earn higher wages
than those that are less skilled and less experienced. This is
apparently Congress's experience as well, as it has expressly approved
the use of four wage levels when setting prevailing wages.
The CRS Report on the Department's proposal, for example, found
that the Level I wage for agricultural equipment operators is above the
current AEWR in many areas, and that the Level III and Level IV wages
for agricultural equipment operators were generally much higher. CRS
Report at 17. The Department believes that more highly skilled and
experienced agricultural equipment operators generally are paid higher
wages than novice ones, and the wage scale that will be used by the
Department thus seems fully appropriate. Indeed, if the Department
failed to set higher adverse effect wage rates jobs requiring greater
skills and experience, U.S. workers capable of performing such jobs
might find their ``true market'' wages undercut by employers' ability
to fill the jobs with H-2A workers making merely average wages.
A group of farmworker advocacy organizations, as well as many other
commenters, argued that allowing employers to pay wage rates that are
below the average for an occupational category will necessarily
adversely affect U.S. workers. The purpose of the four-tier wage
system, however, is to generate the best approximation possible of the
actual prevailing wage rate for jobs requiring various levels of
experience or skill. When the required wage rates are accurate, they do
not represent a below-average wage rate, but rather represent the wage
rate that is prevailing for that particular kind of job. Using a single
average wage rate for all jobs performed within a particular
occupational category ignores the fact that certain jobs require higher
levels of experience and skill, and may adversely affect U.S. workers
who are capable of performing such jobs. It is also worth noting that
Congress has directed that, when determining prevailing wage rates, the
Department should ``provide at least 4 levels of wages commensurate
with experience, education, and the level of supervision.'' Although
this Final Rule is actually changing the methodology for determining
adverse effect wage rates, the Department's determination to set AEWRs
at locally prevailing wage rates makes it fully appropriate to borrow
Congress's prescribed prevailing wage rate methodology.
The same commenter objected that the ``proposed methodology for the
wage levels is purely an arithmetical formula'' and ``does not relate
to skills or experience in agriculture.'' It is true, as the Department
has already noted, that the skills-based wage levels are not determined
by surveying the actual skill level of workers, but rather by applying
an arithmetic formula. Congress has explicitly endorsed the use of such
an arithmetic approach, however: ``Where an existing government survey
has only 2 levels, 2 intermediate levels may be created by dividing by
3, the difference between the 2 levels offered, adding the quotient
thus obtained to the first level and subtracting that quotient from the
last level.'' INA sec. 212(p)(4). No methodology for determining
prevailing wage rates will be perfect, but this methodology is
currently used in both the H-1B and the H-2B programs. Moreover, the
recent CRS Report that studied the Department's proposal in detail did
not conclude that use of the congressionally created arithmetic formula
is particularly problematic.
The same commenter argued that the use of four wage levels would be
too complicated for the Department to administer. This comment ignores
the fact that the Department already administers a four wage level
system for the H-1B and H-2B programs.
For purposes of clarity, and in response to comments questioning
the application of a four-tiered wage system, the Department has
inserted text into the Final Rule specifying how the four H-2A wage
levels will be applied. The inserted language is substantially similar
to existing provisions establishing the four skill levels for the H-1B
and H-2B programs, which most commenters assumed would apply. The four
skill levels will afford the Department and employers using the H-2A
program the same opportunity that is available under other similar
programs administered by the Department to more closely associate the
level of skill required for the job opportunity. This skill level
precision complements the geographic and occupational specificity of
the OES wage estimates. The Department considers the lack of such
precision to be a shortcoming of the current AEWR.
There also appeared to be some confusion among some of the
commenters who believe the NPRM language allows an employer to choose
the level and the wage survey and propose its ``offered wage rate'' to
the NPC for approval. That is not the case. After reviewing the
employer's request for a wage rate, including job description and skill
level, the Department will compare the AEWR, state and federal minimum
wage, and piece rate to determine the highest wage applicable to the
job opportunity described in the employer's request. The Department
will assign the appropriate wage (the offered wage rate) to the
employer's job opportunity and that wage must be utilized in recruiting
for the position.
(i) Other Considerations Affecting the Department's Decision
Although the changes in wage rates that will result from the
Department's decision presumably will make local AEWRs more reflective
of actual local labor market conditions, to counteract the potential
for wage reductions in some areas, the Department has decided to retain
in the Final Rule the NPRM's proposal to use the future (effective July
24, 2009) FLSA minimum wage of $7.25 as the floor for any OES-derived
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
[[Page 77178]]
lower than the new federal minimum wage even though that wage will not
be legally required until 2009.
Moreover, even in those instances where the use of OES data may
result in lower AEWRs for H-2A workers in the short term as compared to
the current AEWR methodology, 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.\10\ 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 associated with utilization of foreign
labor under the H-2A program are an important consideration that
provides significant protection for U.S. workers.\11\ 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.\12\ 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.\13\
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\10\ See CRS Report at 18.
\11\ One commenter pointed out that H-2A workers are also
relatively cheaper than U.S. workers in some respects, because
employers do not have to pay Social Security or unemployment
insurance taxes for H-2A workers. On the whole, however, the
substantial costs to house and transport H-2A workers, together with
the not insignificant costs of the application process,
substantially exceeds these savings, making H-2A workers on the
whole more expensive to employ than U.S. workers who are being paid
the same wage rates.
\12\ 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.
\13\ A group of farm worker advocacy organizations argued that
the AEWR becomes the effective maximum wage for U.S. workers.
Available data does not support this assertion, however. Indeed,
this same commenter stated that a Pennsylvania tomato farmer paid
his workers $16.59 an hour on average, even though the 2008 AEWR in
Pennsylvania is only $9.70.
---------------------------------------------------------------------------
A group of farmworker advocacy organizations commented that many
employers use piece rates abusively and in a manner that undermines the
AEWR. Of course, as the commenter acknowledges, piece rates cannot in
and of themselves lead to the payment of sub-standard wages, since
Sec. 655.104(l)(2)(i) requires an employer to supplement a piece-rate
worker's effective hourly rate of pay to the level of the applicable
AEWR if the pay would otherwise be less. This commenter argued that
many employers avoid the obligation to supplement by deliberately
underreporting the number of hours worked by piece-rate workers during
a pay period. Such fraud is already clearly prohibited by the Final
Rule, however. The commenter also argued that piece rates are abusive
because they ``induce workers to higher levels of productivity'' by
providing ``the opportunity to earn more than the worker would earn on
an hourly rate.'' The Department does not consider the opportunity to
earn average hourly wages that are higher than the AEWR through more
industrious work to be abusive; it is an opportunity to earn higher
pay, nothing more.\14\ If the worker fails to earn enough under the
offered piece rate to meet the applicable AEWR, the worker is not
penalized for it; to the contrary, as mentioned previously, under such
circumstances the worker's pay is required to be supplemented to the
level of the AEWR. Of course, if the worker was in fact penalized by
the employer in some way for failing to accomplish enough piece rate
work, the penalty would effectively convert the piece rate into a
productivity standard. Such productivity standards are policed through
Sec. 655.104(l)(2)(ii) and (iii) of the Final Rule, however, which
require that piece rates be no less than the piece rates prevailing and
that productivity standards be normal, meaning that productivity
standards may not be unusual for workers performing the same activity
in the area of intended employment.
---------------------------------------------------------------------------
\14\ The Department notes that the same opportunity to earn
average hourly rates of pay that are above the AEWR must under the
Final Rule be offered to U.S. workers before it can be offered to H-
2A workers.
---------------------------------------------------------------------------
For the reasons discussed above with respect to Sec. 655.105(g) of
the Final Rule, the Department has inserted language in this section
specifying that employers are required to adhere for the duration of a
work contract to the AEWR rate that is in effect at the time
recruitment for a position is begun. Newly published AEWRs shall not
apply to ongoing contracts, but only to new contracts the recruitment
for which is begun after the publication of the new AEWR. The
Department has also added a new Sec. 655.108(h) specifying that
employers are required to retain NPC wage determinations for a period
of three years, which is consistent with the general record keeping
provisions of the Final Rule. Other changes to the text of this section
in the Final Rule are non-substantive and were made for purposes of
clarity.
Section 655.109--Labor Certification Determinations
(a) Section 655.109(b)--Timeframes for Determination
The Department did not propose any changes to the requirement that
it issue a determination on an application no later than 30 calendar
days before the date of need. An individual employer suggested that
certifications should be issued 60 to 90 days before the employer's
date of need rather than the 30 days currently required. A State
government representative suggested the CO should be required to issue
the determination by the earlier of 15 days after receipt of a complete
application or 30 days before the date of need to allow USCIS and the
State Department more time to process a petition. A professional
association suggested no more than 40 days and no less than 30 days
before the date of need for issuance of the final determination. An
association of growers/producers recommended the timeframes should be
simplified and standardized to encourage grower participation.
Specifically, it recommended the pre-filing recruitment be conducted 90
days prior to the date of need and approval occur no later than 45 days
prior to the date of need.
The requirement that, if an application is timely filed, complete
and approvable, or is modified to be approvable within the statutory
timeframes, the Department issue a certification no later than 30 days
prior to the date of need, is statutory and cannot be changed by
regulation. While employers can file earlier in anticipation of their
date of need, statutory limitations prevent the Department from
requiring employers to file any more than 45 days before their date of
need. The Department believes the adjustments made to recruitment and
filing timeframes adequately address the issue of filing times.
Employers are encouraged to file as early as possible and to take care
that their submitted applications are complete to minimize potential
delays.
[[Page 77179]]
(b) Section 655.109(b)--Criteria for Determination
The Department included a provision in the NPRM to outline the
criteria upon which a determination is made. As commenters noted,
however, the criteria stated in this provision were redundant of other
provisions in the regulation. The Department has accordingly revised
this provision to eliminate unnecessary duplication within the rule,
which could have caused confusion among program applicants.
(1) Labor Disputes--Sec. 655.109(b)(4)(i)
Two associations of growers commented on the certification criteria
in proposed Sec. 655.109(b)(4)(i). These commenters stated that labor
disputes in agricultural employment are not covered by the National
Labor Relations Act and, therefore, there is no official process for
determining the existence of a labor dispute. The proposed language in
Sec. 655.109(b)(4)(i) of the NPRM was intended to replicate the
language in the current regulations at Sec. 655.103(a), which examines
whether the ``specific'' job opportunity for which the employer is
requesting H-2A certification is vacant because ``the former occupant''
is on strike or being locked out in the course of a labor dispute. That
provision was carefully crafted to bar only certification of the single
job opportunity vacated by each particular worker who went on strike or
was locked out, and not all jobs requested to be certified. However,
proposed Sec. 655.109(b)(4)(i) was in conflict with proposed Sec.
655.105(c). The Department has removed the language in Sec. 655.109 of
the NPRM regarding labor disputes because of the redundancy and overlap
with the labor dispute provision in Sec. 655.105. As explained in the
discussion of Sec. 655.105(c), the Department has also reverted in
Sec. 655.105(c) to the language concerning labor disputes that is
found in the current regulations. The Department believes these changes
adequately address the comments on this provision.
(2) Job Opportunity--Sec. 655.109(b)(4)(vi)
A professional association commented that the job requirements,
combinations of duties, or other factors that may make a specific
application unique should be acceptable if justified by business
necessity. This association asserted that nothing in the INA requires
that a specific employer perform any job in exactly the same way as
other employers perform the job. An association of growers/producers
agreed and also pointed out that under the proposed provisions a grower
using technology not yet considered normal practice could be denied H-
2A workers due to its job requirements and/or combination of duties.
As is explained above in the discussion of Sec. 655.104(b), the
Department agrees that, as a general matter, employers are in a far
better position than the Department to assess what job duties workers
at a particular establishment in a particular area can reasonably be
required to perform. The Department has therefore altered Sec.
655.104(b) to conform more closely to the language of the statute, and
has limited its application to job qualifications. Where a listed job
duty serves as a de facto job qualification because the listed duty
requires skills or experience that agricultural workers do not
typically possess, however, the Department reserves the right under
Sec. 655.104(b) to treat the listed job duty as a job qualification,
and to apply the ``normal'' and ``accepted'' standard that is set forth
in the statute and recapitulated in the regulations in determining
whether the qualification is appropriate. Because Sec. 655.104(b) of
the Final Rule contains the Final Rule's restrictions on job duties and
job qualifications, Sec. 655.109(b)(4)(vi) of the NPRM has been
eliminated as redundant.
(3) Extrinsic Evidence
A group of farmworker advocacy organizations suggested the
regulation should be clear that the CO can consider extrinsic evidence
in making a final determination. The organization believed the CO
should be able to deny certification to an employer who has engaged in
violations of employment-related laws whether or not there has been a
final finding to that effect and whether or not the employer has
previously participated in the H-2A program. The commenter also
suggested that if the CO has reason to doubt the accuracy of any of the
attestations or assurances, the CO should have the authority to request
additional information and the authority to deny the certification. In
the same vein, the commenter recommended the regulations should include
a process by which the CO will receive and consider supplemental
information from SWAs, workers and others.
The Department does not agree that adding explicit language to
provide the CO with authority to consider extrinsic evidence is
necessary. The Final Rule allows for certification to be based solely
on the criteria outlined in Sec. 655.107(a). Adding a process for the
provision of extrinsic evidence would create an adversary process for
the granting of a benefit, with COs at a loss as to how to evaluate
such evidence in the context of the application and unable to evaluate
its authenticity, particularly in light of the tight statutory
timeframes given to the Department to adjudicate applications. Workers
who are affected by an agricultural clearance order have a complete
process in 20 CFR Part 658, subpart E (incorporated by reference in
Sec. 655.116) through which to submit and obtain resolution of their
complaints. Anyone having information bearing upon an H-2A employer may
avail themselves of the protections contained within these regulations
and all other mechanisms, such as filing a complaint with WHD.
Following these procedures will ensure that the Department receives the
information in a way in which it can be most useful.
(c) Section 655.109(d)--Accepting Referrals of U.S. Workers
A large association of agricultural employers suggested that the
proposed regulations and the Final Determination letter should clarify
that the obligation to continue to accept referrals of eligible U.S.
workers continues only until the employer has accepted the number of
referrals of eligible U.S. workers equal to the number job openings on
the Application for Temporary Employment Certification. The Department
agrees with this statement and has included new language to that effect
in Sec. 655.109(d). The Department has also modified the provision to
conform to the Final Rule's new definition of the ``end of the
recruitment period'' that is set forth in Sec. 655.102(f)(3).
(d) Section 655.109(e)--Denial Letters
A major trade association pointed out the proposed regulation at
Sec. 655.109(e) states that if the certification is denied the Final
Determination letter will state ``the reasons the application is not
accepted for consideration.'' The association commented it was their
presumption this language was used inadvertently but asked for
clarification if its use was intentional. The Department's use of the
language ``not accepted for consideration'' was, in fact, inadvertent.
Section 655.109(e) has now been revised to read: ``the reasons
certification is denied.'' The Final Rule also clarifies that the
Department will send determination letters to employers ``by means
normally assuring next-day delivery,'' which may include e-mail or fax.
[[Page 77180]]
(e) Sections 655.109(e), (f), and (g)--Appeal Process for Denied and
Partial Certifications
The proposed regulation did not explicitly reference appeal
procedures in either the Denied Certification (Sec. 655.109(e)) or
Partial Certification (Sec. 655.109(f)) provisions. Although the
proposed ``Administrative review and de novo hearing'' procedures
(Sec. 655.115) do reference a decision by the CO to deny, a major
trade association commented that the regulation should be clarified by
specifying the appeal procedures in Sec. 655.109. The Department
appreciates this comment and has inserted text in paragraphs
655.109(e), 655.109(f), and 655.109(g) stating that the final
determination letter will provide the procedures for appeal in either
situation. Employers should be aware that, if a partial certification
is received, only the period of need or the availability of U.S.
workers are at issue and thus subject to appeal.
(f) Partial Certifications--Sec. 655.109(f)
The proposed regulations contained a provision at Sec. 655.109(f)
for partial certifications. The provision stated that ``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.'' Although the current regulations at Sec. 655.106(b)(1) do
not contain the phrase ``partial certification,'' they do provide that
the Administrator/OFLC shall grant the temporary agricultural labor
certification request ``for enough H-2A workers to fill the employer's
job opportunities for which U.S. workers are not available.'' A
farmworker/community advocacy organization voiced its concern that the
deletion of the language in the current regulation and the addition of
language providing for discretionary partial certifications violates
the statutory precondition for certification that the employer not have
U.S. workers available to fill its job opportunities. This organization
expressed the opinion that the new language would allow employers to
import more foreign labor than they actually needed.
The Department has retained the provision regarding partial
certifications, with one modification. The Department believes that the
language describing partial certifications provides more clarity
regarding the process of obtaining a certification where the Department
determines that fewer workers than were originally requested in the
application are required. A lack of available U.S. workers is a
necessary precondition to filing an application. Allowing a partial
certification covers situations where the employer recruited for a need
of X workers, finds sufficient workers to meet only a part of its need,
and thus still needs X workers minus the number of workers successfully
recruited. An employer who finds sufficient workers to meet its entire
need cannot, by statute and this pre-filing recruitment model, receive
a certification. The Department retains the authority to reduce the
number of positions requested in the event the information contained in
the application demonstrates an availability of workers who were
eligible and applied for the position. Since a partial certification is
issued by subtracting the number of available workers from the total
number of workers requested, the Department does not believe this
provision will allow employers to import more workers than they
actually need. To make it clear that the deduction of able, willing,
qualified, and available U.S. workers is non-discretionary, the
Department has added language to the provision stating that ``[t]he
number of workers certified shall be reduced by one for each referred
U.S. worker who is qualified, able, available, and willing.''
A major trade association commented that the proposed provision has
no counterpart in the existing regulations and that the Department
articulates no rationale for why such a provision is necessary or how
it will ensure compliance. The association recommended the provision be
deleted from the final regulations. The association also expressed
concern that there was no due process for an employer whose application
was arbitrarily changed. This association believed the CO should issue
a Notice of Deficiency, require the submission of a modification and
offer an appeal process.
As explained above, the ability to issue a partial certification is
necessary where the Department receives an application with respect to
which eligible and qualified U.S. workers have been or are subsequently
successfully recruited prior to certification. A modification process
is one option the Department considered to address such a situation,
but given the likely time frame of filing by employers, a modification
would often not be possible. In response to the comment regarding an
appeal process, the Department has added language regarding appeal
provisions to this provision in the Final Rule.
(g) Proposed Sec. 655.109(g), New Sec. 655.109(h)--Fees for Certified
Applications
The Department proposed the following new fee structure: an
application fee of $200 for each employer receiving a temporary
agricultural labor certification plus $100 for each H-2A worker
certified; an application fee of $200 for each employer-member of a
joint employer association receiving a certification plus $100 for each
H-2A worker certified for that employer-member; and a processing fee of
$100 for any amendments accepted for processing plus $100 for each
additional H-2A worker certified. The proposal did not set a cap on the
amount of fees to be charged as provided in the current regulations.
The Department received numerous comments about the proposed fees. Many
of the commenters acknowledged that an increase was warranted but
strongly objected to the amount of the increase. Several commenters
requested a justification for the amount of the increase and further
detail regarding the activities and related costs involved in
processing since the Department stated in the preamble to the proposed
rule that it was updating the fees to align with ``the reasonable costs
of processing'' H-2A applications, as authorized by the INA. Also in
this context, commenters questioned why the fees would increase to such
an extent since the Department was proposing to improve and increase
access to the H-2A program. One association of growers/producers
recommended that the Department determine a more reasonable processing
fee and explore adding to those revenues from another source rather
than seeking to recover processing costs through processing fees. A
State government agency suggested that fees should be used to fund
program costs incurred by the SWA instead of being deposited in the
Treasury. Another commenter asserted that under the Treaty of Guadalupe
Hidalgo, the application and processing of the application for H-2A
temporary workers who are Mexican citizens must be free of charge and,
therefore, employers seeking to employ such nonimmigrant workers should
not be charged processing fees.
A number of associations of growers/producers, a trade association,
and several individual employers commented that the increased fees
would add to the cost of an already
[[Page 77181]]
expensive program and, if the application process is to become more
efficient as proposed, believed a fee increase would be
counterproductive. Some commenters stated the increase in fees, when
coupled with other increased costs, could drive farmers out of business
or dissuade many from participating in the program at all. Another
association of growers/producers suggested the fee structure should
take into consideration all of the fees growers must pay and suggested
a fair compromise would be to reduce the fees for farmers using H-2A
workers, ask workers to pay for costs incurred in traveling to the U.S.
port of entry closest to the employer, and require the employer to bear
the costs from the point of entry to the farm. A trade association also
commented that many growers utilize workers for a short period only and
that they believed under the proposed regulations a grower's cost for
10 H-2A workers would increase to $10,000 in application fees and the
total cost could rise to almost $20,000 before any revenue would be
gained through harvesting of the crop.
Several commenters offered specific suggestions for setting the fee
amounts. One association of growers/producers suggested that any
increase in fees should be tied to the cost of inflation or the
consumer price index and not related to the cost of processing. A
United States Senator and others stated a doubling of the fees would be
acceptable. One individual employer/farmer suggested the fees should
remain at current levels. A trade association commented that fees
should be based on the number of employers certified rather than the
number of applications.
Many commenters specifically requested the inclusion of a cap on
the amount of fees and commented that the elimination of a cap might
cause participants to abandon the program.
Following consideration of all the comments, the Department has
decided to retain the current fee structure rather than that proposed
in the NPRM. At this time, the Department believes that it is of utmost
importance to increase accessibility to the program and recognizes that
the proposed increase in fees could have discouraged both potential new
users and current users of the program. Accordingly, the Department has
reverted to the current fee structure for both employers and for
associations. Moreover, the increased fee would not have helped the
program operate more efficiently at this time because the H-2A fees
received by the Department are, pursuant to statute, deposited directly
in the Treasury as miscellaneous receipts. Any change in that
requirement would require a statutory change by Congress.
The Department may, in the future, revisit the fee structure and
propose changes in the amount of the processing fees. The Department
appreciates the many comments received requesting additional
information on the actual costs involved in the processing of
applications and finds these requests to be reasonable. Since the
Department is changing the program to an attestation-based process, it
does not have experience with the actual operation of the program under
the new process and, therefore, agrees that it should not revise fees
until cost information using the new model is available.
As noted above, the Department has decided to retain the current
fee structure, which includes a limit on the fee amount to be paid by
one employer. The Department agrees with the commenters and believes a
cap on fees paid by an applicant is appropriate and should be included
in any future proposal. The failure to include such a cap in this
proposal was an oversight.
The Department also received comments on the proposed $100
processing fee for an amendment, coupled with a fee of $100 for each
additional H-2A worker certified on the amendment. A trade association
noted that amendments to applications can be for many reasons,
including increasing the number of workers requested, adjusting the
date of need, and making minor technical amendments to the application.
It commented further that while it is reasonable to charge the
additional certification fee for an amendment to increase the number of
workers in order to avoid creating a disincentive for understating the
number of workers on the original application, it is not reasonable to
charge a fee for other amendments, including minor technical
amendments.
The parenthetical phrase ``(except joint employer associations)''
was clarified in the Final Rule by replacing it with ``(except joint
employer associations, which shall not be assessed a fee in addition to
the fees assessed to the members of the association).''
In keeping with the retention of the current fee structure, no fee
for amendments is included in the final regulation.
Section 655.110--Validity and Scope of Temporary Labor Certifications
Several minor, non-substantive changes were made to the language of
this provision for purposes of clarity and to conform to other
provisions of the Final Rule. All substantive changes to the text of
this provision are addressed below.
(a) Scope of Validity--Associations--Sec. 655.110(c)
The Department made no changes in the proposed regulation regarding
certifications provided to associations acting as joint employers. A
farmworker/community advocacy organization suggested that the
Department should include language currently in the H-2A Program
Handbook limiting such applications (and certifications) to those
involving ``virtually identical job opportunities.'' The Department
declines to adopt this suggestion. The governing statute expressly
provides at Sec. 218(d)(1) of the INA for the filing of H-2A
applications by associations of agricultural producers, but does not
provide a ``virtually identical'' limitation. Individual employers are
permitted under the current regulations to offer job opportunities with
a variety of non-identical job duties, and the Department has seen no
evidence that this has adversely affected U.S. workers.
Section 655.104(b) of the Final Rule limits the job qualifications
that employers may impose to those that are normal and accepted
qualifications required by non H-2A employers in the same or comparable
occupations and crops. Where a combination of job duties or job
opportunities serves as a de facto job qualification because the listed
duties and opportunities require skills or experience that agricultural
workers do not typically possess, the Department reserves the right
under Sec. 655.104(b) to treat the listed job duties or job
opportunities as job qualifications, and to apply the ``normal'' and
``accepted'' standard that is set forth in the statute and
recapitulated in the regulations. The Department believes that this
framework is most consistent with the statute and will adequately
protect U.S. workers from adverse effects.
(b) Redetermination of Need--Section 655.110(e)
The proposed regulations omitted the provision in current
regulations allowing employers to request an expedited
``redetermination of need'' if a labor certification is denied, or a
partial certification is granted, because U.S. workers are available
and, subsequent to the denial or partial certification, the U.S.
workers identified as available are no longer available. The Department
received several comments objecting to the deletion of this provision
and requesting its inclusion in
[[Page 77182]]
the final regulations. Two commenters pointed out the requirement in
Section 218(e) of the INA mandating a new determination within 72 hours
in cases of unavailability. A trade association also mentioned that
Congress was sufficiently concerned about the failure of domestic
workers to report that it included a heavy obligation on the Department
to re-establish need. Others commented that the need for a
redetermination procedure is even greater since the pre-filing
recruitment efforts will put job commitments farther in advance of the
dates of need and thereby increase the likelihood of U.S. workers not
reporting. A trade association provided data from a farmer to
illustrate the need for a process for redetermination and also
described a procedure they would like implemented wherein U.S. workers
referred by the SWA would be asked to sign a form indicating their
intention to return for work on the date of need and to work for the
duration of the contract. The goal of this process would be to not have
the number of jobs certified be reduced by the total number of
referrals but rather by the number of workers who signed the form.
In response to the comments, the Department has included a new
section, Sec. 655.110(e), addressing the procedures for requesting a
redetermination of need. The Department appreciates the suggestion for
an additional requirement for U.S. workers to sign a form stating they
will report to work but has determined such a requirement does not
appear likely to alleviate the problem of ``no-shows'' among the U.S.
worker population the employers seek to address. The Department,
therefore, did not add the requirement.
A trade association also posed a question about handling a
situation where the employer obtains sufficient commitments from
qualified U.S. workers for the job opportunity during the pre-filing
recruitment and is precluded from filing an application but
subsequently learns that some of these workers will not honor their
commitments. Since no application was filed, technically, the employer
in this situation would not be able to request a redetermination. The
association claimed the Congress clearly did not intend to leave
employers without an adequate workforce and stated it is incumbent upon
the Department to accommodate employers who are in this situation.
While the Department agrees it is unlikely Congress intended that
employers should be left without an adequate workforce, the Department
cannot add a provision to allow an employer who does not submit an
application due to the availability of able, willing and qualified U.S.
workers sufficient to meet their needs, but who subsequently discovers
that not all the workers will be able to honor their commitments, to
request an expedited redetermination. The Department lacks such
authority under the INA; Section 218(e)(2) of the INA only authorizes
the Secretary to make such expedited determinations for a certification
that was denied in whole or in part because of the availability of
qualified workers. However, The Department will permit an employer to
file an application requesting that zero job opportunities be certified
for H-2A employment because the employer has been able to recruit a
sufficient number of U.S. workers. Such applications must comply with
other requirements for H-2A applications to be considered complete and
must be supported by a recruitment report, in which case the
application will be denied. Such a denial will provide no immediate
benefit to the employer, but the employer will thereafter be permitted
under the statute and regulations to request an emergency
reconsideration of the denial should the U.S. workers fail to show up
or later abscond, leaving the employer with a rejuvenated need for H-2A
workers. Language to this effect has been added to Sec. 655.107(a) of
the Final Rule.
Section 655.111--Required Departure
The Department included language in the NPRM explaining the
relationship between the labor certification's validity period and the
foreign worker's period of stay in the U.S. and informing employers of
their obligation to notify H-2A workers who begin employment with them
of the worker's responsibility to register their departure if and when
required by the DHS. A trade association questioned the inclusion of
this section in the Department's regulations. This association
commented that it has no bearing on either the issue of the
availability of U.S. workers, or whether the employment of aliens will
adversely affect U.S. workers, the two issues which are within the
statutory purview of the Department. A professional association
commented that the Department's language in the proposed Sec. 655.111
did not allow for transit time for workers after the expiration of the
labor certification and was, therefore, in conflict with the USCIS
requirements which provide a specified period of time after expiration
of the labor certification before departure from the country is
required.
The Department believes the provision is useful, as it strikes at
the heart of the relationship between the Department's findings and the
entry of workers to fulfill the terms of the labor certification. This
provision does not usurp any role held under the statute by another
agency; it merely emphasizes for the employer its obligation to notify
workers to return home at the end of their authorized period of stay.
Moreover, the Department does have an interest in ensuring that H-2A
workers return to their home country at the end of their authorized
work period, as they would otherwise become undocumented workers inside
the United States. As described in the discussion of Sec. 655.108,
undocumented workers compete with U.S. workers for agricultural job
openings without any of the protections associated with the H-2A
program applying, and thus are likely to have an adverse effect on the
wages and working conditions of U.S. workers.
The Department does agree, however, with the comment regarding the
lack of clarity in the language used in the proposed rule. The
Department notes that DHS provisions (in current regulations) require
the worker be given a period of 10 days of valid status beyond the
validity period of the labor certification in which to depart, and has
extended that time to 30 days in their recent companion H-2A
rulemaking. We have revised the regulation to acknowledge this period
granted by DHS, to provide greater certainty for both employer and
worker.
Section 655.112--Audits and Referrals
In the NPRM, the Department proposed the initiation of post-
certification audits of applications to ensure quality control, to
review compliance, and to identify abusers of the program, among other
goals. The Department received several comments on these audit
provisions.
One commenter felt that there was no policy or legal rationale
given by the Department for this new system that includes audits. The
Department believes that a sufficient policy rationale for the
necessity of audits was provided in the NPRM. Reviewing the
documentation attached to and supporting the attestations made by an
employer in the context of an H-2A application is an essential element
of the shift of the program to an attestation-based certification
system. The Department, to protect the basic integrity of the process
of H-2A certifications, must ensure the applications are filed in
accordance with the basic obligations of the
[[Page 77183]]
program. The Department has the authority to enforce program
responsibilities with respect to those who seek its benefits, and in
particular with respect to those who receive them. The audit provides
reassurance to the employer, the Department, and the affected employees
that all program obligations are understood and followed.
Another commenter stated that 30 days to respond to the audit
request was not enough time during growing season. The Department does
not believe that audit requests will be so burdensome that they cannot
be complied with relatively quickly as long as the employer has
retained the required documentation contemporaneously with performing
the required actions, such as keeping the tear sheet of the
advertising, and retaining the final recruitment report. To partially
address this commenter's concern, however, language has been added to
the Final Rule specifying that employers will be provided at least 14
days to comply with an audit request.
A SWA suggested that every application be audited and some SWAs
suggested they should participate in audits, and should be provided
funds to do so. The Department declines to delegate the audit function
to the SWAs. Audits will be conducted by the Department based on the
presence or absence of certain criteria, as well as on a random basis
to ensure program integrity. Moreover, dispersing audit activity among
SWAs, would be at odds with the re-engineering of the H-2A process.
SWAs will no longer possess the underlying documentation necessary to
adequately evaluate the audit factors that will be built into the new
program.
One commenter stated that ``non-program'' participants should not
be included in the audit process. The Department believes participation
by others in the audit process would be disruptive to program
operations and therefore declines to add such a provision in the Final
Rule.
A farm worker advocacy organization expressed the belief that the
proposed increase in audits and penalties would not adequately address
concerns related to worker protections and remarked the penalties would
come too late in the process to benefit U.S. workers searching for
work.
The Department believes, on the contrary, that the audit process
will address concerns about worker protections. The Department will
audit applications based on selected criteria as well as on a random
basis. Worker protections are at the root of the H-2A program and will
provide many of the criteria for audits. In addition, WHD's
investigative authority is an additional and comprehensive tool to
address these concerns and benefit U.S. workers. U.S. workers,
additionally, have at their disposal a complaint system (found in the
Job Service Complaint system regulations at 20 CFR 658 et seq.) to
address complaints arising from agricultural job orders, such as an
improper failure to accept a referral. The use of all such tools will
help to ensure employer compliance with the requirements of the
program.
Another commenter stated that the penalties enumerated will do
little to deter abuses and that the Department should consider the
complementary tool of civil money penalties for lesser violations found
in the audit process. The Department cannot assess civil monetary
penalties without statutory authority to do so.
One commenter stated that the enumerated penalties are so severe
that farmers could go out of business and that employers should
therefore be informed, in detail and in advance, about the methods,
criteria and scope on which these audits and potential sanctions will
be based. In addition to the explanation of the audit procedures and
sanctions already provided in the Rule, the Department will develop
materials for employers to assist them in understanding the various
aspects of the program, including audits. However, the Department
cannot reveal its audit criteria, which must be kept confidential to
ensure program integrity.
One commenter suggested that the Department conduct pre-audit
inspections of applications and issue a notice of violations so that
there is an opportunity to correct mistakes without penalty. The
Department will be reviewing applications prior to certification (and
thus prior to any potential audit) as part of the approval process, and
intends to issue Notices of Deficiency when such correctable
deficiencies are found. We cannot, however, complete full audits in the
15 day statutory window the Department is afforded to review and
certify applications.
Many commenters expressed skepticism about enforcement, saying the
Department's prior enforcement in the H-2A arena has not been as
vigorous as they would like. One commenter also doubted the ability of
adjudicators to discover fraud and did not believe that sufficient
resources existed to accomplish this function.
This Rule introduces new enforcement measures, such as
certification revocation, and new grounds for the Department to impose
sanctions to more effectively address violations of the terms and
conditions of the labor certification. Accordingly, the Department will
have greater flexibility than under the current regulation to initiate
and impose sanctions. Additionally, the Department has assigned
dedicated resources for these enforcement and compliance activities.
Several commenters opined that the rule will not prevent
international recruitment system abuses. The Department has little
control over international recruitment system abuses unless U.S.
employers or their agents are involved. The new rule allows the
Department to sanction the U.S. parties involved in abuses.
One commenter believed that the Department should create a new
division within ETA to conduct audits and report to the Secretary on
the efficacy of the H-2A program. A new division is unnecessary as the
audits will be undertaken in connection with OFLC program operations
and, as noted above, the Department has assigned additional resources
to perform the audit function.
A farm bureau offered a rewrite of Sec. 655.112, believing that
audits should only be conducted on the recruitment portion of the
application and employers should be told specifically what criteria
could lead to an audit. We thank the commenter for its detailed
analysis of the audit requirements, but we do not agree with its
premise that audits should be limited to the recruitment portion of the
application. The Department has been consistent in its refusal to
disclose its audit criteria in its foreign labor programs; it cannot
disclose these without risking the very integrity of the programs. The
Final Rule delineates more clearly which documents employers are
required to retain during the document retention period, and any of
these documents may be requested during an audit.
Other changes to the language of this provision are minor and non-
substantive, and were made for purposes of clarity, to insert cross-
references, or to conform to changes made elsewhere in the Final Rule.
For example, the reference to auditing of denied applications has been
deleted to reflect the decision not to require employers whose
applications are denied to retain records, explained in the discussion
of Sec. 655.102(c). Similarly, the statement that an employer's
obligation to comply with the Department's audit process includes
``providing documentation within the specified time period'' has been
deleted as superfluous, as the consequences of
[[Page 77184]]
an employer's failure to comply with the audit process are now more
explicitly addressed in Sec. Sec. 655.117 and 655.118.
Section 655.113-H-2A Applications Involving Fraud or Willful
Misrepresentation
The NPRM proposed a new Sec. 655.113, creating a process whereby a
finding of fraud or willful misrepresentation would result in
termination of processing of current applications.
One commenter expressed concern that proposed Sec. 655.113 did not
go far enough to give the CO explicit authority to deny an application
because of suspected fraud or factual inaccuracy. The commenter
suggested that the regulation should set forth a process that allows
SWAs, workers, and others to send in information and allow the CO to
consider such documentation. The same commenter feared that without a
definition of ``possible fraud or willful misrepresentation'' that the
Department will only use a criminal standard of guilt and thereby allow
many employers who engage in lesser fraud to go unsanctioned. The
Department agrees and will define such terms and evidence to be used in
policy guidance rather than in the rule itself. The Department declines
to permit COs to deny applications based solely on suspicion of
wrongdoing. Such an undefined standard fails to put program users on
notice of what is expected of them. The CO must articulate the specific
criteria the applicant failed to meet and which resulted in the
application being denied, as explained in Sec. 655.109(e).
Another commenter believed that it is unfair to put the full burden
on the employer for employing undocumented workers if the employer has
limited capacity to verify the legality of the worker documents and
whether or not they are fraudulent.
The rule is not meant to and will not punish the employer for
complying with the requirements in the I-9 form to verify employment
eligibility. There is nothing in the Department's regulation that would
impose liability on an employer for unknowingly accepting fraudulent
documents that appear authentic.
The Department has added language to this provision in the Final
Rule clarifying that ``[i]f a certification has been granted, a finding
under [Sec. 655.113(b)] will be cause to revoke the certification.''
Paragraph (b) of the NPRM has been deleted in the Final Rule as
unnecessary and redundant.
Section 655.114--Setting Meal Charges; Petition for Higher Meal Charges
In the NPRM, the Department outlined the procedures for employers
to petition to charge more than the established amount for meals and
for appealing the denial of such a petition. In the Final Rule, the
Department has revised the section to more clearly address both the
establishment of the annual allowable meal charge amount and the
procedures for petitioning for a higher amount. One commenter noted
that the allowable amount published in the NPRM was out-of-date. This
commenter is correct and the Department has updated the amount in the
Final Rule. Another commenter requested that the Department define
``representative pay period'' as used in Sec. 655.114(b). The
Department believes that no further definition is necessary since the
term ``representative'' is commonly defined to mean ``typical.'' In
addition, the header for this section has been changed to indicate both
topics that are discussed.
In addition, this section has been revised for clarity in the Final
Rule. The language about petitions for higher meal charges has been
removed from the first sentence of paragraph (a). All material about
petition for higher meal charges is found in paragraph (b). The
effective date provision concerning granted petitions for higher meal
charges has been separated out and provided its own paragraph in order
to enable employers to more easily understand when the higher meal
charge applies. The material on the procedures for appealing denied
petitions has been moved from proposed paragraph (a) to a new paragraph
(c). A new sentence has also been added to the end of paragraph (a)
reminding employers that all deductions for meal charges under this
provision must comply with the FLSA's recordkeeping requirements, which
will become relevant if the deductions bring the employee's hourly
wages below the federal minimum wage.
Section 655.115--Administrative Review and De Novo Hearing Before an
Administrative Law Judge
The NPRM contained a provision setting out the procedure by which
an employer could request a review on the record of a certification
denial, including a de novo hearing. The Department received several
comments on this section.
One commenter requested that copies of certified case files should
be delivered to the employer within two business days. This would
require the additional expense for overnight courier service, and the
Department declines to adopt such a requirement. The Department also
notes that an employer would be expected to already possess copies of
all of the relevant documents relating to his application.
The same commenter suggested that the rule be amended to include
explicit language that hearings for debarments are available and
specify the procedures for them, and state that all relevant documents
and other evidentiary material, including exculpatory evidence, must be
provided to the employer. The Department has adopted the suggestions of
the commenter but has done so outside of Sec. 655.115. Given the
severity of debarment and revocation, the short timeframes set forth in
Sec. 655.115 are neither necessary nor appropriate for these types of
determinations. Accordingly, the Department has addressed the
administrative appeals procedures for debarment and revocation in Sec.
655.118 and Sec. 655.117, respectively. Under the Final Rule,
debarment decisions are stayed pending the outcome of any requested
administrative hearing and subsequent appeals.
Another commenter suggested that workers and their representatives
should be allowed to intervene in administrative review proceedings.
The Department does not agree that determinations on labor
certification applications should be turned into multiparty adversary
proceedings, which would likely become unwieldy and time-consuming.
Workers and their representatives may file complaints as appropriate in
accordance with other provisions in the Final Rule.
One commenter suggested the rule should also specify that the
removal of the requirement to answer the notice of complaint in the de
novo hearing does not preclude the ALJ from requiring an answer or its
equivalent as a matter of discretion or from limiting the
discoverability of information. The same commenter believed the rule
should specify that the Department bears the burden of proof in the
proceedings, because otherwise the employer would effectively be
presumed guilty and required to prove its innocence.
The Department does not believe there is any reason to add
additional language to the rule, which already states that 29 CFR part
18 governs the rules of procedure. Specifically, 29 CFR 18.1(b) and
18.5(e) cover the ALJ's discretion to request an answer or require
discovery. The burden of proof is governed by common law principles in
which the moving party has the burden of proof. In this case, the
burden
[[Page 77185]]
would be on the applicant to provide a complete application in the
first instance, and if it is found to be incomplete by the Department's
Certifying Officer, then it is the appellant/applicant's burden to
prove that it submitted the requisite information. The burden does not
shift to the government because it is not the government that is
requesting a benefit.
To ensure an expeditious review process, the Final Rule provides
that ALJs conducting de novo hearings must schedule such hearings
within 5 calendar days, rather than 5 business days, at the employer's
request. It further clarifies that new evidence may be introduced at
such hearings. Employers will not be prejudiced by this provision,
since the expedited scheduling is to be performed only at the appealing
employer's request. The Final Rule further provides that ALJs must
render decisions within 10 calendar days after a de novo hearing.
Section 655.116--Job Service Complaint System; Enforcement of Work
Contracts
The NPRM contained the provision in the current regulations
regarding complaints filed through the Job Service Complaint system.
Several commenters suggested that site visits be implemented, employer
and worker interviews be added, a 24/7 anonymous call-in number be
created, and mediation offices (called ``work visa representational
offices'' by the commenter) be created where contract disputes can be
discussed between the employer and laborer. The Department declines to
create such additional measures as a complaint system already exists in
the Job Service complaint system found in 20 CFR Part 658, subpart E,
and any similar system specific to H-2A agricultural clearance orders
or applications would result in the duplication of effort and be a
waste of already scarce government resources.
Some commenters believe that this rule is still too onerous, and
that the audits and compliance requirements will continue to discourage
farmers from using the program. The program is complex due to statutory
requirements and historical practice. However, the Department has
attempted, in this Final Rule, to simplify the procedures where
appropriate while still ensuring program integrity and worker
protection. The Department believes that this rule is significantly
easier to understand and comply with than its predecessor.
One commenter stated that workers should be punished by being
permanently barred from the program if they move to an unauthorized
employer or overstay their visa. This is not an issue for the
Department, which certifies positions as being available to be filled
by H-2A workers. The Department does not control the work status of H-
2A workers; that is a function performed by DHS.
Another commenter suggested that a mechanism should be created to
pre-certify employers as being in compliance with program requirements
and obligations prior to the issuance of the Labor Certification. This
is something the Department will consider implementing at a future
time, when employers have compiled an established record of compliance
with program requirements.
A commenter suggested that the Department institute procedures for
workers and their advocates to raise grievances or lodge complaints for
Departmental review and expedited resolution. The Department again
notes that the Job Service complaint system referenced in Sec. 655.116
and detailed in 20 CFR part 658, subpart E, which handles complaints
arising from employer actions, and WHD's authority under 29 CFR part
501, whose provisions include the investigation and prosecution of
valid complaints, provide two effective mechanisms for resolving
complaints. The commenter also requested that a graduated system of
fines be created, allowing a ``learning curve'' for agricultural
employers to become more familiar with the H-2A requirements. The Final
Rule at 29 CFR 501.19 provides a number of factors that the WHD takes
into consideration when assessing CMPs, including the type of violation
committed, efforts made in good faith to comply, and the explanation of
the person charged with the violation.
Section 655.117--Revocation of Approved Labor Certifications
Several minor, non-substantive changes were made to the language of
this provision for purposes of clarity and to conform to other
provisions of the Final Rule. All substantive changes made to the text
of this provision are addressed below.
(a) Comments Opposing Revocation Because Other Penalties Sufficient
Several employers and employer associations objected to revocation
of labor certifications on the grounds that other penalties for non-
compliance are sufficient, citing the Department's increase in both the
penalties for non-compliance and the bases upon which non-compliance
can be asserted, along with the new document retention, audit process,
and expanded bases for debarment. Similarly, several commenters cited
the Department's existing ability to provide evidence to the DHS
supporting the revocation of a petition.
We disagree that the existence of these other penalties makes
revocation an unnecessary remedy. The Department's obligation to ensure
program integrity is self-evident. The Department's ability to revoke
an application is essential to maintaining and enhancing program
integrity and a necessary companion to the flexibility of a self-
attestation model. The Department should not have to rely on DHS to
ensure the integrity of its programs.
(b) Revocation Too Severe a Penalty
Several employers and employer associations objected to revocation
of labor certifications because of the negative impact that it would
have on an employer's business. A commenter also stated that revocation
could effectively result in an employer violating state law in Wyoming,
which assertedly prohibits sheepherders from abandoning sheep. Given
that revocation is meant to be a sanction against employers who have
violated the terms and conditions of the certification or for whom the
initial certification is demonstrated to have been unwarranted, it
should be no surprise that the employer may face serious consequences
as a result. It is in the best interest of the Department to ensure
that the integrity of the H-2A labor certification program is upheld.
If the granting of a labor certification was not justified, revocation
of such certification is a reasonable measure for the Department to
take.
(c) Interference With DHS Authority
An association of growers requested that the Department clarify the
legal basis for exercising the enforcement of DHS regulations and the
rationale for doing so, stating that employers should not have to face
two enforcement authorities with different policy objectives enforcing
the same regulations. We agree with the commenter's concern that the
Department should not be enforcing DHS regulations and accordingly have
deleted the reference to 8 CFR 214.2(h)(5) in Sec. 655.117(a)(1).
(d) Grounds for Revocation
(1) Certification Not Justified--Sec. 655.117(a)(1)
A law firm questioned the Department's authority to revoke a labor
certification application under Section 218 of the INA simply because
the Department has decided to revisit the
[[Page 77186]]
merits of the application, stating that the Department would need
authority comparable to that provided in Section 205 of the INA to do
so. Additionally, one law firm interprets Section 218(e) to authorize
the Department to revoke certifications only in the case of fraud or
criminal misconduct. We disagree. Section 218(e) of the INA addresses
the authority to revoke a certification and does not specify any
limitations on the bases for which such authority may be exercised.
Nevertheless, the Department does agree that it should not revisit
the merits of a labor certification determination in the absence of
some form of willful misconduct on the part of the employer. Taking
this concern into account, as well as the seriousness of revocation as
a penalty, the Department has decided to impose a stricter standard on
revocation as a penalty based upon the CO's finding that a
certification was not justified. Given the immediate and devastating
consequences revocation could have on an employer's business, the
Department has determined that revocation based on a finding that the
certification was not justified at the time it was granted is
appropriate only when the employer made a willful misrepresentation on
the labor certification application. In such an instance, the
employer's willful misconduct has presumably contributed to the
Department's initial erroneous determination, making revocation fully
appropriate. Accordingly, we have removed ``based on the criteria set
forth in the INA'' so that Sec. 655.117(a)(1) now reads ``The CO finds
that issuance of the Temporary Agricultural Labor Certification was not
justified due to a willful misrepresentation on the application.''
(2) Violation of Terms and Conditions of Labor Certification--Sec.
655.117(a)(2)
An employer suggested that the employer's violation of the terms
and conditions of the labor certification under Sec. 655.117(a)(2)
should be qualified with ``knowingly and willfully.'' An association of
growers suggested that the revocation could only be exercised when the
employer willfully misrepresents a material fact in the application.
Similarly, an association of growers suggested that the Department
should clarify that technical or good faith violations of the
regulation should not result in an enforcement action. After reviewing
these comments, the Department agrees that the standard set forth in
the NPRM allowing revocation for any violation of an approved temporary
agricultural labor certification was too broad. The Department has
attempted to address the commenters' concerns by setting forth in
greater detail the types of violations warranting revocation. Given the
seriousness of revocation as a penalty, and in response to the
comments, we added in this Final Rule an intent requirement
(``willfully'') with respect to violations of the terms or conditions
of the labor certification, and we also added the condition that the
violation must be of a material term or condition. We have also listed
separately in paragraphs 655.117(a)(2)(ii)--(v) other serious
violations which the Department would have few other available remedies
to enforce and which may not necessarily involve a willful violation of
a material term or condition of the labor certification. These
violations include: The failure to cooperate with a DOL investigation
into the current certification; the failure to comply with one or more
sanctions or remedies imposed by the ESA or one or more decisions or
orders of the Secretary or a court order secured by the Secretary
resulting from Department-initiated legal action (not private suits)
regarding the current certification; and the failure to cure, after
notification, a substantial violation of the applicable housing
standards regarding the current certification.
A group of farmworker advocacy organizations suggested that the
regulations should clarify that a revocation may occur where the
employer does not offer the job terms required in the regulations or
does not comply with the job terms required in the regulations.
Assuming that the employer's actions were willful, we believe that this
basis for revocation is already covered by Sec. 655.117(a)(2), since
the terms and conditions of the labor certification incorporate the
employer attestations set forth in the regulations under Sec. 655.105.
A group of farmworker advocacy organizations suggested that
revocation should be utilized when an employer has an active
certification and intends to bring additional workers but is unwilling
or unable to provide the terms and conditions of the work promised. We
believe that the grounds that the commenter cited for revocation are
incorporated in Sec. 655.117(a)(2), assuming that the employer's
unwillingness or inability to provide the terms and conditions of the
work promised manifests itself in the willful violation of a material
term or condition of the labor certification.
A group of farmworker advocacy organizations suggested that
revocation should be used if a timely audit discovers that U.S. workers
had been discouraged or denied employment. Again, we interpret Sec.
655.117(a)(2) to cover such a violation, if willful, since an employer
must attest on its labor certification application that any U.S.
workers who applied for the job were rejected only for lawful, job-
related reasons.
A group of farm worker advocacy organizations suggested that
revocation of a current job order should be allowed based on violations
of prior job orders. Substantial violations of prior job orders are
covered in the debarment section at Sec. 655.118. We believe that
debarment is the more appropriate remedy for substantial violations of
prior job orders since a revocation is meant to address problems with
the existing labor certification.
(3) Referrals From WHD--Sec. 655.117(a)(3)
A private citizen objected to the inclusion of a recommendation by
WHD as a ground for revocation. The Department believes that WHD plays
a critical role in upholding the integrity of the labor certification
process by enforcing an employer's obligation to provide the wages,
benefits, and working conditions required under the terms and
conditions of a labor certification. Accordingly, their input in the
revocation process would help to protect workers from additional
violations or abuse by unscrupulous employers. However, we have
clarified that the CO must actually find a violation of sufficient
gravity that leads to the recommendation of revocation by WHD and that
29 CFR 501.20 sets forth the grounds under which WHD may recommend
revocation, which are nearly identical to ETA's grounds for revocation
provided under Sec. 655.117(a)(2). Any WHD recommendation for
revocation must be based on violations of the certification in effect
at the time of the recommended revocation.
(4) Fraud or Willful Misrepresentation--Sec. 655.117(a)(4)
The Department has included an additional provision which sets
forth the Department's authority to revoke a labor certification based
on a finding of fraud or willful misrepresentation in that
certification, as provided in Sec. Sec. 655.112 and 655.113. Section
655.117(a)(4) provides that the Department may revoke a certification
if a court or the DHS, or, as a result of an audit, the CO, determines
that there was fraud or willful misrepresentation involving the
application.
[[Page 77187]]
(e) Procedure--Sec. 655.117(b) and Hearing--Sec. 655.117(c)
An association of growers suggested that the Notice of Intent to
Revoke should include the statement of factual grounds for the alleged
basis for revocation. The regulation already provides that the Notice
of Intent to Revoke is to contain a detailed statement of the grounds
for the proposed revocation and thereby would include the factual
grounds for the proposed revocation. Accordingly, we do not believe
that it is necessary to change the proposed language of the provision.
One commenter suggested that employers should be able to request a
hearing with respect to the Notice of Intent to Revoke. The Department
does not believe that a hearing is strictly necessary in all cases, but
has added language to Sec. 655.117(a) of the Final Rule specifying
that a revocation may only be made ``after notice and opportunity for a
hearing (or rebuttal).'' The regulations also allow an employer to file
an administrative appeal of a revocation and provides for notice of the
opportunity to appeal in the CO's final decision.
While a group of farm worker advocacy organizations expressed
concern that a final determination should not be required to revoke a
labor certification, the Department received a number of comments from
a large number of employers and employer associations objecting to
revocation taking effect immediately at the end of the 14-day window
for the employer to submit rebuttal evidence, if the employer fails to
do so. The commenters cited due process concerns and the devastating
and irreversible impact that revocation would have on farms while the
matter was being adjudicated. The Department does not agree that
allowing the CO's decision to become final if the employer fails to
submit rebuttal evidence within 14 days constitutes a violation of due
process; an employer should reasonably be able to compile a response to
the CO's notice within 14 days.
To address legitimate due process concerns, however, the Department
has changed the language in Sec. 655.117(b)(3) to provide that the
filing of an administrative appeal stays revocation. Accordingly, an
association of growers' suggestion that the effective date of
revocation should be one day after the appeal period expires so that
the employer would not be required to cease employing the worker while
it decides whether to appeal is no longer relevant.
Two commenters expressed concern about the Department's ability to
revoke a labor certification on a very broad range of criteria and
suggested that the Department provide a standard for the Department's
decision to revoke when the employer submits rebuttal evidence. We
understand the commenters' concern and have articulated the standard
for which the Department may revoke an application when the employer
submits rebuttal evidence. Specifically, the regulations have now been
revised to provide that the CO must determine that the employer more
likely than not meets one or more of the bases for revocation under
655.117(a) in order to revoke the application.
An association of growers suggested extending the employer's
rebuttal period from 14 days to 30 days with extensions granted by the
CO on a reasonable basis, and if such a request is denied
unjustifiably, the denial may be a basis of, or an additional reason
for, reversal by the Department. Similarly, an association of growers
suggested that employers should be given 14 instead of 10 days to file
an administrative appeal. We disagree with the proposal to extend the
time period for rebuttal with indefinite extensions by the CO, and
particularly the suggestion that the denial of such a request for an
extension should be a basis for reversal of the revocation, all of
which would unnecessarily delay the revocation process. We also
disagree with the proposal to extend the time period for an
administrative appeal. We carefully considered what time period would
be appropriate for employers to rebut the notice of intent to revoke
and to file an administrative appeal. We would not be issuing a notice
of intent to revoke if the reason for doing so did not seriously
jeopardize the integrity of the H-2A labor certification process.
Accordingly, it is imperative for the Department to be able to act
quickly, especially if the livelihood of the workers and an employer's
ability to plan for its labor needs are at stake. The addition of at
least a minimum of 20 days to the process would not only impede the
efficiency of the labor certification system but also prolong the
period of time for which employers would be subject to uncertainty
regarding their labor needs, a concern that was as raised by a
commenter. As a result, we are maintaining the proposed rule's 14-day
period for rebuttal and 10-day period for filing an administrative
appeal.
An association of growers also suggested that the CO should have
more than 14 days to reach a final decision--that the CO should in fact
have all the time that he or she believes is necessary to reach the
best possible decision on the record as it is presented. While we
appreciate an association of growers' concern that the Department have
a sufficient amount of time to render its decision, 14 days is an
adequate amount of time for the Department to consider all the facts at
hand to make a decision and to ensure that the revocation proceedings
move along in an expeditious manner for the reasons stated in the
previous paragraph.
The Department takes very seriously the commenters' concerns about
having enough time and opportunity to reach the best decision possible
pertaining to revocation. As a result, as discussed in the preamble to
Sec. 655.115, given the seriousness of the revocation penalty, the
Department is creating a separate appeals process for revocation which
allows for greater time for deliberation at the administrative appeals
level. Instead of applying the administrative appeals process at Sec.
655.115 to revocation, as provided in the NPRM, we have lengthened the
timeframes for hearings, to 15 calendar days after the ALJ's receipt of
the ETA case file, and for decisions, to 20 calendar days after the
hearing. This appeals process provides the right balance between
ensuring that revocation occurs in a timely manner before the
expiration of the labor certification, while also providing a
sufficient amount of time for deliberation.
Two commenters suggested revising the regulation so that an
employer be provided 14 days from the date that it receives the Notice
of Intent to Revoke to provide rebuttal evidence instead of from the
date of the Notice. Given that the Notice will be sent by means
ensuring next day delivery, the employer will essentially have 13 days,
which is a reasonable amount of time to provide rebuttal evidence. In
addition, because the date the employer actually receives the Notice is
virtually impossible to verify, we have decided to retain the date of
the Notice as the starting point for the 14 day rebuttal period.
One commenter suggested phasing-in the Department's compliance and
control measures so that employers have the opportunity to adapt to the
program. We do not believe that it is necessary to phase-in such
measures. Employers have received notice of, and have had an
opportunity to comment on, the measures that the Department has
proposed. Employers certainly have had an opportunity to plan for such
changes, and we do not believe that providing any additional time for
employers to adjust to the new requirements is warranted.
[[Page 77188]]
(f) Worker Protections
A group of farm worker advocacy organizations suggested that ETA
require employers with open job orders to accept the referral of H-2A
workers who are already present in the U.S. and have been affected by
revocation, and that ETA should deny job orders to employers who refuse
such H-2A workers. We understand the serious toll revocation of a labor
certification can take on an employer's workforce--both U.S. and H-2A
workers alike--and agree that certain worker protections should be
triggered in the event of revocation. We do not agree that the SWAs
should be in the business of using taxpayer money to make referrals of
temporary foreign workers to open job opportunities. However, we have
added a new provision at Sec. 655.117(c) setting forth an employer's
obligation to its H-2A workers in the event of revocation. Upon
revocation, if the workers have already departed the place of
recruitment, the employer will be responsible for reimbursing each
worker's inbound transportation and subsistence expenses, outbound
transportation expenses unless the worker accepts other H-2A work in
the U.S., any payments due to the worker under the three-fourths
guarantee, and any other wages, benefits, and working conditions due or
owing the worker under the regulations.
(g) Beyond the Scope of the Regulation
We received several comments that were clearly beyond the scope of
the revocation provision. Among them were several comments regarding
issues that touch upon agencies with responsibility for H-2A issues
that have nothing to do with the labor certification process or the
enforcement of the obligations and assurances made by employers with
respect to H-2A workers.
For example, a group of farmworker advocacy organizations suggested
that the Department should establish an MOU with ICE to alert ICE upon
revocation that an employer's request for workers has been denied and
to heighten inspections of that employer's I-9 forms to ensure that the
employer does not attempt to recruit undocumented workers to fill the
positions originally designated for H-2A workers. While we understand
the concern of the commenter, we do not believe that the regulation is
the appropriate place to address the details of the Department's
coordination and communication with DHS in the event of revocation.
Section 655.118--Debarment
(a) The Department's Debarment Authority
The Department revised Sec. 655.118(a) of the proposed rule to
more closely parallel the language in Section 218 of the INA setting
forth the Department's debarment authority. The Department is also
clarifying that it interprets the requirement that ``the Secretary of
Labor has determined, after notice and opportunity for a hearing, that
the employer during the previous two-year period substantially violated
a material term or condition of the labor certification'' to mean that
the Department must notify the employer of the Department's intent to
debar no later than two years after the occurrence of the violation (or
in the case of a pattern or practice, two years after the occurrence of
the most recent violation). The Department's rationale for this
interpretation is discussed in greater detail in the Debarment
Proceedings (20 CFR 655.118(e)) section of this preamble.
(b) Parties Subject to Debarment--Sec. 655.118(a)
(1) Successors in Interest
One organization objected to the debarment of an employer's
successor in interest, rather than only those entities with a
substantial interest in the employer. This commenter expressed concern
that because debarment can result in the dissolution of the employer's
business, debarring a successor in interest would impede the sale of
assets and business to others who are not complicit in the cause of
debarment. The Department's primary objective in debarring successors
in interest is to prevent persons or firms who were complicit in the
cause of debarment from reconstituting themselves as a new entity to
take over the debarred employer's business. The final regulation
includes a definition of successor in which the culpability of the
successor and its agents for the violations resulting in debarment must
be considered. This definition will avoid harm to successors that were
not culpable in the violations resulting in debarment.
(2) Attorneys and Agents
One commenter suggested that agents of employers should be
debarrable as well as employers, given that the substantial violations
listed in Sec. 655.118(d) could be committed by either the employer or
the employer's agent. Another commenter also expressed concern that
agents could not be sanctioned even though they may commit debarrable
activities. We agree that agents should be included as debarrable
parties if they have committed a substantial violation. To be
consistent with the Department's permanent labor certification program,
we believe that substantial violations should include acts committed by
attorneys of employers and, accordingly, that attorneys of employers be
debarrable parties as well. Additionally, the Department would consider
an attorney or agent who had knowledge of or had reason to know of the
employer's substantial violation to be complicit in the employer's
violation and accordingly, should also be subject to debarment.
The preamble to the NPRM expressed the Department's intention to
include actions by agents and attorneys of employers as debarrable
offenses, and include agents and attorneys as debarrable parties. The
regulatory text, however, did not make this clear. Some commenters
expressed concern that this language would render attorneys and agents
strictly liable for debarrable offenses committed by their employer
clients. That was never the Department's intent. To clarify the
provision, the Department has broken Sec. 655.118(a) of the NPRM into
three paragraphs. New Sec. 655.118(b) specifies that agents and
attorneys may only be debarred if they ``participated in, had knowledge
of, or had reason to know of, the employer's substantial violation.''
New Sec. 655.118(c) establishes the maximum debarment period of three
years, which applies to debarments of employers, attorneys, and agents.
(c) Bases for Debarment--Sec. 655.118(d)
(1) General Opposition
Several commenters objected to the debarment provision on the
grounds that it was too severe a penalty and would discourage
participation in the H-2A program. Additionally, another commenter
expressed concern that overly circumscribed debarment regulations would
continue to impede enforcement by the Department. As discussed in the
preamble to the NPRM, the proposed changes to the debarment provision
responded to the unnecessarily narrow definition of employer actions
warranting debarment in the current regulation, which has hampered
effective enforcement of the H-2A program, and is also an important
part of the program's shift toward an attestation-based application
process. We have carefully considered the comments that we received in
response to the NPRM and believe that the debarment provisions in the
Final Rule
[[Page 77189]]
will uphold the integrity of the H-2A labor certification program
without unfairly punishing employers who utilize the program. We
believe that ETA debarment authority and WHD's authority to recommend
debarment will help to strengthen the Department's efforts to enforce
the program regulations.
The Department has reorganized this provision in the Final Rule in
order to provide additional clarity to program users. In the NPRM, the
bases for debarment were enumerated in Sec. 655.118(b); in the Final
Rule they are enumerated in Sec. 655.118(d). The NPRM listed several
violations in proposed Sec. 655.118(b)(1) that the Department would
consider to be debarrable substantial violations if ``one or more acts
of commission or omission on the part of the employer'' could be shown.
For reasons discussed below, the Final Rule distinguishes between
program violations that do not rise to the level of debarrable
substantial violations unless ``a pattern of practice of acts of
commission on the part of the employer'' can be shown, which are listed
in paragraphs 655.118(d)(1)(i)-(v), and program violations that are
subject to some other standard, which are listed in paragraphs
655.118(d)(2)-(6).
Failure to cooperate with a DOL investigation and failure to comply
with sanctions, remedies, decisions, and orders issued by the
Department were listed as debarrable offenses under Sec. 655.118(b)(1)
of the NPRM. Those provisions have been broken out separately in the
Final Rule as Sec. 655.118(d)(4) and Sec. 655.118(d)(5), emphasizing
that such violations are not subject to Sec. 655.118(d)(1)'s ``pattern
or practice'' standard. For reasons described below, a new Sec.
655.118(d)(6) has been added to the rule allowing the Department to
debar for ``[a] single heinous act showing such flagrant disregard for
the law that future compliance with program requirements cannot
reasonably be expected.''
(2) Standards for Debarrable Offenses--Additional Conditions and
Clarification, Including Pattern and Practice
Several commenters requested greater clarification of what actions
would be subject to debarment and suggested including additional
qualifiers or conditions to the various grounds for debarment. Two
commenters stated that the listed grounds for debarment seem to empower
the Department to debar for actions that merely ``reflect'' unlawful
activity, even though the actions might not actually be unlawful. These
commenters requested additional clarification as to what sort of
activities would result in debarment. We disagree with the commenters'
characterization that the listed grounds for debarment do not require a
finding that the entity to be debarred engaged in unlawful activity.
Mere suspicion of a violation of the law is not sufficient to warrant
debarment. Rather, an actual violation would be necessary, in
accordance with Section 218 of the INA which authorizes debarment when
an employer substantially violates a material term or condition of the
labor certification with respect to the employment of domestic or
nonimmigrant workers. In sum, the use of the term ``reflect'' in the
Final Rule to describe debarrable ``pattern or practice'' violations in
Sec. 655.118(d)(1)(ii)-(v) does not mean that the Department is not
required to prove actual underlying program violations.
Several commenters suggested that the Department should require a
pattern or practice of substantial violations for debarment. Of
particular concern was the prospect of debarment based on the
commission of one violation which they alleged would deter
participation in the program. Additionally, one of these commenters
noted that employers who are less sophisticated in their business
practices should be spared from debarment for innocent oversights or
mistakes. We agree with commenters' concerns and have qualified the
acts set forth under Sec. 655.118(d)(1) with a pattern or practice
requirement. However, the Department does not have any available remedy
other than debarment to penalize and deter certain program violations,
and believes that these violations constitute ``substantial
violations'' warranting debarment even without a pattern or practice.
These acts are set forth separately in paragraphs 655.118(d)(2)-(6).
These include: fraud; the failure to pay the necessary fee in a timely
manner; and the failure to cooperate with a DOL investigation or
interference with a DOL official performing an investigation,
inspection or law enforcement function; the failure to comply with one
or more sanctions or remedies imposed by the ESA, or with one or more
decisions of the Secretary or court (regarding a Department-initiated
lawsuit); and a single heinous act showing such flagrant disregard for
the law that future compliance with program requirements cannot
reasonably be expected.
Several commenters requested that the Department clarify and
distinguish what activity is debarrable from what activity is subject
to other penalties. Many of the activities that would trigger debarment
also trigger other penalties. We do not think that it is necessary to
draw such a distinction. Generally, a non-willful violation will not be
grounds for debarment unless it is part of a pattern or practice.
Debarrable offenses are clearly delineated in Sec. 655.118(d) of the
Final Rule. Program violations that are subject to other penalties are
listed elsewhere in the Final Rule.
(3) ``But Not Limited to''--Proposed Sec. 655.118(b), New Sec.
655.118(d)
Several commenters argued that the language ``but not limited to''
in proposed Sec. 655.118(b)'s list of the available grounds for
debarment was overly broad and raised due process concerns, as there
would not be sufficient notice of what additional actions would be
considered substantial violations. We agree with the commenters'
concerns, and given that various grounds for debarment that are
specified in the Final Rule, we do not believe that the ``but not
limited to'' language is necessary. Accordingly it has been deleted
from the regulatory text.
(4) Significant Injury to Wages, Benefits, and Working Conditions--
Proposed Sec. 655.118(b)(1)(i), New Sec. 655.118(d)(1)(i)
An association of growers suggested that the Department clarify
that the significant injury to wages, benefits, and working conditions
be explicitly linked to the employer's hiring of H-2A workers, which
the association interpreted as Congress's concern in establishing the
labor certification process. Thus, in the opinion of this commenter,
only significant injuries to U.S. workers that would not have occurred
but for the hiring of H-2A workers in the occupation would be
potentially relevant. We do not read Section 218 of the INA so
narrowly. A substantial violation of a material term or condition of
the labor certification with respect to the employment of U.S. or non-
immigrant workers encompasses more than injuries arising directly from
the hiring of H-2A workers. For instance, an employer may engage in a
pattern or practice of intentionally paying its workers at a rate below
the minimum wage. The debarment of the employer for such a flagrant
violation both of the FLSA and the terms and conditions of the labor
certification would be warranted under Section 218 of the INA, despite
the fact the violation was not strictly dependent on the hiring of H-2A
workers.
A group of farm worker advocacy organizations suggested that the
Department should have the discretion to deny a certification to an
employer who has previously engaged in
[[Page 77190]]
violations of employment-related laws, whether or not there has been a
final administrative or judicial finding of such violations and whether
the employer previously employed H-2A workers or sought to do so. The
standard for debarment set forth under Section 218(b)(2)(A) of the INA
provides that ``[t]he 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 non-immigrant workers.'' The commenter's suggestion that the
employer only need to have engaged in a violation of employment-related
laws, regardless of whether there has been a final finding of the
violation or whether the employer previously employed H-2A workers
clearly goes beyond the Department's statutory authority to debar.
Accordingly, the Department declines to debar.
(5) Ten Percent Threshold--Proposed Sec. 655.118(b)(1)(i), New Sec.
655.118(d)(1)(i)
An association of growers expressed concern that under proposed
Sec. 655.118(b)(1)(i), an employer's change in the health or
retirement plans or benefits offered to its employees could rise to the
level of a debarrable violation, even though the employer is in full
compliance with the job order. The Department does not intend to
penalize employers who are in compliance with the job order. Rather,
the Department intends to apply debarment to acts that are
significantly injurious to benefits required to be offered to employees
under the H-2A program, as opposed to all benefits, such as health and
retirement plans, that an employer may offer to its employees.
Accordingly, the Department has added in paragraph (d)(1)(i) of the
Final Rule as a qualifier for ``benefits,'' ``required to be offered
under the H-2A program.''
Several employers objected to the 10 percent threshold required for
a significant injury under proposed Sec. 655.118(b)(1)(i) because it
would disproportionately affect small employers--i.e., an action taken
against one employee might be enough to trigger a substantial violation
against a small employer. A group of farm worker advocacy organizations
objected to the figure because it might allow egregious actions to be
taken against numbers of employees that don't meet the 10 percent
threshold. We recognize the concerns of both the employers and worker
advocates and have eliminated the 10 percent threshold and replaced it
with ``a significant number.'' Thus, small employers would not be
disproportionately affected by this provision. At the same time, the
provision makes it possible for a substantial violation to occur even
if the injury affects less than 10 percent of employees if the number
of affected employees is significant.
(6) Substantial Number of U.S. Workers Similarly Employed--Proposed
Sec. 655.118(b)(1)(i), New Sec. 655.118(d)(1)(i)
Two commenters objected to the language in proposed Sec.
655.118(b)(1)(i) providing for debarment based on actions significantly
injuring the wages, benefits, or working conditions of ``a substantial
number of U.S. workers similarly employed in the area of intended
employment.'' These commenters expressed concern that this language
might be read to extend beyond U.S. workers potentially employable in
H-2A occupations, which are the workers that the statutory ``adverse
effect'' concept is supposed to protect. These commenters believed that
this language might allow an employer who fully complied with all
program requirements to be debarred based on a finding by an economic
expert that the employment of H-2A workers depressed the wages of other
employers' similarly employed workers in the area of intended
employment. Another commenter also expressed concern that it would be
impossible for an employer to know in advance whether its actions would
be significantly injurious to such workers. We recognize these
concerns. The Department's various program requirements of this Final
Rule have been established to protect U.S. workers from adverse
effects, and an employer that has complied with all of these program
requirements should not be held responsible for any arguable adverse
effects that were unforeseen by the Department. The Department has
accordingly deleted the reference to ``a substantial number of U.S.
workers similarly employed in the area of intended employment'' from
Sec. 655.118(d)(1)(i) of the Final Rule.
(7) Significant Failure To Offer Employment to U.S. Workers--Proposed
Sec. 655.118(b)(1)(ii), New Sec. 655.118(d)(1)(ii)
A group of farm worker advocacy organizations expressed concern
that the use of the term ``significant'' under proposed Sec.
655.118(b)(1)(ii) limits the authority of the Administrator/OFLC to
debar an employer who has taken actions injurious to workers or refused
to offer jobs to U.S. workers. We believe that any violation by the
employer no matter how minor or how egregious should be met with the
appropriate penalty. Given the severity of debarment as a penalty for
employers, however, the violations constituting the grounds for
debarment must be significant. Employer sanctions for violations which
do not rise to the level required for debarment are available through
other penalties, including civil money penalties.
(8) Failure To Recruit U.S. Workers--Proposed Sec. 655.118(b)(1)(iii),
New Sec. 655.118(d)(1)(iii)
An association of growers suggested that the Department clarify
that a violation in the form of ``a willful failure to comply with the
employer's obligations to recruit domestic workers'' be subject to the
following qualifications: (1) That there are a significant number of
qualified U.S. workers who, if recruited, would be willing to make
themselves available for work at the time and place needed; and (2)
such failure is material--that if the employer had done what was
required, qualified U.S. workers willing to do the job would have been
found. If an employer complies with the recruitment requirements of the
Final Rule but fails to recruit U.S. workers due to the fact that such
workers are unavailable, that would not violate the regulation. Where,
however, an employer has willfully failed to comply with its
obligations under the Final Rule to recruit U.S. workers, it may be
difficult if not impossible for the Department to prove, after the
fact, that workers would have been available if the proper steps had
been taken. When an employer has purposely defaulted on its
responsibility to recruit U.S. workers, a substantial violation of a
material term of the labor certification exists and the debarment
criteria are met. The Department therefore declines to adopt this
suggested change.
(9) Failure To Comply With the Audit Process--Sec. 655.118(d)(1)(iv)
The Department has explicitly included in Sec. 655.118(d)(1)(iv)
of the Final Rule an additional ground for debarment for a significant
failure to comply with the audit process. This potential ground of
debarment was expressly stated in Sec. 655.112 of the NPRM, but was
inadvertently left out of the debarment provisions.
[[Page 77191]]
(10) Outside Area of Intended Employment--Proposed Sec.
655.118(b)(1)(vi), New Sec. 655.118(d)(1)(v)
A law firm questioned how the employment of an H-2A worker outside
the area of intended employment would support debarment under Section
218(b) of the INA. As discussed earlier, the statute authorizes
debarment when an employer substantially violates a material term or
condition of the labor certification with respect to the employment of
domestic or nonimmigrant workers. Section 655.105(b) requires the
employer to attest that it is offering terms and working conditions
normal to workers similarly employed in the area of intended employment
and which are no less favorable than those offered to the H-2A workers
and are not less than the minimum terms and conditions required under
the regulations. Section 655.105(d) requires the employer to attest
that it will continue to cooperate with the SWA by accepting referrals
of all eligible U.S. workers who apply for the job opportunity until
the end of the recruitment period. Finally, Sec. 655.110(b) limits the
scope of validity of a certification to ``the area of intended
employment.'' The area of intended employment thus plays a key role in
determining the employer's particular obligations with respect to the
terms and working conditions offered. An employer would not be able to
abide by these attestations if it places its workers outside the area
of intended employment and, accordingly, would be committing a
substantial violation of a material term and condition of the labor
certification with respect to the U.S. and H-2A workers alike.
An association of growers suggested that the Department apply a
``common sense'' interpretation of the regulations, particularly with
respect to where a certification describes an area of intended
employment which, for example, is within a 25 mile radius of a
particular city, but the worker ends up working a field for a new
customer that is 27 miles from that city. The Department understands
the commenter's concern and expects the CO to exercise the appropriate
judgment in the face of such circumstances.
(11) Incidental Work--Proposed Sec. 655.118(b)(1)(vi), New Sec.
655.118(d)(1)(v)
A group of farm worker advocacy organizations supported the
inclusion of the employment of H-2A workers in an activity not listed
in the job order as a debarrable offense because it would guard against
employers that ``have shown a total disregard for the very notion of
corresponding employment, and the results are unfair to similarly
employed U.S. workers.'' However, several commenters expressed concern
that employers whose workers would be performing work that is
incidental to the activity listed in the job order could be debarred
under proposed Sec. 655.118(b)(1)(vi) for ``the employment of an H-2A
worker * * * in an activity not listed in the job order.'' ``Other work
typically performed on a farm that is not specifically listed on the
Application for Temporary Employment Certification and is minor (i.e.,
less than 20 percent of the total time worked on the job duties and
activities that are listed on the Application for Temporary Employment
Certification) and incidental to the agricultural labor or services for
which the H-2A worker was sought'' is included in the definition of
agricultural labor and services at Sec. 655.100(d)(1)(vi).
Accordingly, work that is incidental to the particular agricultural
labor or services that are listed in the job order would be considered
to be part of the activity that is listed in the job order. Contrary to
the assertion of some commenters, permitting H-2A workers to engage in
incidental activity places those workers in the same position as
similarly situated U.S. workers who would be expected to perform
incidental agricultural work in addition to any specific tasks for
which they may have been hired. The Final Rule therefore notes that the
employment of H-2A workers in activities ``minor and incidental to the
activity/activities listed in the job order'' does not constitute a
program violation.
One commenter also suggested that the regulations should provide a
means to modify the job description covered by a temporary agricultural
labor certification should a situation arise that requires more than
minor incidental work, such as an act of nature requiring structural
repairs and/or clean-up, or the temporary incapacity of a worker due to
illness or injury who could do other work. The Department agrees with
the commenter's concern and believes the concern is adequately
addressed by the amendment procedures provided at Sec. 655.107(d)(3)
of the Final Rule.
(12) After Expiration of Job Order--Proposed Sec. 655.118(b)(1)(vi),
New Sec. 655.118(d)(1)(v)
Although the Department did not receive any comments relating to
this issue, the Department has replaced ``after the expiration of the
job order and any approved extension'' in Sec. 655.118(d)(1)(v) with
``after the period of employment specified in the job order and any
approved extension'' and revised the corresponding heading for greater
clarity.
(13) Fees--Proposed Sec. 655.118(b)(2), New Sec. 655.118(d)(2)
Several commenters noted the inclusion of acts of commission or
omission that reflect the employer's failure to pay the necessary fee
in a timely manner as being too severe a ground for debarment and
questioned whether the inclusion of these grounds were within the
Department's authority under the INA. The INA authorizes debarment for
a substantial violation of a material term or condition of a labor
condition application with respect to the employment of domestic or
non-immigrant workers. Section 655.109(h) specifically provides that as
a condition of the issuance of the labor certification, the employer
must pay the processing fee in a timely manner, and Sec. 655.105(m)
provides that an employer must attest that all fees associated with
processing the temporary labor certification will be processed in a
timely manner. Additionally, a law firm objected to the inclusion of an
employer's failure to pay the necessary fee in a timely manner because
it does not comport with longstanding practice in other existing
immigration procedures. However, an employer's failure to pay the
necessary fee in a timely manner has been a ground for debarment under
the H-2A regulations since July 1987, and the Department does not
consider the absence of such a practice in other program areas to
constitute a persuasive reason to eliminate it. Accordingly, the
Department's retention of this ground for debarment supports the
Department's longstanding practice and is necessary for the Department
to administer effectively the H-2A labor certification process.
Additionally, a wool growers association was concerned that if the
check arrived one day late, then the employer could be debarred under
proposed Sec. 655.118(b)(2). We do not read the provision to be that
absolute and inflexible. Even though Sec. 655.109(h)(2) provides that
fees received by the CO no more than 30 days after the date the
temporary labor certification is granted will be considered timely, the
language of ``timely manner'' provides the Department with some
discretion so that a check that arrives on the 31st day would not
automatically result in the debarment of the employer. The Department
takes seriously its
[[Page 77192]]
responsibility to administer the H-2A program in a fair and reasonable
manner.
The Department, however, has decided to add the qualifier of
``persistent and prolonged'' for the failure to pay fees in a timely
manner in Sec. 655.118(d)(2) to ensure a farmer cannot have a
certification revoked for a single instance of a failure to timely pay
the fee upon certification. Furthermore, the regulation now provides
for the issuance of a deficiency notice to the applicant, allowing for
a reasonable opportunity to pay its fees before the issuance of the
Notice of Intent to Debar.
(14) Fraud and Material Misrepresentation--Proposed Sec.
655.118(b)(3), New Sec. 655.118(d)(3)
Although no comments were received with respect to this provision,
we have simplified the language to eliminate redundant references to
fraud and included fraud involving the Application for Temporary
Employment Certification as a ground for debarment in accordance with
Sec. 655.112(d).
(15) Significant Failure To Cooperate With Investigations--Proposed
Sec. 655.118(b)(1)(v), New Sec. 655.118(d)(4)
Several commenters objected to the inclusion of acts of commission
or omission that reflect action impeding an investigation. Full
cooperation with investigations to determine compliance with the terms
of the labor certification application and the regulations is essential
to the viability of the H-2A program. Accordingly, the labor
certification application provides that the employer will cooperate
fully with any investigation undertaken pursuant to statute or
regulation. Impeding an investigation would therefore qualify as a
substantial violation of a material term of the labor certification
application.
The Department has revised the language in this provision to
clarify that not only impeding an investigation but also a significant
failure to cooperate with a DOL investigation would constitute a
substantial violation. Accordingly, the Department has replaced
``actions impeding an investigation of an employer'' with ``[a]
significant failure to cooperate with a DOL investigation or with a DOL
official performing an investigation, inspection, or law enforcement
function'' and revised the heading accordingly.
(16) Civil Judgment/Court Orders--Proposed, Sec. 655.118(b)(1)(iv),
New Sec. 655.118(d)(5)
A group of farm worker advocacy organizations suggested that an
employer's failure to pay or comply with the terms of a civil judgment
or court order in favor of any migrant or seasonal agricultural workers
or H-2A workers should be an additional ground for debarment and that
such debarment should remain indefinitely until an employer has paid
all wages due and owing former workers. A group of farm worker advocacy
organizations also suggested that at a minimum, the regulations should
specify that an employer who has not paid assessed back wages or civil
money penalties or complied with an injunction sought by the Department
or paid a judgment for employment-related claims should not be
permitted to receive a certification.
Several of the grounds for debarment suggested by these commenters
reflecting substantial violations are already encompassed by these
regulations. The three year time limit on debarment is specified in
Section 218(b) of the INA; indefinite debarment is not permitted.
Otherwise, the Department declines to interject any claim or remedy
sought or any judgment awarded in private litigation into the labor
certification process. To assure employers that the heavy sanction of
debarment will not be imposed for trivial instances of non-compliance,
the Department has clarified in the Final Rule that debarment is
applicable only where an employer's non-compliance is ``significant.''
The Department has clarified that the failure ``to comply with one
or more decisions or orders of * * * a court'' means that the order
must be secured by the Secretary under Section 218 of the INA.
Accordingly, the Department has replaced the reference to ``a court''
with ``a court order secured by the Secretary'' in Sec. 655.118(d)(5).
(17) A Single Heinous Act--Sec. 655.118(d)(6)
As discussed earlier, a group of farm worker advocacy organizations
objected to the 10 percent threshold in proposed Sec. 655.118(b)(1)(i)
because such a figure might allow egregious actions to be taken against
a number of employees that don't meet the 10 percent threshold. The
Department agreed and eliminated the 10 percent threshold and replaced
it with ``a significant number'' under Sec. 655.118(d)(1)(i). However,
in further considering the commenter's concern, the Department decided
that it was also necessary to address situations where a single
egregious action would constitute a debarrable offense, yet, given the
seriousness of debarment as a penalty, ensure that only the most
serious violators would be subject to debarment. Accordingly, the
Department has included as an additional ground for debarment a single
heinous act showing such flagrant disregard for the law that future
compliance with program requirements cannot reasonably be expected.
(d) Debarment Proceedings--Proposed Sec. 655.118(c), New Sec.
655.118(e)
(1) Statutory Authority--Requirement for Notice and Hearing
Some commenters expressed concern that the regulations exceeded the
statutory grant of authority for debarment provided to the Department
under the INA. These commenters questioned whether the regulations were
consistent with the statutory requirement that a determination of a
violation can only be made after notice and an opportunity for hearing.
We believe that the regulations as proposed were consistent with the
statutory requirement for notice and an opportunity for a hearing.
However, the Department has now included a Notice of Intent to Debar in
the procedure to provide an additional opportunity for notice and
rebuttal, which is consistent with the procedure under the Department's
revocation provision at Sec. 655.117. If the employer fails to rebut
the allegations provided in the Notice of Intent to Debar, the
Department will issue a Notice of Debarment. The employer may then
request a hearing through the administrative appeals process.
Accordingly, the regulation's debarment procedures are consistent with
the statutory requirement that a determination of a violation be made
after notice and an opportunity for hearing. These additional
procedures provide even greater due process protections to employers
facing debarment.
Additionally, several commenters questioned whether the Department
was exceeding its statutory authority under the INA, given that a final
determination of the violation would likely not occur until more than
two years have passed since the violation. The INA provides that ``(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 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
subpart (A) for more than three years for any violation described in
such subparagraph.'' 8 U.S.C. 1188(b)(2).
[[Page 77193]]
The statute presents three requirements for denial of a
certification. First, the employer must have employed H-2A workers
within ``the previous two-year period;'' second, the Secretary must
determine, after notice and hearing, that a substantial violation
occurred during that two-year period; and third, denial of
certification based on a finding of violations may not extend for more
than three years. However, the statute does not place a time limit on
when the Secretary's must issue a final determination that a
substantial violation occurred. While a substantial violation must have
occurred within the two-year period, so long as a determination is
ultimately made that a violation occurred, a certification may be
denied based on that violation. The most reasonable reading of the
debarment provision, giving effect to all its language, is that
Congress intended the Secretary to initiate an investigation leading to
debarment within two years of the alleged violation and, by referring
in Section 218(b)(2)(B) of the INA to a maximum three-year period, to
permit any eventual debarment action to be for up to three years. The
Department's interpretation of this provision was codified in the prior
regulations at 20 CFR 655.110(a) and upheld in Matter of Global
Horizons Manpower, Inc. and Mordechai Orian, ALJ No. 2005-TAE-00001
(June 16, 2006).
Several farm bureaus and growers' associations suggested that
employers be provided with an opportunity to be heard before the
issuance of a Notice of Debarment due to the concern that parties
opposed to the H-2A program would initiate investigations that are not
aimed at improving working conditions but rather seek to end an
employer's ability to hire H-2A workers when qualified workers are
unavailable. As discussed above, the Department already provides
employers with an opportunity to be heard through the rebuttal process
and with an opportunity for a hearing through the appeals process, and
debarment is stayed upon the administrative appeal by an employer.
Having an additional level of hearings would be overly cumbersome and
impede the Department's administration of the H-2A program. Based on
our experience with the permanent labor certification program, after
which the H-2A program's debarment provision was modeled, we have
concluded that the procedures set forth in the Final Rule, which
provide the employer an opportunity to present rebuttal evidence before
a Notice of Debarment is issued and an opportunity to appeal a
debarment decision, provide employers sufficient protection against
meritless claims.
The Department has also made several minor, non-substantive
modifications to the text of this provision in the Final Rule for
purposes of clarity.
(2) Timing
Commenters expressed conflicting concerns over the amount of time
debarment procedures would entail. Two employer associations expressed
concern that because of the length of the process, an employer could
face uncertainty as to its debarment status and that the employer's
ability to plan for its labor needs would be adversely affected. An
association of growers proposed a much more drawn-out procedure
starting with a detailed notice of an intent to debar from the
Department, a disclosure of the full evidentiary record by the
Department, a pre-notice hearing with a minimum of 30 days (with
extensions), issuance of a formal notice of debarment by the Department
which should include the factual and legal grounds for the intended
action, prescribe an effective date that is after the time period for
filing a timely appeal, provide at least 14 days to appeal, and
administrative appeal by the employer, with the proceedings to be
governed by 29 CFR part 18. We have already discussed the reasons we
have not included a pre-notice hearing. The Final Rule already requires
a Notice of Intent to Debar and a Notice of Debarment, both of which
are required to state the reason for the debarment finding, including a
detailed explanation of the grounds for the debarment. We believe that
the commenters raised a valid point about prescribing an effective date
that is after the time period for filing a timely appeal, and we have
added to the regulation the requirement that the Notice of Debarment
specify that the employer have 30 days from the date the notice is
issued to file an administrative appeal before debarment becomes
effective. Additionally, as we discussed in the preamble to Sec.
655.115, the Department is creating a separate appeals process for
debarment which allows for greater time for deliberation at the
administrative appeals level, given the seriousness of debarment as a
penalty. Accordingly, we have deleted the reference to Sec. 655.115 as
governing administrative appeal rights. Under the Final Rule, a
debarred party may request a hearing which would be governed by the
procedures set forth at 29 CFR part 18, and administrative law judge
decisions are no longer required to be issued within a set period of
time. We believe that the procedures set forth in these regulations
provide a middle ground between these two sets of concerns by providing
a period of time that is both sufficient for thorough consideration of
the grounds for debarment and expedient enough so as to allow the
Department to debar bad actors before they can cause any additional
harm while also minimizing the period of uncertainty for employers in
the case of a successful appeal.
(3) Review by the Administrative Review Board
Concerns by the commenters about the seriousness of debarment as a
penalty has prompted the Department to include an additional level of
Departmental review for debarment decisions. Accordingly, we are
providing a debarred party with an opportunity to request a review of
the decision of the administrative law judge with the Administrative
Review Board (ARB). The procedures for ARB review are nearly identical
to those provided at 29 CFR 501.42 through 501.45 for WHD. However, one
major difference is that if the ARB fails to issue a final decision
within 90 days from the notice granting the petition, the decision of
the administrative law judge will be the final decision of the
Secretary.
(4) Phasing In/Grace Period
Two commenters suggested phasing in the Department's compliance and
control measures so that employers have the opportunity to adapt to the
program. We have addressed this comment in the preamble discussion of
Sec. 655.117, which governs revocation of labor certifications.
(e) Debarment Involving Members of Associations--Proposed Sec.
655.118(d), (e), and (f), New Sec. 655.118(f), (g), and (h)
A group of farm worker advocacy organizations suggested that
debarment should also apply to an association and its members'
successors in interest so that associations and their principals will
not be able to re-constitute themselves and continue business as usual.
Because associations and/or their members operate as employers under
the various scenarios addressed by the regulations in Sec. 655.118(f),
(g), and (h), the successor in interest language for employers in Sec.
655.118(a) would also apply to associations and their members as well.
Accordingly, we do not believe that it is necessary to change the
language in Sec. 655.118(f), (g), or (h).
Although the Department did not receive any other comments relating
to these provisions, the Department has
[[Page 77194]]
decided that when a members of an associations or an association acting
as a joint employer is disbarred, other members of the association who
``had knowledge of'' or ``had reason to know of'' the violation shall
not be subject to debarment unless they participated in the violation.
Because Section 218 of the INA requires that the employer substantially
violate a material term or condition of the labor certification, an
employer that merely had knowledge of, but did not actually participate
in, the violation could not be debarred. The Department has never
established program obligations requiring members of associations to
report violations of other members or of associations that they have
``knowledge of,'' and mere knowledge of another entity's violation does
not constitute a debarrable offense. Accordingly, the Department is
removing the references to ``had knowledge of'' and ``had reason to
know of'' from Sec. 655.118(f) and (g). Where a member of an
association both had knowledge of a violation and directly benefitted
from that violation, however, the member will be considered to be
complicit in the violation.
(f) Protections to Workers of Debarred Employers
A legal services provider suggested that the Department establish a
system allowing H-2A workers from a debarred or decertified employer to
be transferred to the next available H-2A employer in the state or
region to protect these workers from becoming jobless due to
enforcement actions against their employer. Because debarment applies
only to an employer's ability to obtain future labor certifications, we
believe that it is neither necessary nor useful to set up such a
system, as a debarred employer would not have any H-2A workers.
(m) Beyond the Scope of the Regulation
Two grower associations suggested that the Department provide
technical assistance to employers on complying with the H-2A program
through training and a 1-800 hotline on selecting agents. The
Department will provide guidance materials and training to the public
to help explain how the H-2A program works. The Department does not
intend at this time to establish a 1-800 phone number or referral
system for selecting agents.
Timeline for Anticipated Training and Education Outreach Initiatives
Commenters suggested that the Department include a timeline for
training and education outreach initiatives in the Final Rule and
indicate who would be responsible for such training and outreach--the
Department or the SWAs. The commenters also provided specific ideas for
training and educational materials, including training on how to
respond to the threat of litigation; how to respond to audits; how to
comply with all program functions; the application process, and how to
avoid violations and penalties. There were also requests for training
in both English and Spanish.
The Department appreciates the input from commenters and the Office
of Foreign Labor Certification will prepare and provide training based
on these comments although at this time cannot describe the precise
content and timing of such training.
B. Revisions to 29 CFR Part 501
Comments received that discussed whether the commenter was
generally in favor of or generally opposed the proposed regulations
typically did not differentiate between the proposed changes to 20 CFR
part 655, Subpart B and 29 CFR part 501. Comments received on proposed
changes in 29 CFR part 501 typically commented on a specific change
proposed in this part. These are addressed below.
Section 218(g)(2) of the INA authorizes the Secretary of Labor to
take such actions, including imposing appropriate penalties, seeking
appropriate injunctive relief, and requiring specific performance of
contractual obligations, as may be necessary to ensure employer-
compliance with the terms and conditions of employment under this
section of the statute. The Secretary has determined that the
enforcement of the contractual obligations of employers under the H-2A
Program is the responsibility of the Wage and Hour Division (WHD).
Regulations at 29 CFR part 501 were issued to implement the WHD's
responsibilities under the H-2A Program and the amendment of these
regulations is part of this proposed rulemaking.
Concurrent with the Department's finalization of the 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 is finalizing the proposed amendments to its
regulations at 29 CFR part 501 regarding enforcement under the H-2A
Program.
The changes 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, are incorporated into this Final Rule. Given the number of
changes proposed for 29 CFR part 501 and the number of sections
affected by the proposed changes, we have included the entire text of
the regulation and not just the sections changed. We note that a number
of comments suggested changes but that the existing text of the
regulation, which was to remain unchanged, already addressed such
issues in the manner raised in the comments. We will discuss comments
received and any changes to the regulatory text in the NPRM in response
to comments.
Based on comments received and our recognition of the need for
clarification, we made changes to the following sections of the
proposed rule: Sections 501.0, 501.1, 501.3 through 501.6, 501.8,
501.10, 501.15, 501.16, 501.19 through 501.22, 501.30 through 501.32,
501.41, and 501.42.
The following sections have not been changed from the notice of
proposed rulemaking (other than inserting non-substantive references to
the Administrative Review Board): Sections 501.2, 501.33, and 501.43
through 501.45.
The following sections were not included in the proposed rule and
have not been amended (other than inserting non-substantive references
to the Administrative Review Board) since publication in 52 FR 20527,
June 1, 1987: Sections 501.7, 501.17, 501.18, 501.34 through 501.40,
501.46, and 501.47.
Nomenclature Changes
The proposed rule made 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 section 216 are now codified in Section 218 of the INA; changing
references from the State Employment Service offices to the SWA;
reflecting that appeals from administrative law judge decisions are
made to the Department's Administrative Review Board; and replacing in
some sections references to the Secretary with references to the
Administrative Review Board.
Section 501.0 Introduction
Language was added to the proposed introduction Sec. 501.0 to
update the reference to Section 218 of the Immigration and Nationality
Act (INA) and provide that corresponding employment only includes U.S.
workers who are newly hired by employers
[[Page 77195]]
participating in the H-2A Program. Two commenters disagreed with this
change. One found the Department's argument for removing U.S. farm
workers who are not newly hired from the protection of the H-2A
provisions unpersuasive. The other noted that, while the Department
justifies these changes by noting situations where H-2A workers are
paid more than similarly employed U.S. workers will arise very rarely,
if ever, in practice, the fact that an irrational result arises only
rarely does not serve as a justification for ever allowing it to occur
and requested the Department to withdraw this proposed change. As we
stated in the preamble to the proposed rule, the INA only requires that
the employment of the alien in such labor or services not adversely
affect the wages and working conditions of workers in the United States
similarly employed. Where an employee has agreed to work at a certain
wage, and begins to receive that wage prior to the time an employer has
hired an H-2A worker, the subsequent hiring and payment of the H-2A
worker at a rate that is higher than the wage received by the U.S.
worker will not adversely affect the wages and working conditions of
the U.S. worker--rather, the U.S. worker will be paid precisely what he
or she would have had the H-2A worker not been hired at all. As such,
the Department lacks the authority to require that H-2A employers pay
existing workers the rates paid to subsequently hired H-2A workers. The
Department has clarified in the Final Rule that the phrase ``in the
occupations'' in proposed Sec. 501.0 means ``workers in the same
occupations as the H-workers.''
One commenter proposed that the definition of ``corresponding
employment'' be clarified to exclude those persons who may be willing
to work limited hours or fewer days than those for which full-time
workers are sought under an H-2A job order. These regulations are
applicable to the employment of U.S. workers newly hired by employers
of H-2A workers in the same occupations during the period of time set
forth in the labor certification approved by ETA. These workers are
engaged in corresponding employment. Any U.S. worker who is hired in
corresponding employment must receive the benefits and protections
outlined in the H-2A job order, the work contract, and the applicable
regulations. Consequently, an employee who is hired to perform any work
covered by the job order during the contract period is entitled to all
the material terms and conditions of the job order or work contract for
the corresponding employment, but not for any time spent in work not
covered by the job order or work contract. If part-time workers are
engaged in corresponding employment, they are entitled to the same
rights as the H-2A workers, including payment of the AEWR (or highest
applicable H-2A-required rate). The H-2A record keeping requirements
mandate the recording of all hours offered. Hours offered but not
worked by a part-time employee would count towards the employer's
three-fourths guarantee obligation. Some minor, non-substantive changes
were made to the language of this provision for purposes of clarity.
Section 501.1 Purpose and Scope
One commenter suggested that the Wage and Hour Division does not
need to be an enforcement authority in connection with the H-2A
Program. As discussed above, the Secretary determined that the
enforcement of the contractual obligations of employers under the H-2A
Program is the responsibility of the WHD and there is no clear
rationale for discontinuing WHD's responsibilities.
This section in the regulations previously listed as an ETA
responsibility determining whether employment had been offered to U.S.
workers for up to 50 percent of the contract period. The proposed rule
requested comments on this requirement and proposed eliminating the 50
percent rule and replacing it with expanded, up-front recruitment
requirements. In the final rule in 20 CFR part 655, Subpart B, the
requirement will now be whether employment has been offered to U.S.
workers until the end of the recruitment period specified in Sec.
655.102(f)(3), a change that is more fully discussed in the preamble to
the final rule for 20 CFR part 655, Subpart B. The language regarding
this requirement in the Final Rule has been modified accordingly.
Language in this section also clarifies the WHD's role when U.S.
workers are laid off or displaced, in light of Sec. 501.19(e)
discussing WHD's authority to assess civil money penalties for
violations of these requirements. Also, a commenter noted that the
statutory language indicated that the Secretary was authorized to take
action as described in Sec. 501.1(c) and the language has been changed
to reflect the statute.
One commenter suggested that the proposed language for Sec.
501.1(c)(2) could be interpreted as disjunctive. The comment contends
that clarifying language would deter violations by preventing employers
from shifting liability to other entities and ensure workers' access to
a meaningful recovery from either a FLC (see Sec. 501.10 definitions
for H-2A Labor Contractor (H-2ALC) definition) or its bond insurer.
Accordingly, Sec. 501.1(c)(2) includes the term ``and/or'' to
demonstrate the liability of H-2ALCs as well as their surety for
violations of the H-2A rules and regulations. This change is intended
to clarify the surety's and the H-2ALC's liability and to provide an
additional means of wage recovery.
The language of this provision has also been modified to conform to
changes that have been made in Sec. 501.20 of the Final Rule to WHD's
debarment authority. The Final Rule provides that WHD may ``recommend *
* * debarment from future certifications,'' as WHD will not have
authority under the Final Rule to itself debar from certifications.
Section 501.2 Coordination of Intake Between DOL Agencies
The proposed rule clarified the procedure for addressing
contractual H-2A labor complaints filed with either the ETA or any
State Workforce Agency (SWA). Such complaints will be forwarded to the
WHD office of the Department and will be administratively addressed as
provided in these regulations. No changes have been made to Sec. 501.2
in the Final Rule.
Section 501.3 Discrimination
Proposed Sec. 501.3(b) added two provisions to the existing
regulation prohibiting discrimination against persons exercising rights
under the H-2A statute. The section modified the debarment remedy to
conform to proposed Sec. 501.20, which provided the WHD with authority
to debar violators under certain conditions. The section also added
language codifying the existing procedure for forwarding complaints
based on citizenship or immigration status to the Department of
Justice, Civil Rights Division, Office of Special Counsel for
Immigration-Related Unfair Employment Practices. Under this procedure,
complaints based on citizenship or immigration status are forwarded to
the Department of Justice, while aspects of the complaints which allege
a violation of this section, or any other portion of the H-2A statute
or regulations, are investigated by the WHD.
The Department received four comments on Sec. 501.3. One private
citizen stated that guest workers should be protected from
discrimination on the same terms as U.S. workers. One non-profit legal
aid firm stated that H-2A
[[Page 77196]]
employers have a reputation for mistreating U.S. farm workers and urged
the Department to closely monitor hiring and employment practices and
severely penalize employers who discriminate against U.S. workers.
One agricultural organization stated that the Department has not
explained the legal basis for this authority or the proposed new
procedures for handling discrimination claims. The agricultural
organization also stated that Congressional intent is contrary to the
Department's assertion of broad authority over undefined forms of
discrimination with an uncapped make whole remedy.
The final regulation does not contain new procedures for the
investigation of discrimination complaints. As part of the Application
for Temporary Employment Certification, an employer attests that it
will not discriminate against persons who exercise their rights under
the H-2A statute and regulations. Authority for the current regulation
is found in Section 218(g)(2) of the INA which 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.
The agricultural organization further stated that employment
discrimination claims should be handled by the Equal Employment
Opportunity Commission (EEOC). On the other hand, one farm worker
advocacy organization argued that the Office of Special Counsel (OSC)
has no statutory authority to enforce the rights of long-term, lawful
permanent residents. This commenter proposed that Sec. 501.3 should be
modified to empower the WHD to investigate and prosecute complaints of
discrimination on all unlawful grounds, including citizenship or
immigrant status.
The Department has clarified the final regulation to make clear
that the WHD will continue to investigate all alleged violations of the
H-2A statute and regulations, and forward complaints of citizenship and
immigration status, which it lacks authority to enforce, to the
Department of Justice. Similarly, discrimination claims subject to EEOC
jurisdiction will be forwarded to that agency. As noted above, where
the same operative facts that support an allegation of citizenship
discrimination or any other type of discrimination also support a claim
of discrimination under the H-2A statute and regulations, which
generally relate to retaliation for exercising rights under the
program, the WHD will investigate the claim of discrimination under the
H-2A statute and regulations and refer the claim of citizenship or
other discrimination to the Department of Justice or to any other
appropriate agency.
The language of this provision has been modified to conform to the
changes made in Sec. 501.20 of the Final Rule to WHD's debarment
authority. The Final Rule provides that WHD ``may recommend to ETA
debarment of any such violator from future labor certification,''
rather than stating that WHD ``may initiate action to debar any such
violator from future labor certification.''
Section 501.3(a)(5) of the Final Rule provides, consistent with the
proposed rule, that an employer may not retaliate or discriminate
against an employee who has consulted with an attorney or an employee
of a legal assistance program. This provision does not, however,
provide employees license to aid or abet trespassing on an employer's
property, including by persons offering advocacy or legal assistance.
No matter how laudable the intent of those offering advocacy or legal
services, an employee does not have the legal right to grant others
access to the private property of an employer. A farm owner is entitled
to discipline employees who actively aid and abet those who engage in
illegal activity such as trespassing. Absent any evidence of a workers'
actively aiding or abetting such activity, however, an employer's
adverse action against an employee in response to that employee meeting
with a representative of an advocacy or legal services organization,
particularly on the worker's own time and not on the employer's
property, would be viewed as retaliation.
Section 501.4 Waiver of Rights Prohibited
Proposed Sec. 501.4 proposed a change to the existing regulation
to conform to the modified definition of corresponding employment in
Sec. 501.0 and to remove language that was not necessary to the
meaning or interpretation of the regulation. No other change was
intended. The final regulation adds language that was included in the
prior regulation to make clear that the prohibition on the waiver of
rights does not prevent agreements to settle private litigation.
An agricultural organization expressed concern that this provision
prohibits anyone from seeking a waiver of rights and recommended that
the Department clarify that this does not preclude offering a
settlement, proposing a waiver or general release, or informally
resolving disputes in the workplace. As noted above, the Department has
included language from the current regulation stating that agreements
to settle private litigation are not prohibited. In other contexts
employees may not waive statutory or regulatory rights.
Section 501.5 Investigation Authority of Secretary
This section reflects a change from the proposed rule to reflect
that WHD will recommend debarment to ETA. See 29 CFR 501.20. In
addition, the proposed rule provided that sanctions may be imposed on
any employer that does not cooperate with an H-2A investigation. One
commenter stated that the proposed rule changed the broader term person
to employer and recommended the use of the prior language. The term
employer is used to conform to the statutory language. To be consistent
with language used elsewhere in the part and in 20 CFR 655 Subpart B,
this section now includes the employer's attorney or agent.
Section 501.6 Cooperation With DOL Officials
The proposed changes to Sec. 501.6 were intended to ensure that
DOL officials receive cooperation from employers participating in the
H-2A Program in conducting audits, investigations, and other
enforcement procedures intended to ensure the efficiency and
effectiveness of the Program and included language specifically
addressing WHD's authority to debar under the H-2A Program. The
regulation was changed to reflect the fact that WHD will make debarment
recommendations to ETA and has been clarified to require all persons to
cooperate with investigations so that a failure to cooperate, which
encompasses interference with an investigation, would warrant
appropriate action by WHD.
Section 501.8 Surety Bond
In order to assure compliance with the H-2A labor provisions and to
ensure the safety and security of workers under the H-2A Program,
proposed Sec. 501.8 requires all H-2ALCs seeking H-2A labor
certification to obtain a surety bond for $10,000, where the H-2ALC
employs fewer than 50 employees, or for $20,000, where the H-2ALC's
employees number 50 or more. The purpose of Sec. 501.8 is to ensure
that workers employed under the H-2A Program receive all wages and
benefits owed to them by an H-2ALC who is found to have violated the
provisions of the H-2A Program during the period for which it was
certified. Rather than requiring H-2ALC applicants to remit
[[Page 77197]]
the bonds directly to the Department, however, proposed Sec. 501.8
requires that the H-2ALC attest to having obtained the required bond
and to provide the specific bond and bonding company information in
conjunction with the H-2A certification application.
The proposed requirement for a surety bond from H-2ALCs was met
with approval from two commenters. A worker advocacy organization
suggested that the Department consider other associated worker costs in
addition to the number of employees to compute the amount of the bond
that the H-2ALC would have to obtain.
Other commenters disagreed with the surety bond requirement. An
agricultural organization that disagreed with Sec. 501.8, as it was
proposed, argued that the surety bonds will not be financially feasible
for any but the largest H-2A contractors. It contends that such bonds
are not only financially constrictive but are also difficult to obtain
in the bond underwriting market. The Department notes, however, that
several states, including California, Illinois, Oregon, and Idaho, have
adopted similar state regulations requiring comparable surety bond
amounts from employers and labor contractors without causing any
significant impediments to employers and agricultural labor
contractors. The Final Rule has been modified in response to these
comments, however, to create a smaller bonding requirement of $5,000
for small H-2ALCs with fewer than 25 employees.
Several commenters argued that the Department's ability to increase
the bond amounts based only on its discretion is unreasonable and is
outside the scope of the Department's authority. Instead, they suggest
that the regulation provide more objective criteria for setting the
bond levels instead of relying solely on the discretion of the
Secretary of Labor.
The Department has determined that it has the authority, where
warranted by the circumstances and supported by objective criteria, to
require that an H-2ALC obtain an increase in a bond amount if it is
deemed necessary to effectuate the purposes of ensuring that the H-2ALC
comply with the requirements and obligations of the H-2A Program. A
clarification that objective criteria are required to support an
increase in the bond amount has been added to the Final Rule. The due
process rights of H-2ALCs are further preserved through the H-2ALC's
right to request a hearing pursuant to Sec. 501.33 regarding the
Department's determination that the amount of a bond is to be increased
in order to be allowed to participate in the H-2A Program. By reviewing
the historic bonding requirements in conjunction with worker claims,
the Department preserves the discretionary authority needed to ensure
that the obligations owed by the H-2ALCs to workers employed under the
H-2A program are fulfilled, including wages paid, and to ensure that
the protections offered to those workers by the H-2A Program are
maintained.
Section 501.10 Definitions
Section 501.10 incorporates the definitions listed in 20 CFR part
655, Subpart B that pertain to 29 CFR part 501. The discussion of
definitions that are common to both 20 CFR 655.100 and 29 CFR 501.10
can be found in the preamble for 20 CFR 655, Subpart B above. Several
changes were made to the definitions in Sec. 501.10 to conform to
changes to the definitions in 20 CFR 655, Subpart B.
As noted in two comments, the definition of employ in proposed 29
CFR 501.10 was defined as to suffer or permit to work, whereas the
terms employer and employee were defined in terms of the common law
test. Since the two concepts are different and the use of suffer or
permit to work is precluded by the Supreme Court opinion in Nationwide
Mutual Ins. v. Darden, 503 U.S. 318, 322-323 (1992), the reference to
suffer or permit to work has been removed.
The definition of work contract has been updated to reflect
language used in the proposed changes to 20 CFR part 655, Subpart B.
The proposal, like the Final Rule, utilized the term successor in
interest in Sec. 501.20. A definition of the term has therefore been
added to the Final Rule.
Section 501.15 Enforcement
This section updated references to Section 218 of the INA and
changed language addressing corresponding employment. Minor, non-
substantive changes have been made to the language of the provision in
the Final Rule for purposes of clarity and to update cross-references.
Section 501.16 Sanctions and Remedies
The proposed rule modified the current language to conform to the
proposed regulation at Sec. 501.20, which provided authority to the
WHD to debar violators under certain circumstances and to conform to
the bonding requirements in 20 CFR part 655, Subpart B.
A farm worker advocacy organization comments that the proposed rule
can be read to restrict payment of back wages to fixed-site employers
in the event that a joint employment relationship exists between a
fixed-site employer and an H-2ALC. Since it is the Department's intent
to hold both employers in a joint employment relationship liable for
back wages, the regulation has been clarified to make that point plain.
The farm worker advocacy organization also commented that the
distinction between the WHD's jurisdiction to debar and the ETA's
jurisdiction to debar is unclear, and expressed concern that some
violations that may merit debarment would not be acted upon. The
commenter suggested that debarment authority be concurrent to assure
that all appropriate allegations would be addressed. After careful
consideration of this alternative, the Department has determined that
WHD will make debarment recommendations to ETA. See preamble to Sec.
501.20. The Final Rule has been modified accordingly. Because debarment
is addressed explicitly in Sec. 655.118, and because recommendations
of debarment are addressed explicitly in Sec. 501.20, the language
from Sec. 501.16 of the NPRM has been deleted to avoid potential
confusion.
The rule has also been clarified to make explicit that back wages
may be assessed in the event a U.S. worker is adversely affected by a
layoff or displacement. This clarification conforms the regulation to
the provisions of the proposed civil money penalty and debarment
regulations which provide for penalties in the event a U.S. worker is
adversely affected by a layoff or displacement. Assessment of back
wages in the event of a layoff or displacement that is prohibited by
these regulations will help to ensure that the employment of the alien
in such labor or services will not adversely affect the wages and
working conditions of U.S. workers similarly employed. While the
authority to assess back wages is already provided in the proposed
regulation, the clarification is useful in light of the explicit
penalty provisions in Sec. Sec. 501.19 and 501.20.
Finally, the final rule modifies Sec. 501.16 to make clear that
injunctions may be sought to reinstate U.S. workers who are laid off or
displaced in violation of the attestation provision found at Sec.
655.105(j), where the Administrator/WHD has found a violation and the
employer has refused reinstatement.
Section 501.19 Civil Money Penalty Assessment
Section 218(g)(2) of the INA authorizes the Secretary to set
[[Page 77198]]
appropriate penalties to assure compliance with the terms and
conditions of employment under the H-2A statute. Proposed Sec. 501.19
increased the maximum civil money penalties from the current maximum of
$1,000 per violation. Section 501.19(c)(1) proposed an increase to a
maximum penalty to $5,000 per worker for a willful failure to meet a
condition of the work contract or for discrimination against a U.S. or
H-2A worker who filed a complaint, has testified or is about to
testify, or has exercised or asserted a protected right. Section
501.19(d) proposed a change to the maximum penalty for interference
with a WHD investigation to $5,000 per investigation. Section 501.19(e)
proposed an increase to $15,000 for the maximum penalty 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. Section 501.19(c)(2) proposed
a new penalty of up to $50,000 per worker for a violation of an
applicable housing or transportation safety and health provision of the
work contract that causes the death or serious injury of any worker.
The section also proposed 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.
Three worker advocacy organizations and a U.S. Senator supported
the Department's proposal to increase the amount of fines and penalties
for noncompliance with H-2A rules. One commenter stated that enhanced
enforcement activities are key to an effective attestation-based
application program and encouraged the Department to utilize all fines
levied for noncompliance to further enhance enforcement measures.
Similarly, one worker advocacy organization stated that the increased
money penalties are welcomed and may have some tangible deterrent
effect; however, it did not think they were adequate to achieve
meaningful assurance of employer compliance.
Fourteen commenters opposed the proposed increases in penalties and
fines, arguing that the increases are excessive. Six commenters argued
that the excessive increases in fines and penalties would discourage
employers, especially new employers, from using the H-2A Program. Some
agricultural organizations raised concerns that the increased penalties
would deter employers from participating in the program out of fear
that excessive penalties could end a business. Similarly, some
agricultural organizations argued that the increased penalties are
excessive given the complicated nature of the program and the
likelihood of an inadvertent mistake on the part of the employer that
could prove to be financially disastrous. One farm labor contractor
argued that the fines are unnecessary since employers strive to treat
all workers fairly and attempt to follow the rules.
Some commenters suggested that the Department not assess a $5,000
civil money penalty against employers new to the H-2A Program and the
certification requirements. While one commenter endorsed and encouraged
the Department's ability to utilize all fines and penalties for
noncompliance with the H-2A rules, he raised some concern that the
proposal does not provide any leeway to new users of the program. The
commenter recommended a graduated system of fines to allow for a
learning curve for new users. Similarly, one agricultural organization
suggested that the civil money penalties be graduated for the first,
second, and third offenses to allow for a learning curve due to the
complexity of the program.
Initially, it should be noted that the current regulation at 29 CFR
501.19(c) provides penalties in the maximum amount of $1,000 for each
act of discrimination or interference. While the Final Rule will result
in increased penalties in some cases, it will also limit penalties for
discrimination to $5,000 per worker and penalties for failure to
cooperate to $5,000 per investigation, creating new caps for these
penalties. The Department has revised 29 CFR 501.19(d) to cover a
``failure to cooperate with an investigation'' so that the language of
the violation is consistent with Sec. Sec. 501.6, 501.20, and 501.21.
The Department does not believe that higher penalties, where
applicable, will prevent employers from participating in the H-2A
Program. Rather, the Department agrees with this commenter that
enhanced enforcement activities are key to an effective attestation-
based application program and will assist the Department in enforcing
worker protections. The higher penalties are an important and effective
deterrent against violators who disregard their obligations under the
attestation program and/or who discriminate against workers.
It is worth noting that some commenters believe that the penalties
are excessive, while others claim they are inadequate. The Department
believes that the general penalties of no more than $1,000 for each
violation, and $5,000 for each willful failure to meet a covered
condition of the work contract or for willful discrimination, are fully
appropriate, and those penalties have been left unchanged in the Final
Rule. To clear up ambiguities in the proposed rule, however, the
Department has inserted clarifying language specifying how it is that
the existence of separate violations subject to those penalties will be
determined.
While the new sections increase the amount of the penalties that
the Department may seek for some violations, they do not modify or
change in any way the relevant factors that the Administrator/WHD will
use in determining the amount of the penalty as listed in the prior
rule. The Administrator/WHD will not seek the maximum amount for every
violation. Rather, the Administrator/WHD will continue to evaluate the
relevant factors listed in Sec. 501.19(b), and the totality of the
circumstances, when determining the amount of the penalty. The factors
that will be considered include, but are not limited to, the previous
history of violation(s) of the H-2A provisions of the Act and the
regulations; the number of H-2A employees, corresponding U.S. employees
or those U.S. workers individually rejected for employment affected by
the violation(s); the gravity of the violation(s); efforts made in good
faith to comply with the H-2A provisions of the Act and these
regulations; explanation of the person charged with the violation(s);
commitment to future compliance, taking into account the public health,
interest or safety, and whether the person has previously violated the
H-2A provisions of the Act; and the extent to which the violator
achieved a financial gain due to the violation, or the potential
financial loss or potential injury to the worker. The phrase ``H-2A
employees, corresponding U.S. employees or those U.S. workers
individually rejected for employment'' has been substituted for the
phrase ``workers'' in Sec. 501.19(b)(2) of the current regulation to
clarify the scope of potentially impacted workers that the Department
will examine in determining an appropriate penalty, and to make clear
that workers will not be considered unless they were sufficiently
proximate to the violation in question that the Department can fairly
consider the workers to have suffered a direct adverse effect. These
criteria assure that excessive penalties will not be assessed and that
penalties will be appropriately tailored when minor or inadvertent
violations are committed.
[[Page 77199]]
As previously noted, the Department's proposal also allows the
Administrator/WHD to seek higher civil money penalties for a violation
of an applicable housing or transportation safety and health provision
of the work contract that causes death or serious injury of any worker.
The Department has corrected a typographical error in Sec.
501.19(c)(3), which inadvertently stated that ``[f]or purposes of
paragraph (c)(3) of this section, the term serious injury means.'' The
proposed section should have referenced paragraph (c)(2).
One agricultural organization supported increased prosecution of
repeat or flagrant violators of the H-2A Program instead of
implementing excessive fines for inadvertent violations. Some
commenters disagreed with the $50,000 penalty per worker for these
violations, and one agricultural organization opposed additional
penalties of $50,000, and $100,000 for violations that result in injury
and death. These commenters expressed concerns that in some
circumstances an employer could have no reasonable means of knowing
about housing or transportation defects or an employee's misbehavior or
carelessness that could lead to serious injury or death. One
agricultural organization argued that these penalty increases would not
reduce accidents but would rather deter employers from participating in
the H-2A Program.
The Department is sensitive to the fact that the proposed penalties
represent increases of up to 100 times the current maximum penalty
amount. Nevertheless, the Department believes that the current
penalties are grossly inadequate to address serious program violations
that kill or seriously injure workers. In light of the concerns
expressed, however, and to better tailor the proposed very substantial
penalties to the employer's actual level of culpability, the Department
has modified the penalties in the Final Rule. The Final Rule provides
that ``[f]or a violation of a housing or transportation safety and
health provision of the work contract that proximately causes the death
or serious injury of any worker, the civil money penalty shall not
exceed $25,000 per worker, unless the violation is a repeat or willful
violation, in which case the penalty shall not exceed $50,000 per
worker, or unless the employer failed, after notification, to cure the
specific violation, in which case the penalty shall not exceed $100,000
per worker.''
The Department also notes in response to these commenters that the
Administrator/WHD will not seek the full amount in every circumstance.
The Department will continue to evaluate the relevant factors listed in
Sec. 501.19(b), and the totality of the circumstances, to determine
the civil money penalty assessment for these violations. For instance,
the gravity of the violation(s); efforts made in good faith to comply
with the H-2A provisions of the Act and these regulations; explanation
of the person charged with the violation(s); and the extent to which
the violator achieved a financial gain due to the violation, or the
potential financial loss or potential injury to the worker will be
considered by the Department in determining the civil money penalty
assessment against an employer for a violation of an applicable housing
or transportation safety and health provision of the work contract that
causes death or serious injury of any worker. The Department believes
that evaluating these relevant factors, along with the totality of the
circumstances, should alleviate the commenter's concerns that excessive
penalties will be assessed for inadvertent violations. Furthermore, one
commenter expressed concern that serious injury is not further defined.
It is the Department's view that Sec. 501.19(c)(3), which defines
serious injury as the permanent loss or substantial impairment of the
senses, function of a bodily member, organ, or mental faculty, or the
loss of movement of a body part, is sufficient to put employers on
notice as to the types of injuries that the Department will consider
when assessing a penalty.
One agricultural organization stated that penalties are not the
proper deterrent to stop safety violations because they are imposed
after an accident and recommended greater emphasis on preventing
accidents. Similarly, two agricultural organizations requested a
specified time period for employers to correct violations before
penalties would be assessed. One agricultural organization stated that
employers who make good faith efforts to comply with the revised H-2A
Program should be allowed a 60 day compliance period to correct the
error without the assessment of fines and penalties.
While the Department recognizes the need to prevent accidents
before they happen, the Department believes that the burden to do so
should rest with the employer who has attested that the housing and/or
transportation provided to the workers meets all applicable
requirements. Furthermore, the ability to assess a civil money penalty
where violations have been found will serve as an important incentive
for employers to ensure that the housing and transportation that they
provide are safe to the H-2A and U.S. workers and meet all applicable
safety and health requirements. The Department does not believe that a
60 day compliance period after a violation has been discovered would
ensure that employers fulfill their obligations to provide safe housing
and transportation. Rather, the 60 day compliance period would not be
an effective deterrent for employers who might not cure safety
violations until discovered by the Department.
One law firm argued that, to the extent that the Department
contemplates issuing fines for violations of other laws, such as the
Occupational Safety and Health Act or Fair Labor Standards Act, those
fines would be duplicative and not authorized by law. The law firm also
argued that there is no justifiable basis for treating H-2A employers
more harshly than non-H-2A employers for violations of the same
statute, but even if special treatment for violations of other laws by
H-2A employers could be justified, any enhanced enforcement through
heavier penalties or other punitive action for failure to comply fully
with other laws as violations of the H-2A regulations should at least
be deferred for at least 3 years after any new rules are implemented.
The Department does not and will not assess penalties for the same
housing violation under multiple laws at the same time. Where an
employer violates an OSHA Temporary Labor Camp standard, which could
also be a violation of the H-2A housing regulations, a violation will
be charged under only one of those statutes. WHD follows this practice
in enforcing OSHA temporary labor camp standards and MSPA housing
standards that can apply to the same facility. However, an employer has
an obligation to follow all applicable laws and regulations. To the
extent that an employer is covered by the FLSA, the Division may
enforce and seek remedies under both the H-2A program and the FLSA. Of
course, payment of the AWER, or the prevailing hourly wage or piece
rate under the H-2A Program, would also satisfy the obligation to pay
the minimum wage under the FLSA. While all of the facts and
circumstances of a given case will be considered in the assessment of
any penalty, the Department has determined that a blanket 3 year
deferral of penalty assessments is not warranted.
The proposed Sec. 501.19(e) states that the civil money penalty
shall not exceed $15,000 per worker for willful layoff or displacement
of any similarly situated U.S. worker employed in the occupation that
is the subject of the Application for Temporary Employment
Certification in the area of intended employment within
[[Page 77200]]
the period beginning 75 days before the date of need. A civil money
penalty will not be assessed for layoffs where the employer has offered
the opportunity to the laid-off U.S. worker, and the U.S. worker(s)
either refused the job opportunity or was rejected for the job
opportunity for lawful, job-related reasons. The Final Rule has changed
the 75 day period to a period within 60 days of the date of need in
conformity with the change to Sec. 655.100(a)(1)(ii) which modified
the requirement that the employer begin advertising within 75 days of
the date of need to within 60 days of the date of need.
Some commenters argued that $15,000 for displacement of a domestic
worker was excessive and could put a small farm out of business. The
Department is sensitive to the fact that this penalty represents a
fifteen-fold increase in the maximum penalty provided for any offense
under the current regulations. Nevertheless, unlawfully displacing a
domestic worker is a serious offense that has a substantial adverse
effect on the displaced worker, and thus falls within the core of the
Department's enforcement responsibilities. Balancing these competing
concerns, the Department has decided to adopt a $10,000 maximum penalty
for displacement of a U.S. worker in the Final Rule, a tenfold increase
over the current maximum penalty for any violation. This penalty will
provide the Department with an important enforcement tool under this
attestation-based program. The Department believes that a significant
penalty will serve as an important deterrent for employers who might
turn away qualified U.S. workers from an occupation covered by an
Application for Temporary Employment Certification. As discussed above,
the Department will continue to evaluate the relevant factors listed in
Sec. 501.19(b), as well as the totality of the circumstances, to
determine the civil money penalty assessment for these violations.
One commenter argued that the Department was purporting to legalize
the displacement of U.S. farm workers based on nothing more than an
employer's unscrutinized, self-serving statement that U.S. workers did
not want, or were unqualified for, the job. The Department did not
intend this consequence, and on further consideration has determined
that such an expansive safe harbor provision for layoffs is not
necessary. Layoffs that are for lawful, job-related reasons are already
protected under the text of the Final Rule, and the Department does not
believe that it is appropriate to allow an employer to legitimize an
otherwise illegal layoff simply by later offering the laid-off employee
a new position. The Department has therefore limited the application of
the safe harbor provision to situations ``where all H-2A workers were
laid off'' before any U.S. workers were. In such a situation, the
employment of H-2A workers will not have factored into the layoff of
the U.S. workers.
One agricultural organization argued that the safe harbor provision
seems to require an actual offer and would not be satisfied by a good
faith, but unsuccessful, attempt to locate the domestic worker. The
agricultural organization noted that it may be difficult to locate
domestic workers to make the offer and recommended that the attestation
could be satisfied with reasonable, good-faith efforts to contact these
workers through a written communication to the worker's last known
address or any other reasonably specific attempt to make contact. In
light of the modifications to the safe harbor provision, these comments
have been rendered moot.
The agricultural organization also argued that this section should
be revised because the maximum period of admission under the H-2A
Program for one employer is 10 months, making it possible that the
employer could discharge the domestic worker at the end of the
employer's period of need and then begin a new employment period 2
months later. This employer would have discharged the domestic worker
within the displacement provision timeline, notwithstanding the fact
that the employer was in compliance with the H-2A Program. The
agricultural organization argued that this could expose employers to
large fines for no reason other than the timing of the seasons. The
agricultural organization recommended that the section be revised to
reflect the time frames inherent in the H-2A regulations to avoid this
inequitable outcome. As noted above, the time frames have been modified
to prohibit displacement and layoff within 60 days of the date of need.
In any event, in light of the modifications to the safe harbor
provision, these comments have been rendered moot.
One law firm requested that the Department remove what they
considered improper, substantial new penalties against agents and
attorneys of H-2A employers who are found or accused of making material
misrepresentations in the certification application process. The law
firm stated that such disciplinary measures are usually handled through
the state bar association and that imposing substantial penalties,
including debarment merely for accusations of material
misrepresentations, is a violation of due process principles. There is
no explicit reference in this provision to attorneys or agents. As is
discussed at greater length in the preamble to Part 655, the Department
will not hold attorneys and agents strictly liable under the Final Rule
for the misconduct of their clients. Rather, the Department will
require some degree of personal culpability on the part of attorneys
and agents before applying any form of penalty to them.
Some commenters argued that the new regulations failed to provide
an appeals process for violations or fines and requested that
procedures be developed to allow employers to appeal violations and
fines when good faith efforts were taken to comply with the rules. The
Department already provides such a process in Subpart C--Administrative
Proceedings. The current Sec. 501.30 provides the administrative
proceedings that will be applied with respect to a determination to
impose an assessment of civil money penalties. Under current and
proposed Sec. 501.33(a), any person who desires review of a civil
money penalty determination shall make written request for an
administrative hearing no later than 30 days after issuance of the
notice to the official who issued the determination at the Wage and
Hour Division. Such timely filing of an administrative appeal stays the
determination pending the outcome of the appeals process pursuant to
proposed Sec. 501.33(d).
Section 501.20--Debarment and Revocation
The current regulations provide ETA with the authority to deny
certification (i.e., debarment) and revoke certificates while requiring
the WHD to report findings and make recommendations to ETA to deny
future certifications and revoke current certificates. The NPRM
proposed providing debarment authority for issues arising from WHD
investigations to the Administrator/WHD, while debarment authority for
issues arising out of the attestation process would have remained with
ETA. The Final Rule modifies the proposal by adhering to the current
practice, providing ETA authority for debarment and revocation, and
providing the Wage and Hour Division authority to make a debarment
recommendation.
A number of commenters opposed extending debarment authority to the
[[Page 77201]]
WHD. These commenters requested that debarment authority remain with
ETA to avoid inconsistencies in the interpretation of the H-2A
regulations between WHD and ETA. One of these commenters stated that
extending debarment authority to the WHD would enhance enforcement,
while recommending regulatory language requiring coordination between
the two agencies. One commenter stated that the WHD should have
concurrent debarment authority with ETA to ensure that debarment is
available for all appropriate violations.
After a careful review of the comments, the Department has
concluded that providing debarment authority to two different agencies
within the Department for different, though potentially overlapping
types of violations could result in unnecessary confusion. Debarment
authority will therefore remain with ETA, which will entertain
recommendations from WHD.
However, under the current system the Board of Alien Labor
Certification Appeals (BALCA) adjudicates appeals of ETA debarment
determinations based upon WHD recommendations, while appeals of WHD
back wage and civil money penalty assessments are adjudicated by the
Administrative Review Board (ARB). WHD debarment recommendations
generally arise from the same set of facts, involving the same evidence
as WHD back wage and civil money penalty assessments. To conserve
resources and avoid unnecessary duplication of litigation, the Final
Rule specifies at Sec. 501.20(e) that ``In considering a
recommendation made by the Wage and Hour Division to debar an employer
or to revoke a temporary agricultural labor certification, the
Administrator/OFLC shall treat final agency determinations that the
employer has committed a violation as res judicata and shall not
reconsider those determinations.''
The standards for debarment recommendations used by WHD have been
conformed to ensure that they are identical to the standards used by
ETA for debarment actions under 20 CFR 655, Subpart B, thus ensuring
consistency in application, though ETA has some additional standards
that are not applicable to the WHD role and will not be utilized by
WHD.
The proposed rule did not include a change to the current
revocation procedures, under which WHD provides recommendations to ETA
for certificate revocation. That procedure is adopted in the Final
Rule, together with more specific revocation criteria, which have been
modified to conform to the criteria set forth in 20 CFR 655, Subpart B.
Section 501.21 Failure To Cooperate With Investigations
Section 501.21 has been modified in the Final Rule to conform to
the changes made in Sec. 501.20 regarding WHD's authority to make
debarment and revocation recommendations to ETA. The relevant language
in the Final Rule now provides that ``a civil money penalty may be
assessed for each failure to cooperate with an investigation, and other
appropriate relief may be sought. In addition, the WHD shall report
each such occurrence to ETA, and ETA may debar the employer from future
certification. The WHD may also recommend to ETA that an existing
certification be revoked.''
Section 501.22 Payment and Collection of Civil Money Penalties
No changes to this section were proposed in the NPRM. The text of
the current regulation has been included in the Final Rule with only
one alteration, specifying that a ``penalty is due within 30 days.''
Section 501.30 Applicability of Procedures and Rules
The language in Sec. 501.30 was revised in the proposed rule to
illustrate the administrative process for assessing civil money
penalties and seeking a debarment under the H-2A Program. With the
exception of civil money penalty assessments and debarment disputes,
the Department of Labor may file an action directly in Federal court
seeking enforcement. Section 501.30 has been modified in the Final Rule
to conform to the changes made in Sec. 501.20 regarding WHD's
authority to make debarment recommendations to ETA.
Section 501.31 Written Notice of Determination Required
The administrative process was revised in the proposed rule to
reference WHD's authority to debar. Section 501.31 has been modified by
deleting the phrase ``to debar'' to reflect the fact that WHD
recommendations for debarment do not constitute ``determinations'' of
the Administrator/WHD that are subject to hearing requests under Sec.
501.33.
Section 501.32 Contents of Notice
This section was revised in the proposed rule to reference WHD's
authority to debar. Section 501.32 has been modified by deleting the
phrase ``whether to debar and the length of the debarment'' to reflect
the fact that WHD recommendations for debarment do not constitute
``determinations'' of the Administrator/WHD that are subject to hearing
requests under Sec. 501.33.
Section 501.33 Requests for Hearing
The proposed rule added language to the regulation to make clear
that exhaustion of the appeal of the Administrator/WHD's determination
is required before a party may appeal an agency ruling to Federal
court. No comments were received and the Final Rule is adopted as
proposed.
Section 501.41 Decision and Order of Administrative Law Judge
Some minor, non-substantive changes were made to paragraph (c) of
this provision, including the creation of a new paragraph (d), for
purposes of clarity and consistency with Sec. 501.42.
Section 501.42 Exhaustion of Administrative Remedies
Proposed Sec. 501.42 clarified the current regulation to assure
that the exhaustion of all administrative remedies is required before
an appeal of the decision of the administrative law judge can be taken
to the Federal courts pursuant to the Administrative Procedure Act.
One commenter noted that the additional language, stating that the
decision of the administrative law judge shall be inoperative pending
final review of the Administrative Review Board's (ARB) decision, was
unnecessary to ensure exhaustion and harmful to workers. In Darby v.
Cisneros, 509 U.S. 137, 152 (1993), the Supreme Court decided that
agencies may not require exhaustion of administrative remedies before
an appeal may be filed with a federal district court unless a rule is
adopted that an agency appeal must be taken before judicial review is
available, and it is provided that the initial decision is inoperative
pending appeal. Id. Accordingly, the additional language is necessary
to the exhaustion requirement. Further, it is unclear what harm may
result from requiring that workers await a decision by the ARB before
appealing to Federal court. There is a distinct public benefit from the
uniform agency decision making process accorded by ARB review.
Additional language has been added to this provision to clarify when an
administrative law judge's decision becomes final agency action.
C. Revisions to 29 CFR Parts 780 and 788
In the notice of proposed rulemaking (NPRM) published February 13,
2008, the Department proposed a modification to Parts 780 and 788 of
the FLSA
[[Page 77202]]
regulations to recognize that the production of ``Christmas'' trees
through the application of agricultural and horticultural techniques to
be harvested and sold for seasonal ornamental use constitutes
agriculture as the term is defined under the FLSA. As explained in the
preamble to the NPRM, the Department deemed this change 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), and because it recognizes that modern production of
such trees typically involves extensive care and management.
Many individual employers, trade associations, and associations of
growers approved of the Department's proposed rule to classify
Christmas tree farming as an agricultural activity under FLSA. Several
commenters noted that the Christmas tree industry had undergone
significant changes, such as no longer harvesting from natural stands,
in the time since the FLSA was first passed in 1938. Commenters also
listed a range of current common practices shared by Christmas tree
producers and other row crop farmers, such as planting, pruning, weed
control, pest control, transplanting, and harvesting under a deadline.
The insight provided by these comments further confirms that the
determination to classify Christmas tree farming as agriculture under
the FLSA is appropriate.
Two commenters suggested that many of these activities were also
covered by the 1938 FLSA primary definition of agriculture. Moreover,
the commenters maintained that, since the FLSA classifies nursery
activities as an agricultural activity, Christmas tree production and
harvesting, which the commenters believed to be nearly identical to
those in nursery production and harvesting, must also be classified as
agricultural activity.
Several commenters expressed appreciation for the Department's
attempt to establish a national standard for Christmas tree labor
status. Several others maintained that the ambiguity surrounding the
industry's status had hurt Christmas tree growers nationally because
laws were not being applied in a uniform fashion across the states. In
addition, many commenters pointed to the Fourth Circuit's 2004 decision
in North Carolina Growers Association, in which the court held that
Christmas tree farming fit the definition of agriculture as proof that
Christmas tree production was an agricultural activity. See 377 F.3d at
352. This holding created confusion between the Department's
classification and federal law. Two commenters noted that Christmas
tree growers located in the Fourth Circuit may have achieved clarity
with respect to their status as agricultural producers, but the status
of all other Christmas tree growers not within the jurisdiction of the
Fourth Circuit remained unclear until now.
Other commenters added that, under many other federal rules
including property tax, sales tax, and agricultural worker's protection
standards for pesticide use, Christmas tree growers were already
considered to be agricultural. Several commenters acknowledged that
certain Christmas tree growers may dig trees with a soil ball, which is
considered a nursery activity and therefore an agricultural activity,
but may also produce trees for harvesting by cutting, which has,
historically, not been considered to be agricultural activity. The
commenters noted that the decision to dig or cut a tree depends on
market conditions at the time of harvest, and the same employees could
hypothetically participate in both scenarios. Two commenters concluded,
however, that this difference between nursery and Christmas tree
harvesting was irrelevant because the production practices remained the
same and should be construed as agriculture. Likewise, one commenter
wrote that the same equipment was often used for both Christmas tree
production and nursery projects.
Three commenters offered suggestions for minor changes to the rule
stating that the proposed language offered overly specific timeframes
for horticultural operations. The commenters argued that such
timeframes may vary according to region and tree species and that
future changes to horticultural procedures might affect some of the
listed activities in the rule. One commenter further stated that
removing the timeframes would not affect the Christmas tree industry's
ability to operate within the FLSA's definition of agriculture, but
would possibly eliminate an unnecessary rigidity that might otherwise
disqualify Christmas tree production that appropriately qualifies for
agricultural status. The Fourth Circuit's reasoning in the North
Carolina Growers Association case clearly articulated that performance
of certain actions on the plants is an important indicator that what is
being produced is a seasonal ornamental horticultural commodity. See
377 F.3d at 345. The regulatory language addressing timeframes is
sufficiently flexible to allow for variation in timeframes due to
region, species, and procedural differences. Indeed, the Final Rule
expressly qualifies the listed timeframes by saying that the
agricultural techniques applied must be those ``such as the
following.'' The Department will not apply the listed timeframes with
undue rigidity.
One commenter, commenting on its own behalf and on behalf of
numerous advocacy groups, opposed the rule, asserting that, while the
H-2A program offered more comprehensive protections for workers than
did the H-2B classification (under which many Christmas tree harvest
workers had previously been allowed into the country to work),
Christmas tree workers under the H-2A Program would lose their coverage
under MSPA as well as their claims to overtime. The commenter added
that the matter of overtime pay was critical because the Christmas tree
harvest season can be extremely intense with extensive overtime work.
Temporary, non-immigrant workers for Christmas tree production have
been brought in under the H-2A Program and not the H-2B non-
agricultural Program for many years now based on the IRC definition of
agriculture, which the H-2A regulations use (as well as the FLSA
definition of agriculture), and would not have been within the
definition of a worker subject to MSPA. The proposed rule insures
equity within the industry in that employers across the country will be
bound by the same requirements under the FLSA in the wake of the Fourth
Circuit's North Carolina Growers Association decision. See id. The
Department is adopting the proposed changes for 29 CFR Part 780 without
change.
No comments were received with respect to the proposed change to 29
CFR Part 788.10. Therefore, the Department is adopting the proposed
rule without change in the Final Rule.
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
[[Page 77203]]
tribal governments or communities (also referred to as ``economically
significant''); (2) creating serious inconsistency or otherwise
interfering with an action taken or planned by another agency; (3)
materially altering the budgetary impacts of entitlement grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raising novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the E.O. The Department has determined that this Final Rule is not
an ``economically significant regulatory action'' under Section 3(f)(1)
of E.O.12866. The procedures for filing an Application for Temporary
Employment Certification under the H-2A visa category on behalf of
nonimmigrant temporary agricultural workers, under this regulation,
will not have an economic impact of $100 million or more. The
regulation will not adversely affect the economy or any sector thereof,
productivity, competition, jobs, the environment, nor public health or
safety in a material way. In fact, this Final Rule is intended to
provide relief to affected employers both directly, by modernizing 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 Final Rule is a
``significant regulatory action'' under Section 3(f)(4) of the E.O.
Summary of Impacts. The changes in this Final Rule are expected to have
little net direct cost impact on employers, above and beyond the
baseline of the current costs required by the program as it is
currently implemented. 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.
Employer costs for newspaper advertising will increase slightly, as
the Final Rule will require that one of the two currently required
advertisements be run on a Sunday. However, the Department believes
that this cost increase will be offset by the certainty the Final Rule
will provide regarding total recruitment costs. Most significantly, the
Final Rule has eliminated the possibility that additional, unstated
recruitment measures may be imposed on program users at the last
minute, and further provides program users an annual list of
traditional labor supply states that will inform them in advance of
precisely where they will be required to engage in out-of-state
newspaper advertising.
Civil money penalties have increased substantially under the Final
Rule, but these represent avoidable costs, and the Department believes
that they will have the deterrent effect of fostering greater program
compliance under the Final Rule.
The biggest cost to employers under the Final Rule is likely to be
an increased cost of foreign recruitment, since employers can no longer
allow foreign recruiters with whom they are in privity of contract to
charge foreign workers fees for recruitment. The Department believes
that this cost can be substantially offset by collaborative
recruitment, however, and that it will not be so large as to overcome
employers' cost savings resulting from streamlining of the application
process and program efficiencies. The Department requested comment on
what costs these policies introduce and what efficiencies may be gained
from adopting these new procedures, to foster a thorough consideration
and discussion of the rule's costs and benefits before its
finalization. Several commenters believed that the proposed changes
could increase costs for employers and doubted that they would achieve
the proposed objectives. Many of these concerns have been addressed by
changes in the Final Rule, including reductions in the newspaper
advertising and record retention requirements.
The additional record retention costs for employers are minimal and
the Final Rule includes a three-year requirement as compared to the
originally proposed five-year requirement. The new record retention
requirements will require a burden of approximately ten minutes per
year per application to retain the application and supporting documents
above and beyond the one 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
Americans 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 \15\ per hour,
this additional burden for each of the two 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 each individual applicant.
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\15\ 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.
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Employers will experience efficiencies as a result of the
reengineering of the process. These savings are expected to result
primarily from 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 unanticipated labor costs due to post-date-of-need hiring
requirements. Savings to employers will be universal to new users as
well as current participants. Savings from efficiency gains may be
impacted, however, by increased usage of the program by agricultural
employers, which could delay processing times within the Department.
B. Regulatory Flexibility Analysis
When an agency issues a rulemaking proposal, the Regulatory
Flexibility Act (RFA) requires that a regulatory flexibility analysis
be prepared and made available for public comment. The RFA must
describe the impact of the rule on small entities. See 5 U.S.C. 603(a).
Section 605 of the RFA allows an agency to certify a rule, in lieu of
preparing an analysis, if the rulemaking is not expected to have
significant economic impact on a substantial number of small entities.
The 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 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
rule can and does affect small entities, there are not a substantial
number of small entities that will be affected, nor is there a
significant economic impact upon those small entities that are
affected. Of the total 2,089,790 farms in the United States, 98 percent
have sales of less than $750,000 per year and fall within SBA's
definition of small entities. In FY 2007, however, only
[[Page 77204]]
7,725 employers filed requests for only 80,294 workers. That represents
fewer than 1 percent of all farms in the United States. Even if all of
the 7,725 employers who filed applications under H-2A in FY2007 were
small entities, that is still a relatively small number of employers
affected. The Department does anticipate a substantial increase in
program usage as a result of the Final Rule, but even a doubling in
program usage would mean the participation of only about 15,500
employers, not all of whom would be small entities.
Even more important than the number of small entities affected,
however, the Department believes that the costs incurred by employers
under this Final Rule will not be substantially different from those
incurred under the current application filing process. Employers
seeking to hire foreign workers on a temporary basis under the H-2A
program must continue to establish to the Secretary of Labor's
satisfaction that their recruitment attempts have not yielded enough
qualified and available U.S. workers and that their hiring of foreign
workers will not adversely affect the wages and working conditions of
similarly employed U.S. workers. Similar to the current process,
employers under this newly reengineered 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 the current costs each employer likely pays
in the range of $124.00-$170.00 to meet the advertising and recruitment
requirements for a job opportunity, and spends 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 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 U.S. Department of Labor's
Occupational Employment Statistics survey, O*Net OnLine,\16\ and
increased it by a factor of 1.42 to account for employee benefits and
other compensation for a total staff time cost of $181.26 per
applicant.
---------------------------------------------------------------------------
\16\ 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. The total costs for the small entities affected by
this program will most likely 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 invited comments from members of the public who
believed 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 Final Rule will not have a
significant impact on a substantial number of small entities. Several
small farmers and ranchers offered that the proposal could have
substantial impact on sheepherding operations and other small farmers.
However, the comments offered addressed costs arising from requirements
that were either already in place or were required by statute and
therefore were unchanged by this rulemaking. Several other commenters
from farming enterprises voiced concern that the Department's
determination that the rulemaking was not economically significant was
a judgment as to the economic significance of the industry. This was
clearly a misconstruction of the Department's intent. The Department
recognizes the economic importance of the agricultural and farming
sector of the economy and has embarked on this rulemaking to ensure
that there are sufficient workers available to ensure the economic
success of both individual farms and the agricultural sector as a
whole.
Several other commenters, including individual farmers and a law
firm representing farming concerns, objected to what they saw as high
costs of compliance with the new changes when taken together with the
increased costs of filing applications with DHS. The Department
appreciates and recognizes the strong cost pressures on American
agricultural firms and has taken steps to reduce the costs of
compliance wherever possible to ensure that farms of all sizes have the
ability to participate in the program and have access to a reliable and
legal workforce. We believe the improvements to this Final Rule address
many of these concerns, while ensuring program integrity and worker
protections.
C. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995 (2
U.S.C. 1501 et seq.) directs agencies to assess the effects of a
Federal regulatory action on State, local, and tribal governments, and
the private sector to determine whether the regulatory action imposes a
Federal mandate. A Federal mandate is defined in the Act at 2 U.S.C.
658(5)-(7) to include any provision in a regulation that imposes an
enforceable duty upon State, local, or tribal governments, or imposes a
duty upon the private sector which is not voluntary. Further, each
agency is required to provide a process where State, local, and tribal
governments may comment on the regulation as it develops, which further
promotes coordination between the Federal and the State, local, and
tribal governments.
The Department of Labor provided several opportunities for State,
local, and tribal government input. Representatives from the Department
in OFLC hosted webinars with the States on December 2 and 5, 2007, and
then again on March 12 and 25, 2008, to discuss the issues outlined in
Training and Employment Guidance Letter (TEGL) 11-07, Change 1
(November 14, 2007) that are now codified in the regulation. In
addition, the Department hosted and continues to host regular
conference calls to discuss these issues. Further, the Department
fielded questions about the verification process from the States and
posted the responses to them as Frequently Asked Questions on the
program office Web site. Finally, the Department invited comments from
all individuals, which includes State representatives, through the
comment process for this regulation. As a result of these efforts, the
Department received only six (6) comments from State agencies on
unfunded mandates.
Each of the commenters stated that the regulation imposes an
unfunded mandate because there are insufficient funds to support the H-
2A activities at the State level. One commenter stated that the State
would have difficulty maintaining the same level of quality in the
program. Another commenter stated that the rule represents an unfunded
mandate because there is no funding for litigation defense.
The Department disagrees that this final rule imposes an unfunded
[[Page 77205]]
mandate. As noted in the proposed rule, the SWAs are required to
perform certain activities for the Federal government under this
program, and are compensated for the resources used in performing these
activities. Further, under this final rule, the SWAs responsibilities
are streamlined and generally reduced because they no longer are
responsible for the substantive review of H-2A applications, which will
allow the States to use grant funds for other program purposes. The
Department recognizes that certain States may see an increase in the
use of the program, as two commenters discussed, and as a result, may
experience an increase in activities over another State with less H-2A
activity. The Department addressed this issue in the proposed rule when
it stated that it would analyze the amount of grants to each State to
fund H-2A activities. The Department believes it would be premature to
make a blanket statement regarding any increases the States may
experience until after the new requirements are implemented. Therefore,
the Department intends to make funding determinations based on that
analysis and after an analysis of any increased usage trends among
particular States as part of its normal program management operations.
The Department believes it is also premature to presume that the States
will have to bear a significant cost to defend against any potential
litigation associated with the implementation of this final rule, and
which is typically considered part of a grantee's programmatic
responsibility, should it occur. A more substantive discussion on the
Department's position on defending any potential litigation is located
in other sections of the preamble.
Several commenters expressed a concern about using already limited
Wagner-Peyser Act funds to compensate for H-2A activities. Although the
Department understands the commenters' concern that Wagner-Peyser Act
funds may be discontinued, such arguments are not relevant at this time
given that the Department currently funds Wagner-Peyser Act activities
and intends to continue doing so in the future.
Another commenter stated that TEGL 11-07, Change 1 imposes an
unfunded mandate because compliance with the TEGL, which is now
codified in the final rule, is a condition for the continued receipt of
Wagner-Peyser Act funds. That same commenter also noted that the rule
is more restrictive than H.R. 4088 (introduced in the 110th Congress),
which is similar to the TEGL.
With regard to this comment, the Department included references to
this TEGL in the proposed rule merely to inform the public that the
provisions of the TEGL were clarified and codified in this rule.
Because the Department already requires States under current program
guidance to verify the employment authorization of workers before
making H-2A referrals, the Final Rule's codification of these
verification requirements will not impose significant new costs on
States. The fact that a State may lose its funding for failing to
comply with the program requirements, including those in the TEGL and
now codified in this final rule, does not rise to the level of an
unfunded mandate. The Department notes that this program is voluntary
and like all voluntary Federal programs, it comes with responsibilities
for managing the program and penalties for failing to adhere to those
program requirements. There were no comments from the private sector on
this issue. Therefore, for the reasons stated above, the Department has
determined that this final rule does not impose any unfunded mandates.
D. Executive Order 13132--Federalism
Executive Order 13132 addresses the Federalism impact of an
agency's regulations on the States' authority. Under E.O. 13132,
Federal agencies are required to consult with States prior to and
during the implementation of national policies that have a direct
effect on the States, the relationship between the Federal Government
and the States, or on the distribution of power and responsibilities
among the various levels of government. Further, an agency is permitted
to limit a State's discretion when it has statutory authority and the
regulation is a national activity that addresses a problem of national
significance. The Department received one comment on this section. This
commenter stated that the Department's reversal of a long-standing
position on U.S. worker self-attestation creates a Federalism impact.
According to this commenter, TEGL 11-07, Change 1, mandates that SWAs
perform pre-employment eligibility verifications on every U.S. worker
that requests a referral to an H-2A job order. This commenter requests
that the Department prepare a summary impact statement and acknowledge
that many States currently have attestation-based systems for U.S.
worker access to public labor exchange services.
The Department disagrees with this commenter's assessment of a
Federalism impact and therefore, the need for a summary impact
statement. In this case there is no direct effect on the States. The H-
2A program is a Federal program that regulates work visas for temporary
agriculture workers, protects employment opportunities for U.S.
workers, and prevents an adverse effect on the wages and working
conditions of U.S. workers. As noted elsewhere in this preamble, the
Department has not reviewed the H-2A program comprehensively since its
inception in 1986. These changes are consistent with the Department's
review, program experience, and years of stakeholder feedback on
longstanding concerns about the integrity of the prior program.
Therefore, as a program of national scope, the Department is
implementing requirements that apply uniformly to all States.
Even if there were an argument that the Department should defer to
the States on the eligibility verification requirements, the Department
is authorized by the INA to implement Federal regulations to ensure
consistency across States on immigration matters. In addition, given
that the H-2A program is an immigration program, it also is a program
related to national security with national significance requiring
Federal oversight and uniformity. Further, the relationship the States
have with this program and the Federal government is by grants from the
Department to the States for the sole purpose of maintaining
consistency across States. As a voluntary Federal program, the
Department may change the direction from time to time as dictated by
the changes to immigration concerns, but at the same time are
consistent with the underlying legislation.
Furthermore, the Department consulted with the States on the
eligibility verification requirements by several means. Representatives
from the Department in OFLC hosted webinars with the States on December
2 and 5, 2007, and then again on March 12 and 25, 2008, to discuss the
issues outlined in the TEGL that are now codified in the regulation. In
addition, the Department hosted and continues to host regular
conference calls to discuss these issues. Further, the Department
fielded questions about the verification process from the States and
posted the responses to them as Frequently Asked Questions on the
program office Web site. Finally, the Department invited comments from
all individuals, which includes State representatives, through the
comment process for this regulation.
Therefore, for the reasons stated, the Department has determined
that this rule does not have sufficient Federalism
[[Page 77206]]
implications to warrant the preparation of a summary impact statement.
E. Executive Order 13175--Indian Tribal Governments
Executive Order 13175 requires Federal agencies to develop policies
in consultation with tribal officials when those policies have tribal
implications. This final rule regulates the H-2A visa program and does
not have tribal implications. Therefore, the Department has determined
that this E.O. does not apply to this rulemaking. The Department did
not receive any comments related to this section.
F. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact
of Federal regulations and policies on families. The assessment must
address whether the regulation strengthens or erodes the stability,
integrity, autonomy, or safety of the family.
The final rule does not have an impact on the autonomy or integrity
of the family as an institution, as it is described under this
provision. The Department has determined that although there may be
some costs associated with the final rule, they are not of a magnitude
to adversely affect family well-being. The Department did not receive
any comments related to this section.
G. Executive Order 12630--Protected Property Rights
Executive Order 12630, Governmental Actions and the Interference
with Constitutionality Protected Property Rights, prevents the Federal
government from taking private property for public use without
compensation. It further institutes an affirmative obligation that
agencies evaluate all policies and regulations to ensure there is no
impact on constitutionally protected property rights. Such policies
include rules and regulations that propose or implement licensing,
permitting, or other condition requirements or limitations on private
property use, or that require dedications or exactions from owners of
private property.
The Department received one comment on this section. This commenter
stated that this rule would have a ``takings'' implication if farmers
are forced out of business under this rule. The Department disagrees
with this assessment. Although the cost associated with this regulatory
action has an impact on commerce, it is not the type of impact
addressed by the E.O. This final rule does not propose or implement
licensing, permitting or other condition requirements on the use of
private property nor does it require dedications or exactions from
owners of private property. Accordingly, the Department has determined
this rule does not have takings implications.
H. Executive Order 12988--Civil Justice Reform
Section 3 of E.O. 12988, Civil Justice Reform, requires Federal
agencies to draft regulations in a manner that will reduce needless
litigation and will not unduly burden the Federal court system.
Therefore, agencies are required to review regulations for drafting
errors and ambiguity; to minimize litigation; ensure that it provides a
clear legal standard for affected conduct rather than a general
standard; and promote simplification and burden reduction.
The rule has been drafted in clear language and with detailed
provisions that aim to minimize litigation. The purpose of this final
rule is to streamline the H-2A program and simplify the application
process. Therefore, the Department has determined that the regulation
meets the applicable standards set forth in Section 3 of E.O. 12988.
The Department received no comments regarding this section.
I. Plain Language
Every Federal agency is required to draft regulations that are
written in plain language to better inform the public about policies.
The Department has assessed this final rule under the plain language
requirements and determined that it follows the Government's standards
requiring documents to be accessible and understandable to the public.
The Department did not receive any comments related to this section.
J. Executive Order 13211--Energy Supply
This final rule is not subject to E.O. 13211, which assesses
whether a regulation is likely to have a significant adverse effect on
the supply, distribution, or use of energy. Accordingly, the Department
has determined that this rule does not represent a significant energy
action and does not warrant a Statement of Energy Effects. The
Department did not receive any comments related to this section.
K. Paperwork Reduction Act
1. Summary
The Paperwork Reduction Act (44 U.S.C. 3501) information collection
requirements, which must be implemented as a result of this regulation,
were submitted to OMB on February 14, 2008, in conjunction with the
NPRM. 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(l). The public was given 60 days to comment
on this information collection under the NPRM even though originally
the Department gave the public only 45 days to comment on the rest of
the NPRM. On March 27, 2008, the Department published a notice in the
Federal Register extending the comment period to April 14, 2008, for
the rest of the NPRM, which then coincided with the comment period for
the information collection. This same information collection was again
submitted for public comment under another NPRM for a different
program. The comments received pertaining to this rule were taken into
consideration and a final package with the forms needed to implement
this rule was submitted to OMB and received final approval on November
21, 2008, under OMB control number 1205-0466. The approval will expire
on November 30, 2011. The information required under this collection is
mandated in this final rule at Sec. Sec. 655.100(a), 655.101,
655.102(c), 655.104(d), 655.105, 655.106, 655.107, 655.108, and
655.109.
The collection of information for the current H-2A program under
the regulations in effect prior to the effective date of this rule were
approved under OMB control number 1205-0015 (Form ETA 750) and OMB
Control Number 1205-0134 (Form ETA 790). The Form ETA 750 will be
gradually phased out and will no longer be used for the H-2A program
for applications filed with a beginning date of need of July 1, 2009 or
later. The Form ETA 790 will continue to be used in the H-2A program as
it is required under 20 CFR 653.501 for all agricultural job orders.
As noted above, this final rule implements the use of the new
information collection that OMB approved on November 21, 2008, under
OMB control number 1205-0466. The approval will expire on November 30,
2011. The new Form ETA 9142, with instructions and appendices, has a
public reporting burden estimated to average 2.17 hours for Form ETA
9142 per response or application filed. The Department has made changes
to this final rule after receiving comments to the proposed rule and
has made changes to the forms for clarity and program functionality.
However, these changes do not impact the overall annual burden hours
for the H-2A program information collection. The total costs associated
[[Page 77207]]
with the form, as defined by the Paperwork Reduction Act, is a maximum
of $1,100 per employer for the Form ETA 9142. For an additional
explanation of how the Department calculated the burden hours and
related costs, the Paperwork Reduction Act package for this information
collection may be obtained from the RegInfo.gov Web site at http://www.reginfo.gov/public/do/PRAMain or by contacting the Department at:
Office of Policy and Research, Department of Labor, 200 Constitution
Ave., NW., Washington, DC 20210 or by phone request to 202-693-3700
(this is not a toll-free number) or by e-mail at [email protected].
2. Comments
The Department received only a few comments on this section of the
NPRM. In each case, the commenters noted that there appeared to be an
increase in the number of hours required under the new regulations,
especially for the second recruitment report. One commenter estimated
that it would take approximately 6.5 hours for an employer to complete
two (2) recruitment reports, but did not provide data or a supporting
rationale for this estimate. Most of the commenters did not
specifically address the issue of our methodology or assumptions.
The combined paperwork burden estimate for the forms used for the
H-2A program under the regulations in effect prior to the effective
date of this final rule, Forms ETA 750 and ETA 790, was approximately
2.5 hours. Under this new collection of information, the Department
estimates that the burden will be approximately 2.17 hours for Form ETA
9142, which includes one hour on average per employer to prepare the
recruitment reports. There will be some employers who only require a
few minutes to complete the recruitment report if only a few (or no)
workers apply for the job opportunity, while other employers may spend
two or more hours compiling the recruitment report if many workers
apply for the job opportunity. As for other information requirements,
the Department estimates that the affidavits of publication or tear
sheets, which should be requested at the time of publication, require
only one extra minute of time. Further, the Department estimates that
requesting notice from the SWA confirming distribution of the job order
will also only take an extra minute of time. Therefore, without more
persuasive analysis rebutting the analysis used by the Department, we
assume our calculations are representative of the actual hourly burden
for the new collection.
Another commenter stated that the form itself lacked sufficient
space and the ``description for complying * * * [is] inadequate and
materially misleading of the terms and conditions employers need to
provide * * *.'' The Department notes, however, that this comment is
related to the Form ETA 750, which will be discontinued, rather than
the new collection form, ETA 9142. In addition, the Department added a
notation to the new form that permits employers to submit additional
pages of information if there is not sufficient space on the form for a
response. In such cases, the information must clearly correspond to the
appropriate section and question number noted on the form.
A couple of commenters on this section asked if any of the
paperwork could be shifted to the Department, such as making copies of
job orders, placing advertisements, and obtaining the tear sheets.
Although the Department appreciates these comments, we find no
reasonable justification for assuming this type of expense or
responsibility. The responsibility for the applicable reporting
requirements lies with program participant, which in this case is the
applicant. The Department will continue to seek ways to improve program
management efficiency and as noted elsewhere in this preamble, will be
looking to implement an online application process in the future.
List of Subjects
20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
29 CFR Part 501
Administrative practice and procedure, Agriculture, Aliens,
Employment, Housing, Housing standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
29 CFR Part 780
Agricultural commodities, Agriculture, Employment, Forests and
forest products, Labor, Minimum wages, Nursery stock, Overtime pay,
Wages.
29 CFR Part 788
Employment, Forests and forest products, Labor, Overtime pay,
Wages.
0
For the reasons stated in the preamble, the Department of Labor amends
20 CFR part 655 and 29 CFR parts 501, 780, and 788 as follows:
TITLE 20--EMPLOYEES' BENEFITS
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
1. The authority citation for part 655 is revised to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 1182(m), (n) and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1),
Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec.
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note);
sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d),
Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L.
109-423, 120 Stat. 2900; 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), Pub. L. 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), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).
Subparts J and K authority repealed.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
2. Revise the heading to part 655 to read as set forth above.
0
3. Revise Sec. 655.1 to read as follows:
Sec. 655.1 Purpose and 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 (U.S.) in occupations other than
agriculture or registered nursing.
0
4. Revise subpart B to read as follows:
Subpart B--Labor Certification Process for Temporary Agricultural
Employment in the United States (H-2A Workers)
Sec.
655.90 Purpose and scope of subpart B.
655.92 Authority of ETA-OFLC.
655.93 Special procedures.
[[Page 77208]]
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 H-2A Labor Contractors.
655.107 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 approved labor certifications.
655.118 Debarment.
655.119 Document retention requirements.
Sec. 655.90 Purpose and scope of subpart B.
This subpart sets out the procedures established by the Secretary
of the United States Department 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.
Temporary agricultural labor certification determinations are made
by the Administrator, Office of Foreign Labor Certification (OFLC) in
the Department of Labor's (the Department or DOL) Employment & Training
Administration (ETA), 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 procedures for the
processing of applications from agricultural employers and associations
of employers for the certification of employment of nonimmigrant
workers in agricultural employment.
(b) Establishment of special procedures. To provide for a limited
degree of flexibility in carrying out the Secretary's responsibilities
under the Immigration and Nationality Act (INA), while not deviating
from statutory requirements, the Administrator, OFLC has the authority
to establish or to devise, continue, revise, or revoke special
procedures in the form of variances for processing certain H-2A
applications when employers can demonstrate upon written application to
the Administrator, OFLC that special procedures are necessary. These
include special procedures 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),
and for custom combine crews. 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, OFLC has the authority to establish monthly, weekly, or
bi-weekly adverse effect wage rates (AEWR) for those occupations for a
statewide or other geographical area. Prior to making determinations
under this section, the Administrator, OFLC will consult with employer
and worker representatives.
Sec. 655.100 Overview of subpart B and definition of terms.
(a) Overview. (1) Application filing process. (i) This subpart
provides guidance to employers desiring to apply for a 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 employers must file with
the Administrator, OFLC an H-2A application on forms prescribed by the
ETA that describe the material terms and conditions of employment to be
offered and afforded to U.S. and H-2A workers. The application must be
filed with the Administrator, OFLC at least 45 calendar days before the
first date the employer requires the services of the H-2A workers. The
application must contain attestations of the employer's compliance or
promise to comply with program requirements regarding recruitment of
eligible U.S. workers, the payment of an appropriate wage, and terms
and conditions of employment.
(ii) No more than 75 and no fewer than 60 calendar days before the
first date the employer requires the services of the H-2A workers, and
as a precursor to the filing of an Application for Temporary Employment
Certification, the employer must 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. Prior to
commencing recruitment an employer must obtain the appropriate wage for
the position directly from the ETA National Processing Center (NPC).
The employer must then place a job order with the SWA; place print
advertisements meeting the requirements of this regulation; contact
former U.S. employees; and, when so designated by the Secretary,
recruit in other States 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 the job order locally, as well as in all States listed in the
application as anticipated work sites, and in any additional States
designated by the Secretary as States of traditional or expected labor
supply. The SWA will keep the job order open until the end of the
designated recruitment period. No more than 50 days prior to the first
date the employer requires the services of the H-2A workers, the
employer will prepare and sign an initial written recruitment report
that it must submit with its Application for Temporary Employment
Certification (www.foreignlaborcert.doleta.gov). The recruitment report
must contain information regarding the original number of openings for
which the employer recruited. The employer's obligation to engage in
positive recruitment will end on the actual 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
occurs first.
(iii) The Application for Temporary Employment Certification must
be filed by mail unless the Department publishes a Notice in the
Federal Register requiring that applications be filed electronically.
Applications that meet threshold requirements for completeness and
accuracy will be processed by NPC staff, who will review each
application for compliance with the criteria for certification. Each
application must meet requirements for timeliness and temporary need
and must provide assurances and other safeguards against adverse impact
on the wages and working conditions of U.S. workers. Employers
receiving a labor certification must continue to cooperate with the SWA
by accepting referrals--and have the obligation to hire qualified and
eligible U.S. workers
[[Page 77209]]
who apply--until the end of the designated recruitment period.
(2) Deficient applications. 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 calendar day period (from
date of the employer's receipt) to resubmit a modified application or
to file an appeal of the CO's decision not to approve the application
as acceptable for consideration. Modified applications that fail to
cure deficiencies will be denied.
(3) Amendment of applications. This subpart provides for the
amendment of applications. Where the recruitment is not materially
affected by such amendments, additional positive recruitment will not
be required.
(4) Determinations. (i) Determinations. If the employer has
complied with the criteria for certification, including recruitment of
eligible U.S. workers, the CO must make a determination on the
application by 30 days before the first date the employer requires the
services of the H-2A workers. An employer's failure to comply with any
of the certification criteria or to cure deficiencies identified by the
CO may lengthen the time required for processing, resulting in a final
determination less than 30 days prior to the stated date of need.
(ii) Certified applications. This subpart provides that an
application for temporary agricultural labor certification will be
certified if the CO finds that the employer has not offered and does
not intend to offer foreign workers higher wages, better working
conditions, or fewer restrictions 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 will pay the
appropriate fees to the Department for each temporary agricultural
labor certification received.
(B) Timeliness of payment. The fee must be received by the CO no
later than 30 calendar days after the granting of each temporary
agricultural labor certification. Fees received any later are untimely.
A persistent or prolonged 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/or 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 expedited review of the
denial, or a de novo hearing, by an administrative law judge as
provided in this subpart.
(b) Transition of filing procedures from current regulations. (1)
Compliance with these regulations. Employers with a date of need for H-
2A workers for temporary or seasonal agricultural services on or after
July 1, 2009 must comply with all of the obligations and assurances
required in this subpart.
(2) Transition from former regulations. Employers with a date of
need for H-2A workers for temporary or seasonal agricultural services
prior to July 1, 2009 will file applications in the following manner:
(i) Obtaining required wage rate. An employer will not obtain an
offered wage rate through the NPC prior to filing an application, but
will complete and submit Form ETA-9142, Application for Temporary
Employment Certification no less than 45 days prior to their date of
need. The employer will simultaneously submit Form ETA-790 Agricultural
and Food Processing Clearance Order, along with the Application for
Temporary Employment Certification, directly to the NPC having
jurisdiction over H-2A applications.
(ii) Pre-filing activities. Activities required to be conducted
prior to filing under the final rule will be conducted post-filing
during this transition period. The employer will be expected to make
attestations in its application applicable to its future activities
concerning recruitment, payment of the offered wage rate, etc.
Employers will not be required to complete an initial recruitment
report for submission with the application, but will be required to
complete a recruitment report for submission to the NPC prior to
certification, and will also be required to complete a final
recruitment report covering the entire recruitment period.
(iii) Acceptance of application. Upon receipt, the NPC will provide
the employer with the wage rate to be offered, at a minimum, by the
employer, and will process the application in a manner consistent with
new Sec. 655.107, issuing a notification of deficiencies for any
curable deficiencies within 7 calendar days.
(iv) Processing of application. Once the application and job order
have been accepted, the NPC will transmit a copy of the job order to
the SWA(s) serving the area of intended employment to initiate
intrastate and interstate clearance, request that the SWA(s) schedule
an inspection of the housing, and provide instructions to the employer
to commence positive recruitment in a manner consistent with Sec.
655.102(d)(2) through (4). The NPC will designate labor supply States
during this period on a case-by-case basis. Such designations must be
based on information provided by State agencies or by other sources,
and will to the extent information is available take into account the
success of recent efforts by out-of-State employers to recruit in that
State.
(c) Definitions of terms used in this subpart. For the purposes of
this subpart:
Administrative Law Judge (ALJ) means a person within the DOL's
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 (BALCA)
established by part 656 of this chapter, which will hear and decide
appeals as set forth in Sec. 655.115.
Administrator, OFLC means the primary official of the Office of
Foreign Labor Certification (OFLC), or the Administrator, OFLC 's
designee.
Adverse effect wage rate (AEWR) means the minimum wage rate that
the Administrator, OFLC has determined must be offered and paid to
every H-2A worker employed under the DOL-approved Application for
Temporary Employment Certification in a particular occupation and/or
area, as well as to U.S. workers hired by employers into corresponding
employment during the H-2A recruitment period, 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, that:
(1) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(2) Is not itself an employer, or a joint employer, as defined in
this paragraph (c) of this section with respect to a specific
application; and
(3) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court or the Department, the Board of
Immigration Appeals, the immigration judges, or the Department of
Homeland Security (DHS) under 8 CFR 292.3 or 1003.101.
Agricultural association means any nonprofit or cooperative
association of
[[Page 77210]]
farmers, growers, or ranchers (including but not limited to processing
establishments, canneries, gins, packing sheds, nurseries, or other
fixed-site agricultural employers), incorporated or qualified under
applicable State law, that recruits, solicits, hires, employs,
furnishes, houses or transports any worker that is subject to sec. 218
of the INA. An agricultural association may act as the agent of an
employer for purposes of filing an Application for Temporary Employment
Certification, and may also act as the sole or joint employer of H-2A
workers.
Application for Temporary Employment Certification means the Office
of Management and Budget (OMB)-approved form submitted by an employer
to secure a temporary agricultural labor certification determination
from DOL. A complete submission of the Application for Temporary
Employment Certification includes both the form and the employer's
initial recruitment report.
Area of intended employment means the geographic area within normal
commuting distance of the place (worksite address) 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 the 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 U.S., or the District of Columbia, and who is not
under suspension, debarment, expulsion, or disbarment from practice
before any court or the Department, the Board of Immigration Appeals,
the immigration judges, or DHS under 8 CFR. 292.3 or 1003.101. Such a
person is permitted to act as an agent or attorney for an employer and/
or foreign worker under this subpart.
Certifying Officer (CO) means the person designated by the
Administrator, OFLC to make determinations on applications filed under
the H-2A program.
Chief Administrative Law Judge means the chief official of the DOL
Office of Administrative Law Judges or the Chief Administrative Law
Judge's designee.
Date of need means the first date the employer requires the
services of H-2A worker as indicated in the employer's Application for
Temporary Employment Certification.
Department of Homeland Security (DHS) means the Federal agency
having control over certain immigration functions that, through its
sub-agency, United States Citizenship and Immigration Services (USCIS),
makes 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 U.S.
DOL or Department means the United States Department of Labor.
Eligible worker means an individual who is not an unauthorized
alien (as defined in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3))
with respect to the employment in which the worker is engaging.
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 to perform
the work; 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
may be considered and no one factor is dispositive.
Employer means a person, firm, corporation or other association or
organization that:
(1) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted for employment;
(2) Has an employer relationship with respect to H-2A employees or
related U.S. workers under this subpart; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment Certification, a valid Federal Employer Identification
Number (FEIN).
Employment Standards Administration (ESA) means the agency within
DOL that includes the Wage and Hour Division (WHD), and which is
charged with carrying out certain investigative and enforcement
functions of the Secretary under the INA.
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 SWAs and the OFLC,
including the NPCs.
Employment and Training Administration (ETA) means the agency
within the DOL that includes OFLC.
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
Fixed-site employer means any person engaged in agriculture who
meets the definition of an employer as those terms are defined in this
subpart who owns or operates a farm, ranch, processing establishment,
cannery, gin, packing shed, nursery, or other similar fixed-site
location where agricultural activities are performed and who recruits,
solicits, hires, employs, houses, or transports any worker subject to
sec. 218 of the INA or these regulations as incident to or in
conjunction with the owner's or operator's own agricultural operation.
For purposes of this subpart, person includes any individual,
partnership, association, corporation, cooperative, joint stock
company, trust, or other organization with legal rights and duties.
H-2A Labor Contractor (H-2ALC) means any person who meets the
definition of employer under this paragraph (c) of this section and is
not a fixed-site employer, an agricultural association, or an employee
of a fixed-site employer or agricultural association, as those terms
are used in this part, who recruits, solicits, hires, employs,
furnishes, houses, or transports any worker subject to sec. 218 of the
INA or these regulations.
H-2A worker means any temporary foreign worker who is lawfully
present in the U.S. to perform agricultural labor or services of a
temporary or seasonal nature pursuant to sec. 101(a)(15)(H)(ii)(a) of
the INA, as amended.
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.
Joint employment means that where two or more employers each have
sufficient definitional indicia of
[[Page 77211]]
employment to be considered the employer of an employee, those
employers will be considered to jointly employ that employee. Each
employer in a joint employment relationship to an employee is
considered a joint employer of that employee.
Occupational Safety and Health Administration (OSHA) means the
organizational component of the Department 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.
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 under the INA concerning the
admission of foreign workers to the U.S. to perform work described in
sec. 101(a)(15)(H)(ii)(a) of the INA, 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 job
opportunity is located and any other State designated by the Secretary
as an area of traditional or expected labor supply with respect to the
area where the employer's job opportunity is located, in an effort to
fill specific job openings with U.S. workers.
Prevailing means, with respect to practices engaged in by employers
and benefits other than wages provided by employers, that:
(1) Fifty percent or more of employers in an area and for an
occupation engage in the practice or offer the benefit; but only if
(2) This 50 percent or more of employers also employs in aggregate
50 percent or more of U.S. workers in the occupation and area
(including H-2A and non-H-2A employers for purposes of determinations
concerning the provision of family housing, frequency of wage payments,
and workers supplying their own bedding, but non-H-2A employers only
for determinations concerning the provision of advance transportation).
Prevailing piece rate means that amount that is typically paid to
an agricultural worker per piece (which includes, but is not limited
to, a load, bin, pallet, bag, bushel, etc.), to be determined by the
SWA according to a methodology published by the Department. As is
currently the case, the unit of production will be required to be
clearly described; e.g., a field box of oranges (1\1/2\ bushels), a
bushel of potatoes, and Eastern apple box (1\1/2\ metric bushels), a
flat of strawberries (twelve quarts), etc.
Prevailing hourly wage means the hourly wage determined by the SWA
to be prevailing in the area in accordance with State-based wage
surveys.
Representative means a person or entity 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.
Secretary means the Secretary of the United States Department of
Labor, or the Secretary's designee.
Secretary of Homeland Security means the chief official of the
United States Department of Homeland Security (DHS) or the Secretary of
Homeland Security's designee.
Secretary of State means the chief official of the United States
Department of State (DOS) or the Secretary of State's designee.
State Workforce Agency (SWA) 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 at 29 U.S.C. 49 et seq.
Separately, SWAs receive ETA grants, administered by OFLC, to assist
them in performing certain activities related to foreign labor
certification, including conducting housing inspections.
Strike means a labor dispute wherein employees engage in a
concerted stoppage of work (including stoppage by reason of the
expiration of a collective-bargaining agreement) or engage in any
concerted slowdown or other concerted interruption of operation.
Whether a job opportunity is vacant by reason of a strike or lock out
will be determined by evaluating for each position identified as vacant
in the Application for Temporary Employment Certification whether the
specific vacancy has been caused by the strike or lock out.
Successor in interest means that, in determining whether an
employer is a successor in interest, the factors used under Title VII
of the Civil Rights Act and the Vietnam Era Veterans' Readjustment
Assistance Act will be considered. When considering whether an employer
is a successor for purposes of Sec. 655.118, the primary consideration
will be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violations
resulting in a debarment recommendation. Normally, wholly new
management or ownership of the same business operation, one in which
the former management or owner does not retain a direct or indirect
interest, will not be deemed to be a successor in interest for purposes
of debarment. A determination of whether or not a successor in interest
exists is based on the entire circumstances viewed in their totality.
The factors to be considered include:
(1) Substantial continuity of the same business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products and services; and
(8) The ability of the predecessor to provide relief.
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 one or more foreign nationals as an H-2A
worker, pursuant to secs. 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).
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, the Virgin Islands, and, as of the
transition program effective date, as defined in the Consolidated
Natural Resources Act of 2008, Public Law 110-229, Title VII, the
Commonwealth of the Northern Mariana Islands.
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.
United States worker (U.S. worker) means a worker who is
[[Page 77212]]
(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.
Within [number and type] days means, for purposes of determining an
employer's compliance with the timing requirements for appeals and
requests for review, a period that begins to run on the first business
day after the Department sends a notice to the employer by means
normally assuring next-day delivery, and will end on the day that the
employer sends whatever communication is required by these rules back
to the Department, as evidenced by a postal mark or other similar
receipt.
Work contract means all the material terms and conditions of
employment relating to wages, hours, working conditions, and other
benefits, 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 U.S. (H-2A Workers), or these regulations, including
those terms and conditions attested to by the H-2A employer, 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,
agreed to by both the employer and the worker, the work contract at a
minimum shall be the terms of the job order, as provided in 20 CFR part
653, Subpart F, and covered provisions of the work contract shall be
enforced in accordance with these regulations.
(d) Definition of agricultural labor or services of a temporary or
seasonal nature. For the purposes of this subpart means the following:
(1) Agricultural labor or services, pursuant to sec.
101(a)(15)(H)(ii)(a) of the INA at 8 U.S.C. 1101(a)(15)(H)(ii)(a), is
defined as:
(i) Agricultural labor as defined and applied in sec. 3121(g) of
the Internal Revenue Code of 1954 at 26 U.S.C. 3121(g);
(ii) Agriculture as defined and applied in sec. 3(f) of the Fair
Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f). Work performed
by H-2A workers, or workers in corresponding employment, that is not
defined as agriculture in sec. 3(f) is subject to the provisions of the
FLSA as provided therein, including the overtime provisions in sec.
7(a) 29 U.S.C. 207(a);
(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 where no H-2B workers are employed to perform the
same work at the same establishment; or
(vi) Other work typically performed on a farm that is not
specifically listed on the Application for Temporary Employment
Certification and is minor (i.e., less than 20 percent of the total
time worked on the job duties and activities that are listed on the
Application for Temporary Employment Certification) and incidental to
the agricultural labor or services for which the H-2A worker was
sought.
(2) An occupation included in either of the statutory definitions
cited in paragraphs (d)(1)(i) and (ii) of this section is agricultural
labor or services, notwithstanding the exclusion of that occupation
from the other statutory definition.
(i) Agricultural labor. For purposes of paragraph (d)(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 sec. 15(g) of the
Agricultural Marketing Act, as amended at 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 (d)(2)(i)(D)(1) 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, any unincorporated group of
operators will 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 (d)(2)(i)(D)(1) and (2) of this
section do not apply 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 and is not domestic service
in a private home of the employer.
(E) For purposes of (d)(2)(i) of this section, 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 at 26 U.S.C. 3121(g).
(ii) Agriculture. For purposes of paragraph (d)(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
[[Page 77213]]
transportation to market. See 29 U.S.C. 203(f), as amended.
(iii) Agricultural commodity. For purposes of paragraph (d)(2)(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 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 is summarized as follows:
(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 the worker may continue to be employed during a major portion of
the year.
(B) A worker is employed on other temporary basis where he or she
is employed for a limited time only or the worker's 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 (i) 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; or (ii) the employment of any worker
who is living at his or her 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 or her employer and is not primarily employed to do field
work.
(iii) Temporary. For the purposes of this subpart, the definition
of ``temporary'' in paragraph (d)(3) 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, including, but not limited
to, a peakload need, which is generally less than 1 year, unless the
original temporary agricultural labor certification is extended
pursuant to Sec. 655.110.
Sec. 655.101 Applications for temporary employment certification in
agriculture.
(a) Application Filing Requirements. (1) An employer that desires
to apply for temporary employment certification of one or more
nonimmigrant foreign workers must file a completed DOL Application for
Temporary Employment Certification form and, unless a specific
exemption applies, the initial recruitment report. If an association of
agricultural producers files the application, the association must
identify whether it is the sole employer, a joint employer with its
employer-member employers, or the agent of its employer-members. The
association must 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.
(2) If an H-2ALC intends to file an application, the H-2ALC 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 H-2ALC must have a place of business (physical location)
in the U.S. and a means by which it may be contacted for employment. H-
2A workers employed by an H-2ALC may not perform services for a fixed-
site employer unless the H-2ALC is itself providing the housing and
transportation required by Sec. 655.104(d) and (h), or has filed a
statement confirming that the fixed-site employer will provide
compliant housing and/or transportation, as required by Sec. 655.106,
with the OFLC, for each fixed-site employer listed on the application.
The H-2ALC must retain a copy of the statement of compliance required
by Sec. 655.106(b)(6).
(3) An association of agricultural producers may submit a master
application covering a variety of job opportunities available with a
number of employers in multiple areas of intended employment, just as
though all of the covered employers were in fact a single employer, as
long as a single date of need is provided for all workers requested by
the application and the combination of job opportunities is supported
by an explanation demonstrating a business reason for the combination.
The association must identify on the Application for Temporary
Employment Certification, by name and address, each employer that will
employ H-2A workers. If the association is acting solely as an agent,
each employer will receive a separate labor certification.
(b) Filing. The employer may send the Application for Temporary
Employment Certification and all supporting documentation by U.S. Mail
or private mail courier to the NPC. The Department will publish a
Notice in the Federal Register identifying the address(es), and any
future address changes, to which applications must be mailed, and will
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 (and that of the employer's authorized
attorney or agent if the employer is represented by an attorney or
agent). An association filing a master application as a joint employer
may sign on behalf of its employer members. The Department may also
require applications to be filed electronically in addition to or
instead of by mail.
(c) Timeliness. A completed Application for Temporary Employment
Certification must be filed no less than 45 calendar days before date
of need.
(d) Emergency situations. (1) Waiver of time period and required
pre-filing activity. The CO may waive the time period for filing and
pre-filing wage and recruitment requirements set forth in Sec.
655.102, along with their associated attestations, for employers who
did not make use of temporary alien agricultural workers during the
prior year's agricultural season or for any employer that has other
good and substantial cause (which may include unforeseen changes in
market conditions), provided that the CO can timely make the
determinations required by Sec. 655.109(b).
(2) Employer requirements. The employer requesting a waiver of the
required time period and pre-filing wage and recruitment requirements
must submit to the NPC a completed Application for Temporary Employment
Certification, a completed job offer on the ETA Form 790 Agricultural
and Food Processing Clearance Order, and a statement justifying the
request for a waiver of the time period requirement. The statement must
indicate whether the waiver request is due to the fact that the
employer did not use H-2A workers during the prior agricultural season
or
[[Page 77214]]
whether the request is for other good and substantial cause. If the
waiver is requested for good and substantial cause, the employer's
statement must also include detailed information describing the good
and substantial cause which has necessitated the waiver request. Good
and substantial cause may include, but is not limited to, such things
as the substantial loss of U.S. workers due to weather-related
activities or other reasons, unforeseen events affecting the work
activities to be performed, pandemic health issues, or similar
conditions.
(3) Processing of Applications. The CO shall promptly transmit the
job order, on behalf of the employer, to the SWA serving the area of
intended employment and request an expedited review of the job order in
accordance with Sec. 655.102(e) and an inspection of housing in
accordance with Sec. 655.104(d)(6)(iii). The CO shall process the
application and job order in accordance with Sec. 655.107, issue a
wage determination in accordance with Sec. 655.108 and, upon
acceptance, require the employer to engage in positive recruitment
consistent with Sec. 655.102(d)(2), (3), and (4). The CO shall require
the SWA to transmit the job order for interstate clearance consistent
with Sec. 655.102(f). The CO shall specify a date on which the
employer will be required to submit a recruitment report in accordance
with Sec. 655.102(k). The CO will make a determination on the
application in accordance with Sec. 655.109.
Sec. 655.102 Required pre-filing activity.
(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, except where specifically exempted from some or all of those
requirements by these regulations. Modifications to these requirements
for H-2ALCs are set forth in Sec. 655.106.
(b) General Attestation Obligation. An employer must attest on the
Application for Temporary Employment Certification that it will comply
with all of the assurances and obligations of this subpart and to
performing all necessary steps of the recruitment process as specified
in this section.
(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 the CO rendering a Final Determination,
or in the event of an audit. The documentation required in this subpart
must be retained for a period of no less than 3 years from the date of
the certification. There is no record retention requirement for any
application (and supporting documentation) after the Secretary has made
a final decision to deny the application.
(d) Positive recruitment steps. An employer filing an application
must:
(1) Submit a job order to the SWA serving the area of intended
employment;
(2) Run two print advertisements (one of which must be on a Sunday,
except as provided in paragraph (g) of this section);
(3) Contact former U.S. employees who were employed within the last
year as described in paragraph (h) of this section; and
(4) Based on an annual determination made by the Secretary, as
described in paragraph (i) of this section, recruit in all States
currently designated as a State of traditional or expected labor supply
with respect to each area of intended employment in which the
employer's work is to be performed as required in paragraph (i)(2) of
this section.
(e) Job order. (1) The employer must submit a job order to the SWA
serving the area of intended employment no more than 75 calendar days
and no fewer than 60 calendar days before the date of need for
intrastate and interstate clearance, identifying it as a job order to
be placed in connection with a future application for H-2A workers. If
the job opportunity is located in more than one State, the employer may
submit a job order to any one of the SWAs having jurisdiction over the
anticipated worksites. Where a future master application will be filed
by an association of agricultural employers, the SWA will prepare a
single job order in the name of the association on behalf of all
employers that will be duly named on the Application for Temporary
Employment Certification. Documentation of this step by the applicant
is satisfied by maintaining proof of posting from the SWA identifying
the job order number(s) with the start and end dates of the posting of
the job order.
(2) The job order submitted to the SWA must satisfy all the
requirements for newspaper advertisements contained in Sec. 655.103
and comply with the requirements for agricultural clearance orders in
20 CFR part 653 Subpart F and the requirements set forth in Sec.
655.104.
(3) The SWA will review the contents of the job order as provided
in 20 CFR part 653 Subpart F and will work with the employer to address
any deficiencies, except that the order may be placed prior to
completion of the housing inspection required by 20 CFR 653.501(d)(6)
where necessary to meet the timeframes required by statute and
regulation. However, the SWA must ensure that housing within its
jurisdiction is inspected as expeditiously as possible thereafter. Any
issue with regard to whether a job order may properly be placed in the
job service system that cannot be resolved with the applicable SWA may
be brought to the attention of the NPC, which may direct that the job
order be placed in the system where the NPC determines that the
applicable program requirements have been met. If the NPC concludes
that the job order is not acceptable, it shall so inform the employer
using the procedures applicable to a denial of certification set forth
in Sec. 655.109(e).
(f) Intrastate/Interstate recruitment. (1) Upon receipt and
acceptance of the job order, the SWA must promptly place the job order
in intrastate clearance on its active file and begin recruitment of
eligible U.S. workers. The SWA receiving the job order under paragraph
(e) of this section will promptly transmit, on behalf of the employer,
a copy of its active job order to all States listed in the job order as
anticipated worksites. The SWA must also transmit a copy of all active
job orders to no fewer than three States, which must include those
States, if any, designated by the Secretary as traditional or expected
labor supply States (``out-of-State recruitment States'') for the area
of intended employment in which the employer's work is to be performed
as defined in paragraph (i) of this section.
(2) Unless otherwise directed by the CO, the SWA must keep the job
order open for interstate clearance until the end of the recruitment
period, as set forth in Sec. 655.102(f)(3). Each of the SWAs to which
the job order was referred must keep the job order open for that same
period of time and must refer each eligible U.S. worker who applies (or
on whose behalf an application is made) for the job opportunity.
(3) (i) For the first 5 years after the effective date of this
rule, the recruitment period shall end 30 days after the first date the
employer requires the services of the H-2A workers, or on the last day
the employer requires the services of H-2A workers in the applicable
area of intended employment, whichever is sooner (the 30-day rule).
During that 5-year period, the Department will endeavor to study
[[Page 77215]]
the costs and benefits of providing for continuing recruitment of U.S.
workers after the H-2A workers have already entered the country. Unless
prior to the expiration of the 5-year period the Department conducts a
study and publishes a notice determining that the economic benefits of
such extended recruitment period outweigh its costs, the recruitment
period will, after the expiration of the 5-year period, end on the
first date the employer requires the services of the H-2A worker.
(ii) Withholding of U.S. workers prohibited. The provisions of this
paragraph shall apply so as long as the 30-day rule is in place.
(A) Complaints. Any employer who has reason to believe that a
person or entity has willfully and knowingly withheld U.S. workers
prior to the arrival at the job site of H-2A workers in order to force
the hiring of U.S. workers during the 30-day rule under paragraph
(f)(3)(i) of this section may submit a written complaint to the CO. The
complaint must clearly identify the person or entity who the employer
believes has withheld the U.S. workers, and must specify sufficient
facts to support the allegation (e.g., dates, places, numbers and names
of U.S. workers) which will permit an investigation to be conducted by
the CO.
(B) Investigations. The CO must immediately investigate the
complaint. The investigation must include interviews with the employer
who has submitted the complaint, the person or entity named as
responsible for withholding the U.S. workers, and the individual U.S.
workers whose availability has purportedly been withheld.
(C) Written findings. Where the CO determines, after conducting the
interviews required by this paragraph, that the employer's complaint is
valid and justified, the CO shall immediately suspend the application
of the 30-day rule under paragraph (f)(3)(i) of this section to the
employer. The CO's determination shall be the final decision of the
Secretary.
(g) Newspaper advertisements. (1) During the period of time that
the job order is being circulated by the SWA(s) for interstate
clearance under paragraph (f) of this section, the employer must place
an advertisement on 2 separate days, which may be consecutive, one of
which must be a Sunday (except as provided in paragraph (g)(2) of this
section), in a newspaper of general circulation serving the area of
intended employment that has a reasonable distribution and is
appropriate to the occupation and the workers likely to apply for the
job opportunity. Both newspaper advertisements must be published only
after the job order is accepted by the SWA for intrastate/interstate
clearance.
(2) If the job opportunity is located in a rural area that does not
have a newspaper with a Sunday edition, the employer must, in place of
a Sunday edition, advertise in the regularly published daily edition
with the widest circulation in the area of intended employment.
(3) The newspaper advertisements must satisfy the requirements of
Sec. Sec. 655.103 and 655.104. The employer must maintain copies of
newspaper pages (with date of publication and full copy of ad), or 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 a professional, trade or ethnic publication is more
appropriate for the occupation and the workers likely to apply for the
job opportunity than 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 one of the newspaper advertisements, but
may not replace the Sunday advertisement (or the substitute required by
paragraph (g)(2) of this section).
(h) Contact with former U.S. employees. The employer must contact
by mail or other effective means its former U.S. employees (except
those who were dismissed for cause, abandoned the worksite, or were
provided documentation at the end of their previous period of
employment explaining the lawful, job-related reasons they would not be
re-contacted) employed by the employer in the occupation at the place
of employment during the previous year and solicit their return to the
job. The employer must maintain copies of correspondence signed and
dated by the employer or, if other means are used, maintain dated logs
demonstrating that each worker was contacted, including the phone
number, e-mail address, or other means that was used to make contact.
The employer must list in the recruitment report any workers who did
not return to the employ of the employer because they were either
unable or unwilling to return to the job or did not respond to the
employer's request, and must retain documentation, if provided by the
worker, showing evidence of their inability, unwillingness, or non-
responsiveness.
(i) Additional positive recruitment. (1) Each year, the Secretary
will make a determination with respect to each State whether there are
other States (``traditional or expected labor supply States'') in which
there are a significant number of able and qualified workers who, if
recruited, would be willing to make themselves available for work in
that State, as well as which newspapers in each traditional or expected
labor supply State that the employer may use to fulfill its obligation
to run a newspaper advertisement in that State. Such determination must
be based on information provided by State agencies or by other sources
within the 120 days preceding the determination (which will be
solicited by notice in the Federal Register), and will to the extent
information is available take into account the success of recent
efforts by out-of-State employers to recruit in that State. The
Secretary will not designate a State as a traditional or expected labor
supply State if the State has a significant number of employers that
are recruiting for U.S. workers for the same types of occupations and
comparable work. The Secretary's annual determination as to traditional
or expected labor supply States, if any, from which applicants from
each State must recruit will be published in the Federal Register and
made available through the ETA Web site.
(2) Each employer must engage in positive recruitment in those
States designated in accordance with paragraph (i)(1) with respect to
the State in which the employer's work is to be performed. Such
recruitment will consist of one newspaper advertisement in each State
in one of the newspapers designated by the Secretary, published within
the same period of time as the newspaper advertisements required under
paragraph (g) of this section. An employer will not be required to
conduct positive recruitment in more than three States designated in
accordance with paragraph (i)(1) for each area of intended employment
listed on the employer's application. The advertisement must refer
applicants to the SWA nearest the area in which the advertisement was
placed.
(j) Referrals of U.S. workers. SWAs may only refer for employment
individuals for whom they have verified identity and employment
authorization through the process for employment verification of all
workers that is established by INA sec. 274A(b). SWAs must provide
documentation certifying the employment verification that satisfies the
standards of INA sec. 274A(a)(5) and its implementing regulations at 8
CFR 274a.6.
[[Page 77216]]
(k) Recruitment report. (1) No more than 50 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 Employment Certification. The recruitment report must:
(i) List the original number of openings for which the employer
recruited;
(ii) Identify each recruitment source by name;
(iii) 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, and the disposition of each
worker;
(iv) Confirm that former employees were contacted and by what
means; and
(v) If applicable, explain the lawful job-related reason(s) for not
hiring any U.S. workers who applied for the position.
(2) The employer must update the recruitment report within 48 hours
of the date that is the end of the recruitment period as specified in
Sec. 655.102(f)(3). This supplement to the recruitment report must
meet the requirements of paragraph (k)(1) of this section. The employer
must sign and date this supplement to the recruitment report and retain
it for a period of no less than 3 years. The supplement to the
recruitment report must be provided in the event of an audit.
(3) The employer must retain resumes (if provided) of, and evidence
of contact with (which may be in the form of an attestation), each U.S.
worker who applied or was referred to the job opportunity. Such resumes
and evidence of contact must be retained along with the recruitment
report and the supplemental recruitment report for a period of no less
than 3 years, and must be provided in response to a Notice of
Deficiency or 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 requirements set forth in this
section and at Sec. 655.104 and must contain terms and conditions of
employment which are not less favorable than those that will be offered
to the H-2A workers. All advertising must contain the following
information:
(a) The employer's name and location(s) of work, or in the event
that a master application will be filed by an association, a statement
indicating that the name and location of each member of the association
can be obtained from the SWA of the State in which the advertisement is
run;
(b) The geographic area(s) of employment with enough specificity to
apprise applicants of any travel requirements and where applicants will
likely have to reside to perform the services or labor;
(c) A description of the job opportunity for which certification is
sought with sufficient information to apprise U.S. workers of services
or labor to be performed and the anticipated period of employment of
the job opportunity;
(d) The wage offer, or in the event that there are multiple wage
offers (such as where a master application will be filed by an
association and/or where there are multiple crop activities for a
single employer), the range of applicable wage offers and, where a
master application will be filed by an association, a statement
indicating that the rate(s) applicable to each employer can be obtained
from the SWA;
(e) The three-fourths guarantee specified in Sec. 655.104(i);
(f) If applicable, a statement that work tools, supplies, and
equipment will be provided at no cost to the worker;
(g) A statement that housing will be made available at no cost to
workers, including U.S. workers, who cannot reasonably return to their
permanent residence at the end of each working day;
(h) If applicable, a statement that transportation and subsistence
expenses to the worksite will be provided by the employer;
(i) A statement that the position is temporary and a specification
of the total number of job openings the employer intends to fill;
(j) A statement directing applicants to report or send resumes to
the SWA of the State in which the advertisement is run for referral to
the employer;
(k) Contact information for the applicable SWA and the job order
number.
Sec. 655.104 Contents of job offers.
(a) Preferential treatment of aliens prohibited. The employer's job
offer must offer to U.S. workers no less than the same benefits, wages,
and working conditions that the employer is offering, intends to offer,
or will provide to H-2A workers. 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) Job qualifications. Each job qualification listed in the job
offer must not substantially deviate from the normal and accepted
qualifications required by employers that do not use H-2A workers in
the same or comparable occupations and crops.
(c) Minimum benefits, wages, and working conditions. 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 (q) of this section.
(d) Housing. (1) Obligation to provide housing. The employer must
provide housing at no cost to the worker, except for those U.S. workers
who are reasonably able to return to their permanent residence at the
end of the work day. Housing must be provided through one of the
following means:
(i) Employer-provided housing. Employer-provided 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 under Sec. 654.401; or
(ii) Rental and/or public accommodations. Rental or public
accommodations or other substantially similar class of habitation that
meets applicable local standards for such housing. In the absence of
applicable local standards, State standards will apply. In the absence
of applicable local or State standards, DOL OSHA standards at 29 CFR
1910.142 will apply. Any charges for rental housing must be paid
directly by the employer to the owner or operator of the housing. The
employer must document that the housing complies with the local, State,
or Federal housing standards. Such documentation may include but is not
limited to a certificate from a State Department of Health or other
State or local agency or a statement from the manager or owner of the
housing.
(2) Standards for range housing. Housing for workers principally
engaged in the range production of livestock shall meet standards of
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 must meet guidelines issued by ETA.
(3) Deposit charges. Charges in the form of deposits for bedding or
other similar incidentals related to housing must 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
[[Page 77217]]
damage which is not the result of normal wear and tear related to
habitation.
(4) Charges for public housing. If public housing provided for
migrant agricultural workers under the auspices of a local, county, or
State government is secured by the employer, the employer must pay any
charges normally required for use of the public housing units (but need
not pay for optional, extra services) directly to the housing's
management.
(5) Family housing. When it is the prevailing practice in the area
of intended employment and the occupation to provide family housing,
family housing must be provided to workers with families who request
it.
(6) Housing inspection. In order to ensure that the housing
provided by an employer under this section meets the relevant standard:
(i) An employer must make the required attestation, which may
include an attestation that the employer is complying with the
procedures set forth in Sec. 654.403, 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 less than 60 days before the date of need, except where
otherwise provided under this part.
(iii) The SWA must make its determination that the housing meets
the statutory criteria applicable to the type of housing provided prior
to the date on which the Secretary is required to make a certification
determination under INA sec. 218(c)(3)(A), which is 30 days before the
employer's date of need. SWAs must not adopt rules or restrictions on
housing inspections that unreasonably prevent inspections from being
completed in the required time frame, such as rules that no inspections
will be conducted where the housing is already occupied or is not yet
leased. If the employer has attested to and met all other criteria for
certification, and the employer has made a timely request for a housing
inspection under this paragraph, and the SWA has failed to complete a
housing inspection by the statutory deadline of 30 days prior to date
of need, the certification will not be withheld on account of the SWA's
failure to meet the statutory deadline. The SWA must 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 must promptly provide written notification to the employer and
the CO. The CO will take appropriate action, including notice to the
employer to cure deficiencies. An employer's failure to cure
substantial violations can result in revocation of the temporary labor
certification.
(7) Certified housing that becomes unavailable. If after a request
to certify housing (but before certification), or after certification
of housing, such housing becomes unavailable for reasons outside the
employer's control, the employer may substitute other rental or public
accommodation housing that is in compliance with the local, State, or
Federal housing standards applicable under paragraph (d)(1)(ii) of this
section 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 with the applicable local, State or Federal
safety and health standards, in accordance with the requirements of
paragraph (d)(1)(ii) of this section. The SWA must notify the CO of all
housing changes and of any noncompliance with the standards set forth
in paragraph (d)(1)(ii) of this section. Substantial noncompliance can
result in revocation of the temporary labor certification under Sec.
655.117.
(e) Workers' compensation. The employer must provide workers'
compensation insurance coverage in compliance with State law covering
injury and disease arising out of and in the course of the worker's
employment. If the type of employment for which the certification is
sought is not covered by or is exempt from the State's workers'
compensation law, the employer must provide, at no cost to the worker,
insurance 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 for other
comparable employment. The employer must retain for 3 years from the
date of certification of the application, the name of the insurance
carrier, the insurance policy number, and proof of insurance for the
dates of need, or, if appropriate, proof of State law coverage.
(f) Employer-provided items. Except as provided in this paragraph,
the employer must 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, provided that the requirements of sec. 3(m) of the FLSA at
29 U.S.C. 203(m) are met. Section 3(m) does not permit deductions for
tools or equipment primarily for the benefit of the employer that
reduce an employee's wage below the wage required under the minimum
wage, or, where applicable, the overtime provisions of the FLSA.
(g) Meals. The employer either must provide each worker with three
meals a day or must 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 must
state the charge, if any, to the worker for such meals. The amount of
meal charges is governed by Sec. 655.114.
(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 must pay the worker for reasonable costs incurred
by the worker for transportation and daily subsistence from the place
from which the worker has departed to the employer's place of
employment. For an H-2A worker coming from outside of the U.S., the
place from which the worker has departed is the place of recruitment,
which the Department interprets to mean the appropriate U.S. consulate
or port of entry. When it is the prevailing practice of non-H-2A
agricultural employers in the occupation in the area to do so, or when
the employer extends such benefits to similarly situated H-2A workers,
the employer must advance the required transportation and subsistence
costs (or otherwise provide them) to U.S. workers. The amount of the
transportation payment must be no less (and is not 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 must be at least as much as the employer would charge the
worker for providing the worker with three meals a day during
employment (if applicable), but in no event less than the amount
[[Page 77218]]
permitted under paragraph (g) of this section.
(2) Transportation from last place of employment to home country.
If the worker completes the work contract period, and the worker has no
immediately subsequent H-2A employment, the employer must 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, departed to work for the employer. For an H-2A
worker coming from outside of the U.S., the place from which the worker
has departed will be considered to be the appropriate U.S. consulate or
port of entry.
(3) Transportation between living quarters and worksite. The
employer must provide transportation between the worker's living
quarters (i.e., housing provided or secured by the employer pursuant to
paragraph (d) of this section) and the employer's worksite at no cost
to the worker, and such transportation must comply with all applicable
Federal, State or local laws and regulations, and must 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,
subpart D. 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.
(i) Three-fourths guarantee. (1) Offer to worker. The employer must
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 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 a workday means the number of hours in a workday as stated in
the job order and excludes the worker's Sabbath and Federal holidays.
The employer must 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,
or during any modified work contract period to which the worker and
employer have mutually agreed and has been approved by the CO. The work
contract period can be shortened by agreement of the parties only with
the approval of the CO. 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). If a
Federal holiday occurred during the 10-week span, the 8 hours would be
deducted from the total guaranteed. 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 will 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, the employer must 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 must 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, and all hours of work
actually performed (including voluntary work over 8 hours in a workday
or on the worker's Sabbath or Federal holidays), may be counted by the
employer in calculating whether the period of guaranteed employment has
been met. An employer seeking to calculate whether the number of hours
has been met must maintain the payroll records in accordance with
paragraph (j)(2) of this section.
(4) Displaced H-2A worker. The employer is not liable for payment
under paragraph (i)(1) of this section to an H-2A worker whom the CO
certifies is displaced because of the employer's compliance with Sec.
655.105(d) with respect to referrals made after the employer's date of
need. The employer is, however, liable for return transportation for
any such displaced worker in accordance with paragraph (h)(2) of this
section.
(5) Obligation to provide housing and meals. Notwithstanding the
three-fourths guarantee contained in this section, employers are
obligated to provide housing and subsistence for each day of the
contract period up until the day the workers depart for other H-2A
employment, depart to the place outside of the U.S. from which the
worker came, or, if the worker voluntarily abandons employment or is
terminated for cause, the day of such abandonment or termination.
(j) Earnings records. (1) The employer must 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 taken
from the worker's wages.
(2) Each employer must keep the records required by this part,
including field tally records and supporting summary payroll records,
safe and accessible at the place or places of employment, or at one or
more established central recordkeeping offices where such records are
customarily maintained. All records must be available for inspection
and transcription by the Secretary or a duly authorized and designated
representative, and by the worker and representatives designated by the
worker as evidenced by appropriate documentation (an Entry of
Appearance as Attorney or Representative, Form G-28, signed by the
worker, or an affidavit signed by the worker confirming such
representation). Where the records are maintained at a central
recordkeeping office, other than in the place or places of employment,
such records must be made available for inspection and copying within
72 hours following notice from the Secretary, or a duly authorized and
designated
[[Page 77219]]
representative, and by the worker and designated representatives as
described in this paragraph.
(3) To assist in determining whether the three-fourths guarantee in
paragraph (i) 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 offer, the
records must state the reason or reasons therefore.
(4) The employer must retain the records for not less than 3 years
after the completion of the work contract.
(k) Hours and earnings statements. The employer must 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 is paid by the hour, the
employer must pay the worker at least the AEWR in effect at the time
recruitment for the position was begun, the prevailing hourly wage
rate, the prevailing piece rate, or the 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 is 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 must 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 instead been
paid at the appropriate hourly wage rate for each hour worked;
(ii) The piece rate must be no less than the piece rate prevailing
for the activity in the area of intended employment; and
(iii) 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 must be specified in the job offer and must
be normal, meaning that they may not be unusual for workers performing
the same activity in the area of intended employment.
(m) Frequency of pay. The employer must state in the job offer the
frequency with which the worker will be paid, which must be at least
twice monthly.
(n) Abandonment of employment or termination for cause. If the
worker voluntarily abandons employment before the end of the contract
period, fails to report for employment at the beginning of the contract
period, or is terminated for cause, and the employer notifies the
Department and DHS in writing or by any other method specified by the
Department or DHS in a manner specified in a notice published in the
Federal Register not later than 2 working days after such abandonment
or abscondment occurs, 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 described in
paragraph (i) of this section. An abandonment or abscondment shall be
deemed to begin after a worker fails to report for work at the
regularly scheduled time for 5 consecutive working days without the
consent of the employer. Employees may be terminated for cause,
however, for shorter unexcused periods of time that shall not be
considered abandonment or abscondment.
(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, weather, 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 CO. In the event of such termination of a contract,
the employer must fulfill a three-fourths guarantee for the time that
has elapsed from the start of the work contract to the time of its
termination as described in paragraph (i)(1) of this section. The
employer must:
(1) Return the worker, at the employer's expense, to the place from
which the worker (disregarding intervening employment) came to work for
the employer, or transport the worker to the worker's next certified H-
2A employer (but only if the worker can provide documentation
supporting such employment), whichever the worker prefers. For an H-2A
worker coming from outside of the U.S., the place from which the worker
(disregarding intervening employment) came to work for the employer is
the appropriate U.S. consulate or port of entry;
(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 will be computed as set forth in
paragraph (h) of this section. The amount of the transportation payment
will be no less (and is not required to be more) than the most
economical and reasonable common carrier transportation charges for the
distances involved.
(p) Deductions. The employer must make all deductions from the
worker's paycheck that are required by law. The job offer must specify
all deductions not required by law which the employer will make from
the worker's paycheck. All deductions must be reasonable. However, an
employer subject to the FLSA may not make deductions that would violate
the FLSA.
(q) Copy of work contract. The employer must 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 must
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 job order, as
provided in 20 CFR part 653, Subpart F, will be the work contract.
Sec. 655.105 Assurances and obligations of H-2A employers.
An employer seeking to employ H-2A workers must attest as part of
the Application for Temporary Employment Certification that it will
abide by the following conditions of this subpart:
(a) The job opportunity is and will continue through the
recruitment period to be open to any qualified U.S. worker regardless
of race, color, national origin, age, sex, religion, handicap, or
citizenship, and the employer has conducted and will continue to
conduct the required recruitment, in accordance with regulations, and
has been unsuccessful in locating sufficient numbers of qualified U.S.
applicants for the job opportunity for which certification is sought.
Any U.S. workers who applied or apply for the job were or will be
rejected only for lawful, job-related reasons, and those not rejected
on this basis have been or will be hired. In addition, the employer
attests that it
[[Page 77220]]
will retain records of all rejections as required by Sec. 655.119.
(b) The employer is offering terms and working conditions 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) The specific job opportunity for which the employer is
requesting H-2A certification is not vacant because the former occupant
is on strike or being locked out in the course of a labor dispute.
(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 end of
the recruitment period as specified in Sec. 655.102(f)(3).
(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 for or secure housing for those workers who are not
reasonably able to return to their permanent residence at the end of
the work day, without charge to the worker, that complies with the
applicable standards as set forth in Sec. 655.104(d);
(3) Where required, has timely requested a preoccupancy inspection
of the housing and, if one has been conducted, received certification;
(4) Provide insurance, without charge to the worker, under a State
workers' compensation law or otherwise, that meets the requirements of
Sec. 655.104(e); and
(5) 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 under 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 by the Department or DHS) of the separation from
employment not later than 2 work days after such separation is
discovered by the employer. The procedures for reporting abandonments
and abscondments are outlined in Sec. 655.104(n) of this subpart.
(g) The offered wage rate is the highest of the AEWR in effect at
the time recruitment is initiated, the prevailing hourly wage or piece
rate, or the Federal or State minimum wage, and the employer will pay
the offered wage during the entire 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 or exceeds the AEWR, prevailing
hourly wage or piece rate, or the legal Federal or State minimum wage,
whichever is highest.
(i) The job opportunity is a full-time temporary position,
calculated to be at least 30 hours per work week, the qualifications
for which do not substantially deviate from the normal and accepted
qualifications required by employers that do not use H-2A workers in
the same or comparable occupations or crops.
(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 except for lawful, job related reasons within 60
days of the date of need, or if the employer has laid off such workers,
it has offered the job opportunity that is the subject of the
application to those laid-off U.S. worker(s) and the U.S. worker(s)
either refused the job opportunity or was rejected for the job
opportunity for lawful, job-related reasons.
(k) The employer has not and will not intimidate, threaten,
restrain, coerce, blacklist, or in any manner discriminate against, and
has not and will 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 at 8
U.S.C. 1188, or this subpart or any other Department regulation
promulgated under 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 Department
regulation promulgated under 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 Department
regulation promulgated under 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 Department regulation promulgated under 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 Department regulation promulgated under sec. 218
of the INA.
(l) The employer shall not discharge any person because 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 worker is being sponsored
by another subsequent employer.
(o) The employer and its agents have not sought or received payment
of any kind from the employee for any activity related to obtaining
labor certification, including payment of the employer's attorneys'
fees, application fees, or recruitment costs. 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, tributes, in kind payments, and free
labor. This provision does not prohibit employers or their agents from
receiving reimbursement for costs that are the responsibility of the
worker, such as government required passport or visa fees.
(p) The employer has contractually forbidden any foreign labor
contractor or recruiter whom the employer engages in international
recruitment of H-2A workers to seek or receive payments from
prospective employees, except as provided for in DHS regulations at 8
CFR 214.2(h)(5)(xi)(A).
(q) The applicant is either a fixed-site employer, an agent or
recruiter, an H-2ALC (as defined in these regulations), or an
association.
Sec. 655.106 Assurances and obligations of H-2A Labor Contractors.
(a) The pre-filing activity requirements set forth in Sec. 655.102
are modified as follows for H-2ALCs:
(1) The job order for an H-2ALC may contain work locations in
multiple areas of intended employment, and may be submitted to any one
of the SWAs
[[Page 77221]]
having jurisdiction over the anticipated work areas. The SWA receiving
the job order 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, as well as those States, if any, designated by
the Secretary as traditional or expected labor supply States for each
area in which the employer's work is to be performed. Each SWA shall
keep the H-2ALC's job order posted until the end of the recruitment
period, as set forth in Sec. 655.102(f)(3), for the area of intended
employment that is covered by the SWA. SWAs in States that have been
designated as traditional or expected labor supply States for more than
one area of intended of employment that are listed on an application
shall keep the H-2ALC's job order posted until the end of the
applicable recruitment period that is last in time, and may make
referrals for job opportunities in any area of intended employment that
is still in an active recruitment period, as defined by Sec.
655.102(f)(3).
(2) The H-2ALC must conduct separate positive recruitment under
Sec. 655.102(g) through (i) for each area of intended employment in
which the H-2ALC intends to perform work, but need not conduct separate
recruitment for each work location within a single area of intended
employment. The positive recruitment for each area of intended
employment must list the name and location of each fixed-site
agricultural business to which the H-2ALC expects to provide H-2A
workers, the expected beginning and ending dates when the H-2ALC will
be providing the workers to each fixed site, and a description of the
crops and activities the workers are expected to perform at such fixed
site. Such positive recruitment must be conducted pre-filing for the
first area of intended employment, but must be started no more than 75
and no fewer than 60 days before the listed arrival date (or the
amended date, if applicable) for each subsequent area of intended
employment. For each area of intended employment, the advertising that
must be placed in any applicable States designated as traditional or
expected labor supply States must be placed at the same time as the
placement of other positive recruitment for the area of intended
employment in accordance with Sec. 655.102(i)(2).
(3) The job order and the positive recruitment in each area of
intended employment may require that workers complete the remainder of
the H-2ALC's itinerary.
(4) An H-2ALC who hires U.S. workers during the course of its
itinerary, and accordingly releases one or more of its H-2A workers, is
eligible for the release from the three-quarters guarantee with respect
to the released H-2A workers that is provided for in Sec.
655.104(i)(4).
(5) An H-2ALC may amend its application subsequent to submission in
accordance with Sec. 655.107(d)(3) to account for new or changed
worksites or areas of intended employment during the course of the
itinerary in the following manner:
(i) If the additional worksite(s) are in the same area(s) of
intended employment as represented on the Application for Temporary
Employment Certification, the H-2ALC is not required to re-recruit in
those areas of intended employment if that recruitment has been
completed and if the job duties at the new work sites are similar to
those already covered by the application.
(ii) If the additional worksite(s) are outside the area(s) of
intended employment represented on the Application for Temporary
Employment Certification, the H-2ALC must submit in writing the new
area(s) of intended employment and explain the reasons for the
amendment of the labor certification itinerary. The CO will order
additional recruitment in accordance with Sec. 655.102(d).
(iii) For any additional worksite not included on the original
application that necessitates a change in housing of H-2A workers, the
H-2ALC must secure the statement of housing as described in paragraph
(b)(6) of this section and obtain an inspection of such housing from
the SWA in the area of intended employment.
(iv) Where additional recruitment is required under paragraphs
(a)(5)(i) or (a)(5)(ii) of this section, the CO shall allow it to take
place on an expedited basis, where possible, so as to allow the amended
dates of need to be met.
(6) Consistent with paragraph (a)(5) of this section, no later than
30 days prior to the commencement of employment in each area of
intended employment in the itinerary of an H-2ALC, the SWA having
jurisdiction over that area of intended employment must complete the
housing inspections for any employer-provided housing to be used by the
employees of the H-2ALC.
(7) To satisfy the requirements of Sec. 655.102(h), the H-2ALC
must contact all U.S employees that worked for the H-2ALC during the
previous season, except those excluded by that section, before filing
its application, and must advise those workers that a separate job
opportunity exists for each area of intended employment that is covered
by the application. The employer may advise contacted employees that
for any given job opportunity, workers may be required to complete the
remainder of the H-2ALC's itinerary.
(b) In addition to the assurances and obligations listed in Sec.
655.105, H-2ALC applicants are also required to:
(1) Provide the MSPA Farm Labor Contractor (FLC) certificate of
registration number and expiration date if required under MSPA at 29
U.S.C. 1801 et seq., to have such a certificate;
(2) Identify the farm labor contracting activities the H-2ALC is
authorized to perform as an FLC under MSPA as shown on the FLC
certificate of registration, if required under MSPA at 29 U.S.C. 1801
et seq., to have such a certificate of registration;
(3) List the name and location of each fixed-site agricultural
business to which the H-2A Labor Contractor expects to provide H-2A
workers, the expected beginning and ending dates when the H-2ALC will
be providing the workers to each fixed site, and a description of the
crops and activities the workers are expected to perform at such fixed
site;
(4) 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 (as calculated pursuant to 29 CFR 501.8) and any
identifying designation utilized by the surety for the bond;
(5) Attest that it has engaged in, or will engage in within the
timeframes required by Sec. 655.102 as modified by Sec. 655.106(a),
recruitment efforts in each area of intended employment in which it has
listed a fixed-site agricultural business; and
(6) Attest that it will be providing housing and transportation
that complies with the applicable housing standards in Sec. 655.104(d)
or that it has obtained from each fixed-site agricultural business that
will provide housing or transportation to the workers a written
statement stating that:
(i) All housing used by workers and owned, operated or secured by
the fixed-site agricultural business complies with the applicable
housing standards in Sec. 655.104(d); and
(ii) All transportation between the worksite and the workers'
living quarters that is provided by the fixed-site agricultural
business complies with all applicable Federal, State, or local laws and
regulations and will 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, subpart D,
[[Page 77222]]
except where workers' compensation is used to cover such transportation
as described in Sec. 655.104(h)(3).
Sec. 655.107 Processing of applications.
(a) Processing. (1) Upon receipt of the application, the CO will
promptly review the application for completeness and an absence of
errors that would prevent certification, and for compliance with the
criteria for certification. The CO will make a determination to
certify, deny, or issue a Notice of Deficiency prior to making a Final
Determination on the application. Applications requesting that zero job
opportunities be certified for H-2A employment because the employer has
been able to recruit a sufficient number of U.S. workers must comply
with other requirements for H-2A applications and must be supported by
a recruitment report, in which case the application will be accepted
but will then be denied. Criteria for certification, as used in this
subpart, include, but are not limited to, whether the employer has
established the need for the agricultural services or labor to be
performed on a temporary or seasonal basis; made all the assurances and
met all the obligations required by Sec. 655.105, and/or, if an H-
2ALC, by Sec. 655.106; complied with the timeliness requirements in
Sec. 655.102; and complied with the recruitment obligations required
by Sec. Sec. 655.102 and 655.103.
(2) Unless otherwise noted, any notice or request sent by the CO or
OFLC to an applicant requiring a response shall be sent by means
normally assuring next-day delivery, to afford the applicant sufficient
time to respond. The employer's response shall be considered filed with
the Department when sent (by mail, certified mail, or any other means
indicated to be acceptable by the CO) to the Department, which may be
demonstrated, for example, by a postmark.
(b) Notice of deficiencies. (1) If the CO determines that the
employer has made all necessary attestations and assurances, but the
application fails to comply with one or more of the criteria for
certification in paragraph (a) of this section, the CO will promptly
notify the employer within 7 calendar days of the CO's receipt of the
application.
(2) The notice will:
(i) State the reason(s) why the application fails to meet the
criteria for temporary labor certification, citing the relevant
regulatory standard(s);
(ii) Offer the employer an opportunity to submit a modified
application within 5 business days from date of receipt, stating the
modification that is needed for the CO to accept the application for
consideration;
(iii) Except as provided for under paragraph (b)(2)(iv) of this
section, 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) Where the CO determines the employer failed to comply with the
recruitment obligations required by Sec. Sec. 655.102 and 655.103,
offer the employer an opportunity to correct its recruitment and
conduct it on an expedited schedule. The CO shall specify the positive
recruitment requirements, request the employer submit proof of
corrected advertisement and an initial recruitment report meeting the
requirements of Sec. 655.102(k) no earlier than 48 hours after the
last corrected advertisement is printed, and state that the CO's
determination on whether to grant or deny the Application for Temporary
Employment Certification will be made within 5 business days of
receiving the required documentation, which may be a date later than 30
days before the date of need:
(v) Offer the employer an opportunity to request an expedited
administrative review or a de novo administrative hearing before an
ALJ, of the Notice of Deficiency. The notice will state that in order
to obtain such a review or hearing, the employer, within 5 business
days of the receipt of the notice, must file by facsimile or other
means normally assuring next day delivery, a written request to the
Chief Administrative Law Judge of DOL and simultaneously serve a copy
on the CO. The notice will also state that the employer may submit any
legal arguments that the employer believes will rebut the basis of the
CO's action; and
(vi) State that if the employer does not comply with the
requirements under paragraphs (b)(2)(ii) and (iv) of this section or
request an expedited administrative judicial review or a de novo
hearing before an ALJ within the 5 business days the CO will deny the
application in accordance with the labor certification determination
provisions in Sec. 655.109.
(c) Submission of modified applications. (1) If the CO notifies the
employer of any deficiencies within the 7 calendar day timeframe set
forth in paragraph (b)(1) 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 (b)(2)(ii) of this section to submit a modified
application.
(2) Where the employer submits a modified application as required
by the CO, and the CO approves the modified application, the CO will
not deny the application based solely on the fact that it now does not
meet the timeliness requirements for filing applications.
(3) If the modified application is not approved, the CO will deny
the application in accordance with the labor certification
determination provisions in Sec. 655.109.
(d) Amendments to applications. (1) Applications may be amended at
any time before the CO's certification determination to increase the
number of workers requested in the initial application by not more than
20 percent (50 percent for employers requesting 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.
(2) Applications may be amended to make minor changes in the total
period of employment, but only if a written request is submitted to the
CO and approved in advance. In considering whether to approve the
request, the CO will review the reason(s) for the request, determine
whether the reason(s) are on the whole 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 total 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 workers will be provided housing and subsistence, without
cost to the workers, until work commences. Upon acceptance of an
amendment, the CO will submit to the SWA any necessary modification to
the job order.
(3) Other amendments to the application, including elements of the
job offer and the place of work, may be approved by the CO if the CO
determines the proposed amendment(s) are justified by a business reason
and will not prevent the CO from making the
[[Page 77223]]
labor certification determination required under Sec. 655.109.
Requested amendments will be reviewed as quickly as possible, taking
into account revised dates of need for work locations associated with
the amendment.
(e) Appeal procedures. With respect to either a Notice of
Deficiency issued under paragraph (b) of this section, the denial of a
requested amendment under paragraph (d) of this section, or a notice of
denial issued under Sec. 655.109(e), if the employer timely requests
an expedited administrative review or de novo hearing before an ALJ,
the procedures set forth in Sec. 655.115 will be followed.
Sec. 655.108 Offered wage rate.
(a) Highest wage. To comply with its obligation under Sec.
655.105(g), an employer must offer a wage rate that is the highest of
the AEWR in effect at the time recruitment for a position is begun, the
prevailing hourly wage or piece rate, or the Federal or State minimum
wage.
(b) Wage rate request. The employer must request and obtain a wage
rate determination from the NPC, on a form prescribed by ETA, before
commencing any recruitment under this subpart, except where
specifically exempted from this requirement by these regulations.
(c) Validity of wage rate. The recruitment must begin within the
validity period of the wage determination obtained from the NPC.
Recruitment for this purpose begins when the job order is accepted by
the SWA for posting.
(d) Wage offer. The employer must offer and advertise in its
recruitment a wage at least equal to the wage rate required by
paragraph (a) of this section.
(e) Adverse effect wage rate. The AEWR will be based on published
wage data for the occupation, skill level, and geographical area from
the Bureau of Labor Statistics (BLS), Occupational Employment
Statistics (OES) survey. The NPC will obtain wage information on the
AEWR using the On-line Wage Library (OWL) found on the Foreign Labor
Certification Data Center Web site (http://www.flcdatacenter.com/).
This wage shall not be less than the July 24, 2009 Federal minimum wage
of $7.25.
(f) Wage determination. The NPC must enter the wage rate
determination on a form it uses, indicate the source, and return the
form with its endorsement to the employer.
(g) Skill level. (1) Level I wage rates are assigned to job offers
for beginning level employees who have a basic understanding of the
occupation. These employees perform routine tasks that require limited,
if any, exercise of judgment. The tasks provide experience and
familiarization with the employer's methods, practices, and programs.
The employees may perform higher level work for training and
developmental purposes. These employees work under close supervision
and receive specific instructions on required tasks and results
expected. Their work is closely monitored and reviewed for accuracy.
(2) Level II wage rates are assigned to job offers for employees
who have attained, through education or experience, a good
understanding of the occupation. These employees perform moderately
complex tasks that require limited judgment. An indicator that the job
request warrants a wage determination at Level II would be a
requirement for years of education and/or experience that are generally
required as described in the O*NET Job Zones.
(3) Level III wage rates are assigned to job offers for employees
who have a sound understanding of the occupation and have attained,
either through education or experience, special skills or knowledge.
These employees perform tasks that require exercising judgment and may
coordinate the activities of other staff. They may have supervisory
authority over those staff. A requirement for years of experience or
educational degrees that are at the higher ranges indicated in the
O*NET Job Zones would be an indicator that a Level III wage should be
considered. Frequently, key words in the job title can be used as
indicators that an employer's job offer is for an experienced worker.
Words such as lead, senior, crew chief, or journeyman would be
indicators that a Level III wage should be considered.
(4) Level IV wage rates are assigned to job offers for employees
who have sufficient experience in the occupation to plan and conduct
work requiring judgment and the independent evaluation, selection,
modification, and application of standard procedures and techniques.
Such employees receive only minimal guidance and their work is reviewed
only for application of sound judgment and effectiveness in meeting the
establishment's procedures and expectations. They generally have
management and/or supervisory responsibilities.
(h) Retention of documentation. An employer filing an Application
for Temporary Employment Certification must maintain documentation of
its wage determination from the NPC as required in this subpart and be
prepared to submit this documentation with the filing of its
application. The documentation required in this subpart must be
retained for a period of no less than 3 years from the date of the
certification. There is no record retention requirement for
applications (and supporting documentation) that are denied.
Sec. 655.109 Labor certification determinations.
(a) COs. The Administrator, OFLC is the Department's National CO.
The Administrator, OFLC, and the CO(s) in the NPC(s) (by virtue of
delegation from the Administrator, OFLC), have the authority to certify
or deny applications for temporary employment certification under the
H-2A nonimmigrant classification. If the Administrator, OFLC 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
NPC(s) will refer such applications to the Administrator, OFLC.
(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(c) for
modified applications, or applications not otherwise meeting
certification criteria by that date, the CO will make a determination
either to grant or deny the Application for Temporary Employment
Certification. The CO will grant the application if and only if: the
employer has met the requirements of this subpart, including the
criteria for certification set forth in Sec. 655.107(a), and thus the
employment of the H-2A workers will not adversely affect the wages and
working conditions of similarly employed U.S. workers.
(c) Notification. The CO will 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. The
Final Determination letter will 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 end of the recruitment period as set forth in Sec. 655.102(f)(3).
However, the employer will not be required to accept referrals of
eligible U.S. workers once it has hired
[[Page 77224]]
or extended employment offers to eligible U.S. workers equal to the
number of H-2A workers sought.
(e) Denied certification. If temporary labor certification is
denied, the Final Determination letter will be sent to the employer by
means normally assuring next-day delivery. The Final Determination
Letter will:
(1) State the reasons certification is denied, 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;
(3) Offer the applicant an opportunity to request an expedited
administrative review, or a de novo administrative hearing before an
ALJ, of the denial. The notice must state that in order to obtain such
a review or hearing, the employer, within 7 calendar days of the date
of the notice, must file by facsimile (fax), telegram, or other means
normally assuring next day delivery, a written request to the Chief
Administrative Law Judge of DOL (giving the address) and simultaneously
serve a copy on the CO. The notice will also state that the employer
may submit any legal arguments which the employer believes will rebut
the basis of the CO's action; and
(4) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ
within the 7 calendar days, the denial is final and the Department will
not further consider that application for temporary alien agricultural
labor certification.
(f) Partial certification. The CO may, 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. The number of workers certified shall be
reduced by one for each referred U.S. worker who is qualified, able,
available and willing. If a partial labor certification is issued, the
Final Determination letter will:
(1) State the reasons for which either the period of need and/or
the number of H-2A workers requested has been reduced, citing the
relevant regulatory standards and/or special procedures;
(2) If applicable, address the availability of U.S. workers in the
occupation;
(3) Offer the applicant an opportunity to request an expedited
administrative review, or a de novo administrative hearing before an
ALJ, of the decision. The notice will state that in order to obtain
such a review or hearing, the employer, within 7 calendar days of the
date of the notice, will file by facsimile or other means normally
assuring next day delivery a written request to the Chief
Administrative Law Judge of DOL (giving the address) and simultaneously
serve a copy on the CO. The notice will also state that the employer
may submit any legal arguments which the employer believes will rebut
the basis of the CO's action; and
(4) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ
within the 7 calendar days, the denial is final and the Department will
not further consider that application for temporary alien agricultural
labor certification.
(g) Appeal procedures. If the employer timely requests an expedited
administrative review or de novo hearing before an ALJ under paragraph
(e)(3) or (f)(3) of this section, the procedures at Sec. 655.115 will
be followed.
(h) Payment of processing fees. A determination by the CO to grant
an Application for Temporary Employment Certification in whole or in
part under paragraph (d) or (f) of this section will include a bill for
the required fees. Each employer of H-2A workers under the Application
for Temporary Employment Certification (except joint employer
associations, which shall not be assessed a fee in addition to the fees
assessed to the members of the association) must 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 $100 plus $10 for each H-
2A worker certified under the Application for Temporary Employment
Certification, provided that the fee to an employer for each temporary
agricultural labor certification received will be no greater than
$1,000. There is no additional fee to the association filing the
application. The fees must be paid by check or money order made payable
to ``United States Department of Labor.'' In the case of H-2A employers
that are members of an agricultural association acting as a joint
employer 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 by the date that is 30 days
after the issuance of the certification will be considered a
substantial program violation and subject to the procedures in Sec.
655.115.
Sec. 655.110 Validity and scope of temporary labor certifications.
(a) Validity period. A temporary labor certification is valid for
the duration of the job opportunity for which certification is granted
to the employer. Except as provided in paragraph and (d) of this
section, the validity period is that time between the beginning and
ending dates of certified employment, as listed on the Application for
Temporary Employment Certification. The certification expires on the
last day of authorized employment.
(b) Scope of validity. Except as provided in 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, and the employer(s) specified on the certified
Application for Temporary Employment Certification (as originally filed
or as amended) 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 will be granted jointly to the association and to each of
the association's employer members named on the application. Workers
authorized by the temporary labor certification 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 is granted
to the association only.
(2) Ineligible employer-members. Workers may not be transferred or
referred to an association's employer member if that employer member
has
[[Page 77225]]
been debarred from participation in the H-2A program.
(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 must apply for such
extension to DHS. If DHS grants the extension, the corresponding
Application for Temporary Employment Certification will be deemed
extended for such period as is approved by DHS.
(2) Long-term extension. For extensions beyond 2 weeks, an employer
may apply to the CO at any time for an extension of the period of
employment on the certified Application for Temporary Employment
Certification for reasons related to weather conditions or other
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, with documentation
showing that the extension is needed and that the need could not have
been reasonably foreseen by the employer. The CO will grant or deny the
request for extension of the period of employment on the Application
for Temporary Employment Certification based on the available
information, and will notify the employer of the decision in writing.
The employer may appeal a denial for a request of an extension in
accordance with the procedures contained in Sec. 655.115. The CO will
not grant an extension where the total work contract period under that
application and extensions would be 12 months or more, except in
extraordinary circumstances.
(e) Requests for determinations based on nonavailability of able,
willing, available, eligible, and qualified U.S. workers. (1) Standards
for requests. If a temporary labor certification has been partially
granted or denied based on the CO's determination that able, willing,
available, eligible, and qualified U.S. workers are available, and, on
or after 30 calendar days before the date of need, some or all of those
U.S. workers are, in fact, no longer able, willing, eligible,
qualified, or available, the employer may request a new temporary labor
certification determination from the CO. Prior to making a new
determination the CO will promptly ascertain (which may be through the
SWA or other sources of information on U.S. worker availability)
whether specific able, willing, eligible and qualified replacement U.S.
workers are available or can be reasonably expected to be present at
the employer's establishment within 72 hours from the date the
employer's request was received. The CO will expeditiously, but in no
case later than 72 hours after the time a complete request (including
the signed statement included in paragraph (e)(2) of this section) is
received, make a determination on the request. An employer may appeal a
denial of such a determination in accordance with the procedures
contained in Sec. 655.115.
(2) Unavailability of U.S. workers. The employer's request for a
new determination must be made directly to the CO by telephone or
electronic mail, and must be confirmed by the employer in writing as
required by this paragraph. If the employer telephonically or via
electronic mail requests the new determination by asserting solely that
U.S. workers have become unavailable, the employer must submit to the
CO a signed statement confirming such assertion. If such signed
statement is not received by the CO within 72 hours of the CO's receipt
of the request for a new determination, the CO will deny the request.
(3) Notification of determination. If the CO determines that U.S.
workers have become unavailable and cannot identify sufficient specific
able, willing, eligible, and qualified U.S. workers who are or who are
likely to be available, the CO will grant the employer's request for a
new determination. However, this does not preclude an employer from
submitting subsequent requests for new determinations, if warranted,
based on subsequent facts concerning purported nonavailability of U.S.
workers or referred workers not being eligible workers or not able,
willing, or qualified because of lawful job-related reasons.
Sec. 655.111 Required departure.
(a) Limit to worker's stay. As defined further in DHS regulations,
a temporary labor certification limits the authorized period of stay
for an H-2A worker. See 8 CFR 214.2(h). A foreign worker may not remain
beyond his or her authorized period of stay, as established by DHS,
which is based upon the validity period of the labor certification
under which the H-2A worker is employed, nor beyond separation from
employment prior to completion of the H-2A contract, absent an
extension or change of such worker's status under 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 that
when the worker departs the U.S. by land at the conclusion of
employment as provided in paragraph (a) of this section, the worker
must register such departure at the place and in the manner prescribed
by DHS.
Sec. 655.112 Audits.
(a) Discretion. The Department will conduct audits of temporary
labor certification applications for which certification has been
granted. The applications selected for audit will be chosen within the
sole discretion of the Department.
(b) Audit letter. Where an application is selected for audit, the
CO will issue an audit letter to the employer/applicant. The audit
letter will:
(1) State the documentation that must be submitted by the employer;
(2) Specify a date, no fewer than 14 days and 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 may result
in a finding by the CO to:
(i) Revoke the labor certification as provided in Sec. 655.117
and/or
(ii) Debar the employer from future filings of H-2A temporary labor
certification applications as provided 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, the CO
determines the employer failed to produce required documentation, or
determines that the employer violated the standards set forth in Sec.
655.117(a) with respect to the application, the employer's labor
certification may be revoked under Sec. 655.117 and/or the employer
may be referred for debarment under Sec. 655.118. The CO may determine
to provide the audit findings and underlying documentation to DHS or
another appropriate enforcement agency. The CO shall refer any findings
that an employer discouraged an eligible U.S. worker from applying, or
failed to hire, discharged, or otherwise discriminated against an
eligible U.S. worker, 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 the CO discovers possible fraud
or willful misrepresentation involving an Application for Temporary
Employment Certification the CO may refer the matter to the DHS and the
Department's Office of the Inspector General for investigation.
[[Page 77226]]
(b) 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 will be deemed
invalid. The determination is not appealable. If a certification has
been granted, a finding under this paragraph will be cause to revoke
the certification.
Sec. 655.114 Setting meal charges; petition for higher meal charges.
(a) Meal charges. Until a new amount is set under this paragraph an
employer may charge workers up to $9.90 for providing them with three
meals per day. The maximum charge allowed by this paragraph (a) will be
changed annually by the same percentage as the 12 month percentage
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 will be effective on the date of
their publication by the Administrator, OFLC, as a Notice in the
Federal Register. When a charge or deduction for the cost of meals
would bring the employee's wage below the minimum wage set by the FLSA
at 29 U.S.C. 206 (FLSA), the charge or deduction must meet the
requirements of 29 U.S.C. 203(m) of the FLSA, including the
recordkeeping requirements found at 29 CFR 516.27.
(b) Filing petitions for higher meal charges. The employer may file
a petition with the CO to charge more than the applicable amount for
meal charges if the employer justifies the charges and submits to the
CO the documentation required by paragraph (b)(1) of this section.
(1) Required documentation. Documentation submitted must 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 that have a direct relation to food
service operations, such as wages of cooks and dining hall 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 must be retained and must be available
for inspection by the CO for a period of 1 year.
(2) Effective date for higher charge. The employer may begin
charging the higher rate upon receipt of a favorable decision from the
CO unless the CO sets a later effective date in the decision.
(c) Appeal. In the event the employer's petition for a higher meal
charge is denied in whole or in part, the employer may appeal the
denial. Appeals will be filed with the Chief Administrative Law Judge.
ALJ's will hear such appeals according to the procedures in 29 CFR part
18, except that the appeal will not be considered as a complaint to
which an answer is required. The decision of the ALJ is the final
decision of the Secretary.
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 ALJ 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; to deny an amendment of an Application for
Temporary Employment Certification; or to deny an extension of an
Application for Temporary Employment Certification, the CO will 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 will immediately assign an ALJ (which may be a
panel of such persons designated by the Chief Administrative Law Judge
from BALCA established by 20 CFR part 656, which will hear and decide
the appeal as set forth in this section) to review the record for legal
sufficiency. The ALJ may not remand the case and may not receive
evidence in addition to what the CO used to make the determination.
(2) Decision. Within 5 business days after receipt of the ETA case
file the ALJ will, on the basis of the written record and after due
consideration of any written submissions (which may not include new
evidence) from the parties involved or amici curiae, either affirm,
reverse, or modify the CO's decision by written decision. The decision
of the ALJ must specify the reasons for the action taken and must be
immediately provided to the employer, the CO, the Administrator, OFLC,
and DHS by means normally assuring next-day delivery. The ALJ's
decision is the final decision of the Secretary.
(b) De novo hearing. (1) Request for hearing; conduct of hearing.
Whenever an employer has requested a de novo hearing before an ALJ 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; to deny an amendment of an
Application for Temporary Employment Certification; or to deny an
extension of an Application for Temporary Employment Certification, the
CO will 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 will immediately assign an ALJ
(which may be a panel of such persons designated by the Chief
Administrative Law Judge from BALCA established by 20 CFR part 656 of
this chapter, but which will hear and decide the appeal as provided in
this section) to conduct the de novo hearing. The procedures in 29 CFR
part 18 apply to such hearings, except that:
(i) The appeal will not be considered to be a complaint to which an
answer is required;
(ii) The ALJ will ensure that the hearing is scheduled to take
place within 5 calendar days after the ALJ's receipt of the ETA case
file, if the employer so requests, and will allow for the introduction
of new evidence; and
(iii) The ALJ's decision must be rendered within 10 calendar days
after the hearing.
(2) Decision. After a de novo hearing, the ALJ must affirm,
reverse, or modify the CO's determination, and the ALJ's decision must
be provided immediately to the employer, CO, Administrator, OFLC, and
DHS by means normally assuring next-day delivery. The ALJ's decision is
the final decision of the Secretary.
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. Complaints which involve worker contracts must be referred by the
SWA to ESA for appropriate handling and resolution, as described in 29
CFR part 501. As part of this process, ESA may report the results of
its investigation to the Administrator, OFLC 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, may be referred to the U.S. Department of Justice,
Civil Rights
[[Page 77227]]
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 may 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, OFLC, may revoke a temporary agricultural labor
certification approved under this subpart, if, after notice and
opportunity for a hearing (or failure to file rebuttal evidence), it is
found that any of the following violations were committed with respect
to that temporary agricultural labor certification:
(1) The CO finds that issuance of the temporary agricultural labor
certification was not justified due to a willful misrepresentation on
the application;
(2) The CO finds that the employer:
(i) Willfully violated a material term or condition of the approved
temporary agricultural labor certification or the H-2A regulations,
unless otherwise provided under paragraphs (a)(2)(ii) through (iv) of
this section; or
(ii) Failed, after notification, to cure a substantial violation of
the applicable housing standards set out in 20 CFR 655.104(d); or
(iii) Significantly failed to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, or law
enforcement function under sec. 218 of the INA at 8 U.S.C. 1188, this
subpart, or 29 CFR part 501 (ESA enforcement of contractual
obligations); or
(iv) Failed to comply with one or more sanctions or remedies
imposed by the ESA for violation(s) of obligations found by that
agency, or with one or more decisions or orders of the Secretary or a
court order secured by the Secretary under sec. 218 of the INA at 8
U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of
contractual obligations).
(3) The CO determines after a recommendation is made by the WHD ESA
in accordance with 29 CFR 501.20, which governs when a recommendation
of revocation may be made to ETA, that the conduct complained of upon
examination meets the standards of paragraph (a)(1) or (2) of this
section; or
(4) If a court or the DHS, or, as a result of an audit, the CO,
determines that there was fraud or willful misrepresentation involving
the Application for Temporary Employment Certification.
(b) DOL procedures for revocation. (1) The CO will send to the
employer (and his attorney or agent) a Notice of Intent to Revoke by
means normally ensuring next-day delivery, which will contain 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 will become the final decision of the
Secretary and take effect immediately at the end of the 14-day period.
(3) If, after reviewing the employer's timely filed rebuttal
evidence, the CO finds that the employer more likely than not meets one
or more of the bases for revocation under Sec. 655.117(a), the CO will
notify the employer, by means normally ensuring next-day delivery,
within 14 calendar days after receiving such timely filed rebuttal
evidence, of his/her final determination that the temporary
agricultural labor certification should be revoked. The CO's notice
will contain a detailed statement of the bases for the decision, and
must offer the employer an opportunity to request a hearing. The notice
must state that, to obtain such a hearing, the employer must, within 10
calendar days of the date of the notice file a written request to the
Chief Administrative Law Judge, United States Department of Labor, 800
K Street, NW., Suite 400-N, Washington, DC 20001-8002, and
simultaneously serve a copy to the Administrator, OFLC. The timely
filing of a request for a hearing will stay the revocation pending the
outcome of the hearing.
(c) Hearing. (1) Within 5 business days of receipt of the request
for a hearing, the CO will 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 will immediately
assign an ALJ to conduct the hearing. The procedures in 29 CFR part 18
apply to such hearings, except that:
(i) The request for a hearing will not be considered to be a
complaint to which an answer is required;
(ii) The ALJ will ensure that the hearing is scheduled to take
place within 15 calendar days after the ALJ's receipt of the ETA case
file, if the employer so requests, and will allow for the introduction
of new evidence; and
(iii) The ALJ's decision must be rendered within 20 calendar days
after the hearing.
(2) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the CO's determination. The ALJ's decision must be provided
immediately to the employer, CO, Administrator, OFLC, DHS, and DOS by
means normally assuring next-day delivery. The ALJ's decision is the
final decision of the Secretary.
(d) Employer's obligations in the event of revocation. If an
employer's temporary agricultural labor certification is revoked under
this section, and the workers have departed the place of recruitment,
the employer will be responsible for:
(1) Reimbursement of actual inbound transportation and subsistence
expenses, as if the worker meets the requirements for payment under
Sec. 655.104(h)(1);
(2) The worker's outbound transportation expenses, as if the worker
meets the requirements for payment under Sec. 655.104(h)(2);
(3) Payment to the worker of the amount due under the three-fourths
guarantee as required by Sec. 655.104(i); and
(4) Any other wages, benefits, and working conditions due or owing
to the worker under these regulations.
Sec. 655.118 Debarment.
(a) The Administrator, OFLC may not issue future labor
certifications under this subpart to an employer and any successor in
interest to the debarred employer, subject to the time limits set forth
in paragraph (c) of this section, if:
(1) The Administrator, OFLC finds that the employer substantially
violated a material term or condition of its temporary labor
certification with respect to the employment of domestic or
nonimmigrant workers; and
(2) The Administrator, OFLC issues a Notice of Intent to Debar no
later than 2 years after the occurrence of the violation.
(b) The Administrator, OFLC may not issue future labor
certifications under this subpart to an employer represented by an
agent or attorney, subject to the time limits set forth in paragraph
(c) of this section, if:
(1) The Administrator, OFLC finds that the agent or attorney
participated in, had knowledge of, or had reason to know of, an
employer's substantial violation; and
(2) The Administrator, OFLC issues the agent or attorney a Notice
of Intent to Debar no later than 2 years after the occurrence of the
violation.
[[Page 77228]]
(c) No employer, attorney, or agent may be debarred under this
subpart for more than 3 years.
(d) For the purposes of this section, a substantial violation
includes:
(1) A pattern or practice of acts of commission or omission on the
part of the employer or the employer's agent which:
(i) Are significantly injurious to the wages or benefits required
to be offered under the H-2A program, or working conditions of a
significant number of the employer's U.S. or H-2A workers; or
(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; or
(iii) Reflect a willful failure to comply with the employer's
obligations to recruit U.S. workers as set forth in this subpart; or
(iv) Reflect a significant failure to comply with the audit process
in violation of Sec. 655.112; or
(v) Reflect the employment of an H-2A worker outside the area of
intended employment, or in an activity/activities, not listed in the
job order (other than an activity minor and incidental to the activity/
activities listed in the job order), or after the period of employment
specified in the job order and any approved extension;
(2) The employer's persistent or prolonged failure to pay the
necessary fee in a timely manner, following the issuance of a
deficiency notice to the applicant and allowing for a reasonable period
for response;
(3) Fraud involving the Application for Temporary Employment
Certification or a response to an audit;
(4) A significant failure to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, or law
enforcement function under sec. 218 of the INA at 8 U.S.C. 1188, this
subpart, or 29 CFR part 501 (ESA enforcement of contractual
obligations); or
(5) A significant 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 order secured by the Secretary under sec. 218
of the INA at 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA
enforcement of contractual obligations); or
(6) A single heinous act showing such flagrant disregard for the
law that future compliance with program requirements cannot reasonably
be expected.
(e) DOL procedures for debarment under this section will be as
follows:
(1) The Administrator, OFLC will send to the employer, attorney, or
agent a Notice of Intent to Debar by means normally ensuring next-day
delivery, which will contain a detailed statement of the grounds for
the proposed debarment. The employer, attorney or agent may submit
evidence in rebuttal within 14 calendar days of the date the notice is
issued. The Administrator, OFLC must consider all relevant evidence
presented in deciding whether to debar the employer, attorney, or
agent.
(2) If rebuttal evidence is not timely filed by the employer,
attorney, or agent, the Notice of Intent to Debar will become the final
decision of the Secretary and take effect immediately at the end of the
14-day period.
(3) If, after reviewing the employer's timely filed rebuttal
evidence, the Administrator, OFLC determines that the employer,
attorney, or agent more likely than not meets one or more of the bases
for debarment under Sec. 655.118(d), the Administrator, OFLC will
notify the employer, by means normally ensuring next-day delivery,
within 14 calendar days after receiving such timely filed rebuttal
evidence, of his/her final determination of debarment and of the
employer, attorney, or agent's right to appeal.
(4) The Notice of Debarment must be in writing, must state the
reason for the debarment finding, including a detailed explanation of
the grounds for and the duration of the debarment, and must offer the
employer, attorney, or agent an opportunity to request a hearing. The
notice must state that, to obtain such a hearing, the debarred party
must, within 30 calendar days of the date of the notice, file a written
request to the Chief Administrative Law Judge, United States Department
of Labor, 800 K Street, NW., Suite 400-N, Washington, DC 20001-8002,
and simultaneously serve a copy to the Administrator, OFLC. The
debarment will take effect 30 days from the date the Notice of
Debarment is issued unless a request for a hearing is properly filed
within 30 days from the date the Notice of Debarment is issued. The
timely filing of the request for a hearing stays the debarment pending
the outcome of the hearing.
(5)(i) Hearing. Within 10 days of receipt of the request for a
hearing, the Administrator, OFLC will 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 will
immediately assign an ALJ to conduct the hearing. The procedures in 29
CFR part 18 apply to such hearings, except that the request for a
hearing will not be considered to be a complaint to which an answer is
required;
(ii) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the Administrator, OFLC 's determination. The ALJ's decision
must be provided immediately to the employer, Administrator, OFLC, DHS,
and DOS by means normally assuring next-day delivery. The ALJ's
decision is the final decision of the Secretary, unless either party,
within 30 calendar days of the ALJ's decision, seeks review of the
decision with the Administrative Review Board (ARB).
(iii) Review by the ARB.
(A) Any party wishing review of the decision of an ALJ must, within
30 days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition must be served on all parties and on
the ALJ. The ARB must decide whether to accept the petition within 30
days of receipt. If the ARB declines to accept the petition or if the
ARB does not issue a notice accepting a petition within 30 days after
the receipt of a timely filing of the petition, the decision of the ALJ
shall be deemed the final agency action. If a petition for review is
accepted, the decision of the ALJ shall be stayed unless and until the
ARB issues an order affirming the decision. The ARB must serve notice
of its decision to accept or not to accept the petition upon the ALJ
and upon all parties to the proceeding in person or by certified mail.
(B) Upon receipt of the ARB's notice to accept the petition, the
Office of Administrative Law Judges shall promptly forward a copy of
the complete hearing record to the ARB.
(C) Where the ARB has determined to review such decision and order,
the ARB shall notify each party of:
(1) The issue or issues raised;
(2) The form in which submissions shall be made (i.e., briefs, oral
argument, etc.); and
(3) The time within which such presentation shall be submitted.
(D) The ARB's final decision must be issued within 90 days from the
notice granting the petition and served upon all parties and the ALJ,
in person or by certified mail. If the ARB fails to provide a decision
within 90 days from the notice granting the petition, the ALJ's
decision will be the final decision of the Secretary.
(f) Debarment involving members of associations. If the
Administrator, OFLC determines a substantial violation has occurred,
and if an individual employer-member of an agricultural
[[Page 77229]]
association acting as a joint employer is determined to have committed
the violation, the debarment determination will apply only to that
member of the association unless the Administrator, OFLC determines
that the association or other association members participated in the
violation, in which case the debarment will be invoked against the
complicit association or other association members.
(g) Debarment involving agricultural associations acting as joint
employers. If the Administrator, OFLC determines a substantial
violation has occurred, and if an agricultural association acting as a
joint employer with its members is found to have committed the
violation, the debarment determination will apply only to the
association, and will not be applied to any individual employer-member
of the association unless the Administrator, OFLC determines that the
member participated in the violation, in which case the debarment will
be invoked against any complicit association members as well. An
association debarred from the H-2A temporary labor certification
program will not be permitted to continue to file as a joint employer
with its members during the period of the debarment.
(h) Debarment involving agricultural associations acting as sole
employers. If the Administrator, OFLC determines a substantial
violation has occurred, and if an agricultural association acting as a
sole employer is determined to have committed the violation, the
debarment determination will apply only to the association and any
successor in interest to the debarred association.
Sec. 655.119 Document retention requirements.
(a) Entities required to retain documents. All employers receiving
a certification of the Application for Temporary Employment
Certification for agricultural workers under this subpart are required
to retain the documents and records as provided in the regulations
cited in paragraph (c) of this section.
(b) Period of required retention. Records and documents must be
retained for a period of 3 years from the date of certification of the
Application for Temporary Employment Certification.
(c) Documents and records to be retained. (1) All applicants must
retain the following documentation:
(i) Proof of recruitment efforts including:
(A) Job order placement as specified in Sec. 655.102(e)(1);
(B) Advertising as specified in Sec. 655.102(g)(3), or, if used,
professional, trade, or ethnic publications;
(C) Contact with former U.S. workers as specified in Sec.
655.102(h);
(D) Multi-state recruitment efforts (if required under Sec.
655.102(i)) as specified in Sec. 655.102(g)(3);
(ii) Substantiation of information submitted in the recruitment
report prepared in accordance with Sec. 655.102(k)(2), such as
evidence of non-applicability of contact of former employees as
specified in Sec. 655.102(h);
(iii) The supplemental recruitment report as specified in Sec.
655.102(k) and any supporting resumes and contact information as
specified in Sec. 655.102(k)(3);
(iv) Proof of workers' compensation insurance or State law coverage
as specified in Sec. 655.104(e);
(v) Records of each worker's earnings as specified in Sec.
655.104(j);
(vi) The work contract or a copy of the Application for Temporary
Employment Certification as defined in 29 CFR 501.10 and specified in
Sec. 655.104(q);
(vii) The wage determination provided by the NPC as specified in
Sec. 655.108;
(viii) Copy of the request for housing inspection submitted to the
SWA as specified in Sec. 655.104(d); and
(2) In addition to the documentation specified in paragraph (c)(1)
of this section, H-2ALCs must also retain:
(i) Statements of compliance with the housing and transportation
obligations for each fixed-site employer which provided housing or
transportation and to which the H-2ALC provided workers during the
validity period of the certification, unless such housing and
transportation obligations were met by the H-2ALC itself, in which case
proof of compliance by the H-2ALC must be retained, as specified in
Sec. 655.101(a)(5);
(ii) Proof of surety bond coverage which includes the name,
address, and phone number of the surety, the bond number of other
identifying designation, the amount of coverage, and the payee, as
specified in 29 CFR 501.8; and
(3) Associations filing must retain documentation substantiating
their status as an employer or agent, as specified in Sec.
655.101(a)(1).
Subpart C--[Removed and Reserved]
0
5. Subpart C is removed and reserved.
TITLE 29--LABOR
0
6. Revise part 501 to read as follows:
PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY
ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE
IMMIGRATION AND NATIONALITY ACT
Subpart A--General Provisions
Sec.
501.0 Introduction.
501.1 Purpose and scope.
501.2 Coordination of intake between DOL agencies.
501.3 Discrimination prohibited.
501.4 Waiver of rights prohibited.
501.5 Investigation authority of Secretary.
501.6 Cooperation with DOL officials.
501.7 Accuracy of information, statements, data.
501.8 Surety bond.
501.10 Definitions.
Subpart B--Enforcement of Work Contracts
501.15 Enforcement.
501.16 Sanctions and Remedies--General.
501.17 Concurrent actions.
501.18 Representation of the Secretary.
501.19 Civil money penalty assessment.
501.20 Debarment and revocation.
501.21 Failure to cooperate with investigations.
501.22 Civil money penalties--payment and collection.
Subpart C--Administrative Proceedings
501.30 Applicability of procedures and rules.
Procedures Relating to Hearing
501.31 Written notice of determination required.
501.32 Contents of notice.
501.33 Request for hearing.
Rules of Practice
501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.
Referral for Hearing
501.37 Referral to Administrative Law Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor--number of
copies.
Procedures Before Administrative Law Judge
501.40 Consent findings and order.
Post-Hearing Procedures
501.41 Decision and order of Administrative Law Judge.
Review of Administrative Law Judge's Decision
501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges.
501.44 Additional information, if required.
501.45 Final decision of the Administrative Review Board.
Record
501.46 Retention of official record.
501.47 Certification.
[[Page 77230]]
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.
Subpart A--General Provisions
Sec. 501.0 Introduction.
These regulations cover the enforcement of all contractual
obligation provisions applicable to the employment of H-2A workers
under sec. 218 of the Immigration and Nationality Act (INA), as amended
by the Immigration Reform and Control Act of 1986 (IRCA). These
regulations are also applicable to the employment of United States
(U.S.) workers newly hired by employers of H-2A workers in the same
occupations as the H-2A workers 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. Such U.S. workers
hired by H-2A employers are hereafter referred to as engaged in
corresponding employment.
Sec. 501.1 Purpose and scope.
(a) Statutory standard. Section 218(a) of the INA provides that:
(1) A petition to import an alien as an H-2A worker (as defined in
the INA) may not be approved by the Secretary of the Department of
Homeland Security (DHS) unless the petitioner has applied to the
Secretary of the United States Department of Labor (Secretary) for a
certification that:
(i) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the labor or services involved in the petition, and
(ii) The employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers in the
U.S. similarly employed.
(2) [Reserved]
(b) Role of the Employment and Training Administration (ETA). The
issuance and denial of labor certification under sec. 218 of the INA
has been delegated by the Secretary to ETA, an agency within the U.S.
Department of Labor (the Department or DOL). 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 adequate recruitment has been conducted,
whether there is a strike or lockout, the methodology for establishing
AEWR, whether workers' compensation insurance has been provided,
whether employment was offered to U.S. workers as required by sec. 218
of the INA and regulations at 20 CFR part 655, Subpart B, 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 20 CFR part 655, Subpart B.
(c) Role of the Employment Standards Administration (ESA), Wage and
Hour Division (WHD). (1) The Secretary is authorized to take actions
that assure compliance with the terms and conditions of employment
under sec. 218 of the INA, the regulations at 20 CFR part 655, Subpart
B, or these regulations, 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 sec. 218 of the INA have been
delegated by the Secretary to the ESA, WHD. 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,
including whether employment was offered to U.S. workers as required
under sec. 218 of the INA or 20 CFR part 655, Subpart B, or whether
U.S. workers were laid off or displaced in violation of program
requirements. Included within the enforcement responsibility of WHD are
such matters as the payment of required wages, transportation, meals,
and housing provided during the employment. The WHD has the
responsibility to carry out investigations, inspections, and law
enforcement functions and in appropriate instances impose penalties,
recommend revocation of existing certification(s) or debarment 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 H-2A
Labor Contractors (H-2ALC), from the H-2ALC directly and/or from the
insurer who issued the surety bond to the H-2ALC as required by 20 CFR
part 655, Subpart B and 29 CFR 501.8).
(d) Effect of regulations. The amendments to the INA made by Title
III of the IRCA apply to petitions and applications filed on and after
June 1, 1987. Accordingly, the enforcement functions carried out by the
WHD under the INA and these regulations apply to the employment of any
H-2A worker and any other U.S. workers hired by H-2A employers in
corresponding employment as the result of any application filed with
the Department on and after June 1, 1987.
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 WHD office
for appropriate action under these regulations.
Sec. 501.3 Discrimination prohibited.
(a) No person shall intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner discriminate against any person
who has:
(1) Filed a complaint under or related to sec. 218 of the INA or
these regulations;
(2) Instituted or caused to be instituted any proceedings related
to sec. 218 of the INA or these regulations;
(3) Testified or is about to testify in any proceeding under or
related to sec. 218 of the INA or these regulations;
(4) Exercised or asserted on behalf of himself or others any right
or protection afforded by sec. 218 of the INA or these regulations; or
(5) Consulted with an employee of a legal assistance program or an
attorney on matters related to sec. 218 of the INA, or to this subpart
or any other Department regulation promulgated pursuant to sec. 218 of
the INA.
(b) Allegations of discrimination against any person under
paragraph (a) of this section will be investigated by the WHD. Where
the WHD has determined through investigation that such allegations have
been substantiated, appropriate remedies may be sought. The WHD may
assess civil money penalties, seek injunctive relief, and/or seek
additional remedies necessary to make the employee whole as a result of
the discrimination, as appropriate, and may recommend to ETA debarment
of any such violator from future labor certification. Complaints
alleging discrimination against U.S. workers and immigrants based on
citizenship or immigration status may also be forwarded by the WHD to
the Department of Justice, Civil Rights Division, Office of Special
Counsel for Immigration-Related Unfair Employment Practices.
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 any rights
conferred under sec. 218 of the INA, the
[[Page 77231]]
regulations at 20 CFR part 655, Subpart B, or under these regulations.
Any agreement by an employee purporting to waive or modify any rights
inuring to said person under the INA or these regulations shall be void
as contrary to public policy, except that a waiver or modification of
rights or obligations hereunder in favor of the Secretary shall be
valid for purposes of enforcement of the provisions of the INA or these
regulations. This does not prevent agreements to settle private
litigation.
Sec. 501.5 Investigation authority of Secretary.
(a) General. The Secretary, either pursuant to a complaint or
otherwise, shall, as may be appropriate, investigate and, in connection
therewith, enter and inspect such places (including housing) and such
vehicles, and such records (and make transcriptions thereof), question
such persons and gather such information as deemed necessary by the
Secretary to determine compliance with contractual obligations under
sec. 218 of the INA or these regulations.
(b) Failure to cooperate with an investigation. Where any employer
(or employer's agent or attorney) 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 WHD
shall report such occurrence to ETA and may recommend that ETA revoke
the existing certification that is the basis for the employment of the
H-2A workers giving rise to the investigation, and the WHD may
recommend to ETA the debarment of the employer from future
certification for up to 3 years. In addition, the WHD 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 WHD to make an investigation.
(c) Confidential investigation. The Secretary shall conduct
investigations in a manner that protects the confidentiality of any
complainant or other person who provides information to the Secretary
in good faith.
(d) Report of violations. Any person may report a violation of the
work contract obligations of sec. 218 of the INA or these regulations
to the Secretary by advising any local office of the SWA, ETA, WHD, or
any other authorized representative of the Secretary. The office or
person receiving such a report shall refer it to the appropriate office
of DOL, WHD for the geographic area in which the reported violation is
alleged to have occurred.
Sec. 501.6 Cooperation with DOL officials.
All persons must cooperate 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 WHD will take such action as it deems appropriate,
including seeking an injunction to bar any failure to cooperate with an
investigation and/or assessing a civil money penalty therefore. In
addition, the WHD will report the matter to ETA, and the WHD may
recommend to ETA the debarment of the employer from future
certification and/or recommend that the person's existing labor
certification be revoked. In addition, Federal statutes prohibiting
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.
Sec. 501.7 Accuracy of information, statements, data.
Information, statements and data submitted in compliance with
provisions of the Act or these regulations are subject to 18 U.S.C.
1001, which provides, with regard to statements or entries generally,
that whoever, in any matter within the jurisdiction of any department
or agency of the U.S. knowingly and willfully falsifies, conceals or
covers up by any trick, scheme, or device a material fact, or makes any
false, fictitious or fraudulent statements or representations, or makes
or uses any false writing or document knowing the same to contain any
false, fictitious or fraudulent statement or entry, shall be fined not
more than $10,000 or imprisoned not more than 5 years, or both.
Sec. 501.8 Surety bond.
(a) H-2ALCs 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 H-2ALC 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, United States Department of Labor. It shall obligate the
surety to pay any sums to the Administrator, WHD, 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 relating to 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 H-2ALC, and shall be amended to cover
any extensions of the labor certification requested by the H-2ALC.
Surety bonds may not be canceled or terminated unless 30 days' notice
is provided by the surety to the Administrator, WHD.
(c) The bond shall be in the amount of $5,000 for a labor
certification for which a H-2ALC will employ fewer than 25 employees,
$10,000 for a labor certification for which a H-2ALC will employ 25 to
49 employees, and $20,000 for a labor certification for which a H-2ALC
will employ 50 or more employees. The amount of the bond may be
increased by the Administrator, WHD after notice and an opportunity for
hearing when it is shown based on objective criteria that the amount of
the bond is insufficient to meet potential liabilities.
Sec. 501.10 Definitions.
(a) Definitions of terms used in this part. For the purpose of this
part:
Administrative Law Judge (ALJ) means a person within the
Department's 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 (BALCA) established by part 656 of this chapter, which will
hear and decide appeals as set forth at 20 CFR 655.115.
Administrator, WHD means the Administrator of the Wage and Hour
Division (WHD), ESA and such authorized representatives as may be
designated to perform any of the functions of the Administrator, WHD
under this part.
Adverse effect wage rate (AEWR) means the minimum wage rate that
the Administrator of the Office of Foreign Labor Certification (OFLC)
has determined must be offered and paid to every H-2A worker employed
under the DOL-approved Application for Temporary Employment
Certification in a particular occupation and/or area, as well as to
U.S. workers hired by employers into corresponding employment during
the H-2A recruitment period, to ensure that the wages of similarly
employed U.S. workers will not be adversely affected.
[[Page 77232]]
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;
(2) Is not itself an employer, or a joint employer, as defined in
this section, with respect to a specific application; and
(3) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court or the Department, the Board of
Immigration Appeals, the immigration judges, or DHS under 8 CFR 292.3,
1003.101.
Agricultural association means any nonprofit or cooperative
association of farmers, growers, or ranchers (including but not limited
to processing establishments, canneries, gins, packing sheds,
nurseries, or other fixed-site agricultural employers), incorporated or
qualified under applicable State law, that recruits, solicits, hires,
employs, furnishes, houses or transports any worker that is subject to
sec. 218 of the INA. An agricultural association may act as the agent
of an employer for purposes of filing an H-2A Application for Temporary
Employment Certification, and may also act as the sole or joint
employer of H-2A workers.
Application for Temporary Employment Certification means the Office
of Management and Budget (OMB)-approved form submitted by an employer
to secure a temporary agricultural labor certification determination
from DOL. A complete submission of the Application for Temporary
Employment Certification includes the form and the initial recruitment
report.
Area of intended employment means the geographic area within normal
commuting distance of the place (worksite address) of the job
opportunity for which the certification is sought. There is no rigid
measure of distance which constitutes a 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 the 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.
Department of Homeland Security (DHS) means the Federal agency
having control over certain immigration functions that, through its
sub-agency, United States Citizenship and Immigration Services (USCIS),
makes 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 U.S.
DOL or Department means the United States Department of Labor.
Eligible worker means an individual who is not an unauthorized
alien (as defined in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3))
with respect to the employment in which the worker is engaging.
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 to perform
the work; 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
may be considered and no one factor is dispositive.
Employer means a person, firm, corporation or other association or
organization that:
(1) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted for employment;
(2) Has an employer relationship with respect to H-2A employees or
related U.S. workers under this part; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment Certification, a valid Federal Employer Identification
Number (FEIN).
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 SWAs and OFLC,
including the National Processing Centers (NPCs).
Employment Standards Administration (ESA) means the agency within
DOL that includes the WHD, and which is charged with carrying out
certain investigative and enforcement functions of the Secretary under
the INA.
Employment and Training Administration (ETA) means the agency
within the DOL that includes OFLC.
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
Fixed-site employer means any person engaged in agriculture who
meets the definition of an employer as those terms are defined in this
part who owns or operates a farm, ranch, processing establishment,
cannery, gin, packing shed, nursery, or other similar fixed-site
location where agricultural activities are performed and who recruits,
solicits, hires, employs, houses, or transports any worker subject to
sec. 218 of the INA or these regulations as incident to or in
conjunction with the owner's or operator's own agricultural operation.
For purposes of this part, person includes any individual, partnership,
association, corporation, cooperative, joint stock company, trust, or
other organization with legal rights and duties.
H-2A Labor Contractor (H-2ALC) means any person who meets the
definition of employer in this section and is not a fixed-site
employer, an agricultural association, or an employee of a fixed-site
employer or agricultural association, as those terms are used in this
part, who recruits, solicits, hires, employs, furnishes, houses, or
transports any worker subject to sec. 218 of the INA or these
regulations.
H-2A worker means any temporary foreign worker who is lawfully
present in the U.S. to perform agricultural labor or services of a
temporary or seasonal nature pursuant to sec. 101(a)(15)(H)(ii)(a) of
the INA, as amended.
INA/Act 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.
Joint employment means that where two or more employers each have
sufficient definitional indicia of employment to be considered the
employer of an employee, those employers will be considered to jointly
employ that employee. Each employer in a joint employment relationship
to an employee is considered a ``joint employer'' of that employee.
Office of Foreign Labor Certification (OFLC) means the
organizational
[[Page 77233]]
component of the ETA that provides national leadership and policy
guidance and develops regulations and procedures to carry out the
responsibilities of the Secretary under the INA concerning the
admission of foreign workers to the U.S. to perform work described in
sec. 101(a)(15)(H)(ii)(a) of the INA, 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 job
opportunity is located and any other State designated by the Secretary
as an area of traditional or expected labor supply with respect to the
area where the employer's job opportunity is located, in an effort to
fill specific job openings with U.S. workers.
Prevailing means with respect to practices engaged in by employers
and benefits other than wages provided by employers, that:
(1) Fifty percent or more of employers in an area and for an
occupation engage in the practice or offer the benefit; but only if
(2) This 50 percent or more of employers also employs in aggregate
50 percent or more of U.S. workers in the occupation and area
(including H-2A and non-H-2A employers for purposes of determinations
concerning the provision of family housing, frequency of wage payments,
and workers supplying their own bedding, but non-H-2A employers only
for determinations concerning the provision of advance transportation
and the utilization of H-2ALCs).
Prevailing hourly wage means the hourly wage determined by the SWA
to be prevailing in the area in accordance with State-based wage
surveys.
Prevailing piece rate means that amount that is typically paid to
an agricultural worker per piece (which includes, but is not limited
to, a load, bin, pallet, bag, bushel, etc.) to be determined by the SWA
according to a methodology published by the Department. As is currently
the case, the unit of production will be required to be clearly
described; e.g., a field box of oranges (1\1/2\ bushels), a bushel of
potatoes, and Eastern apple box (1\1/2\ metric bushels), a flat of
strawberries (twelve quarts), etc.
Representative means a person or entity 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.
Secretary means the Secretary of the United States Department of
Labor or the Secretary's designee.
State Workforce Agency (SWA) 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 OFLC, to assist
them in performing certain activities related to foreign labor
certification, including conducting housing inspections.
Successor in interest means that, in determining whether an
employer is a successor in interest, the factors used under Title VII
of the Civil Rights Act and the Vietnam Era Veterans' Readjustment
Assistance Act will be considered. When considering whether an employer
is a successor for purposes of this part, the primary consideration
will be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violations
resulting in a debarment recommendation. Normally, wholly new
management or ownership of the same business operation, one in which
the former management or owner does not retain a direct or indirect
interest, will not be deemed to be a successor in interest for purposes
of debarment. A determination of whether or not a successor in interest
exists is based on the entire circumstances viewed in their totality.
The factors to be considered include:
(1) Substantial continuity of the same business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products and services; and
(8) The ability of the predecessor to provide relief.
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 one or more foreign nationals as an H-2A
worker, pursuant to secs. 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 as stated at 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188.
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, the Virgin Islands, and, as of the
transition program effective date, as defined in the Consolidated
Natural Resources Act of 2008, Public Law 110-229, Title VII, the
Commonwealth of the Northern Mariana Islands.
U.S. worker means a worker who is:
(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.
Work contract means all the material terms and conditions of
employment relating to wages, hours, working conditions, and other
benefits, 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 U.S. (H-2A Workers), or these regulations, including
those terms and conditions attested to by the H-2A employer, 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,
agreed to by both the employer and the worker, the work contract at a
minimum shall be the terms of the job order, as provided in 20 CFR part
653, Subpart F, and covered provisions of the work contract shall be
enforced in accordance with these regulations.
(b) 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)), is
defined as:
(i) Agricultural labor as defined and applied in sec. 3121(g) of
the Internal
[[Page 77234]]
Revenue Code of 1954 at 26 U.S.C. 3121(g);
(ii) Agriculture as defined and applied in sec. 3(f) of the Fair
Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f) (Work performed
by H-2A workers, or workers in corresponding employment, that is not
defined as agriculture in sec. 3(f) is subject to the provisions of the
FLSA as provided therein, including the overtime provisions in sec.
7(a) at 29 U.S.C. 207(a));
(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 where no H-2B workers are employed to perform the
same work at the same establishment; or
(vi) Other work typically performed on a farm that is not
specifically listed on the Application for Temporary Employment
Certification and is minor (i.e., less than 20 percent of the total
time worked on the job duties and activities that are listed on the
Application for Temporary Employment Certification) and incidental to
the agricultural labor or services for which the H-2A worker was
sought.
(2) An occupation included in either of the statutory definitions
cited in paragraphs (b)(1)(i) and (ii) of this section is agricultural
labor or services, notwithstanding the exclusion of that occupation
from the other statutory definition.
(i) Agricultural labor for purposes of paragraph (b)(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 sec. 15(g) of the
Agricultural Marketing Act, as amended at 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 (b)(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, any unincorporated group of
operators will 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 (b)(2)(i)(D)(1) and (2) of this
section do not apply 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 and is not domestic service
in a private home of the employer.
(E) For the purposes of this section, the term farm includes stock,
dairy, poultry, fruit, fur-bearing animals, 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 (b)(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 sec. 29 U.S.C.
203(f), as amended.
(iii) Agricultural commodity. For purposes of paragraph (b)(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 part, of a temporary or
seasonal nature means on a seasonal or other temporary basis, as
defined in the 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 is summarized as follows:
(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 the worker may continue to be employed during a major portion of
the year.
(B) A worker is employed on other temporary basis where the worker
is employed for a limited time only or the worker's 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
(1) 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; or
[[Page 77235]]
(2) The employment of any worker who is living at his or her
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 or
her employer and is not primarily employed to do field work.
(iii) Temporary. For the purposes of this part, the definition of
temporary in paragraph (b)(3) 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, including, but not limited, to
a peakload need, which is generally less than 1 year, unless the
original temporary agricultural labor certification is extended
pursuant to 20 CFR 655.110.
Subpart B--Enforcement of Work Contracts
Sec. 501.15 Enforcement.
The investigation, inspections and law enforcement functions to
carry out the provisions of sec. 218 of the INA, as provided in these
regulations for enforcement by the WHD, pertain to the employment of
any H-2A worker and any other U.S. worker hired in corresponding
employment by an H-2A employer. Such enforcement includes work contract
provisions as defined in Sec. 501.10(a). The work contract also
includes those employment benefits which are required to be stated in
the job offer, as prescribed in 20 CFR 655.104.
Sec. 501.16 Sanctions and remedies--General.
Whenever the Secretary believes that the H-2A provisions of the INA
or these regulations have been violated such action shall be taken and
such proceedings instituted as deemed appropriate, including (but not
limited to) the following:
(a) Institute appropriate administrative proceedings, including:
The recovery of unpaid wages, including wages owed to U.S. workers as a
result of a layoff or displacement prohibited by these rules (either
directly from the employer, a successor in interest, or in the case of
an H-2ALC also by claim against any surety who issued a bond to the H-
2ALC); the enforcement of covered provisions of the work contract as
set forth in 29 CFR 501.10(a); the assessment of a civil money penalty;
reinstatement; or the recommendation of debarment for up to 3 years.
(b) Petition any appropriate District Court of the U.S. for
temporary or permanent injunctive relief, including the withholding of
unpaid wages and/or reinstatement, to restrain violation of the H-2A
provisions of the INA, 20 CFR part 655, Subpart B, or these regulations
by any person.
(c) Petition any appropriate District Court of the U.S. for
specific performance of covered contractual obligations.
Sec. 501.17 Concurrent actions.
The taking of any one of the actions referred to above shall not be
a bar to the concurrent taking of any other action authorized by the H-
2A provisions of the Act and these regulations, or the regulations of
20 CFR part 655.
Sec. 501.18 Representation of the Secretary.
(a) Except as provided in 28 U.S.C. 518(a) relating to litigation
before the Supreme Court, the Solicitor of Labor may appear for and
represent the Secretary in any civil litigation brought under the Act.
(b) The Solicitor of Labor, through authorized representatives,
shall represent the Administrator, WHD and the Secretary in all
administrative hearings under the H-2A provisions of the Act and these
regulations.
Sec. 501.19 Civil money penalty assessment.
(a) A civil money penalty may be assessed by the Administrator, WHD
for each violation of the work contract as set forth in Sec. 501.10(a)
of these regulations.
(b) In determining the amount of penalty to be assessed for any
violation of the work contract as provided in the H-2A provisions of
the Act or these regulations the Administrator, WHD shall consider the
type of violation committed and other relevant factors. The matters
which may be considered include, but are not limited to, the following:
(1) Previous history of violation or violations of the H-2A
provisions of the Act and these regulations;
(2) The number of H-2A employees, corresponding U.S. employees or
those U.S. workers individually rejected for employment affected by the
violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made in good faith to comply with the H-2A provisions
of the Act and these regulations;
(5) Explanation of person charged with the violation or violations;
(6) Commitment to future compliance, taking into account the public
health, interest or safety, and whether the person has previously
violated the H-2A provisions of the Act;
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury
to the workers.
(c) A civil money penalty for violation of the work contract will
not exceed $1,000 for each violation committed (with each failure to
pay a worker properly or to honor the terms or conditions of a worker's
employment that is required by sec. 218 of the INA, 20 CFR 655, Subpart
B, or these regulations constituting a separate violation), with the
following exceptions:
(1) For a willful failure to meet a covered condition of the work
contract, or for willful discrimination, the civil money penalty shall
not exceed $5,000 for each such violation committed (with each willful
failure to honor the terms or conditions of a worker's employment that
are required by sec. 218 of the INA, 20 CFR 655, Subpart B, or these
regulations constituting a separate violation);
(2) For a violation of a housing or transportation safety and
health provision of the work contract that proximately causes the death
or serious injury of any worker, the civil money penalty shall not
exceed $25,000 per worker, unless the violation is a repeat or willful
violation, in which case the penalty shall not exceed $50,000 per
worker, or unless the employer failed, after notification, to cure the
specific violation, in which case the penalty shall not exceed $100,000
per worker.
(3) For purposes of paragraph (c)(2) 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 failure to cooperate with a WHD
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 60 days of the date of need other than for a lawful,
job-related reason, except that such layoff shall be permitted where
all H-2A workers were laid off
[[Page 77236]]
first, the civil penalty shall not exceed $10,000 per violation per
worker.
Sec. 501.20 Debarment and revocation.
(a) The WHD shall recommend to the Administrator, OFLC the
debarment of any employer and any successor in interest to that
employer (or the employer's attorney or agent if they are a responsible
party) if the WHD finds that the employer substantially violated a
material term or condition of its temporary labor certification for the
employment of domestic or nonimmigrant workers.
(b) For purposes of this section, a substantial violation includes:
(1) A pattern or practice of 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 required to
be offered under the H-2A program, or working conditions of a
significant number of the employer's U.S. or H-2A workers;
(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 U.S. workers as set forth in this subpart; or
(iv) Reflect the employment of an H-2A worker outside the area of
intended employment, or in an activity/activities, not listed in the
job order (other than an activity minor and incidental to the activity/
activities listed in the job order), or after the period of employment
specified in the job order and any approved extension;
(2) A significant failure to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, or law
enforcement function under sec. 218 of the INA, 8 U.S.C. 1188, this
subpart, or 29 CFR part 501 (ESA enforcement of contractual
obligations); or
(3) A significant 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 order secured by the Secretary under sec. 218
of the INA, 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA
enforcement of contractual obligations); or
(4) A single heinous act showing such flagrant disregard for the
law that future compliance with program requirements cannot reasonably
be expected.
(c) Procedures for Debarment Recommendation. The WHD will send to
the employer a Notice of Recommended Debarment. The Notice of
Recommended Debarment must be in writing, must state the reason for the
debarment recommendation, including a detailed explanation of the
grounds for and the duration of the recommended debarment. The
debarment recommendation will be forwarded to the Administrator, OFLC.
The Notice of Recommended Debarment shall be issued no later than 2
years after the occurrence of the violation.
(d) The WHD may recommend to the Administrator, OFLC the revocation
of a temporary agricultural labor certification if the WHD finds that
the employer:
(1) Willfully violated a material term or condition of the approved
temporary agricultural labor certification, work contract, or this
part, unless otherwise provided under paragraphs (d)(2) through (4) of
this section.
(2) Failed, after notification, to cure a substantial violation of
the applicable housing standards set out in 20 CFR 655.104(d);
(3) Failed to cooperate with a DOL investigation or with a DOL
official performing an investigation, inspection, or law enforcement
function under sec. 218 of the INA, 8 U.S.C. 1188, this subpart, or 29
CFR part 501 (ESA enforcement of contractual obligations); or
(4) Failed 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 order Secured by the Secretary under sec. 218 of the INA, 8
U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of
contractual obligations).
(e) In considering a recommendation made by the WHD to debar an
employer or to revoke a temporary agricultural labor certification, the
Administrator, OFLC shall treat final agency determinations that the
employer has committed a violation as res judicata and shall not
reconsider those determinations.
Sec. 501.21 Failure to cooperate with investigations.
No person shall refuse to cooperate with any employee of the
Secretary who is exercising or attempting to exercise this
investigative or enforcement authority. As stated in Sec. Sec. 501.6
and 501.19 of this part, a civil money penalty may be assessed for each
failure to cooperate with an investigation, and other appropriate
relief may be sought. In addition, the WHD shall report each such
occurrence to ETA, and ETA may debar the employer from future
certification. The WHD may also recommend to ETA that an existing
certification be revoked. The taking of any one action shall not bar
the taking of any additional action.
Sec. 501.22 Civil money penalties--payment and collection.
Where the assessment is directed in a final order by the
Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty
is due within 30 days and payable to the United States Department of
Labor. The person assessed such penalty shall remit promptly the amount
thereof as finally determined, to the Administrator, WHD by certified
check or by money order, made payable to the order of Wage and Hour
Division, United States Department of Labor. The remittance shall be
delivered or mailed to the WHD Regional Office for the area in which
the violations occurred.
Subpart C--Administrative Proceedings
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, and
which may be applied to the enforcement of covered provisions of the
work contract as set forth in Sec. 501.10(a), including the collection
of unpaid wages due as a result of any violation of the H-2A provisions
of the Act or of these regulations. Except with respect to the
imposition of civil money penalties, the Secretary may, in the
Secretary's discretion, seek enforcement action in Federal court
without resort to any administrative proceedings.
Procedures Relating to Hearing
Sec. 501.31 Written notice of determination required.
Whenever the Administrator, WHD decides to assess a civil money
penalty or to proceed administratively to enforce covered contractual
obligations, including the recovery of unpaid wages, the person against
whom such action is taken shall be notified in writing of such
determination.
Sec. 501.32 Contents of notice.
The notice required by Sec. 501.31 shall:
(a) Set forth the determination of the Administrator, WHD including
the amount of any unpaid wages due or actions necessary to fulfill a
covered contractual obligation, the amount of
[[Page 77237]]
any civil money penalty assessment and the reason or reasons therefore.
(b) Set forth the right to request a hearing on such determination.
(c) Inform any affected person or persons that in the absence of a
timely request for a hearing, the determination of the Administrator,
WHD shall become final and unappealable.
(d) Set forth the time and method for requesting a hearing, and the
procedures relating thereto, as set forth in Sec. 501.33.
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 WHD address appearing on the determination notice,
no later than 30 days after issuance of the notice referred to in Sec.
501.32.
(b) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be typewritten or legibly written;
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(3) State the specific reason or reasons why the person requesting
the hearing believes such determination is in error;
(4) Be signed by the person making the request or by an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) The request for such hearing must be received by the official
who issued the determination, at the WHD address appearing on the
determination notice, within the time set forth in paragraph (a) of
this section. For the affected person's protection, if the request is
by mail, it should be by certified mail.
(d) The determination shall take effect on the start date
identified in the determination, unless an administrative appeal is
properly filed. The timely filing of an administrative appeal stays the
determination pending the outcome of the appeal proceedings.
Rules of Practice
Sec. 501.34 General.
Except as specifically provided in these regulations, the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges established by the Secretary at 29 CFR part
18 shall apply to administrative proceedings described in this part.
Sec. 501.35 Commencement of proceeding.
Each administrative proceeding permitted under the Act and these
regulations shall be commenced upon receipt of a timely request for
hearing filed in accordance with Sec. 501.33.
Sec. 501.36 Caption of proceeding.
(a) Each administrative proceeding instituted under the Act and
these regulations shall be captioned in the name of the person
requesting such hearing, and shall be styled as follows:
In the Matter of ----, Respondent.
(b) For the purposes of such administrative proceedings the
Administrator, WHD shall be identified as plaintiff and the person
requesting such hearing shall be named as respondent.
Referral for Hearing
Sec. 501.37 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant
to and in accordance with Sec. 501.33, the Administrator, WHD, by the
Associate Solicitor for the Division of Fair Labor Standards or by the
Regional Solicitor for the Region in which the action arose, shall, by
Order of Reference, promptly refer a copy of the notice of
administrative determination complained of, and the original or a
duplicate copy of the request for hearing signed by the person
requesting such hearing or by the authorized representative of such
person, to the Chief Administrative Law Judge, for a determination in
an administrative proceeding as provided herein. The notice of
administrative determination and request for hearing shall be filed of
record in the Office of the Chief Administrative Law Judge and shall,
respectively, be given the effect of a complaint and answer thereto for
purposes of the administrative proceeding, subject to any amendment
that may be permitted under these regulations or 29 CFR part 18.
(b) A copy of the Order of Reference, together with a copy of these
regulations, shall be served by counsel for the Administrator, WHD upon
the person requesting the hearing, in the manner provided in 29 CFR
18.3.
Sec. 501.38 Notice of docketing.
Upon receipt of an Order of Reference, the Chief Administrative Law
Judge shall appoint an ALJ to hear the case. The ALJ shall promptly
notify all interested parties of the docketing of the matter and shall
set the time and place of the hearing. The date of the hearing shall be
not more than 60 days from the date on which the Order of Reference was
filed.
Sec. 501.39 Service upon attorneys for the Department of Labor--
number of copies.
Two copies of all pleadings and other documents required for any
administrative proceeding provided herein shall be served on the
attorneys for the DOL. One copy shall be served on the Associate
Solicitor, Division of Fair Labor Standards, Office of the Solicitor,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210, and one copy on the Attorney representing the Department in the
proceeding.
Procedures Before Administrative Law Judge
Sec. 501.40 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing
consent findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the ALJ, after consideration of the
nature of the proceeding, the requirements of the public interest, the
representations of the parties, and the probability of an agreement
being reached which will result in a just disposition of the issues
involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or
amended notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the ALJ; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representatives or their
counsel may:
(1) Submit the proposed agreement for consideration by the ALJ; or
(2) Inform the ALJ that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent
findings
[[Page 77238]]
and an order is submitted within the time allowed therefor, the ALJ,
within 30 days thereafter, shall, if satisfied with its form and
substance, accept such agreement by issuing a decision based upon the
agreed findings.
Post-Hearing Procedures
Sec. 501.41 Decision and order of Administrative Law Judge.
(a) The ALJ shall prepare, within 60 days after completion of the
hearing and closing of the record, a decision on the issues referred by
the Administrator, WHD.
(b) The decision of the ALJ shall include a statement of findings
and conclusions, with reasons and basis therefor, upon each material
issue presented on the record. The decision shall also include an
appropriate order which may affirm, deny, reverse, or modify, in whole
or in part, the determination of the Administrator, WHD. The reason or
reasons for such order shall be stated in the decision.
(c) The decision shall be served on all parties and the
Administrative Review Board (ARB) in person or by certified mail.
(d) The decision concerning civil money penalties and/or back wages
when served by the ALJ shall constitute the final agency order unless
the ARB, as provided for in Sec. 501.42, determines to review the
decision.
Review of Administrative Law Judge's Decision
Sec. 501.42 Procedures for initiating and undertaking review.
(a) A respondent, the WHD, or any other party wishing review,
including judicial review, of the decision of an ALJ shall, within 30
days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition shall be served on all parties and on
the ALJ. If the ARB does not issue a notice accepting a petition for
review of the decision concerning civil money penalties and/or back
wages 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 ALJ shall be deemed the final agency
action. If the ARB does not issue a notice accepting a petition for
review of the decision concerning the debarment recommendation within
30 days after the receipt of a timely filing of the petition, or if no
petition has been received by the ARB within 30 days of the date of the
decision, the decision of the ALJ shall be deemed the final agency
action. If a petition for review is accepted, the decision of the ALJ
shall be inoperative unless and until the ARB issues an order affirming
the decision.
(b) Whenever the ARB, either on the ARB's own motion or by
acceptance of a party's petition, determines to review the decision of
an ALJ, a notice of the same shall be served upon the ALJ and upon all
parties to the proceeding in person or by certified mail.
Sec. 501.43 Responsibility of the Office of Administrative Law
Judges.
Upon receipt of the ARB's Notice pursuant to Sec. 501.42 of these
regulations, the Office of ALJ shall promptly forward a copy of the
complete hearing record to the ARB.
Sec. 501.44 Additional information, if required.
Where the ARB has determined to review such decision and order, the
ARB shall notify each party of:
(a) The issue or issues raised;
(b) The form in which submissions shall be made (i.e., briefs, oral
argument, etc.); and
(c) The time within which such presentation shall be submitted.
Sec. 501.45 Final decision of the Administrative Review Board.
The ARB's final decision shall be issued within 90 days from the
notice granting the petition and served upon all parties and the ALJ,
in person or by certified mail.
Record
Sec. 501.46 Retention of official record.
The official record of every completed administrative hearing
provided by these regulations shall be maintained and filed under the
custody and control of the Chief Administrative Law Judge, or, where
the case has been the subject of administrative review, the ARB.
Sec. 501.47 Certification.
Upon receipt of a complaint seeking review of a decision issued
pursuant to this part filed in a U.S. District Court, after the
administrative remedies have been exhausted, the Chief Administrative
Law Judge or, where the case has been the subject of administrative
review, the ARB shall promptly index, certify and file with the
appropriate U.S. District Court, a full, true, and correct copy of the
entire record, including the transcript of proceedings.
PART 780--EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF
AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR
STANDARDS ACT
0
9. The authority citation for part 780 is revised to read as follows:
Authority: Sections 1-19, 52 Stat. 1060, as amended; 29 U.S.C.
201-219.
0
10. Revise Sec. 780.115 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 sec. 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. 780.200 through 780.209
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 sec.
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.
0
11. Revise Sec. 780.201 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 sec. 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.
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0
12. Revise Sec. 780.205 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 7 to 10 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 sec.
3(f).
0
13. Revise Sec. 780.208 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 sec. 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
0
14. Revise Sec. 788.10 to read as follows:
Sec. 788.10 Preparing other forestry products.
As used in the exemption, other forestry products means 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.
Signed in Washington this 5th day of December 2008.
Brent R. Orrell,
Deputy Assistant Secretary, Employment and Training.
Victoria A. Lipnic,
Assistant Secretary, Employment Standards Administration.
Alexander J. Passantino,
Acting Administrator, Wage and Hour Division.
Note: The following appendix will not appear in the Code of
Federal Regulations.
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[FR Doc. E8-29309 Filed 12-17-08; 8:45 am]
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