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



[[Page 45905]]

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Part II





Department of Labor





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Employment and Training Administration



20 CFR Part 655



Wage and Hour Division

29 CFR Part 501



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

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

[[Page 45906]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Part 501

RIN 1205-AB55


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

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

ACTION: Proposed rule; request for comments.

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

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

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

FOR FURTHER INFORMATION CONTACT: For further information on 20 CFR part 
655, contact William L. Carlson, PhD, Administrator, Office of Foreign 
Labor Certification, ETA, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-
3010 (this is not a toll-free number). Individuals with hearing or 
speech impairments may access the telephone number above via TTY by 
calling the toll-free Federal Information Relay Service at 1-800-877-
8339.
    For further information on 29 CFR part 501 contact James Kessler, 
Farm Labor Branch Chief, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Room S-3510, Washington, DC 20210; Telephone (202) 693-0070 (this is 
not a toll-free number). Individuals with hearing or speech impairments 
may access the telephone number above via TTY by calling the toll-free 
Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Revisions to 20 CFR Part 655 Subpart B

A. Statutory Standard and Regulatory History

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

[[Page 45907]]

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

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

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

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

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

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

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

B. Current Regulatory Framework

    The Department operated the H-2A program for more than two decades 
under regulations promulgated in the wake of IRCA or earlier. For the 
most part, the regulations at title 20 of the Code of Federal 
Regulations (CFR) part 655 were published at 52 FR 20507, Jun. 1, 1987 
(the 1987 Rule). On December 18, 2008, the Department published final 
regulations revising these regulations and also revising the companion 
regulations at 29 CFR part 501 governing the enforcement 
responsibilities of the Department's Wage and Hour Division (WHD) under 
the H-2A program (the 2008 Final Rule). Included in that rulemaking 
were revisions to Fair Labor Standards Act (FLSA) regulations at 29 CFR 
parts 780 and 788. 73 FR 77110, Dec. 18, 2008.
    The 2008 Final Rule made several significant changes in the 
processing of H-2A Application for Temporary Labor Certification 
(Application). The 2008 Final Rule uses an attestation-based model, 
unlike the previous rule, which mandated a fully-supervised labor 
market test. Under the 2008 Final Rule, employers conduct the required 
recruitment and, based upon the results of that effort, apply for a 
number of needed foreign workers. Thereafter, employers attest that 
they have undertaken the necessary activities and made the required 
assurances to workers, rather than have such actual efforts reviewed by 
a Federal or State official, as was the process in the 1987 Rule. The 
2008 Final Rule relies largely on post-adjudication integrity measures 
to review selected documentation from a percentage of employers to 
compensate for a lack of hands-on review. It also reflects several 
significant policy shifts; chief among these was the decision to base 
the Adverse Effect Wage Rate (AEWR), which is the wage determined by 
the Department to be the minimum below which adverse impact to domestic 
workers would accrue, on the Occupational Employment Statistics (OES) 
Wage Survey collected by the Department's Bureau of Labor Statistics 
(BLS), rather than data compiled by the U.S. Department of Agriculture 
(USDA), National Agriculture Statistics Service (NASS) in its quarterly 
Farm Labor Survey Reports, which was what was relied upon in the 1987 
Rule.
    Following the issuance of the 2008 Final Rule, a lawsuit was filed 
in the U.S. District Court for the District of Columbia challenging the 
H-2A Final Rule. United Farm Workers, et al. v. Chao, et al., Civil No. 
09-00062 RMU (D.D.C.). The plaintiffs asserted that in promulgating the 
2008 Final Rule, the Department violated 8 U.S.C. 1188 and the 
Administrative Procedures Act (APA). The plaintiffs requested a 
temporary restraining order and preliminary injunction, along with a 
permanent injunction that would prohibit DOL from implementing the 2008 
Final Rule. The plaintiffs' requests for a temporary restraining order 
and preliminary injunction were denied and the 2008 Final Rule went 
into effect as scheduled on January 17, 2009.
    The Administration, however, desired to review the policy decisions 
emanating from the 2008 Final Rule, made by a prior Administration, 
particularly on the role of the H-2A program in supplying foreign 
workers in agricultural activities, and with specific review of the 
protections afforded under that rule to all agricultural workers in 
general and the domestic workforce in particular. This review was 
believed to be particularly timely in light of the rising unemployment 
among U.S. workers and their apparent increasing availability for these 
jobs. Regardless, the Department upon review has determined the current 
level of worker protections and incentives for U.S. workers to accept 
employment in agriculture require expansion and are accordingly 
addressed in this NPRM. The Department's concern is that our 
agricultural economy should to the fullest extent feasible employ U.S. 
workers and they be granted a level of worker safety and protection

[[Page 45908]]

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

C. Need for New Rulemaking

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

D. Overview of Proposed Process

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

[[Page 45909]]

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

II. Discussion of 20 CFR 655 Subpart B

A. Introductory Sections

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

[[Page 45910]]

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

[[Page 45911]]

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

B. Prefiling Requirements

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

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

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

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

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

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

[[Page 45912]]

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

[[Page 45913]]

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

[[Page 45914]]

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

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

    The Department's statutory obligation in administering the H-2A 
program dictates that the employer be required to extend a job offer 
containing the same benefits, wages and working conditions for both 
U.S. and foreign workers. An employer may not impose any additional 
restrictions or obligations on U.S. workers. Under the proposed 
regulations, the employer is also responsible for providing to the H-2A 
workers at least the same minimum level of benefits, wages, and working 
conditions that are being offered to U.S. workers. This additional 
requirement levels the playing field so that employers offer H-2A and 
U.S. workers the same minimum levels of benefits, wages, and working 
conditions. It is consistent with the approach taken by the Department 
in the 1987 Rule and is intended to provide parallel protections from 
exploitation for H-2A workers.
    b. Job qualifications and requirements (Sec.  655.122(b)).
    The Department proposes to retain the same requirements as in the 
2008 Final Rule that the job requirements be bona fide and consistent 
with the normal and accepted qualifications required by employers that 
do not use H-2A workers for the same or comparable occupations and 
crops. In addition, the Department has made explicit that the CO or the 
SWA has the discretion to require that the employer submit 
documentation to justify the qualifications specified in the job order.
    c. Minimum benefits, wages, working conditions (Sec.  655.122(c)).
    The Department proposes to retain the identical provision from the 
2008 Final Rule.
    d. Housing (Sec.  655.122(d)).
    The proposed regulation clarifies the employer's obligation to 
provide housing both to H-2A workers and to workers in corresponding 
employment who are not reasonably able to return to their residence 
within the same day, for the entire duration of the contract period. 
The employer's obligation to provide housing ends when the worker 
departs, voluntarily abandons employment, or is terminated for cause. 
The employer's obligations with respect to housing standards, rental or 
public accommodations, open range housing, deposit charges, charges for 
public housing, and family housing under the proposed regulations have 
remained the same as under the 2008 Final Rule. With respect to 
certified housing that becomes unavailable, the Department is retaining 
most of the requirements of the 2008 Final Rule but is also proposing 
to require the SWA to promptly notify the employer of its obligation to 
cure deficiencies in the substituted housing, if the housing is found 
to be or becomes out of compliance with applicable housing standards 
after an inspection. To clarify the Department's available remedies, 
the NPRM provides that the Department can deny a pending Application as 
well as revoke an existing certification.
    e. Workers' compensation (Sec.  655.122(e)).
    The Department is proposing to retain the 2008 Final Rule 
requirements regarding an employer's obligation to provide workers' 
compensation insurance coverage in compliance with State law. To 
reflect a policy change to a full adjudication model, the Department is 
additionally requiring employers to provide the CO with proof of 
workers' compensation insurance coverage, including the name of the 
insurance carrier, the insurance policy number, and proof that the 
coverage is in effect during the dates of need. This requirement is a 
return to the requirements of the 1987 Rule.
    f. Employer provided items (Sec.  655.122(f)).
    It is proposed that this section on employer-provided items be 
amended from the 2008 Final Rule to require employers to provide to the 
worker, without charge, all tools, supplies and equipment necessary to 
complete the job offered to them.
    g. Meals (Sec.  655.122(g)).
    The Department is proposing to retain identical requirements with 
regard to an employer's obligation to provide meals to workers as those 
outlined in the 2008 Final Rule.
    h. Transportation; daily subsistence (Sec.  655.122(h)).
    The Proposed Rule retains the 2008 Final Rule requirement for 
transportation and daily subsistence

[[Page 45915]]

costs incurred by the worker when traveling to the employer's place of 
employment. In addition, language has been added to place employers on 
notice that they may be subject to the FLSA that operates independently 
of the H-2A program and imposes requirements relating to deductions 
from wages. In providing notice to employers of companion FLSA 
requirements, the Department hopes to assure better protection of U.S. 
and foreign workers. When it is the prevailing practice among non-H-2A 
employers in the area of intended employment, or the employer offers 
the benefit to foreign workers, the employer must advance the 
transportation and subsistence costs to U.S. workers in corresponding 
employment as well. At the end of the work contract or if the employee 
is terminated without cause, the employer must also provide or pay for 
transportation costs and daily subsistence from the place of employment 
to the place from which the worker departed for work. In addition, the 
Department proposes to eliminate the limitation in the 2008 Final Rule 
on the employer's obligation to provide for travel expenses and 
subsistence for foreign workers only to and from the place of 
recruitment, i.e. the appropriate U.S. consulate or port of entry; this 
Proposed Rule requires the employer to pay the costs of transportation 
and subsistence from the worker's home to and from the place of 
employment, as was required under the 1987 Rule.
    (i) Transportation from place of employment. As noted above, the 
Department is proposing to keep the 2008 Final Rule requirement for 
employers to provide transportation from the place of employment for 
workers who complete their work contract period. In addition, the 
Department proposes to include a requirement from the 1987 Rule which 
obligates either the initial or subsequent employer to cover the 
transportation and subsistence fees for the travel between the initial 
and subsequent worksite. The obligation to pay remains with the first 
H-2A employer if the subsequent H-2A employer has not contractually 
agreed to pay the travel expenses. In addition, this proposed paragraph 
incorporates a 2008 Final Rule requirement concerning displaced H-2A 
workers and places employers on notice that they are not relieved of 
their obligation to provide or pay for return transportation and 
subsistence if an H-2A worker is displaced as a result of an employer's 
compliance with the 50 percent rule.
    (ii) Employer-provided transportation. The 2008 Final Rule imposed 
mandatory compliance with applicable Federal, State or local laws and 
regulations regarding vehicle safety, driver licensure and vehicle 
insurance on the transportation between the living quarters and the 
worksite. The Department is now proposing to ensure this provision 
reflects similar existing compliance requirements for all employer-
provided transportation. It is less an expansion however, of the 
requirement as much as an acknowledgment that such compliance 
requirements exist elsewhere, as these already exist in Federal, State 
or local transportation laws and regulations. The Department is 
ensuring that the requirement of compliance with these transportation 
and safety laws is reflected in the affirmative obligations to the 
workers. The Department anticipates that this will further ensure 
worker safety.
    i. Three-fourths guarantee (Sec.  655.122(i)).
    The Department is proposing to retain the three-fourths guarantee 
from the 2008 Final Rule clarifying that the guarantee is to offer the 
worker employment for a total number of work hours equal to at least 
three-fourths of the workdays of the contract period, beginning with 
the first workday after the arrival of the worker at the place of 
employment. The Department proposes to retain the provision addressing 
displaced H-2A workers from the 2008 Final Rule, except that the 
provision now refers to the reinstated 50 percent rule rather than the 
30 day rule contained in the 2008 Final Rule.
    j. Earnings records (Sec.  655.122(j)).
    This proposed section mirrors the earning records requirements in 
the 2008 Final Rule with one exception. Under the Proposed Rule, the 
employer must keep the earning records for 5 instead of 3 years.
    k. Hours and earnings statements (Sec.  655.122(k)).
    Under the Proposed Rule, the employer would be required to provide 
to each worker hours and earnings statements that consist of all 
elements contained in the 2008 Final Rule plus two additional pieces of 
information: the beginning and ending dates of the pay period, and the 
employer's name, address and Federal Employment Identification Number.
    l. Rate of pay (Sec.  655.122(l)).
    The Department is proposing to keep the 2008 Final Rule 
requirements regarding the rate of pay and is introducing an additional 
requirement to the job offer (already contained in the assurances and 
obligations of the 2008 Final Rule) that provides that the offered wage 
may not be based on commission, bonuses, or other incentives, unless 
the employer guarantees a wage paid on a weekly, semi-monthly 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. The term semi-monthly replaces the term biweekly from the 2008 
Final Rule's obligation.
    Additionally, the Department proposes to retain the requirement of 
the 2008 Final Rule that if the employer has a productivity standard 
associated with a piece rate payment, the productivity standard must be 
disclosed in the job offer. The Department also proposes to revive the 
requirement of the 1987 Rule that the productivity standard must also 
be no more than that required by the employer in 1977, or, if the 
employer first filed an Application after 1977, the employer's 
productivity standard when it first filed an Application. If the 
productivity standard is higher than required by the employer in 1977 
or when the employer first filed an Application, the productivity 
standard must be approved by the OFLC Administrator.
    m. Frequency of pay (Sec.  655.122(m)).
    The Department is proposing to retain most of the 2008 Final Rule 
requirements on pay frequency, requiring employers to pay wages at 
least twice a month (semi-monthly) and state the pay frequency in the 
job offer. However, the Department is proposing to add an option from 
the 1987 Rule, whereby employers may set pay frequency according to the 
prevailing practice in the area of intended employment, and proposes to 
add a new requirement that they employers must pay wages when due.
    n. Abandonment of employment or termination for cause (Sec.  
655.122(n)).
    The Department's proposal retains the requirements of the 2008 
Final Rule on the abandonment of employment or termination for cause. 
However, one key difference from the 2008 Final Rule is that the 
Department has not included the express exception to abandonment or 
abscondment of a short-term unexcused absence; the Department is using 
a purely temporal (5 day) calculation to provide clarity.
    o. Contract impossibility (Sec.  655.122(o)).
    The Department proposes to retain the 2008 Final Rule requirements 
regarding contract impossibility with one additional obligation, taken 
from the 1987 Rule, under which an employer is required to make efforts 
to transfer the worker to other comparable

[[Page 45916]]

employment acceptable to the worker in the event the employer is 
prevented from fulfilling the requirements of the work contract.
    p. Deductions (Sec.  655.122(p)).
    Under the Proposed Rule, the employer must make all deductions 
required by law and must specify all other reasonable deductions in its 
job offer, just as under the 2008 Final Rule. In addition, subject to 
an employer's compliance with applicable FLSA requirements, the 
Department proposes to once again permit an employer to deduct the cost 
of worker's inbound transportation and daily subsistence expenses to 
the place of employment which were paid directly by the employer, but 
only if the worker is reimbursed the full amount of such deduction when 
he or she completes 50 percent of the work contract period. This 
reimbursement must be inserted in the job order.
    q. Disclosure of work contract (Sec.  655.122(q)).
    Under this proposal, as under the 2008 Final Rule, the employer 
must provide a copy of the work contract (or the job order in the 
absence of the separate, written contract) to the worker no later than 
on the day that work commences. As a new requirement under this NPRM, 
this disclosure, as necessary and reasonable, must be written in a 
language the worker understands. It is appropriate in a program 
administered by the Department that we obligate an employer to provide 
the terms and conditions of employment to a prospective worker in a 
manner permitting the worker to understand the nature of the employment 
being offered and the worker's commitment under that employment.

C. Application Filing Procedures

1. Sec.  655.130 Application Filing Requirements
    This provision sets out the basic requirements with which employers 
need to comply in order to file an Application. As discussed above, the 
proposed process begins with the filing of an Agricultural and Food 
Processing Clearance Order (Form ETA 790) with the SWA 60 to 75 days 
before the date of need. As discussed above, this required preliminary 
period permits the SWA, with its substantial knowledge of the local 
labor market and farming activities, to evaluate the job's 
requirements. As was the case in the 2008 Final Rule, a single 
Application is filed with only the NPC. This eliminates the duplication 
of effort that occurred under the 1987 regulations, in which OFLC and 
the SWA both received an Application and both spent time reviewing it. 
By requiring a submission of only one Application form with the NPC, 
the proposed regulation segregates the process into those activities 
best handled by each entity.
    The proposed provision also establishes filing deadlines consistent 
with the 2008 Final Rule. The Department is constrained by statute from 
requiring employers to file an Application more than 45 days prior to 
the date of need. 8 U.S.C. 1188(c)(1). The Department anticipates, 
based on decades of program experience, that it will continue to 
receive requests 45 days prior to the date of need, although 
Applications may be voluntarily filed in advance of that date.
    The Department proposes to continue to receive Applications filed 
in the same paper format as currently filed until such time as an 
electronic system can be fully implemented. The Department proposes to 
use the Application for Temporary Employment Certification, Form ETA 
9142, to collect the necessary information; the form's appendices will 
be modified slightly to reflect changes from the 2008 Final Rule (such 
as a change of tense to note the pre-recruitment filing of the 
Application). The Department has begun efforts to establish an online 
format for the submission of information, but as such a system depends 
upon the resolution of issues in rulemaking, its implementation 
necessitates a period during which paper Applications will continue to 
be accepted. The Department contemplated in its 2008 rulemaking an 
electronic submission process; until such is developed, it will 
continue to accept paper Applications. This will assist employers 
familiar with the program, who are currently filing paper Applications 
and will thus have a less onerous transition.
    The proposed provision also sets out the requirement for obtaining 
signatures. As in the 2008 Final Rule, the Department is proposing to 
require original forms and signatures. One departure from the 2008 
Final Rule is the requirement that an association, filing not as an 
association but as an agent for it members, obtain the signatures of 
all its employer-members before submitting the Application to the 
Department, to ensure that all members are fully aware of the 
obligations of the Application to which each member must adhere.
    The rule proposes that the employer will file the Application with 
an initial recruitment report, outlining the results of its initial 
recruitment attempts, including the results of referrals from its 
intrastate job order placed with the SWA, and any other efforts in 
which it has engaged. The employer will also file with the Application 
a copy of its ETA 790 clearance order, so that the NPC may verify the 
order placed with the SWA against the terms and conditions provided on 
the Application.
2. Sec.  655.131 Association Filing Requirements

a. Associations (Sec.  655.131(a))

    The Department has previously permitted associations to file on 
behalf of their members. The proposed provision clarifies the role of 
associations as filers, in order to assist both the employer-members 
and the Department in assessing the obligations of each party. As in 
the past, an association will identify in what capacity it is filing, 
so there is no doubt as to whether the association is subject to the 
obligations of an agent or an employer (whether individual or joint). 
Both the 1987 and 2008 regulations required 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.

b. Master Applications (Sec.  655.131(b))

    Although the 1987 Rule did 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 
master applications to be filed as a matter of practice. See 52 FR 
20496, 20498, Jun. 1, 1987 (cited in ETA Handbook No. 398). The 2008 
Final Rule explicitly permitted their use. This Proposed Rule continues 
to permit their use but narrows the scope of what constitutes an 
acceptable master application. The Proposed Rule continues to require a 
single date of need as a basic element for a master application. The 
Department proposes to retain the long-standing requirement that a 
master application may be filed only by an association acting as a 
joint employer with its members; the Proposed Rule reiterates this 
joint responsibility by requiring that the association identify all 
employer-members that will employ H-2A workers. The Application must 
demonstrate that each employer has agreed to the conditions of H-2A 
eligibility.
    The Department also proposes to revert to the long-established 
practice of permitting a master application only for the same 
occupation and comparable work within that occupation. However,

[[Page 45917]]

the Department proposes to modify that practice to limit such 
Applications to a single State. Requiring comparable work on a master 
application also reduces overstatement of need by employers and the 
potential for idling of workers, both domestic and H-2A. Workers 
applying to a job opportunity that is the subject of a master 
application are thus provided a more accurate start date and can gauge 
their own availability accordingly. The Department notes that similar 
crop activities are far more likely to link to the single date of need 
that is required.
3. Sec.  655.132 H-2A Labor Contractor (H-2ALC) Filing Requirements
    The proposed regulation sets out additional filing requirements for 
H-2A Labor Contractors (H-2ALCs), building upon those outlined as 
attestations for H-2ALCs in the 2008 Final Rule. We are proposing that 
H-2ALCs be required to provide certain basic information, such as the 
names and locations of each fixed-site farm or agricultural operation 
to which the H-2ALC has contracted to send the workers, as well as 
information regarding crop activities the workers will be performing at 
each site. The Department also proposes to require H-2ALCs to submit 
copies of all contracts with each fixed-site entity identified in its 
Application. In addition, the Department proposes to continue to 
require the submission of the Farm Labor Contractor Certificate of 
Registration, if MSPA requires the H-2ALC to have one.
    The Department is proposing to continue its requirement that an H-
2ALC post a bond to demonstrate its ability to meet its financial 
obligations to its employees. This permits the Department to ensure 
labor contractors can meet their payroll and other obligations 
contained in the terms of the job order and the H-2A program 
obligations. Additionally, we are proposing that the H-2ALC be required 
to submit documentation of its surety bond.
    Finally, the Department is proposing to require that in situations 
where the fixed-site farm with which the H-2ALC has a contractual 
relationship is the entity that will be providing housing and/or 
transportation, the H-2ALC must provide proof that the housing complies 
with the applicable standards, and has been approved by the SWA, and 
that transportation provided complies with all applicable laws and 
regulations.
4. Sec.  655.133 Requirements for Agents
    The Department has long accepted Applications in many of its 
programs from agents. The Proposed Rule continues the long-standing 
practice of allowing employers to utilize agents to file the 
Application. However, in recognition of the unique relationship an 
agent has with an employer it represents before the Department, the 
proposed rule requires an agent to provide, as a part of the 
Application, a copy of the agreement by which it undertakes the 
representation--contract, agency agreement, or other proof of the 
relationship and the authority of the agent to represent the employer. 
In addition, the Department is requiring, for those agents who are 
required under MSPA to register as a farm labor contractor, proof of 
such registration.
5. Sec.  655.134 Emergency Situations
    The Department proposes to retain from both the 2008 Final Rule and 
its predecessor Rule the criteria for accepting and processing 
Applications filed less than 45 days before date of need on an 
emergency basis. The Department is proposing that emergency 
Applications continue to be accepted for employers who did not use the 
H-2A program in the previous year, or for any employer that has good 
and substantial cause. The predicate for accepting an Application on an 
emergency basis continues to be sufficient time for the employer to 
undertake an expedited test of the labor market. To meet the good and 
substantial cause test, the employer must provide to the CO detailed 
information describing the reason(s) which led to the request. Such 
cause is outlined in the regulation in a non-inclusive fashion, 
including factors such as loss of U.S. workers from weather-related 
conditions and unforeseen events affecting the work activities. The 
discretion to determine good and substantial cause rests entirely with 
the CO.
6. Sec.  655.135 Assurances and Obligations of H-2A Employers
    In addition to commitments made to workers through the job order, 
employers seeking H-2A workers must provide additional assurances 
designed to ensure that the granting of the certification will not 
adversely affect the wages and working conditions of workers similarly 
employed in the U.S.
    Under this Proposed Rule, the employer must assure that the job 
opportunity is available to any qualified U.S. worker regardless of 
race, color, national origin, age, sex, religion, handicap or 
citizenship. Domestic applicants may only be rejected for lawful, job 
related reasons. Additionally, the employer must assure that there is 
no work stoppage or lockout at the worksite.
    As under the 1987 Rule, we propose that employers continue to work 
with the SWA(s) and accept referrals of all eligible U.S. workers who 
apply for the job until the completion of 50 percent of the contract 
period. In addition, the employers will have to conduct positive 
recruitment until the actual date on which the H-2A workers depart for 
the place of work, or 3 calendar days before the first date the 
employer requires the services of workers.
    In this NPRM the Department is proposing to reinstate the 50 
percent rule, outlined in 8 U.S.C. 1188(c)(3)(B)(i). The 50 percent 
rule is a creation of statute; it was added in IRCA to enhance domestic 
worker access to job opportunities for which H-2A workers were 
recruited. In short, the rule provided that the Department was to 
require that an employer seeking H-2A certifications agree to accept 
referrals through 50 percent of the contract period outlined on the job 
order. The Department seeks to enhance protections for U.S. workers, to 
the maximum extent possible, while balancing the potential costs to 
employers. The Department acknowledges that such increased referral 
activity imposes an additional cost on both employers and on SWAs. The 
burden on SWAs, however, is already a core labor market exchange 
function which they already provide to the nation's workforce pursuant 
to the Wagner-Peyser Act (29 U.S.C. 49 et seq.). The cost on employers 
is lessened, to large extent, by the ability to discharge the H-2A 
worker upon the referral of a U.S. worker. In addition, the Department 
proposes retaining from the 1987 Rule (and U.S.C. 1188(c)(3)(B)(ii)) 
the small farm exemption to the 50 percent rule to minimize the adverse 
effect on those operations least able to absorb additional workers.
    The proposed regulation at Sec.  655.135(e) requires employers to 
assure that they will comply with all applicable Federal, State and 
local laws and regulations, including health and safety laws, during 
the period of employment that is the subject of the labor 
certification. Among other obligations employers may be subject to the 
provisions of the FLSA. This proposed requirement is intended to 
emphasize the important policy objective of protecting both U.S. and 
foreign workers and ensuring that both groups are afforded the 
protections to which they are entitled.
    Among other requirements, the Department is proposing to require 
employers to offer only full-time temporary employment of at least 35 
hours per work week, an increase from

[[Page 45918]]

the 30 hours per week in the 2008 Final Rule. The Department believes 
that a 35-hour work week more accurately reflects the work patterns of 
farm entities and strikes an appropriate balance between the employer's 
needs and the employment and income needs of both U.S. and foreign 
workers.
    As in the 2008 Final Rule, an employer must guarantee that it has 
not laid off and will not lay off any similarly employed U.S. worker in 
the occupation in which the employer is seeking to hire H-2A workers 
within 60 days of the date of need. If the employer has laid off U.S. 
workers, the Department will require the employer to demonstrate that 
it has offered the job opportunities created by the lay offs to those 
laid-off U.S. workers(s) and the U.S. worker(s) either refused the job 
opportunity or was rejected for lawful, job-related reasons. This 
proposed requirement is intended to prevent the few unscrupulous 
employers from firing U.S. workers, then hiring H-2A workers to perform 
the same services under less advantageous working conditions, including 
lower wages and benefits, resulting in savings for the employers.
    Proposed Sec.  655.135(h) would prohibit employers from 
intimidating, threatening, coercing, blacklisting, discharging or in 
any manner discriminating against complaining workers or former workers 
who file a complaint against the employer for violating 8 U.S.C. 1188 
or who institute any proceeding against the employer or testify in any 
proceeding against the employer, or consult with an employee of a legal 
assistance program or an attorney on matters related to a proceeding 
against the employer, or exercise or assert any right or protection 
under the same section or under the Department's H-2A regulations.
    The NPRM proposes to continue to require an employer to inform H-2A 
workers that they are required to depart the U.S. at the end of the 
certified work period, or if they become separated from the employer 
before the end of that period. The requirement that the workers depart 
applies to all H-2A workers who do not have a subsequent offer of 
employment from another H-2A employer. This continues a standing 
requirement in the program which parallels DHS regulations. Requiring 
employers to notify H-2A workers of their obligation to depart will 
help to ensure that the workers timely depart the U.S. without risking 
negative immigration consequences for overstays of their temporary work 
visas. This will enable workers to remain eligible to return the 
following season and assist the same or different employers if there 
are not sufficient qualified, able and willing U.S. workers. In 
addition, the proposed requirement ensures that the employers are aware 
that they may not offer employment to foreign workers which exceeds the 
period certified by the Department (and that approved by DHS) without 
violating their obligations under the program.
    As in the 2008 Final Rule and in conjunction with similar DHS 
regulations, the Department proposes to prohibit employers from passing 
on fees associated with the recruitment of workers recruited under 8 
U.S.C. 1188 to those workers, such as referral fees, retention fees, 
transfer fees, or similar charges. The Department proposes to define 
payment as monetary payments, wage concessions (including deductions 
from wages, salary or benefits), kickbacks, bribes, tributes, in-kind 
payments, and free labor. The Department believes that requiring 
employers to bear costs associated with the recruitment of foreign and 
domestic workers will incentivize employers to offer the terms and 
conditions that would most likely attract U.S. workers who are 
qualified, willing and able to perform the work. In addition, this 
prohibition protects the workers from becoming heavily indebted when 
applying for the job opportunities and vulnerable to exploitation by 
unscrupulous employers. As before, 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 fees. The Department has also removed visa fees, border 
inspection, and other government-mandated or authorized fees from 
consideration as an acceptable fee attributable to the worker. A visa 
fee for an H-2A visa is one directly attributable to the employer's 
need for the worker to enter the U.S. to work for the employer; as such 
it is not reimbursable from the employee to the employer.
    In addition to prohibiting employers and their agents from 
collecting or soliciting fees from H-2A workers for the cost of 
recruitment, the proposed regulations require those employers to 
contractually forbid any foreign labor contractor or recruiter, or 
agent of such foreign labor contractor or recruiter, engaged in the 
international recruitment of H-2A workers from seeking or receiving 
payments, whether directly or indirectly, from prospective employees. 
This provision is also intended to ensure that the employer's 
contractual obligations do not permit the passing of recruitment fees 
to foreign employees.
    As an additional element of worker protection, the Department 
proposes to require that employers post and maintain in conspicuous 
locations at the worksite a poster provided by the Department in 
English, and, to the extent necessary, language common to a significant 
portion of the workers if they are not fluent in English, which 
describes the rights and protections for workers employed pursuant to 8 
U.S.C. 1188. Providing such notification to workers through a poster at 
the worksite of their rights is consistent with other programs 
administered and enforced by the Department. Such a posting requirement 
is even more meaningful at remote worksites where agricultural workers 
are often employed. The posting requirement ensures that both H-2A and 
corresponding workers are aware of their rights and are provided with 
resources (in the form of phone numbers or contact information) which 
they may use to notify the Department of any issues at the worksite or 
report employers who fail to meet their obligations under the program.

D. Processing of Applications

1. Sec.  655.140 Review of Applications
    Under the Department's proposed regulations, upon receipt of each 
Application, job order, and other required documentation, the CO at the 
NPC will promptly conduct a comprehensive review of all documentation 
provided by the employer to ensure that the employer has complied with 
all applicable requirements and obligations. The timing of the review 
process is defined primarily in the INA, and therefore the Department's 
procedures remain largely unchanged. The Proposed Rule, however, now 
requires that the Application be accompanied by required documentation 
supporting employer assurances. Additionally, the CO will have a 
greater role in substantively reviewing the Application for compliance 
with the requirements.
2. Sec.  655.141 Notice of Acceptance
    The Proposed Rule partially incorporates the requirements of the 
1987 Rule with respect to the process of accepting an Application. 
Under the proposal, the Notice of Acceptance from the CO grants 
conditional access to the interstate clearance system and directs the 
SWA to circulate a copy of the job order to the States the CO 
determines to be potential sources of U.S. workers. The Notice of 
Acceptance also directs the employer to engage in positive recruitment 
of U.S. workers during the same time period. Finally, each Notice

[[Page 45919]]

of Acceptance informs the employer that the Department will adjudicate 
the certification request no later than 30 calendar days before the 
date of need, except in the case of modified Applications.
    Under the proposed regulations, the CO will review each employer's 
Application to determine whether the employer has established the need 
for agricultural services or labor to be performed on a temporary or 
seasonal basis by temporary H-2A workers and met all the requirements 
and obligations required by these regulations. The CO will ensure that 
the employer has submitted the Application no less than 45 days from 
the date of need and that it has previously submitted a copy of the job 
order to the SWA serving the area of intended employment for intrastate 
clearance. Further, the CO will look for a complete and appropriate job 
description, a full number of job openings and the appropriate dates of 
need. Most significantly, the CO will ensure that the employer is 
offering prospective workers an adequate offered wage rate. While 
conducting its review of the employer's Application, the CO will also 
determine whether the employer has included complete housing 
information, proof of workers' compensation coverage, the guarantee to 
provide to the workers travel reimbursement and meals/cooking 
facilities, and a promise to provide tools or items required for the 
position, as appropriate. The CO will ensure that the employer has 
agreed to offer to workers a total number of work hours equal to at 
least three-fourths of the workdays of the total contract period.
3. Sec.  655.142 Electronic Job Registry
    The Department proposes to post employers' H-2A job orders, 
including modifications approved by the CO, into a national and 
publicly accessible electronic job registry. The job registry will be 
created and maintained by the Department and will serve as a public 
repository of H-2A job orders for the duration of 50 percent of the 
work contract. The job orders will be posted in the registry by a CO 
upon the acceptance of each submission. The posting of the job orders 
will not require any additional effort on the part of the SWAs or H-2A 
employers.
    The Department intends that this new national job registry will 
serve as an effective, user-friendly tool for informing and attracting 
U.S. workers to agricultural jobs for which H-2A workers are being 
recruited. In addition, the Department anticipates that the job 
registry will contribute to increased transparency in the H-2A labor 
certification approval process. The Department will inform all 
stakeholders of the creation of the job registry through a notice in 
the Federal Register and provide access through the Department's 
resources, including its One-Stop Career Centers, as well as through a 
link to the job registry on the OFLC's Web site http://www.foreignlaborcert.doleta.gov/.
4. Sec. Sec.  655.143 and 655.144 Notice of Deficiency and Submission 
of Modified Applications
    As in the 2008 Final Rule, the Department proposes that if the CO 
determines that the Application or job order is incomplete, contains 
errors or inaccuracies, or fails to meet necessary regulatory 
requirements, the CO must notify each employer within 7 days that the 
Application does not meet standards for approval. This Notice of 
Deficiency will include the reason(s) why the Application is deficient 
and provide the employer with an opportunity to resubmit a modified 
Application. It will also identify the type of modification that is 
necessary in order for the CO to issue a Notice of Acceptance. In 
addition, the Notice of Deficiency must inform the employer that the CO 
will grant or deny the certification within 30 days of the date of need 
as long as the employer submits a modified application within 5 
business days.
    The Notice of Deficiency will also give an employer the opportunity 
to request expedited administrative review or a de novo administrative 
hearing before an ALJ and provide instructions on filing a written 
request for a hearing with the ALJ. Finally, the Notice of Deficiency 
will inform the employer that failing to act within 5 business days to 
either modify the Application or request an administrative hearing or 
review will result in the denial of that employer's Application.
    The employer may submit a modified application within 5 business 
days of receiving a Notice of Deficiency. If an employer timely submits 
a modified application that meets conditions for acceptance, the CO 
will issue a Notice of Acceptance. For each day over the 5-day window, 
the CO may take up to one additional day to issue a Final Determination 
on the Application, up to a maximum of an additional 5 days. The 
Application will be considered to be abandoned if the employer does not 
submit a modified Application within 12 calendar days (allowing for two 
periods of 5 business days each) after the Notice of Deficiency was 
issued. The 12 days, which is more time than was allotted under the 
2008 Final Rule, is a reasonable maximum period, given the statute's 
concern for prompt processing of Applications and the time needed to 
obtain visas and bring in the workers by the date of need.
5. Sec.  655.145 Amendments to Applications for Temporary Employment 
Certification
    As in the 2008 Final Rule, the Department proposes that amendments 
to a request for labor certification for H-2A workers are permitted in 
two limited instances--where an employer desires to increase the number 
of workers requested, and where the employer makes minor changes to the 
period of employment. DHS regulations at 8 CFR 214.2(h)(5)(x) provide 
for a limited maximum of 2-week extension in emergent circumstances 
(the temporary labor cert will be deemed to be approved for up to 2 
weeks under such emergent circumstances (upon DHS approval of the 2-
week extension request)). As proposed, an employer will be able to 
amend its Application with the Department at any time before the final 
determination without an obligation to submit a new Application (and 
conduct additional recruitment), to increase the number of workers 
requested by not more than 20 percent (50 percent for employers 
requesting 10 workers or less). Requests for increases above these 
percentages will be approved by the CO only in limited circumstances 
when the employer can satisfy DOL that the need could not have been 
foreseen and the crops or commodities would be in jeopardy before the 
expiration of any additional recruitment period.
    For amendments to the period of employment, the Department proposes 
that the employer seek written approval in advance from the CO. The 
employer's request must be justified, taking into account the effect of 
the change of the period of employment on the adequacy of the labor 
market test. An employer must demonstrate that the change to the period 
of employment could not have been foreseen, and the crops or 
commodities will be in jeopardy prior to the commencement of an 
additional recruitment period. In addition, if the change involves a 
delay in the date of need, the employer must offer assurances that 
workers who have already departed for the employer's job site will be 
provided with housing and subsistence without cost to the workers until 
they begin working.

E. Positive Recruitment and Post-Acceptance Requirements

    The Department proposes, under new Sec. Sec.  655.150-655.159, that 
employers be required to conduct the majority of their

[[Page 45920]]

recruitment after filing their Application at the direction of the NPC. 
The proposed post-acceptance recruitment is similar to the process used 
in the 1987 Rule. The Department has determined that this oversight of 
recruitment is preferable to ensure the validity and adequacy of the 
labor market test in which the employer will engage. However, because 
the proposal retains the audit system introduced in the 2008 Final 
Rule, employers must maintain all resumes and applications filed by the 
U.S. workers. U.S. worker recruitment will continue to use the steps 
that program experience has shown are the most appropriate for 
agricultural employment. These include the involvement of the SWAs, 
placement of two newspaper advertisements, contact with former U.S. 
employees, advertising in traditional or expected labor supply States, 
and as appropriate, contacting local unions.
1. Sec.  655.150 Interstate Clearance of Job Order
    The Department proposes to require the employer to test the labor 
market before filing the Application by submitting a job order to the 
SWA in the area of intended employment. As discussed previously, the 
SWA will place this order only in the intrastate job clearance system. 
If enough U.S. workers apply for the positions available and are 
qualified, able, and willing to perform the duties, then the employer 
cannot file with the Department for a labor certification. However, if 
the employer still has a need for foreign workers, then the employer 
files an Application with the NPC. Once the CO issues the Notice of 
Acceptance, the NPC will instruct the SWA to post the Job Clearance 
Order on its interstate job clearance system. Likewise, the NPC will 
inform the SWA of the traditional or expected labor supply States and 
the SWA will send the SWAs in those States the Job Clearance Order.
2. Sec.  655.151 Newspaper Advertisements
    Newspapers remain a potential recruitment source for U.S. workers 
likely to be affected by the introduction of H-2A labor. As in the 2008 
Final Rule, the Department proposes to require two print advertisements 
in the State of intended employment. The newspaper advertisements can 
be on two consecutive days, but one of which must be on a Sunday or the 
day of the week with the largest circulation if there is no Sunday 
edition. Employers will be required to list the specifics of the 
newspaper advertisement on the Application but will not be required to 
submit tear sheets or other documentary evidence of that recruitment 
when the recruitment report is submitted. However, the employer will be 
required to maintain documentation of the actual advertisement(s) 
published in the event of an audit or other review. The Department is 
not requiring advertising in ethnic newspapers, but allows for this 
option if, in the discretion of the CO, it is normal and customary in 
the area of intended employment.
3. Sec.  655.152 Advertising Requirements
    Proposed Sec.  655.152 retains the requirements of the 2008 Final 
Rule for the information that must be contained in the advertisements. 
However, the Proposed Rule requires the advertisements to be placed at 
the direction of the CO after the Application has been accepted. It 
also proposes to require employers with remote worksites to provide 
physical space or other assistance for the interviewing of U.S. workers 
in a place other than the worksite that is readily accessible to the 
population that is most likely to apply to the job opportunity.
4. Sec.  655.153 Contact with Former U.S. Employees
    The NPRM proposes to continue to require employers to contact 
former U.S. employees as included in the 2008 Final Rule. These 
contacts must occur during the pre-filing recruitment period. Contact 
with previous employees will be documented by maintaining copies of 
correspondence with such employees (or records of attempts to contact 
former employees). The recruitment report must contain a description of 
the outcome of those contacts, including the lawful, job-related 
reasons for not rehiring a former employee. This will increase the 
likelihood that former U.S. workers of the employer will receive 
advance notice of available job opportunities, as well as provide them 
with additional information on available positions.
5. Sec.  655.154 Additional Positive Recruitment
    The statute requires the Secretary to deny a petition if the 
employer has not made positive recruitment efforts within a multistate 
region of traditional or expected labor supply States and 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. Positive recruitment is in addition 
to and occurs within the same time period as the circulation of the job 
order through the interstate employment service system. The NPRM 
proposes that the Notice of Acceptance will instruct the employer how 
to conduct positive recruitment. If such traditional or expected labor 
supply States exist for an area of intended employment, the Notice of 
Acceptance will designate such States and the employer will be required 
to perform additional positive recruitment in those States. The type of 
recruitment that will be required of the employer is left to the 
discretion of the CO, but will be no less than the normal recruitment 
efforts of non-H-2A agricultural employers of comparable or smaller 
size in the area of intended employment. Such recruitment may include 
radio advertising, additional newspaper advertisements, and other 
targeted efforts.
6. Sec.  655.155 Referrals of U.S. Workers
    The NPRM proposes to return to the 1987 Rule standard which 
required the SWAs to refer only those individuals who have been 
apprised of all the material terms and conditions of employment. Under 
those provisions, only those individuals who had indicated that they 
were able and willing to perform such duties, qualified and eligible to 
take such a job and available at the time and place required in the job 
order were referred.
7. Sec.  655.156 Recruitment Report
    The reporting of recruitment results has always been an element of 
the H-2 program. Under the 1987 Rule, if the employer did not hire a 
referred worker, the employer was required to inform the SWA of the 
lawful employment-related reason(s) for not hiring the worker. The 2008 
Final Rule formalized this process and required the preparation of a 
recruitment report, but the report was not sent to either the SWA or 
the NPC; instead the employer maintained the recruitment report in its 
records. The NPRM proposes to require that employers begin the 
recruitment report before they file their Application and continue to 
supplement it as referrals and applicants come in. The employer will be 
required to submit the initial recruitment report at the time of filing 
the Application with the NPC and to file an updated report by a date 
certain specified in the Notice of Acceptance. Finally, the employer 
will be required to continue to update the recruitment report until 50 
percent of the contract period has expired at which time the SWA will 
cease referring U.S. workers. The complete recruitment report and all 
supporting documentation must be maintained by the employer for 5 
years.

[[Page 45921]]

8. Sec.  655.157 Withholding of U.S. Workers Prohibited
    The statute prohibits willfully and knowingly withholding domestic 
workers until the arrival of H-2A workers in order to force the hiring 
of domestic workers under the 50 percent rule. Both previous rules 
implemented the statutory prohibition by describing the procedure for 
filing complaints in such instances. Because the Department has now 
centralized many of the functions formerly performed by the SWAs, the 
NPRM proposes to have such complaints filed directly with the CO rather 
than first going through the SWA and having the SWA refer complaints to 
the CO.

F. Labor Certification Determinations

1. Sec.  655.160 Determinations
    This NPRM proposes to continue to implement the Secretary's 
statutory mandate to make determinations on Applications no later than 
30 days prior to the date of need.
2. Sec.  655.161 Criteria for Certification
    The NPRM sets out the criteria by which the CO will determine the 
availability of U.S. workers. As in the 2008 Final Rule, the CO will 
count as available those individuals who are rejected by the employer 
for any reason other than a lawful, job-related reason, or who are 
rejected and are not provided by the employer with a lawful, job-
related reason for the rejection.
3. Sec.  655.162 Approved Certification
    The Department is proposing to continue the requirement from the 
2008 Final Rule that the CO will send the certified Application to the 
employer by means assuring next-day delivery. This is to ensure 
employers receive expeditious handling of their certifications.
4. Sec.  655.163 Certification Fee
    The Proposed Rule continues to require, as outlined in the statute, 
that each employer of H-2A workers under the Application (except joint 
employer associations, which may not be assessed a fee in addition to 
the fees assessed to the members of the association) must pay to the 
Department the appropriate certification fee. These processing fees are 
authorized by statute and set by regulations originally published at 52 
FR 20507, Jun. 1, 1987. The Department is updating the fees to an 
amount that more nearly approaches the reasonable costs of 
administering the H-2A program.
    The fee for each employer receiving a temporary agricultural labor 
certification will continue to be $100 plus $10 for each H-2A worker 
certified under the Application. The fee to an employer for an 
individual Application will be continue to be capped at $1000, 
regardless of the number of H-2A workers that are certified. Non-
payment or untimely payment of fees may be considered a violation 
subject to the procedures under Sec.  655.182.
5. Sec.  655.164 Denied Certification
    The Proposed Rule retains the general provisions for denying 
certifications from the 2008 Final Rule. The final determination letter 
will state the reasons that the certification was denied and cite the 
relevant regulatory provisions and/or special procedures that govern. 
The Department will continue to provide the applicant an opportunity to 
appeal the determination.
6. Sec.  655.165 Partial Certification
    The Proposed Rule retains in large part the 2008 Final Rule 
provision explicitly providing that the CO may issue a partial 
certification, reducing either the period of need or the number of H-2A 
workers requested or both. 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 successfully 
recruited prior to certification. A partial certification is issued by 
subtracting the number of available U.S. workers from the total number 
of workers requested. In addition an employer will have the ability to 
request administrative review.
7. Sec.  655.167 Document Retention Requirements
    The Proposed Rule retains a provision from the 2008 Final Rule 
requiring the retention of certain documentation demonstrating 
compliance with the program's requirements, but increases the period of 
retention. Documents must be retained in hard copy for a period of 5 
years from the date of adjudication of the Application, up from the 
2008 Final Rule's 3-year requirement. Document retention is a necessary 
component of the H-2A certification process to respond to an audit or 
other investigation.

G. Post-Certification Activities

    Proposed Sec. Sec.  655.170 through 655.173 concern various actions 
an employer may take after its H-2A Application has been adjudicated, 
including making a request for extension of certification, appealing a 
decision of the CO, withdrawing an Application, and petitioning for 
higher meal charges. Section 655.174 proposes a new publicly-accessible 
electronic database of employers who have applied for H-2A 
certification that the Department will maintain.
1. Sec.  655.170 Extensions
    Proposed Sec.  655.170 contains the provisions governing an 
employer's request for an extension of the time period for which an 
Application has been certified. Aside from two substantive changes, the 
provisions of this proposed section are the same as the provisions 
under the 2008 Final Rule, which were themselves similar to the 
provisions of the 1987 Rule.
    The substantive changes in the proposed section would permit the CO 
to notify an employer through means other than writing if time does not 
permit, or in writing if time permits, of the CO's decision to grant or 
deny an extension of certification. This would enable COs to provide a 
decision in the fastest manner possible, when a delay for a formal 
writing would otherwise hamper the ability of the employer to act on 
the decision. The proposed regulation also would not allow an employer 
to appeal a denial of an extension. Under this Proposed Rule, there is 
no right to appeal a denied extension request. While the Department, in 
its discretion, allowed for appeals of denied extensions in the 2008 
Final Rule, the Department does not see sufficient justification to 
continue this practice.
2. Sec.  655.171 Appeals
    This section sets out the procedures for ALJ review of a decision 
of a CO. The substance of this section has remained the same since 
1987, except that this proposed section allows an ALJ to remand a case 
to the CO, in addition to the ALJ's existing ability to affirm, 
reverse, or modify a CO's decision.
    The proposed section reorganizes the text in the corresponding 
sections of previous rules to enhance clarity and readability. The 
proposed section does not list the various CO decisions that may be 
appealed, such as a denial of certification, a decision to decline to 
accept an Application for consideration, or a denial of an amendment of 
an Application. Rather, the Proposed Rule is structured so that the 
right to appeal a particular decision of the CO is discussed in the 
sections of the rule that discuss the CO's authority and procedure for 
making that particular decision.

[[Page 45922]]

3. Sec.  655.172 Withdrawal of Job Order and Application for Temporary 
Employment Certification
    Proposed Sec.  655.172 discusses the withdrawal of Applications. An 
employer may withdraw a job order from intrastate posting if the 
employer no longer plans to file an H-2A Application. However, 
withdrawal of a job order does not nullify the obligations the employer 
has to any workers recruited in connection with the placement of the 
job order before it was withdrawn.
    An employer may also seek to withdraw an Application after it has 
been accepted by the NPC. However, the employer is still obligated to 
comply with the terms and conditions of employment contained in the 
Application for workers recruited in connection with that Application.
4. Sec.  655.173 Setting Meal Charges; Petition for Higher Meal Charges
    The text of proposed Sec.  655.173 is substantively the same as the 
text of the section governing meal charges in the 2008 Final Rule. The 
proposed section contains some minor changes to the description of an 
employer's right to appeal a denial of a petition for higher meal 
charges, primarily to refer to current appeal procedures.
5. Sec.  655.174 Public Disclosure
    This proposed section describes a new initiative of the Department: 
DOL will maintain an electronic database accessible to the public 
containing information on all employers who apply for H-2A labor 
certifications. The database will include information such as the 
number of workers the employer requests on an Application, the date an 
Application is filed, and the final disposition of an Application.

H. Integrity Measures

    Proposed Sec. Sec.  655.180 through 655.185 have been grouped 
together under the heading Integrity Measures, describing those actions 
the Department may take to ensure that Applications filed with the 
Department are in fact compliant with the requirements of this subpart.
1. Sec.  655.180 Audit
    This section proposes how the Department will conduct audits of 
applications for which certifications have been granted. The regulatory 
text is substantively the same as the text of the audit section of the 
2008 Final Rule, with minor changes to improve organization and 
readability. Like the 2008 Final Rule, the proposed section states that 
the Department has the discretion to choose which labor certification 
requests will be audited. When an Application is selected for audit, 
the CO will send a letter to the employer (and its attorney or agent) 
listing the documentation the employer must submit and the date by 
which the documentation must be received by the CO.
    An employer's failure to comply with the audit process may result 
in the revocation of certification or debarment, under proposed 
Sec. Sec.  655.181 and 655.182. A CO may provide any findings made or 
documents received in the course of the audit to the WHD, DHS or other 
enforcement agency. The CO will refer any findings that an employer 
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.
2. Sec.  655.181 Revocation
    This proposed section describes the Department's power to revoke an 
H-2A labor certification. The proposed section expands the grounds upon 
which the Department may revoke from those specified in the revocation 
(Sec.  655.117) in the 2008 Final Rule. Under the proposed section, the 
CO may revoke certification if the CO finds that it was not justified 
based on the requirements of the INA. This will allow the CO to correct 
situations where she finds that the labor certification should never 
have been granted. The CO may also revoke if the CO finds that the 
employer substantially violated a material term or condition of the 
approved labor certification. The definition of substantial violation 
is in the debarment section of these proposed regulations, at proposed 
Sec.  655.182(d). Finally, the CO may revoke if she finds that the 
employer failed to cooperate with a DOL investigation, inspection, 
audit, or law enforcement function, or if she finds that the employer 
failed to comply with any sanction(s), remedy(ies), or order(s) of the 
Department.
    The proposed procedures for revocation are largely the same as the 
revocation procedures in the 2008 Final Rule. They have been revised 
for clarity and to provide that in the event of a revocation, the 
employer may either take advantage of the opportunity to submit 
rebuttal evidence to the CO, or the employer may file an administrative 
appeal under proposed Sec.  655.171.
    The revocation procedure begins with the CO sending the employer a 
Notice of Revocation if the CO determines that certification should be 
revoked. Upon receiving the Notice of Revocation, the employer has two 
options: It may submit rebuttal evidence to the CO or the employer may 
appeal the revocation under the procedures in proposed Sec.  655.171. 
The employer must submit rebuttal evidence or appeal within 14 days of 
the Notice of Revocation, or the Notice will be deemed the final 
decision of the Secretary, and the revocation will take effect 
immediately at the end of the 14-day period.
    If the employer chooses to file rebuttal evidence, and the employer 
timely files that evidence, the CO will review it and inform the 
employer of her final determination on revocation within 14 calendar 
days of receiving the rebuttal evidence. If the CO determines that the 
certification should be revoked, the CO will inform the employer of its 
right to appeal under proposed Sec.  655.171. The employer must file 
the appeal of the CO's final determination within 10 calendar days, or 
the CO's determination becomes the final decision of the Secretary and 
takes effect immediately after the 10-day period.
    If the employer chooses to appeal either in lieu of submitting 
rebuttal evidence, or after the CO makes a determination on the 
rebuttal evidence, the appeal will be conducted under the procedures 
contained in proposed Sec.  655.171. The timely filing of either 
rebuttal evidence or an administrative appeal stays the revocation 
pending the outcome of those proceedings. If labor certification is 
ultimately revoked, the CO will notify DHS and the Department of State.
    Proposed Sec.  655.181(c) lists an employer's continuing 
obligations if the employer's H-2A certification is revoked. These 
obligations are the same as those listed in Sec.  655.117(d) of the 
2008 Final Rule.
3. Sec.  655.182 Debarment
    Proposed Sec.  655.182 describes the Department's debarment 
authority and procedures, pursuant to 8 U.S.C. 1188(b)(2). Sections 
655.182(a-c) are substantively the same as Sec.  655.118(a) -(c) of the 
Debarment section of the 2008 Final Rule; they have been revised to 
provide clarity. Section 655.182(a) states that the OFLC Administrator 
may debar an employer if the Administrator finds that the employer has 
committed a substantial violation. Section 655.182(b) states that the 
OFLC Administrator may debar an agent or attorney if the Administrator 
finds that the agent or attorney participated in, had knowledge of, or 
reason to know of an employer's substantial violation. The OFLC 
Administrator will not issue a future labor certification to any 
employer represented by a debarred agent or attorney. Under paragraph 
(b),

[[Page 45923]]

the agent or attorney is the subject of the debarment; the OFLC 
Administrator may issue labor certifications to the same employer(s) if 
they are not represented by the debarred agent or attorney (unless of 
course the employer itself is also debarred). The Administrator may not 
commence debarment proceedings against an employer, attorney, or agent 
any later than 2 years after the substantial violation occurred. The 
Administrator may not debar an employer, attorney, or agent for longer 
than 3 years from the date of the Department's final debarment 
decision.
    The statute at 8 U.S.C. 1188(b)(2) directs the Secretary to debar 
any employer who the Secretary determines has committed a substantial 
violation. Proposed Sec. Sec.  655.182(d) and 655.182(e) work together 
to describe the violations that the CO may determine are so substantial 
as to merit debarment. Proposed Sec.  655.182(d) defines a violation 
for purposes of debarment. The text of this section is similar to the 
text of Sec.  655.118(d) of the 2008 Final Rule, with the following 
changes:
     The proposed text of paragraph (d)(1) makes clear that 
there need only be one act of commission or omission that fits the 
criteria listed in paragraphs (d)(1)(i) through (x) to constitute a 
substantial violation; this replaces the 2008 Final Rule's requirement 
of a pattern or practice of acts.
     Proposed paragraph (d)(1)(iii) is changed to say failure 
to comply with recruitment obligations rather than willful failure.
     A new proposed paragraph (d)(iv) was added. Under the 
Proposed Rule, an employer's improper layoff or displacement of U.S. 
workers or workers in corresponding employment may be a debarrable 
violation.
     A new proposed paragraph (d)(vii) is added. Under the 
Proposed Rule, employing an H-2A worker outside the area of intended 
employment, in an activity/activities not listed in the job order, or 
outside the validity period of employment of the job order, including 
any approved extension of the job order may be a debarrable violation.
     A new proposed paragraph (d)(viii) is added. This will 
permit debarments based on violations of Sec.  655.135(j) & (k) which 
address employer fee shifting and related matters.
     A new proposed paragraph (d)(ix) is added. Under the 
Proposed Rule, a violation of any of the anti-discrimination provisions 
listed in 29 CFR 501.4(a) may be a debarrable violation.
    Proposed Sec.  655.182(e) adds a description of the factors a CO 
may consider when determining when a violation is substantial for 
purposes of determining whether the violation merits debarment. This 
list of factors is not exclusive, but it offers some guidance to 
employers, attorneys, and agents as to what a CO commonly considers 
when determining whether a substantial violation has occurred. The 
factors are the same as those factors used by the WHD to determine 
whether to assess civil money penalties under 29 CFR 501.19 or whether 
to debar under 29 CFR 501.20.
    The independent debarment authority of the WHD is a new feature of 
the Proposed Rule. See proposed language at 29 CFR 501.20 and the 
corresponding preamble. Because both OFLC and the WHD have concurrent 
debarment jurisdiction, some changes have been added to the OFLC 
debarment procedures in the Proposed Rule to ensure that the procedures 
are consistent with the WHD debarment procedures.
    Proposed Sec.  655.182(f) describes the procedures that will be 
followed in the event of an OFLC debarment. These procedures are the 
same as the debarment procedures contained in the 2008 Final Rule, but 
these procedures would eliminate the Notice of Intent to Debar and the 
employer's option to submit rebuttal evidence. Instead, the debarment 
procedures will begin with the OFLC Administrator sending a Notice of 
Debarment, and the same appeal opportunities as in the 2008 Final Rule 
will follow.
    The Department believes that the provision for the employer to 
submit rebuttal evidence in response to an OFLC Notice of Debarment is 
unnecessary because of the reality of debarment under these proposed 
regulations: Most often, debarment will actually be done by the WHD. 
Because the WHD has more extensive investigation authority than the 
OFLC, any WHD debarment will come only after the WHD has conducted an 
extensive investigation in which the employer has many opportunities to 
submit evidence and otherwise communicate with the WHD official. 
Further, it is highly unlikely that any OFLC debarment would occur 
without the OFLC Administrator conducting an audit of the employer 
under proposed Sec.  655.180, so the employer will have had opportunity 
to submit evidence before the Notice of Debarment occurs. Because of 
this, the Department does not believe that the employer would need an 
additional opportunity to submit further evidence. Also, because the 
employer will have already had opportunities to submit evidence to the 
Department, and debarment will only be conducted if the OFLC 
Administrator believes that the employer has committed a serious, 
substantial violation, the Department believes that giving the employer 
an additional option to submit rebuttal evidence would cause 
inappropriate delay in the debarment proceedings.
    Another minor change was made in proposed Sec.  655.182(f)(3), 
describing the ALJ's decision after a debarment hearing; it adds that 
the ALJ will prepare the decision within 60 days after completion of 
the hearing and closing of the record. This time constraint is 
consistent with the newly-proposed debarment hearing procedures of the 
WHD.
    Proposed Sec.  655.182(g) clarifies that while the WHD and OFLC 
will now have concurrent debarment jurisdiction, the two agencies may 
coordinate their activities so that a specific violation for which 
debarment is imposed will be cited in a single debarment proceeding.
    Proposed Sec.  655.182(h-j) state the impact a determination to 
debar a member of an agricultural association has on the rest of the 
association or its individual members, the impact that a debarment of 
an agricultural association acting as a joint employer has on the 
association's individual members, or the impact a debarment of an 
agricultural association acting as a sole employer has on the 
association. The text of these provisions is substantively the same as 
the text of Sec.  655.118(f-h) of the 2008 Final Rule. The one 
substantive change is in proposed paragraph (i), which states that a 
debarment of an agricultural association acting as a joint employer 
with its members will apply only to that association and not to any 
individual employer-member of the association, unless the OFLC 
Administrator determines that an employer-member participated in, had 
knowledge of, or had reason to know of the violation. Unlike the 2008 
Final Rule, an employer-member's knowledge of or reason to know of the 
association's debarrable violation may give rise to debarment of that 
member, in addition to the member's participation in the violation.
4. Sec.  655.183 Less Than Substantial Violations
    Proposed Sec.  655.183 describes the CO's actions if she determines 
that a less than substantial violation has occurred. The text of this 
section is the same as the text of the 1987 Rule, with a few non-
substantive editorial changes. If the OFLC Administrator believes that 
a less than substantial violation may have had or will continue to have 
a chilling or

[[Page 45924]]

otherwise negative effect on the recruitment, employment, and retention 
of U.S. workers, the OFLC Administrator may require the employer to 
follow special procedures before and after the temporary labor 
certification determination.
    The OFLC Administrator will notify the employer (or agent or 
attorney) in writing of the special procedures which will be required 
in the coming year. The employer may request review of these special 
procedures according to the procedures of proposed Sec.  655.171. If 
the OFLC Administrator determines that the employer has failed to 
comply with the special procedures, the Administrator will send a 
written notice to the employer, stating that the employer's otherwise 
affirmative H-2A certification determination will be reduced by 25 
percent of the total number of H-2A workers requested (which cannot be 
more than those requested in the previous year) for a period of 1 year. 
Notice of such a reduction in the number of workers requested will be 
conveyed to the employer by the OFLC Administrator in the written 
certification determination. We have and will continue to provide for 
prompt notification to DHS and the Department of State (DOS) of any 
such determination. The employer may appeal the reduction in the number 
of workers according to the procedures in Sec.  655.171. If the ALJ 
affirms the OFLC Administrator's determination that the employer has 
failed to comply with the required special procedures, the number of 
workers requested will be reduced.
5. Sec.  655.184 Applications Involving Fraud or Willful 
Misrepresentation
    Proposed Sec.  655.184(a) is the same as Sec.  655.113(a) in the 
2008 Final Rule, discussing investigation of fraud and willful 
misrepresentation. The section states that if a CO discovers possible 
fraud or willful misrepresentation concerning an Application, the CO 
may refer the matter for investigation to the WHD, DHS, or to the 
Department's Office of Inspector General.
    Proposed Sec.  655.184(b) revises Sec.  655.113(b) of the 2008 
Final Rule to more accurately describe the ramifications of a 
determination of fraud or willful misrepresentation concerning an 
Application. If the WHD, a court, or the DHS determines that there was 
fraud or willful misrepresentation involving an Application, and the CO 
had granted certification of the fraudulent Application, the finding of 
fraud or misrepresentation will be grounds for the CO to revoke that 
certification. The finding may also merit debarment according to 
proposed Sec.  655.182.
6. Sec.  655.185 Job Service Complaint System; Enforcement of Work 
Contracts
    Proposed Sec.  655.185(a) contains the same provisions about 
complaints filed through the Job Service Complaint System as were in 
the 1987 Rule and the 2008 Final Rule, with one addition. Proposed 
Sec.  655.185(b) states that complaints alleging that an employer 
discriminated against eligible U.S. workers may be referred to the U.S. 
Department of Justice, Civil Rights Division, Office of Special Counsel 
for Unfair Immigration Related Employment Practices and was also 
included in the 2008 Final Rule.
    The Department has added a provision permitting allegations of 
fraud that are part of a complaint through the Job Service Complaint 
System to be brought to the CO. This will permit the CO to take any 
such actions as necessary to determine whether such allegations have 
any validity, such as an audit, and if such further inquiry has yielded 
information so as to call a certification into question, to determine 
whether there are any actions (revocation and/or debarment) that can be 
taken as a result.

III. Revisions to 29 CFR Part 501

    Section 218(g)(2) of the INA authorizes the Secretary 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 compliance with terms and 
conditions of employment under this section of the statute. The 
Secretary determined that enforcement of the contractual obligations of 
employers under the H-2A program is the responsibility of the WHD. 
Regulations at 29 CFR part 501 were issued to implement the WHD's 
responsibilities under the H-2A program; amendment of these regulations 
is part of this proposed rulemaking.
    Concurrent with the Department's proposed regulations in 20 CFR 
part 655, subpart B amending the certification of temporary employment 
of nonimmigrant H-2A workers, the Department proposes to amend its 
regulations at 29 CFR part 501 on enforcement under the H-2A program.
    Changes are proposed for enhanced enforcement to complement the 
certification process so that workers are appropriately protected when 
employers fail to meet the requirements of the H-2A program. Since this 
NPRM would make changes to the existing regulations in 29 CFR part 501, 
we have included the entire text of the regulation and not just the 
sections with proposed changes.

A. General Provisions and Definitions

    Proposed Sec.  501.2 has been broadened to allow broader 
information sharing and coordination between agencies both within and 
outside of DOL. Both WHD and OFLC will now have the express authority 
to share information for enforcement purposes, both with each other and 
with other agencies such as DHS and DOS which play a role in 
immigration enforcement. In addition, because ETA and WHD will have 
concurrent debarment authority under the proposal, the new regulation 
provides that a specific violation for which debarment is imposed will 
be cited in a single debarment proceeding, and that OFLC and the WHD 
may coordinate their activities to accomplish this result. It also 
provides that copies of final debarment decisions will be forwarded to 
DHS so that it can take appropriate action.
    Section 501.3 of the proposed regulations sets forth the 
definitions used in part 501, most of which are carried forward from 
Sec.  501.10 of the 2008 Final Rule. As in the 2008 Final Rule, 
proposed Sec.  501.3 sets forth the same definitions 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 655.103 and 501.3 can be 
found in the preamble for 20 CFR part 655, subpart B above.
    The Department is proposing to modify language used in the 2008 
Final Rule that defined ``corresponding employment'' as including only 
U.S. workers who are newly hired by the employer in the occupations and 
during the period of time set forth in the Application and thereby 
excluding U.S. workers who were already employed by the H-2A employer 
at the time the Application was filed. The Department is proposing to 
define ``corresponding employment'' more in keeping with the statutory 
language mandating that the importation of H-2A workers not adversely 
impact the wages and working conditions of workers similarly employed 
in the U.S. Corresponding employment would include non-H-2A workers 
employed by an employer whose Application was approved by ETA who are 
performing work included in the job order or any other agricultural 
work performed by the employer's H-2A workers as long as such work is 
performed during the validity period of the job order. The definition 
includes both non-H-2A workers hired during the recruitment period 
required under these regulations and non-H-2A

[[Page 45925]]

workers already working for the employer when recruitment begins.
    In defining an H-2A worker, the INA gives the Secretary the 
authority to define in regulations the term ``agricultural labor or 
services,'' with the requirement that the definition include 
agricultural labor or services as defined in the IRC, the FLSA, and the 
pressing of apples for cider on a farm. The work must also be of a 
temporary or seasonal nature. See 8 U.S.C. 1101(a)(15)(h)(ii)(A). The 
activity of ``pressing apples for cider on a farm'' was added to the 
statute by Public Law 109-90, (October 18, 2005). As in the 2008 Final 
Rule, the Department again proposes that the regulatory definition 
reflect the 2005 amendment, and the proposal adds an explanation of the 
term.
    The Department is also proposing to expand the regulatory 
definition of ``agricultural labor or services'' to include certain 
reforestation activities and also pine straw activities. In addition, 
the Department proposes to retain the addition of logging employment 
that was included in the 2008 Final Rule and seeks to clarify which 
logging employment activities qualify for H-2A status. Finally, the 
proposal deletes the 2008 Final Rule's inclusion of minor and 
incidental work not listed on the Application and the handling, 
packing, processing, etc. of any agricultural or horticultural 
commodity. These changes are more fully discussed in the preamble for 
20 CFR part 655, subpart B above. Section 501.6 (formerly Sec.  501.5) 
has been substantially shortened and revised for clarity and to 
eliminate duplication. Section 501.7 (former Sec.  501.6) is proposed 
to be broadened to require cooperation with any Federal official 
investigating, inspecting, or enforcing compliance with the statute or 
regulations. Section 501.8 has been renumbered from Sec.  501.7 but is 
otherwise unchanged.

B. Surety Bonds for H-2ALCs

    The number of Farm Labor Contractors (FLCs) applying for labor 
certifications enabling them to hire and employ H-2A workers has risen 
in recent years and is expected to continue to increase. The WHD's 
enforcement experience demonstrates that FLCs are generally more likely 
to violate applicable requirements than fixed-site agricultural 
employers. To address this higher violation rate of FLCs and given the 
transient nature of FLCs, as well as to ensure compliance with H-2A 
obligations and to protect the safety and security of workers, WHD 
proposes to continue the 2008 Final Rule's requirement that FLCs 
(called H-2ALCs in this Proposed Rule) must obtain and maintain a 
surety bond, based on the number of workers employed as listed on the 
Application, throughout the period the temporary labor certification is 
in effect, including any extensions thereof. WHD will have authority to 
make a claim against the surety bond to secure unpaid wages or other 
benefits due to workers employed under the labor certification.
    The proposed text of this section is similar to the text of the 
2008 Final Rule discussing the bonding requirement; however, in 
addition to the surety bond amounts specified in the 2008 Final Rule, 
the Department proposes to add larger bonding requirements applicable 
to H-2ALCs with larger crews. Under this proposal, H-2ALCs seeking to 
employ 75 to 99 workers will be required to obtain a surety bond in the 
amount of $50,000, and H-2ALCs seeking to employ 100 or more workers 
will be required to obtain a surety bond in the amount of $75,000. 
Hypothetically, the proposed increased amount would address 2 weeks 
where no wages have been paid for crews of 100 (40 hours x 2) x 9.25 
(assumed AEWR) x 100 workers = $74,000. The Department specifically 
requests comments addressing the implications for H-2ALCs who may be 
subject to this requirement.
    The Department also proposes to change the requirement that H-2ALCs 
provide written notice to the WHD Administrator of cancellation or 
termination of the surety bonds from a 30-day to a 45-day notice 
period. Finally, the proposal clarifies that the bond must remain in 
effect for at least 2 years. However, if WHD has commenced any 
enforcement proceedings by that date, the bond must remain in effect 
until the conclusion of those proceedings and any appeals.
    The Department has not created a form specific to this bonding 
requirement, but instead proposes that documentation from the bond 
issuer be provided with the Application, identifying the name, address, 
phone number, and contact person for the surety, as well as providing 
the amount of the bond, date of its issuance and expiration and any 
identifying designation utilized by the surety for the bond. This 
requirement can be met by the applicant attaching a copy of the signed 
and dated document issued from the surety that shows the information 
required. This request for information is in keeping with the 
information that was required in the appendix for the ETA 9142 in the 
2008 Final Rule.

C. Enforcement Provisions

    In order to deter significant violations of the H-2A worker 
protection provisions, a number of changes and clarifications are 
proposed in the sanctions and remedies available under part 501 as 
discussed below. Most of these changes are consistent with those in the 
2008 Final Rule.
    Proposed Sec.  501.16 has been amended to provide WHD with express 
authority to pursue reinstatement and make-whole relief in cases of 
discrimination, or in cases in which U.S. workers have been improperly 
rejected, laid off, or displaced. In addition, the proposal would allow 
WHD to pursue recovery of recruiter fees or other costs improperly 
deducted or paid in violation of regulations forbidding such payments, 
including where the employer has not properly contractually prohibited 
its recruiter and agents from seeking or receiving such payments, 
directly or indirectly, as set forth in proposed 20 CFR 655.135(j) and 
(k). Proposed Sec.  501.17 has been changed to clarify the differing 
roles and responsibilities of OFLC and WHD, and to note that both 
agencies have concurrent jurisdiction to impose debarment. However, as 
explained above, Sec.  501.2 is designed to protect an employer from 
being debarred twice for a single violation.
    Proposed Sec.  501.18 has been changed to conform to the statute, 
which provides for administrative appeals, but does not grant the 
Secretary independent litigating authority in civil litigation.
    Proposed Sec.  501.19 is amended to increase the maximum civil 
money penalty (CMP) amount from $1,000 to $1,500 for each violation, in 
most cases. This amount has not been adjusted since 1987. The CMP of up 
to $5,000 for failure to meet a condition of the work contract, or for 
discrimination against a U.S. or H-2A worker who, in connection with 
the INA or these regulations has filed a complaint, has testified or is 
about to testify, has exercised or asserted a protected right, has been 
retained from the 2008 Final Rule. The Proposed Rule increases the 
penalty amount to no more than $15,000 for a 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 60 days preceding such 
period of employment. The Proposed Rule adds a penalty of an amount up 
to $15,000 for improperly rejecting a U.S. worker who has made 
application for employment.

[[Page 45926]]

    These proposed penalties for violators who disregard their 
obligations would provide the Department with an effective tool to 
discourage potential abuse of the program. Such penalties will deter 
violations, discrimination and interference with investigations, and 
strengthen necessary enforcement of laws that protect workers who may 
be unlikely to approach government agencies to intercede on their 
behalf. The increase in certain penalties demonstrates the Department's 
commitment to protecting workers.
    Further, if a violation of an applicable housing or transportation 
safety and health provision of the work contract causes the death or 
serious injury of any worker, the Department proposes a penalty of up 
to $50,000 per worker. Where the violation of safety and health 
provision involving death or serious injury is repeated or willful, the 
Department proposes to increase the maximum penalty to up to $100,000 
per worker.
    The proposed penalties for such violations of applicable safety and 
health provisions would provide a meaningful assurance that 
participants meet their obligation to see that housing and/or 
transportation provided to the workers meets all applicable safety and 
health requirements and that housing and/or vehicles used in connection 
with employment do not endanger workers.
    The assessment of the maximum penalties available under proposed 
Sec.  501.19 would not be mandatory, but rather would be based on 
regulatory guidelines found in paragraph (b) of this section and the 
facts of each individual case.

D. Debarment by the WHD

    The current regulations provide OFLC the authority to deny access 
to future certifications (i.e., debarment) and require the WHD to 
report findings in order to make a recommendation to OFLC to deny 
future certifications. Under proposed Sec.  501.20, OFLC and WHD would 
have concurrent debarment authority, with WHD primarily concerned with 
issues arising from WHD investigations, while OFLC would focus on 
issues arising out of the application process. Both agencies may 
coordinate their activities whenever debarment is considered. The 
proposed standards for debarment within the WHD's purview are identical 
to those proposed by OFLC for debarment actions under 20 CFR part 655, 
thus ensuring consistency in Application. This change will allow 
administrative hearings and appeals relating to back wages or other 
relief to employees or CMP's assessed by the WHD to be consolidated 
with the debarment actions that arise from the same facts. This will 
not affect OFLC's ability to institute its own debarment proceedings on 
issues that arise from the Application or OFLC's proposed audits. 
Conforming changes are proposed to other sections in part 501 to 
reflect the proposed WHD debarment authority.
    The Department proposes to modify the criteria for debarment to 
eliminate the multiple thresholds in the 2008 Final Rule, which 
required a pattern and practice of a violation that also must be 
significant. The proposed criteria require a substantial violation that 
includes a significant failure to comply with one or more of the 
provisions of the H-2A program. The criteria found in Sec.  501.19(b) 
will be used in determining if a violation is substantial.
    Section 501.20 (j) and (k) are proposed to conform to the proposed 
changes in 20 CFR part 655, which provide OFLC the authority to revoke 
an existing certification, by allowing the WHD to recommend revocation 
to OFLC based upon the WHD's investigative determinations.

E. Administrative Proceedings

    The NPRM proposes few changes to the administrative proceedings set 
forth in Sec. Sec.  501.30-501.47 of the 2008 Final Rule. Because the 
NPRM proposes to authorize the WHD to pursue debarment proceedings, 
rather than simply recommending debarment to OFLC, the NPRM adds 
references to debarment in Sec. Sec.  501.30, 501.31, 501.32(a), and 
501.41(d). Those sections of the proposal also specify that these 
procedures will govern any hearing on an increase in the amount of a 
surety bond pursuant to proposed Sec.  501.9(c). Finally, those 
sections of the proposal replace the term unpaid wages with the term 
monetary relief to reflect the fact that WHD may seek to recover other 
types of relief, such as if an employer fails to provide housing or 
meet the three-fourths guarantee.
    Proposed Sec.  501.33 would permit hearing requests to be filed by 
overnight delivery, as well as by certified mail, and would reiterate 
that surety bonds must remain in force throughout any stay pending 
appeal. Section 501.34(b) provides discretion to the ALJ to ensure the 
production of relevant and probative evidence while excluding evidence 
that is immaterial, irrelevant or unduly repetitive without resort to 
the formal strictures of the Federal Rules of Evidence. This section 
conforms H-2A procedures to those used in the H-1B program.
    Other than very minor editorial changes or corrections of 
typographical errors, the NPRM proposes no other changes to Sec. Sec.  
501.30-501.47.

IV. Administrative Information

A. Executive Order 12866

    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 that: (1) Has an annual effect on the economy of $100 million 
or more or adversely and materially affects a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or Tribal governments or communities (also 
referred to as ``economically significant''); (2) creates serious 
inconsistency or otherwise interferes with an action taken or planned 
by another agency; (3) materially alters the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raises novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the E.O.
    The Department has determined that this NPRM is not an economically 
significant regulatory action under sec. 3(f)(1) of E.O. 12866. The 
time frames and procedures for fixed-site agricultural employers, H-
2ALCs, or an association of agricultural producer-members to file a job 
offer and Application, prepare supporting documentation, and satisfy 
the required assurances and obligations under the H-2A visa category, 
proposed under this regulation, are substantially similar to those 
under the 2008 Final Rule and would not have an annual economic impact 
of $100 million or more. The proposed regulation would 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 NPRM is intended to provide to agricultural employers 
clear and consistent guidance on the requirements for participation in 
the H-2A temporary agricultural worker program. The Department, 
however, has determined that this NPRM is a significant regulatory 
action under sec. 3(f)(4) of the E.O. and accordingly OMB has reviewed 
this NPRM.
    The Department anticipates that the changes in this NPRM would have

[[Page 45927]]

limited net direct impact on employers, above and beyond the baseline 
of the current costs required by the program as it is currently 
implemented. Further, the Department does not anticipate that this NPRM 
would result in significant processing delays on its part or the SWAs, 
as the Department continues to operate under the statutory mandate to 
make a determination of whether or not the Application meets the 
threshold requirements for certification within 7 days of filing. The 
Department is requesting comment on the benefits and costs of these 
policies, with the goal of ensuring a thorough consideration and 
discussion at the Final Rule stage.
1. Need for Regulation
    The Department has determined that there are significant defects in 
the 2008 Final Rule that necessitate new rulemaking. First, the 
Department has determined that there are insufficient worker 
protections in the attestation-based model in which employers do not 
actually demonstrate that they have performed an adequate test of the 
U.S. labor market. Even in the first year of the attestation model it 
has come to the Department's attention that employers, either from a 
lack of understanding or otherwise, are attesting to compliance with 
program obligations with which they have not complied. This anecdotal 
evidence appears to be sufficiently substantial and widespread for the 
Department to revisit the use of attestations, even with the use of 
back-end integrity measures for demonstrated non-compliance.
    The Department has also determined that the area in which 
agricultural workers are most vulnerable--wages--has been adversely 
impacted to a far more significant extent than anticipated by the 2008 
Final Rule. As discussed further below, the shift from the AEWR as 
calculated under the 1987 Rule to the recalibration of the prevailing 
wage as the AEWR of the 2008 Final Rule resulted in a reduction of 
farmworker wages in a number of labor categories, and an increase in a 
few others.
    The 2008 Final H-2A Rule based the estimation of the AEWR on the 
OES Wage Survey collected by BLS. This NPRM changes the methodology for 
estimating the AEWR to the USDA survey.
    Using data from the OES Wage Survey for the States with the top-ten 
largest numbers of H-2A workers in the job classification of 
farmworkers and crop laborers (SOC-OES Code 45-2092.02), the Department 
estimates a weighted average hourly wage rate of $7.92. Using data from 
the USDA's NASS FLS for the same States, the Department estimates a 
weighted average hourly wage rate of $9.36. Thus, the 2008 Final Rule 
is associated with a lower average hourly wages of approximately $1.44, 
equivalent to an 18 percent decrease.
    The table below displays the hourly wage rates under the two wage 
methodologies for the top 10 agricultural states based on the total 
workers certified. The estimated wage rates for each of the top ten 
States would be higher under the NPRM where the Department proposes to 
base the methodology for calculating the AEWR on the USDA's NASS FL 
survey.

----------------------------------------------------------------------------------------------------------------
                                                                    2008 Final     Proposed NPRM   Differential
                                                                   rule  Average  average hourly  wage  decrease
                                                                    hourly wage   wage from 2009    for workers
                                                                     from OES        AEWR USDA      under 2008
                                                                      survey          survey        final rule
----------------------------------------------------------------------------------------------------------------
North Carolina..................................................           $7.57           $9.34          -$1.77
Kentucky........................................................            7.39            9.41           -2.02
Georgia.........................................................            7.44            8.77           -1.33
Louisiana.......................................................            8.07            8.92           -0.85
Tennessee.......................................................            7.54            9.41           -1.87
Virginia........................................................            7.46            9.34           -1.88
South Carolina..................................................            7.33            8.77           -1.44
New York........................................................            9.37           10.20           -0.83
California......................................................            9.37           10.16           -0.79
Colorado........................................................            8.72            9.88           -1.16
----------------------------------------------------------------------------------------------------------------

    The graph below displays program participation in the H-2A program 
for FY 2006, 2007, and 2008, as well as FY 2009 before and after 
implementation of the 2008 Final Rule (through the end of June 2009). 
As shown in the graph, the H-2A program experienced increased 
participation from approximately 560 Applications per month on average 
in FY 2006 to 903 Applications per month immediately prior to the 
implementation of the 2008 Final Rule. After the implementation of the 
2008 Final Rule, agricultural employer participation in the H-2A 
program decreased to approximately 773 Applications per month.\2\ The 
Department is not certain of the source of this decrease, noting it has 
multiple origins, including economic weaknesses, including the 
relatively high rate of unemployment at that time; the presence of 
enhanced worker protections in the 2008 Final Rule that may have 
disincentivized employers from participation, the litigation to which 
the 2008 Final Rule was subject since prior to its implementation; and 
simple confusion on the part of potential program participants stemming 
from the new requirements.
---------------------------------------------------------------------------

    \2\ Source: H-2A Case Management System. Data extracted on July 
10, 2009.

---------------------------------------------------------------------------

[[Page 45928]]

[GRAPHIC] [TIFF OMITTED] TP04SE09.000

    To adequately protect U.S. and H-2A workers, the Department is 
proposing the changes discussed in the subsections below. The 
Department is engaging in new rulemaking to provide the affected public 
with notice and opportunity to engage in dialogue with the Department 
on the H-2A program. The Department took into account both the 
regulations promulgated in 1987, as well as the substantive reworking 
of the regulations in the 2008 Final Rule, in order to arrive at an 
NPRM that balances the worker protections of the 1987 Rule and the 
program integrity measures of the 2008 Final Rule.
    Much of the 2008 Final Rule has been retained in format, as it 
presents a more understandable regulatory roadmap; it has been used 
when its provisions do not conflict with the policies proposed in this 
NPRM. To the extent the 2008 Final Rule presents a conflict with the 
policies underpinning this NPRM, it has been rewritten or the 
provisions of the 1987 Rule have been adopted. To the extent the 1987 
Rule furthers the policies that underlie this rule, those provisions 
have been retained. These changes are pointed out below.
2. Alternatives
    The Department has considered three alternatives: (1) To make the 
policy changes contained in this NPRM; (2) to take no action, that is, 
to leave the 2008 Final Rule intact; and (3) to revert to the 1987 
Rule. The Department believes that the first alternative--the policies 
contained in this NPRM--represents retention of the best features of 
both the 1987 Rule and 2008 Final Rule. The Department has, for the 
reasons enunciated above, chosen not to retain the 2008 Final Rule. It 
has also rejected the reversion to the 1987 Rule as inefficient and 
ineffective given societal and economic changes that have occurred 
since its promulgation.
    The Department is requesting comment on other possible alternatives 
to consider, including alternatives on the specific provisions 
contained in this NPRM with the goal of ensuring a thorough 
consideration and discussion at the Final Rule stage.
3. Analysis Considerations
    The economic analysis presented below covers the following economic 
sectors: crop production; animal production; activities for agriculture 
and forestry; logging; reforestation; and fishing, hunting, and 
trapping. In 2007, there were over 2.2 million farms of which 78 
percent had annual sales of less than $50,000, 17 percent had annual 
sales of $50,000 to $499,999, and the remaining 5 percent had annual 
sales in excess of $500,000.\3\
---------------------------------------------------------------------------

    \3\ Source: 2007 Census of Agriculture, United States Department 
of Agriculture.
---------------------------------------------------------------------------

    The Department derives its estimates by comparing the baseline, 
that is, the program benefits and costs under the 2008 Final Rule, 
against the benefits and costs associated with implementation of 
provisions contained in this NPRM. For a proper evaluation of the 
benefits and costs of the NPRM, we explain how the required actions of 
workers, employers, government agencies, and other related entities 
under the NPRM are linked to the expected benefits and costs. We also 
consider, where appropriate, the unintended consequences of the 
provisions introduced by the NPRM.
    The Department makes every effort, where feasible, to quantify and 
monetize the benefits and costs of the NPRM. Where we are unable to 
quantify them--for example, due to data limitations--we describe the 
benefits and costs qualitatively. Following OMB Circular A-4 and 
consistent with the Department's practice in previous labor 
certification rulemaking, this analysis focuses on benefits and costs 
that accrue to citizens and residents of the U.S. The analysis covers 
10 years to ensure it captures all major benefits and costs.\4\ In 
addition, the Department provides a qualitative assessment of transfer 
payments associated with the increased wages and protections of U.S. 
workers. Transfer payments are payments from one group to another that 
do not affect total resources available to society. When summarizing 
the benefits or costs of specific provisions of the NPRM, we present 
the 10-year averages to represent the typical annual effect or 10-year 
discounted totals to represent the overall effects.
---------------------------------------------------------------------------

    \4\ For the purposes of the cost-benefit analysis, the 10-year 
period starts in the next fiscal year on October 1, 2009.
---------------------------------------------------------------------------

4. Subject-by-Subject Analysis
    The Department's analysis below covers expected impacts of the 
following proposed provisions of the NPRM against the baseline: New 
methodology for estimating the AEWR, an enhanced U.S. worker referral 
period for employers after certification, increased costs to the 
Department for developing and maintaining an Electronic Job Registry, 
changes in administrative burdens placed on SWAs by increased time 
frames for recruitment and benefits from eliminating employment 
verification requirements, enhanced worker protections through 
compliance certification, enhanced

[[Page 45929]]

coverage of transportation expenses to and from the worker's place of 
residence, and changes in the requirement for housing inspections.
a. New Methodology for Estimating the AEWR
    The 2008 Final Rule based the estimation of the AEWR on the OES 
Wage Survey collected by BLS, rather than data compiled by the USDA, 
NASS, which was what was relied upon in the 1987 Rule. This NPRM 
changes the methodology for estimating the AEWR to the USDA survey. As 
explained above, the wage survey methodology proposed in this NPRM is 
associated with an hourly wage that is $1.44 higher than that under the 
2008 Final Rule.
1. Benefits to U.S. Workers
    The higher wages for workers associated with the new methodology 
for estimating the AEWR represents a direct benefit to workers 
improving their ability to meet costs of living and spend money in 
local communities in which they are employed, and important concern to 
the current Administration and a key aspect of the Department's mandate 
to ensure the wages and working conditions of similarly employed U.S. 
workers are not adversely affected.
    Labor market research indicates that as agricultural wages for U.S. 
workers increase, a larger number of U.S. workers decide it is 
economically feasible or desirable to participate in the agricultural 
labor force. Some of these workers would otherwise remain unemployed or 
out of the labor force entirely, earning no salary. This effect is 
captured by the so-called wage elasticity of the U.S. agricultural 
labor supply. A recent study finds that this elasticity is 0.43, that 
is, for each 1 percent increase in wages, there is a 0.43 percent 
increase in labor supply by U.S. agricultural workers.\5\ Another study 
finds that the elasticity is 0.36.\6\ Although the increase in wages 
for documented workers in agriculture will lead to complex, hard-to-
quantify labor market dynamics involving both labor supply and demand, 
the Department believes that the net effect may be increased employment 
opportunities for U.S. workers, which represent a U.S. societal benefit 
by engaging U.S. human resources in productive activity that may not 
otherwise occur. This impact is also a transfer in the sense the U.S. 
workers may displace temporary foreign workers in providing 
agricultural services or labor to employers.
---------------------------------------------------------------------------

    \5\ See Julie L. Hotchkiss and Myriam Quispe-Agnoli, ``Employer 
Monopsony Power in the Labor Market for Undocumented Workers,'' 
Federal Reserve Bank of Atlanta, Working Paper 2009-14a, June 2009.
    \6\ See Source: Duffield, J.A. and R. Coltrane, 1992, ``Testing 
for Disequilibrium in the Hired Farm Labor Market,'' American 
Journal of Agricultural Economics, 74: 412-20.
---------------------------------------------------------------------------

2. Transfers
    Transfer payments are payments from one group to another that do 
not affect total resources available to society. The increase in the 
wage rates for some workers also represents an important transfer from 
agricultural employers to H-2A and corresponding U.S. workers. As noted 
previously, the higher wages for workers associated with the new 
methodology for estimating the AEWR represents an improved ability on 
the part of workers and their families to meet costs of living and 
spend money in local communities. On the other hand, higher wages 
represent an increase in costs of production from the perspective of 
employers which on the margin creates a disincentive to hire H-2A and 
corresponding U.S. workers. There may also be a transfer resulting from 
a reduction in unemployment expenditures. Some previously unemployed 
individuals who were not willing to accept a job at the lower wage may 
now be willing to accept the job and would not need to seek new or 
continued unemployment insurance benefits. The Department, however, is 
not able to quantify these transfer payments with a high degree of 
precision. The factors that make the calculation uncertain include the 
actual entries of H-2A workers, the unknown quantity of corresponding 
U.S. workers, the types of occupations to be included in future 
filings; the ranges of wages in the areas of actual employment; and the 
point at which any occupation in any given area is subject to the 
prevailing wage (hourly or piece rate) or Federal or State minimum wage 
rather than the application of the OES or FLS survey to the calculation 
of the AEWR. The Department cannot assume the number of workers will 
remain constant for any given entity for its wage transfer.
3. Costs
    In standard models of supply and demand an increase in the wage 
rate will lead to a reduction in the demand for agricultural labor. 
This is a loss in profits for agricultural employers that is not gained 
by anyone and is known as a deadweight loss. The deadweight loss is 
essentially the profits that employers were getting from being able to 
hire more workers at a lower wage. When the wage is reduced they will 
hire fewer workers overall and the benefit that those workers had 
produced will be lost to society. In order to estimate that lost 
benefit we would have to calculate the estimated reduction in 
employment assuming an elasticity of labor demand--the extent to which 
employers respond to an increase in wages by lowering employment. Using 
standard estimates of this elasticity the deadweight loss is not 
projected to be large.\7\
---------------------------------------------------------------------------

    \7\ A recent study finds that the wage elasticity of labor 
demand in U.S. agriculture is -0.42. This indicates that for each 1 
percent increase in wages for U.S. workers, the demand for their 
labor decreases by 0.42 percent. See Orachos Napasintuwong and 
Robert D. Emerson, ``Induced Innovations and Foreign Workers in 
U.S.,'' Institute of Food and Agricultural Sciences, University of 
Florida, Working Paper 05-03, March 2005. It is possible that this 
elasticity over-estimates the potential reduction in demand for U.S. 
workers as a result of the new methodology for estimating the AEWR 
because, in the context of the H-2A program, there are legal 
constraints (and associated potential penalties) for agricultural 
employers who would turn to undocumented workers as a result of the 
wage increase. The Department estimates that average wages will 
increase by 18.2 percent for U.S. workers.
---------------------------------------------------------------------------

b. Enhanced U.S. Worker Referral Period
    Although the recruitment requirements of employers will not change 
substantively, this NPRM requires employers to accept referrals of 
qualified U.S. workers for temporary agricultural opportunities for a 
longer period of time after the job begins than the current regulation. 
Specifically, during the same time period as the employer places the 
advertisements, the NPRM requires SWAs to extend their job advertising 
efforts, on behalf of employers, to keep the job order on active status 
through 50 percent of the period of employment, as opposed to 30 
calendar days after the date of need under the current regulation.
1. Benefits to U.S. Workers
    The enhanced referral period for employers after certification 
represents a benefit to society by expanding the period in which 
agricultural jobs are available to U.S. workers and, therefore, 
improving their employment opportunities. Here again, this is a U.S. 
societal benefit because it represents engaging U.S. human resources in 
productive activity that may not otherwise occur.
2. Costs
    The extension of the referral period imposed by the NPRM will 
result in increased SWA staff time to maintain job orders for the new 
U.S. worker referrals. SWAs will need to maintain additional job orders 
for the new applicants to the H-2A program in the

[[Page 45930]]

States in which temporary workers are expected to perform work and for 
all applicants to the H-2A program in the States designated as States 
of traditional or expected labor supply. The Department estimates the 
average annual cost associated with this activity to be $0.4 
million.\8\
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    \8\ The Department assumes that it takes SWA staff 30 additional 
minutes per application to maintain a job order. We assume that a 
State employee with a job title of ``Compensation, Benefits, and Job 
Analysis Specialists'' conducts this activity. Their median hourly 
wage is $21.69, which we increased by 1.53 to account for employee 
benefits (source: Bureau of Labor Statistics).
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    The Department recognizes a cost to employers is the requirement 
that they accept more referrals through a longer time period of the 
contract. The Department does not, however, have sufficient data on the 
number of average additional referrals (and the ensuing additional cost 
in terms of contractual obligations to a greater number of workers) to 
accurately monetize such a cost to employers, and invites comment from 
employers who may have such data. The Department recognizes however 
that the cost to employers of additional work-related expenses may be 
offset to a certain extent by increased productivity.
    The expansion of DOL oversight of the H-2A program will result in 
increased time for the Department to review Applications. We estimate 
this cost by multiplying the total number of new Applications by the 
time required for Department staff to review each Application, and then 
by the average hourly compensation of this staff. The Department 
estimates the average annual cost associated with this activity to be 
$0.6 million.\9\
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    \9\ The Department assumes that Department staff (GS-12, step 5) 
spend one additional hour to review each application. The hourly 
salary for a GS-12, step 5 staff was multiplied by an index of 1.69 
to account for employee benefits and proportional operating costs, 
resulting in an hourly rate of $52.96. The 1.69 index is derived by 
using the Bureau of Labor Statistics' index for salary and benefits 
plus the Department's analysis of overhead costs averaged over all 
employees of the Department's Office of Foreign Labor Certification.
---------------------------------------------------------------------------

    The NPRM proposes to require that employers maintain a complete 
recruitment report and all supporting documentation for 5 years (rather 
than 3 years under the 2008 Final Rule. The Department assumes that 
this will require all H-2A employers to purchase additional file 
storage in the first year of the Proposed Rule.\10\ After the first 
year, the Department assumes that only new applicants to the H-2A 
program will be required to purchase additional storage. The Department 
estimates average annual costs of increased storage to be approximately 
$0.06 million.
---------------------------------------------------------------------------

    \10\ The Department assumes that one additional file drawer will 
be required per employer.
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3. Transfers
    In addition, U.S. workers hired who were previously unemployed will 
no longer need to seek new or continued unemployment insurance 
benefits.\11\ Other things constant, we expect the States to experience 
a reduction in unemployment insurance expenditures as a consequence of 
U.S. workers being hired. The Department, however, is not able to 
quantify these transfer payments due to a lack of adequate data.
---------------------------------------------------------------------------

    \11\ A benefit to U.S. workers could still exist even if these 
workers were employed elsewhere: Their departure from their old jobs 
will open up new employment opportunities for other U.S. workers.
---------------------------------------------------------------------------

c. New Electronic Job Registry
    Under the NPRM, the Department will create and maintain an 
electronic job registry. The Department will post and maintain 
employers' H-2A job orders, including modifications approved by the CO, 
in a national and publicly accessible electronic job registry. The job 
registry will serve as a public repository of H-2A job orders for the 
duration of the enhanced U.S. worker referral period: 50 percent of the 
certified period of employment. The job orders will be posted in the 
registry by a CO upon the acceptance of each submission. The posting of 
the job orders will not require any additional effort on the part of 
the SWAs or H-2A employers.
1. Benefits
    The job registry will improve the visibility of agricultural jobs 
to U.S. workers. Thus, the job registry represents a benefit to U.S. 
society by expanding the period in which agricultural jobs are 
available to U.S. workers and, therefore, improving their employment 
opportunities. In addition, the establishment of a job registry will 
provide greater transparency with respect to the Department's 
administration of the H-2A program to the public, members of Congress, 
and other related stakeholders. Transferring these agricultural job 
orders (Form ETA 790 and attachments) into electronic records for the 
job registry will eliminate unnecessary paper records currently being 
maintained by the CO and result in a better and more complete record of 
jobs petitioned for H-2A labor certification. Finally, since the Form 
ETA 790 and attachments are some of the most commonly requested 
documents by members of the public, Congress, and other stakeholders, 
the Department anticipates some reduction in FOIA requests for these 
agricultural job orders thereby saving staff time and resources.
2. Costs
    The establishment of an electronic job registry in the NPRM imposes 
several costs directly on the Department: The increased costs for 
developing business requirements and design documentation outlining the 
functional components of the job registry; increased costs for 
application programming, testing, and implementation of the Electronic 
Job Registry into a production environment; increased costs to maintain 
and continuously improve the Electronic Job Registry; and additional 
staff time to maintain job orders placed on the registry. The 
Department expects that the majority of costs to develop and implement 
the new Electronic Job Registry will occur within the first 12 months 
of implementing the regulation. Out-year costs will include maintenance 
and additional staff time to maintain job orders on the registry. The 
Department estimates average annual costs of maintaining an electronic 
job registry to be approximately $0.5 million.\12\
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    \12\ The Department assumes the following first-year 
development, testing, and implementation staff time for the 
following labor categories: Project Manager II--1,253 hours, 
Computer Systems Analyst II--1,253 hours, Computer Systems Analyst 
III--2,037 hours, Computer Programmer III--3,995 hours, Computer 
Programmer IV--3,995 hours. For out-year maintenance costs, the 
Department assumes that 376 hours will be required for the following 
labor categories: Program Manager, Computer Systems Analyst II & 
III, Computer Programmer III & IV, Computer Programmer Manager, Data 
Architect, Web Designer, Database Analyst, Technical Writer II, Help 
Desk Support Analyst, and Production Support Manager. Finally, the 
Department uses the following loaded rates based on an Independent 
Government Cost Estimate (ICGE) produced by OFLC and inclusive of 
direct labor and overhead costs for each labor category: Program 
Manager--$138.34, Project Manager II--$106.90, Computer Systems 
Analyst II--$92.14, Computer Systems Analyst III--$109.84, Computer 
Programmer III--$89.63, Computer Programmer IV--$107.72, Computer 
Programmer Manager--$123.88, Data Architect--$104.99, Web Designer--
$124.76, Database Analyst--$77.80, Technical Writer II--$84.81, Help 
Desk Support Analyst--$55.28, Production Support Manager--$125.76.
---------------------------------------------------------------------------

d. Reduced SWA Administrative Burden by Eliminating Employment 
Verification
    Under this NPRM, SWA's will no longer be responsible for conducting 
employment eligibility verification activities. These activities 
include the completion of the Form I-9 and the vetting of Application 
documents by SWA personnel. There will, however, be additional costs to 
employers as they resume the function of their own employment 
eligibility verification for all employees, not only those for whom a 
certification is received from the SWA.

[[Page 45931]]

1. Benefits
    Under the 2008 Final Rule, SWAs are required to complete Form I-9 
for agricultural job orders and inspect and verify the employment 
eligibility documents furnished by the applicants.\13\ Under the NPRM, 
SWAs will no longer be required to complete this process, resulting in 
cost savings. To estimate the avoided costs of employment eligibility 
verification activities, the Department multiplies the estimated number 
of U.S. farm workers that are referred to H-2A jobs through One-Stop 
Career Centers by the cost per Application.\14\ The Department 
estimates average annual avoided costs of employment eligibility 
verification activities to be $ 0.03 million.
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    \13\ The cost estimate assumes the use of the Form I-9 rather 
than the E-Verify system. The most recent count indicates that only 
four SWAs are using E-Verify.
    \14\ To estimate the cost per application, the Department sums 
the time for the SWA staff to complete the Form I-9, the time 
required to review employment eligibility documents, and the time to 
file the completed form in a systematic manner. The Department then 
divides this result by 60 to approximate the fraction of an hour 
required to process each application and multiplies this fraction by 
the hourly compensation of an SWA Compensation, Benefits, and Job 
Analysis Specialist scaled by 1.52 to account for employee benefits.
---------------------------------------------------------------------------

    After the adjudication of employment eligibility, SWAs issue 
certifications for eligible workers. Under the NPRM, SWAs will no 
longer be required to issue such certifications. The avoided costs 
include the staff time to prepare and print the certification form as 
well as the costs of paper, envelopes, and postage. The Department 
estimates average annual avoided costs of certification issuance to be 
$0.02 million.\15\
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    \15\ The Department estimates the cost of staff time by 
multiplying the number of U.S. farm workers who are referred to H-2A 
jobs through One-Stop Career Centers by the time required to print 
the form (5 minutes) and the hourly labor compensation of an SWA 
Compensation, Benefits, and Job Analysis Specialist scaled by 1.52 
to account for employee benefits. The Department then adds the cost 
per application by the number of U.S. farm workers who are referred 
to H-2A jobs through One-Stop Career Centers by the cost per 
application, assuming that the cost of a sheet of paper, cost of an 
envelope, and cost of postage per envelope are $0.02, $0.04, and 
$0.42, respectively.
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    SWAs are also required to retain records for the employment 
eligibility decisions. Under the NPRM, SWAs will no longer be required 
to retain the records. The avoided costs include the staff time to 
copy, organize, and store all relevant documents as well as the 
material costs of paper and photocopy machine use. The Department 
estimates average annual avoided costs equal to approximately $0.02 
million.\16\
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    \16\ The Department estimates the cost of staff time by 
multiplying the total number of H-2A workers requested by the time 
required to copy, organize, and store all relevant documents (5 
minutes) and the hourly labor compensation of an SWA Compensation, 
Benefits, and Job Analysis Specialist scaled by 1.52 to account for 
employee benefits. The Department then adds the cost per record by 
multiplying the total number of H-2A workers by the cost per record, 
assuming the number of sheets photocopied is 5 and cost per 
photocopy is $0.12.
---------------------------------------------------------------------------

    The employment eligibility verification activities currently in 
place require the training of SWA to properly complete the process. 
Under the NPRM, SWAs will no longer incur the costs of this training. 
These costs include the staff time to attend training courses, the 
staff time to teach training courses, and the material costs of 
producing training manuals. The Department estimates average annual 
avoided costs of SWA staff training equal to approximately $0.4 
million.\17\
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    \17\ The Department estimates the avoided costs of attending 
training courses by multiplying the number of One-Stop Career 
Centers (1,794) by the number of workers trained per center (2), the 
length of training (3 hours), and the hourly labor compensation of 
an SWA Compensation, Benefits, and Job Analysis Specialist scaled by 
1.52 to account for employee benefits. The Department estimates the 
avoided costs of trainer workload by multiplying the number of 
trainers (1 per 5 One-Stop Career Centers, or 359 trainers) by the 
length of training (3 hours) and the hourly labor compensation of an 
SWA Compensation, Benefits, and Job Analysis Specialist scaled by 
1.52 to account for employee benefits. The Department estimates the 
avoided cost of producing training manuals by multiplying the number 
of One-Stop Career Centers (1,794) by the number of workers trained 
per center (2), the pages per training manual (30) and the cost per 
photocopy ($0.12).
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2. Costs
    The Department acknowledges the increase in cost faced by employers 
to perform employment eligibility verification on referred employees 
who will, under this NPRM, no longer be verified by SWAs. The cost to 
employers is, however, not a corresponding number to the number 
representing the benefit to SWAs, as employers are not required to also 
complete the certification required of SWAs.
e. Enhancing Worker Protections through Compliance Certification
    The 2008 Final Rule uses an attestation-based model, unlike the 
1987 Rule, which mandated a fully-supervised labor market test and 
required the submission of important documentation, such as workers' 
compensation, housing certification issued by the SWA, and proof of 
registration and surety bond for H-2ALCs. Employers conduct the 
required recruitment in advance of Application filing and, based upon 
the results of that effort, apply for certification from the Department 
for a number of needed foreign workers. That is, under the 2008 Final 
Rule, employers attest that they have undertaken the necessary 
activities and made the required assurances to workers rather than have 
such actual efforts or documentation reviewed by a Federal or State 
official to ensure compliance. The Department has determined that there 
are insufficient worker protections in the attestation-based model in 
which employers merely confirm, and do not actually demonstrate, that 
they have performed an adequate test of the U.S. labor market.
1. Costs
    The certification of compliance will represent some costs to 
employers because they will need to submit copies of recruitment 
activities, details of job offers, workers' compensation documentation, 
and for H-2ALCs, registration, surety bond, and work contracts, rather 
than attesting that they have complied with the required elements of 
the H-2A program. Under the 2008 Final Rule, employers are already 
required to obtain and retain these documents and the NPRM simply 
requires the submission of those documents, particularly workers' 
compensation and housing inspections, to the Department in order to 
satisfy the underlying statutory assurances. The Department estimates 
the cost by multiplying the total number of Applications by the 
difference in time to prepare the new H-2A Application as compared to 
that under the 2008 Final Rule. We then multiply this product by the 
average compensation of a human resources manager at an agricultural 
business. Because the H-2A Application in the Proposed Rule requires 
more to be submitted than the application under the 2008 Final Rule, we 
add the incremental costs of photocopying the additional pages and the 
postage required to ship them to the DOL.\18\ This calculation yields 
an average annual cost to employers of $0.7 million.\19\
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    \18\ The Department estimates that 150 additional pages will 
need to be photocopied at a cost of $0.12 per photocopy. The 
additional pages weigh approximately 17.6 ounces and require $0.80 
in postage per application. This cost estimate is based on mailing 
the additional 150 pages via Priority Mail (2-day delivery) from 
Topeka, Kansas to the NPC in Chicago (source: http://postcalc.usps.gov).
    \19\ The Department projects the annual number of applications 
to be approximately 9,785 in 2009 and increase to 26,427 by 2018, of 
which approximately 3,262 and 2,787 of the applications submitted in 
2009 and 2018, respectively, would not have been previously 
submitted. For applications that would not have been previously 
submitted, the Department assumes that preparing an application 
using the certification application process, as compared to the 
attestation process, will result in increased agricultural employer 
staff time of 30 minutes per application. For applications that 
would have been previously submitted under the H-2A program, the 
Department assumes there will be a 20-minute increased in staff time 
using the certification application process. The Department 
estimates that the median hourly wage for a human resources manager 
is $42.15 (as published by the Department's OES survey, O*Net 
Online), which we increased by 1.43 to account for employee benefits 
(source: Bureau of Labor Statistics).

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[[Page 45932]]

f. Changes in the Requirement for Housing Inspections
    The NPRM retains most of the 2008 Final Rule provisions governing 
housing inspections. The employer's obligations with respect to housing 
standards, rental or public accommodations, open range housing, deposit 
charges, charges for public housing, and family housing under the 
proposed regulations have remained the same as under the 2008 Final 
Rule. One notable difference, however, is the timeframe in which an 
inspection of the employer's housing must occur.
    In the NPRM, when an employer places an Agricultural and Food 
Processing Clearance Order (Form ETA 790) with the SWA serving the area 
of intended employment 60 to 75 days before the date of need, the 
employer is required to disclose the location and type of housing to be 
provided to domestic and H-2A workers. Upon receipt of the Form ETA 
790, the SWA will schedule and conduct an inspection of the employer's 
housing. Unlike the 2008 Final Rule, this NPRM requires that the pre-
occupancy inspection of the employer's housing be completed prior to 
the issuance of a temporary labor certification, which is 30 days 
before the date of need.\20\
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    \20\ The Department also notes that such inspection is mandated 
by other regulations governing the H-2A program. Pursuant to 20 CFR 
654.400, SWAs must deny intrastate and interstate recruitment 
services unless, among other things, a preoccupancy inspection has 
been conducted (with conditional access permitted for H-2A employers 
for a limited time period). These regulations govern all migrant 
seasonal worker housing inspections.
---------------------------------------------------------------------------

    The Department expects that this change in timing will have a 
minimal economic impact on employers. Because employers are required to 
place the job order with the SWA between 60 and 75 days prior to the 
date of need, the SWA will have between 30 and 55 days to schedule and 
conduct a timely inspection of the housing. The Department believes 
that this enhanced recruitment time frame will also provide a 
sufficient amount of time for SWAs to conduct the required pre-
occupancy housing inspection. Prior to the 2008 Final Rule, the 
Department's experience is that most employers who routinely utilize 
the H-2A program prepare their housing in advance of inspection and/or 
communicate with SWA staff with respect to changes in the location(s) 
or type(s) of housing before Application filing occurred at 45 days 
prior to the date of need. This past practice was necessary, 
particularly among large grower associations, in allowing SWAs to 
schedule and conduct pre-occupancy housing inspections in a timely 
manner, thereby minimizing any negative impacts on employers' ability 
to obtain labor certification, petition for workers at USCIS, obtain 
visas through the U.S. consulate, and bring foreign workers to the 
worksite by the certified date of need.
    The Department examined program activity data for FY 2007 and 2008 
to determine if the NPRM's change requiring completion of a pre-
occupancy housing inspection prior to the issuance of a temporary labor 
certification would have a significant negative impact on employers. 
For employer Applications certified in FY 2007 and 2008, the Department 
issued determinations, on average, approximately 27 calendar days 
before the employer's certified start date of need; the median in both 
years was 29 calendar days before the employer's certified start date 
of need. This processing timeframe provided employers with sufficient 
time to petition USCIS and obtain visas from the U.S. consulate in 
order to bring foreign workers from their place of residence to the 
worksite by the certified start date of need. Any downstream delays in 
processing at either the USCIS or U.S. consulate, such as scheduling 
and conducting interviews for foreign workers, cannot be attributed to 
the Department's processing of the temporary labor certification.
    The Department also examined the percentage of H-2A labor 
certifications that were issued during FY 2007 and 2008 beyond the 
statutory 30 days timeframe such that the issuance of the determination 
would have negatively impacted the employer's ability to obtain foreign 
workers by the certified start date of need. To do this, the Department 
assumed that employers, following issuance of the temporary labor 
certification, would receive the labor certification within 2 days, 
file an I-129 petition for non-premium processing and receive approval 
from the USCIS within 5 days, file appropriate Applications with DOS 
and obtain visas within 5 days, and transport foreign workers from the 
place of residence to the worksite in the U.S over the course of 3 
days. Using these assumptions, the Department determined that any labor 
certification issued later than 15 days before the employer's certified 
start date of need would have negatively impacted the employer's 
ability to obtain foreign workers.
    For FY 2007, approximately 6 percent of the H-2A labor 
certification Applications approved between October 1, 2006 and 
September 30, 2007 (273 out of 4,526 certifications), for employers and 
associations of employer producers were issued by the Department later 
than 15 days before the certified start date of need. For FY 2008, 
approximately 5.4 percent of the H-2A labor certification Applications 
approved between October 1, 2007 and September 30, 2008 (271 out of 
5,014 certifications), for employers and associations of employer 
producers were issued by the Department later than 15 days before the 
certified start date of need, thus having a potential adverse impact. 
Some percentage of this number was as a result of delays in the housing 
inspection; the Department cannot quantify how many were delayed for 
this reason alone, as other reasons exist independent of housing 
inspections (for example, a failure of the employer to provide the 
Department with evidence of the coverage of workers by workers' 
compensation). Even if the entire group of such Applications were 
delayed solely for the lack of a valid housing certificate, the 
Department's program experience has demonstrated that the change 
contemplated in the NPRM requiring a pre-occupancy housing prior to 
issuance of a temporary labor certification has not and will not have a 
significant impact on employers' ability to obtain foreign workers by 
the certified start date of need.
    Because of data limitations, we were not able to monetize the costs 
and benefits associated with this provision. While the Department 
believes such costs will be minimal, it invited interested parties to 
comment on the costs associated with this change.
g. Enhanced Coverage of Transportation Expenses
    Under the 2008 Final Rule, the employer provides for travel 
expenses and subsistence for foreign workers only to and from the place 
of recruitment, i.e. the appropriate U.S. consulate or port of entry. 
Under the NPRM, the employer is required to pay the costs of 
transportation from the worker's home to and from the place of 
employment. The Department examined the increase in the costs to 
employers from the current costs of travel from the appropriate U.S. 
consulate to the place of employment, adding to that cost the

[[Page 45933]]

cost of travel from the home to the consulate city. The Department 
estimates average annual costs of these additional transportation 
expenditures to be approximately $10.8 million.\21\
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    \21\ The Department estimates these costs by multiplying the 
total number of H-2A workers certified by the cost of bus fare from 
the worker's home to the consulate and back. The Department assumes 
one-way cost of bus fare of $31.50 based on the cost of a bus trip 
from Oaxaca to Mexico City. Source: http://www.ticketbus.com.mx.
---------------------------------------------------------------------------

h. Other
    During the first year that this NPRM would be in effect, all 
employers would need to learn about the new application process and how 
compliance will be judged. We estimate this cost by multiplying the 
number of applications submitted by employers by the time required to 
read the new rule and any educational and outreach materials that 
explain the H-2A application process under this NPRM by the average 
compensation of a human resources manager at an agricultural business. 
The Department estimates this one-time cost to employers at $0.5 
million.\22\
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    \22\ The Department estimates that employers will spend 1 hour 
to read the new rule and outreach and educational materials 
explaining the program. In addition, the Department estimates that 
the median hourly wage for a human resources manager is $42.15 (as 
published by the Department's OES survey, O*Net Online), which we 
increased by 1.43 to account for employee benefits (source: Bureau 
of Labor Statistics).
---------------------------------------------------------------------------

    This NPRM requires that contracts be translated into the languages 
of employees who do not speak English. Employers are already required 
to provide contract translation for Spanish workers. The Department 
multiplies the percent of H-2A workers who do not speak English or 
Spanish by the total number of H-2A Applications to estimate the number 
of contract translations required.\23\ The Department then multiplies 
the resulting value by the average number of pages per contract and the 
cost per page for translation.\24\ The Department estimates average 
annual costs of contract translation at $0.1 million.
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    \23\ Approximately 0.6 percent of H-2A workers do not speak 
English or Spanish. Source: http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/table32d.xls.
    \24\ The Department assumes that the average number of pages per 
contract is 50, and the cost per page for translation is $19.50. 
Source: http://www.languagescape.com.
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    This NPRM also requires that H-2ALCs submit photocopies of 
contracts with fixed agricultural sites as well as documentation of 
surety bonds. To estimate the number of H-2ALCs that will be subject to 
this requirement, the Department multiplies the total number of H-2A 
Applications by the percent of H-2A employers who are foreign labor 
contractors.\25\ To estimate the cost of submitting photocopies of 
contracts, the Department multiplies the resulting value by the average 
number of pages per employer contract and the cost per photocopy, 
resulting in average annual costs of contract submission of $0.02 
million. To estimate the cost of documenting the surety bond, the 
Department multiplies the number of H-2ALCs that will be subject to 
this requirement by the average number of pages per surety bond and the 
cost per photocopy, resulting in average annual costs of surety bond 
documentation of $0.002 million.\26\
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    \25\ The Department estimates that approximately 20 percent of 
H-2A employers are foreign labor contractors.
    \26\ The Department estimates that the average number of pages 
per employer contract is 50, the average number of pages per surety 
bond is 5, and the cost per photocopy is $0.12.
---------------------------------------------------------------------------

    To inform the public about this NPRM, the Department will produce 
and deliver outreach and education materials to employers in order to 
explain the new application process and how compliance will be judged. 
We estimate this cost by multiplying the hours required to develop, 
maintain, and distribute such materials by the average compensation of 
Department staff and find average annual cost to the Department equal 
to $0.06 million.\27\
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    \27\ The Department estimates that Department staff (GS-12 step 
5) will spend 160 hours during the first year of the program to 
develop educational and outreach materials. For every subsequent 
year, the Department estimates that staff will spend 40 hours to 
review and update educational materials, as appropriate. The hourly 
salary for Department staff was multiplied by an index of 1.69 to 
account for employee benefits and proportional operating costs, 
resulting in an hourly rate of $52.96 for a GS-12, step 5 and $74.43 
for GS-14, step 5.
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5. Summary of Cost-Benefit Analysis
    Exhibit 1 presents a summary of the cost-benefit analysis of this 
NPRM. The monetized costs and benefits displayed are the yearly 
summations of the calculations described above. In some cases, the 
totals for 1 year are less than the totals of the annual averages 
described above. For example, the annual average cost of enhanced 
transportation expenses--the largest cost component of this NPRM--is 
$10.8 million across the 10-year time horizon, but the individual 
yearly values range from $7.6 million in 2009 to $14.6 million in 2018. 
This is due to increased program participation across the time horizon 
of the cost-benefit analysis. The monetized costs exceed the monetized 
benefits both at a 7 percent and a 3 percent discount rate. The size of 
the net benefits, the absolute difference between the projected 
benefits and costs, is negative.

           Exhibit 1--Summary of Monetized Benefits and Costs
------------------------------------------------------------------------
                                  Monetized benefits    Monetized costs
              Year                  ($millions/year)   ($millions/year)
------------------------------------------------------------------------
1. 2009.........................                0.47               10.56
2. 2010.........................                0.47                9.75
3. 2011.........................                0.47               10.52
4. 2012.........................                0.47               11.35
5. 2013.........................                0.47               12.25
6. 2014.........................                0.47               13.23
7. 2015.........................                0.47               14.30
8. 2016.........................                0.47               15.45
9. 2017.........................                0.47               16.70
10. 2018........................                0.47               18.07
                                 ---------------------------------------
    Undiscounted total..........                4.68              132.17
    Total with 7% discounting...                3.29               89.34
    Total with 3% discounting...                3.99              110.86
------------------------------------------------------------------------
Totals may not add because of rounding.


[[Page 45934]]

    Due to lack of adequate data, however, the Department is not able 
to provide monetary estimates of several important benefits to society, 
including the increased employment opportunities for U.S. workers and 
the enhancement of worker protections for U.S. and H-2A workers. In 
addition, this NPRM has distributional effects that improve the ability 
of the part of workers and their families to meet the basic costs of 
living.
    The Department has concluded that after consideration of both the 
quantitative and qualitative impacts of this NPRM, the societal 
benefits of the NPRM justify the societal costs.

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires 
agencies to prepare a regulatory flexibility analysis to determine 
whether a regulation will have a significant economic impact on a 
substantial number of small entities. Section 605 of the RFA allows an 
agency to certify a rule in lieu of preparing an analysis if the 
regulation is not expected to have a significant economic impact on a 
substantial number of small entities. Further, under the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C 801 (SBREFA), an 
agency is required to produce a compliance guidance for small entities 
if the rule has a significant economic impact. The Assistant Secretary 
of ETA has notified the Chief Counsel for Advocacy, Small Business 
Administration (SBA), under the RFA at 5 U.S.C. 605(b), and certified 
that this rule will not have a significant economic impact on a 
substantial number of small entities.
    The Department is requesting comment on the costs of these proposed 
policies on small entities, with the goal of ensuring a thorough 
consideration and discussion at the Final Rule stage.
1. Definition of a Small Business
    A small entity is one that is ``independently owned and operated 
and which is not dominant in its field of operation.'' The definition 
of small business varies from industry to industry to the extent 
necessary to properly reflect industry size differences. An agency must 
either use the SBA definition for a small entity, or, establish an 
alternative definition for the agricultural industry. The Department 
has adopted the SBA definition, which is an establishment with annual 
revenues of less than $0.75 million. The SBA also defines a 
reforestation small business as one that has annual revenues of less 
than $7.0 million. The Department has also adopted that definition for 
its reforestation and pine straw activity establishments.
2. Impact on Small Businesses
    The Department has estimated the incremental costs for small 
businesses from the 2008 Final Rule (the baseline) to this NPRM. We 
have estimated the costs of reading and reviewing the new Application 
and compliance processes, the enhanced coverage of transportation 
expenses, the enhanced worker protections through compliance 
certification, the changes in the requirement for housing inspections, 
and the enhanced U.S. worker referral period.\28\
---------------------------------------------------------------------------

    \28\ The analysis in this section does not include the impact of 
the higher wages for U.S. workers because they represent a transfer 
rather than an economic cost from a societal perspective. Transfer 
payments are payments from one group to another that do not affect 
total resources available to society. The increase in the wage rates 
for U.S. workers represents an important transfer from agricultural 
employers to U.S. workers. The higher wages for U.S. workers 
associated with the new methodology for estimating the AEWR 
represent an improved ability on the part of workers and their 
families to meet the costs of living, an important concern to the 
current Administration and a key aspect of the Department's mandate 
to ensure the wages and working conditions of similarly employed 
U.S. workers are not adversely affected.
---------------------------------------------------------------------------

    Approximately 98 percent of U.S. farms have revenues of less than 
$0.75 million and, therefore, fall within the SBA's definition of small 
entity. The Department estimates that by 2018 there will be 
approximately 26,427 Applications (not necessarily applicants) to the 
H-2A program. Even if all 26,427 Applications are filed by unique small 
farms, the percentage of small farms applying for temporary 
agricultural worker certification will be only 1.4 percent of the total 
number of small U.S. farms.\29\
---------------------------------------------------------------------------

    \29\ Based on the number of farms in 2007 and assuming that the 
number of farms will decline at the same average annual rate as it 
has in the past 10 years, the Department estimates that in 2018 
there will be approximately 1,917,300 farms.
---------------------------------------------------------------------------

    To examine the impact of the proposed rule on small entities, the 
Department evaluates the impact of the incremental costs on the average 
small entity, which is assumed to apply for 12 temporary workers. The 
Department estimates that these farms have annual revenues of about 
$367,000.\30\
---------------------------------------------------------------------------

    \30\ Based on the average duration of temporary agricultural 
workers' stay, the Department estimates that these workers work, on 
average, 198 days. As already discussed, temporary agricultural 
workers will be paid, on average, $9.36 per hour. Given this hourly 
rate and 1,584 working hours per year, a small entity hiring 12 
temporary workers incurs hired farm labor costs of $130,395. Based 
on the 2002 Census of Agriculture, hired farm labor costs account, 
on average, for 41.2 percent of total farm costs while total costs 
represent, on average, 86.3 percent of total revenues. Applying 
these rates to the estimated hired labor costs, we estimate that a 
small farm employing 12 temporary agricultural workers would have 
total production expenses of $316,777, revenues of $366,936, and net 
farm income (i.e., revenues minus production expenses) of $50,159 
per year.
---------------------------------------------------------------------------

    The Department recognizes that transfers constitute an increase in 
wage costs in order to comply with this rule for small businesses 
choosing to participate in the H-2A program. While we lack the data to 
know how many H-2A participants are small entities, the Department does 
not believe, based on program experience, that it constitutes a 
significant number of small entities. The Department seeks comments on 
these costs, and the number of small entities involved, so it can gauge 
this cost and thus the effect on these businesses.
a. Reading and Reviewing the New Application and Compliance Processes
    During the first year that this proposed rule would be in effect, 
employers would need to learn about the new application process and how 
compliance will be determined. We estimate this cost by multiplying the 
time required to read the new rule and any educational and outreach 
materials that explain the H-2A application process under this NPRM by 
the average compensation of a human resources manager at an 
agricultural business. In the first year of the proposed rule, the 
Department estimates that the average small farm will spend 
approximately 1 hour of staff time to read and review the new 
application and compliance processes, which amounts to approximately 
$60.27 in labor costs.\31\
---------------------------------------------------------------------------

    \31\ The Department estimates that employers will spend 1 hour 
to read the new rule and outreach and educational materials 
explaining the program. In addition, the Department estimates that 
the median hourly wage for a human resources manager is $42.15 (as 
published by the Department's OES survey, O*Net Online), which we 
increased by 1.43 to account for private-sector employee benefits 
(source: Bureau of Labor Statistics).
---------------------------------------------------------------------------

b. Enhanced Coverage of Transportation Expenses
    Under the 2008 Final Rule, the employer provides for travel 
expenses and subsistence for foreign workers only to and from the place 
of recruitment, i.e. the appropriate U.S. consulate or port of entry. 
Under the proposed rule, the employer is required to pay the costs of 
transportation from the worker's home to and from the place of 
employment. The Department estimates that the average small farm would 
incur costs of $63.00 per worker related the enhanced coverage of 
transportation expenses.\32\
---------------------------------------------------------------------------

    \32\ The Department estimates these costs by multiplying the 
total number of H-2A workers certified by the cost of bus fare from 
the worker's home to the consulate and back. The Department assumes 
one-way cost of bus fare of $31.50.

---------------------------------------------------------------------------

[[Page 45935]]

c. Enhancing Worker Protections Through Compliance Certification
    The certification of compliance will represent minimal costs to 
employers because they will need to submit copies of recruitment 
activities, details of job offers, workers' compensation documentation, 
and for H-2ALCs, registration, surety bond, and work contracts, rather 
than attesting that they have complied with the required elements of 
the H-2A program. Under the 2008 Final Rule, employers are already 
required to obtain and retain these documents and the proposed rule 
simply requires the submission of those existing documents, 
particularly workers' compensation and housing inspections, to the 
Department in order to satisfy the program's underlying statutory 
assurances. The Department estimates this cost by multiplying the 
difference in time to prepare the new H-2A Application as compared to 
that under the 2008 Final Rule for both new H-2A applicants and 
previous applicants. We then multiply these products by the average 
compensation of a human resources manager at an agricultural business.
    For small employers applying to the program for the first time, the 
Department estimates that the Application will take approximately one-
half hour more to complete. This results in additional labor costs 
equal to $30.14. For applicants familiar with the process, the 
Department estimates that the Application will require approximately 20 
additional minutes to complete. The result is additional labor costs of 
$20.09 for applicants familiar with the program. Because the 
Application will be longer, the Department adds the costs of 
photocopying additional pages and additional postage required to the 
labor costs above.\33\ In total, the Department estimates that the 
average small farm that is a new H-2A applicant would incur costs of 
$48.94, and the average small farm that is a previous H-2A applicant 
would incur costs of $38.89.
---------------------------------------------------------------------------

    \33\ The Department estimates that an average of 150 additional 
pages will need to be photocopied at a cost of $0.12 per photocopy. 
The additional pages weigh approximately 17.6 ounces and require 
$0.80 in postage per application.
---------------------------------------------------------------------------

    This NPRM also requires that contracts be translated into the 
languages of employees who do not speak English. Employers are already 
required to provide contract translations for employees who speak 
Spanish. We multiply the percent of H-2A workers who do not speak 
English or Spanish by the average number of pages per contract and the 
cost per page for translation.\34\ The Department estimates the average 
small farm would incur costs of contract translation of $5.96.
---------------------------------------------------------------------------

    \34\ Approximately 0.6 percent of H-2A workers do not speak 
English or Spanish. Source: http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/table32d.xls. The Department assumes that 
the average number of pages per contract is 50, and the cost per 
page for translation is $19.50. Source: http://www.languagescape.com
---------------------------------------------------------------------------

d. Changes in the Requirement for Housing Inspections
    The proposed rule retains most of the 2008 Final Rule provisions 
governing housing inspections. The employer's obligations with respect 
to housing standards, rental or public accommodations, open range 
housing, deposit charges, charges for public housing, and family 
housing under the proposed regulations have remained the same as under 
the 2008 Final Rule.
    One notable difference, however, is the timeframe in which an 
inspection of the employer's housing must occur. Unlike the 2008 Final 
Rule, this NPRM requires that the pre-occupancy inspection of the 
employer's housing be completed prior to the issuance of a temporary 
labor certification, which is 30 days before the date of need for the 
workers.
    The Department expects that this change in timing will have a 
minimal economic impact on employers. Prior to the effective date of 
the 2008 Final Rule, the Department's experience was that the majority 
of employers who routinely utilized the H-2A program prepared their 
housing in advance of inspection and/or communicated with SWA staff 
with respect to changes in the location(s) or type(s) of housing before 
Application filing occurred at 45 days prior to the date of need. 
Because of data limitations, we were not able to monetize the costs and 
benefits associated with this provision.
e. Enhanced U.S. Worker Referral Period
    The NPRM proposes to require that employers maintain a complete 
recruitment report and all supporting documentation for 5 years (rather 
than 3 years as required by the 2008 Final Rule). The Department 
estimates that the additional record retention requirements will add 
costs equal to $21.99 to the average small farm for the retention of 
the Application and supporting documents.\35\
---------------------------------------------------------------------------

    \35\ We assume that the average small farm will purchase one 
additional file drawer for document storage.
---------------------------------------------------------------------------

f. Additional Costs for Small Employers Who are H-2ALCs
    Employers who are H-2ALCs will incur additional costs related to 
the submission of contracts and the documentation of the surety bond. 
For both categories, we estimate the cost by multiplying the additional 
photocopies required by the cost per photocopy. The Department 
estimates that the average small H-2ALC will incur costs of $6.00 for 
the submission of contract photocopies and $0.60 for the documentation 
of the surety bond.\36\
---------------------------------------------------------------------------

    \36\ We assume that the average number of pages per contract is 
50, the number of pages per surety bond is 5, and the cost per 
photocopy is $0.12.
---------------------------------------------------------------------------

g. Reforestation and Pine Straw Activity
    The Department has proposed to include reforestation crews and pine 
straw gathering activities in the categories of agricultural activities 
for which H-2A visas would be appropriate.\37\ The Department 
acknowledges that the transfer of reforestation and pine straw 
gathering industries from H-2B to H-2A will impose additional costs on 
such employers, such as housing, transportation, meals, and the three-
fourths guarantee. The Department is, however, unable to quantify these 
costs as it is unknown how many of the employers who currently apply 
for H-2B visa status for their workers actually provide such benefits 
already as a condition of employment. As mentioned above, the 
Department believes that some percentage of employers in these 
industries already provide some, if not all, of these benefits, and 
thus is unable to estimate the cost to those employers who do not. The 
Department invites comment from reforestation and pine straw employers 
and others on the benefits currently provided in those industries, so 
it can gauge this cost and thus the effect on these businesses.
---------------------------------------------------------------------------

    \37\ The Department received applications from 173 employers in 
reforestation activities, including pine straw gathering, in the 
Department's H-2B program in FY 2008.
---------------------------------------------------------------------------

h. Other Issues
    The Department does not anticipate that the increased SWA activity 
under this Proposed Rule will result in significant processing delays, 
as the Department continues to operate under the statutory mandate to 
make a determination of whether or not the Application meets the 
threshold requirements for certification within 7 days of filing. The 
Department's analysis pursuant to E.O. 12866, supra., contains an 
analysis of potential delays for all employers, including small 
employers, incurred for all reasons, not just for the reason of delays 
that may happen as a result of increased SWA activity. The conclusion 
that the Department has drawn from this

[[Page 45936]]

analysis is that the increased SWA activity, which the department 
believes is required by statute, will not result in increased delays to 
employers. The Department invites comment on this issue.
3. Total Cost Burden for Small Entities
    The Department's calculations indicate that the total average 
annual cost of this NPRM is $911 for the average small entity applying 
to the program for the first time and $901 for the average small entity 
that has previous program familiarity. Both of these costs represent 
less than 0.3 percent of annual revenues.
    For small entities that apply for 1 worker instead of 12 
(representing the smallest of the small farms that hire workers), the 
Department estimates that the total average annual cost of the rule 
ranges from $143 (for those that have previous program familiarity) to 
$153 (for small entities new to the program). These values represent 
approximately 0.5 percent of annual revenues for these very small 
farms.
    Therefore, the Department believes that this NPRM is expected to 
have a limited net direct cost impact on small farm employers, above 
and beyond the baseline of the current costs required by the program as 
it is currently implemented under the 2008 Final Regulation.

C. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and Tribal governments, and the private 
sector. This Proposed Rule has no Federal mandate, which is defined in 
2 U.S.C. 658(6) to include either a ``Federal intergovernmental 
mandate'' or a ``Federal private sector mandate.'' A Federal mandate is 
any provision in a regulation that imposes an enforceable duty upon 
State, local, or Tribal governments, or imposes a duty upon the private 
sector which is not voluntary. A decision by a private entity to obtain 
an H-2A worker is purely voluntary and is, therefore, excluded from any 
reporting requirement under the Act.
    The SWAs are mandated to perform certain activities for the Federal 
Government under this program, and are compensated for the resources 
used in performing these activities. While the SWA role was altered 
under the 2008 Final Rule, before that time employers filed 
Applications for H-2A labor certifications concurrently with the 
Department and the SWA having jurisdiction over the area of intended 
employment. The SWA and the Department through the NPCs both receive 
the Application and review the terms of the job offer. The SWA then 
placed the job order to initiate local recruitment. The SWA directly 
supervised and assisted employer recruitment, and the making of 
referrals of U.S. workers. The NPC directed the SWA to place job orders 
into intrastate/interstate clearance ensuring employers meet 
advertising and recruitment requirements. The SWA was responsible for 
processing the employer's certification request for H-2A labor 
certification, overseeing the recruitment and directing referrals to 
the employer. SWAs coordinated all activities regarding the processing 
of H-2A Applications directly with the appropriate NPC for their 
jurisdiction, including transmittal to the NPC of housing inspection 
results, prevailing wage surveys, prevailing practice surveys or any 
other material bearing on the Application. Once the Application was 
reviewed by the SWA and after the employer demonstrated that it 
conducted its required recruitment, the SWA then sent the complete 
Application to the appropriate NPC for final certification or denial.
    This NPRM proposes to return to a more active SWA role in the 
application process as had been in place from 1987-2008. SWA activities 
under the H-2A program are currently funded by the Department through 
grants provided under the Wagner-Peyser Act. 29 U.S.C. 49 et seq. The 
Department anticipates continuing funding under the Wagner-Peyser Act. 
As a result of this NPRM and the publication of a final regulation, the 
Department will analyze the amounts of such grants made available to 
each State to fund the activities of the SWAs.

D. Small Business Regulatory Enforcement Fairness Act of 1996

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

E. Executive Order 13132--Federalism

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

F. Executive Order 13175--Indian Tribal Governments

    This rule was reviewed under the terms of E.O. 13175 and determined 
not to have Tribal implications. The rule does not have substantial 
direct effects on one or more Indian Tribes, on the relationship 
between the Federal Government and Indian Tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian Tribes. As a result, no Tribal summary impact 
statement has been prepared.

G. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act, enacted as part of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 
2681) requires the Department to assess the impact of this Proposed 
Rule on family well-being. A rule that is determined to have a negative 
effect on families must be supported with an adequate rationale.
    The Department has assessed this Proposed Rule and determines that 
it will not have a negative effect on families.

H. Executive Order 12630--Government Actions and Interference With 
Constitutionally Protected Property Rights

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

[[Page 45937]]

I. Executive Order 12988--Civil Justice

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

J. Plain Language

    The Department drafted this NPRM in plain language.

K. Executive Order 13211--Energy Supply

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

L. Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork and respondent 
burden, DOL conducts a preclearance consultation program to provide the 
general public and Federal agencies with an opportunity to comment on 
proposed and continuing collections of information in accordance with 
the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). 
This helps to ensure that the public understands the Department's 
collection instructions; respondents can provide the requested data in 
the desired format, reporting burden (time and financial resources) is 
minimized, collection instruments are clearly understood, and the 
Department can properly assess the impact of collection requirements on 
respondents.
    The PRA requires all Federal agencies to analyze proposed 
regulations for potential time burdens on the regulated community 
created by provisions in the proposed regulations, which require the 
submission of information. The information collection requirements must 
be submitted to the OMB for approval. 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) or is exempt 
from the PRA.
    The majority of the information collection (IC) requirements for 
the current H-2A program are approved under two OMB control numbers--
OMB Control Number 1205-0466 (which includes ETA Form 9142) and OMB 
Control Number 1205-0134 (which includes Form ETA 790). The IC for 
1205-0466 will need to be modified to account for sections of the 
proposed regulation that are similar to the current regulation, but 
were not accounted for previously. The IC for 1205-0134 was recently 
modified as part of the regular extension process, which is still 
pending with OMB at the time of this publication. Many other provisions 
under this Proposed Rule are either exempt from a burden analysis or 
have been accounted for by other OMB control numbers. Below is a 
section by section analysis of the PRA burden. Any necessary 
adjustments to the burden calculations have been submitted to OMB for 
review under section 3507(d) of the PRA. For an additional explanation 
of how the Department calculated the burden hours and related costs, 
the PRA package for information collection 1205-0466 may be obtained by 
contacting the PRA addressee shown below or at http://www.RegInfo.gov.
    PRA Addressee: Sherril Hurd, Office of Policy Development and 
Research, U.S. Department of Labor, Employment & Training 
Administration, 200 Constitution Avenue, NW., Room N-5641, Washington, 
DC 20210. Telephone: 202-693-3700 (this is not a toll-free number).
    Comments should be sent to (1) the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Room 10235, New 
Executive Office Building, Washington, DC 20503; Attention: Desk 
Officer for the Employee Benefits Security Administration; and a copy 
to (2) Office of Foreign Labor Certification, Room C-4312, 200 
Constitution Ave., NW., Washington, DC 20210 or fax: 202-693-2768. 
Comments to OMB may be submitted by using the Federal e-Rulemaking 
portal at http://www.regulations.gov (follow instructions for 
submission of comments) or by fax: 202-395-5806. OMB requests that 
comments be received within 60 days of publication of the Proposed Rule 
to ensure their consideration. Please note that comments submitted to 
OMB are a matter of public record.
    When submitting comments on the information collections, your 
comments should address one or more of the following four points.
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submissions of responses.
Summary
    The IC is required by secs. 214(c) and 218 of the INA (8 U.S.C. 
1184(c), and 1188) and 8 CFR 214.2(h)(1), (2), and (5). The INA 
requires employers who wish to hire foreign labor to receive a 
certification from the Secretary that there are not sufficient U.S. 
workers for the job opportunity and that hiring the foreign worker will 
not adversely affect wages and working conditions of U.S. workers 
similarly employed. This Proposed Rule is designed to obtain the 
necessary information for the Secretary to make an informed decision in 
meeting her statutory obligation. The IC will be used, among other 
things, to inform U.S. workers of the job opportunity thereby testing 
the labor market, to determine whether or not the employer is offering 
the proper wage to all employees, to ensure that the employers, agents, 
or associations are qualified to receive foreign workers, to have 
written assurances from the employer of its intent to comply with 
program requirements, and to ensure program integrity.
Hourly Burden

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Covered
             NPRM Section                       IC Action           Obligation to respond     under OMB    Total No.        Hourly burden        Total
                                                                             \38\                No.         resp.                               hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
655.130, 131, & 132...................  Fill out 9142...........  M........................    1205-0466        8,356  1 hour................      8,356
655.130, 131, & 132...................  Send in 790.............  M........................    1205-0134        8,356  1 hour................      8,356
655.132(b)(1).........................  List of fixed site        M........................    1205-0466          559  30 min................        280
                                         employers (FSE).
655.132(b)(2).........................  Submit FLC certificate..  M........................    1205-0466          559  5 min.................         47
655.132(b)(3).........................  Submit proof of bond....  M........................    1205-0466          559  5 min.................         47

[[Page 45938]]

 
655.132(b)(4).........................  Submit contracts with     M........................    1205-0466          559  30 min................        280
                                         FSE.
655.132(b)(5)(i)......................  Submit housing approval.  M........................    1205-0466          559  5 min.................         47
655.132(b)(5)(ii).....................  Drivers' licenses & Auto  M........................    1205-0466          559  5 min.................         47
                                         Insurance.
655.133(a)............................  Letter of Representation  M........................    1205-0466        4,574  30 min................      2,287
655.133(b)............................  Agent's FLC certificate.  M........................    1205-0466          309  5 min.................         26
655.134(b)............................  Request waiver of 45-day  R........................    1205-0466          151  30 min................         76
                                         filing.
655.135(i)............................  Notify of duty to depart  M........................    1205-0466        8,356  2 min.................        278
655.135(j) & (k)......................  Inform of fee             M........................    1205-0466        8,356  5 min.................        696
                                         prohibition.
655.135(l)............................  Workers' rights poster..  M........................  \39\ Exempt
655.144...............................  Modify application......  R........................    1205-0466        1,151  30 min................        576
655.145...............................  Amend application.......  R........................    1205-0466          668  30 min................        334
655.150...............................  SWA posts & refers......  M........................    1205-0134        8,356  25 min................      3,482
655.151 & 152.........................  Advertising.............  R........................  \40\ Exempt
655.153...............................  Contact old employees...  R........................    1205-0466        8,356  1 hour................      8,356
655.154...............................  Proof of recruitment....  M........................         \41\
                                                                                                  Exempt
655.156...............................  Recruitment report......  R........................    1205-0466        8,356  1 hour................      8,356
655.157...............................  Withholding workers       V........................    1205-0466            0  30 min................          0
                                         complaints.
655.167...............................  Document retention......  M........................    1205-0466        8,356  10 min................      1,393
655.170...............................  Extension application...  R........................    1205-0466          418  30 min................        209
655.171...............................  Notice of Appeal........  R........................    1205-0466           70  20 min................         23
655.172...............................  Request withdrawal......  R........................    1205-0466          226  10 min................         38
655.173...............................  Petition to increase      R........................    1205-0466           84  1 hour................         84
                                         meal charges.
655.180,181, & 182....................  Audit, revocation,        R........................  \42\ Exempt
                                         debarment.
655.185 & 501.2.......................  Job service complaint     V........................    1205-0039
                                         system.
655.185...............................  DOJ complaints..........  V........................       (\43\)
501.4(b) & 501.6(c)...................  Filing complaints.......  V........................    1215-0001
--------------------------------------------------------------------------------------------------------------------------------------------------------

Annual Hourly Burden
    In order to estimate the potential hourly burden of the information 
required to apply for a labor certification as described in this 
Proposed Rule, the Department used program experience and program data 
from fiscal year 2008. Based on information on program usage from FY 
2008 the Department received 8,356 Applications requesting more than 
100,000 foreign workers. This is an increase over the 7,725 
Applications received in previous years used to calculate the burden in 
1205-0466 originally. This is also more than the 4,600 responses 
accounted for in the 1205-0134 IC approved in 2006. The current 
extension request has adjusted the burden calculation.
---------------------------------------------------------------------------

    \38\ Obligation to respond to this information collection is 
mandatory (M), required for benefit (R), or voluntary (V).
    \39\ See 5 CFR 1320.3.
    \40\ See 5 CFR 1320.3(b).
    \41\ See 29 CFR 1602.14 (OMB 3046-0040); 29 CFR 1627.3(b)(3) 
(OMB 3046-0018); 29 CFR 1627.3(b)(3).
    \42\ See 5 CFR 1320.3(h)(6) & (9); 5 CFR 1320.4(a)(2).
    \43\ Complaints can be filed on DOJ's ``Charge Complaint'' form, 
which has no OMB control number or called in to the Office of 
Special Counsel.
---------------------------------------------------------------------------

    For the number of appeals, modifications, requests for waivers of 
the filing time, extensions, and other program components requiring 
information collection under the PRA, the Department also used program 
experience to determine annual hourly burdens described in the chart 
above.
    The total annual hourly burdens for the two ICs requiring 
adjustments due to this NPRM have been calculated as follows:

------------------------------------------------------------------------
                                                               Hours
------------------------------------------------------------------------
1205-0466...............................................          31,833
1205-0134...............................................          10,688
------------------------------------------------------------------------

Monetized Hourly Burden
    Employers filing Applications for temporary alien employment 
certification may be from a wide variety of industries. Salaries for 
employers and/or their employees who perform the reporting and 
recordkeeping functions required by this regulation may range from 
several hundred dollars to several hundred thousand dollars where the 
corporate executive office of a large company performs some or all of 
these functions themselves. However, the Department believes that in 
most companies a Human Resources Manager will perform these activities. 
In estimating employer staff time costs, the Department used the hourly 
wage rate for a Human Resources Manager ($39.50), as published by the 
DOL's OES OnLine,\44\ and increased by a factor of 1.43 to account for 
employee benefits and other compensation for a total hourly cost of 
$56.50. The SWA employees required to help employers with reviewing and 
translating the Form ETA 790 and referring workers to the employer are 
based on a Labor Relations Specialists ($23.70) as published by the 
DOL's OES OnLine and increased by a factor of 1.52 to account for 
employee benefits and other compensation for a total hourly cost of 
$36.02. Total annual respondent hour costs for the two main information 
collections are estimated as follows:
---------------------------------------------------------------------------

    \44\ Source: Bureau of Labor Statistics 2009 OES wage data.

1205-0466.........................  33,256 hours x $56.09 = $1,865,329
1205-0134.........................  8,356 hours x $56.09 = $468,688
                                    3,482 hours x $36.02 = $125,422
 


[[Page 45939]]

Cost Burden to Respondents
    The Proposed Rule stipulates that the applicant who receives an 
approved labor certification must pay $150 plus $15 for each foreign 
worker requested with an overall cap of $2,000 per Application. 
Assuming a 95 percent approval rate and the same amount of approved 
foreign workers as in previous years at 94,445, the Department 
estimates the maximum cost to employers will be $2,607,405 [(8,356 
applicants x .95 x $150) + (94,445 foreign workers x $15)].
    Affected Public: Farms, business or other for-profit; not-for-
profit institutions, and State governments.
    Estimated Number of Respondents: 8,408 (8,356 employers and 52 
SWAs).
    Estimated Number of Responses: 77,853.
    Frequency of Response: Annually; occasionally.
    Estimated Annual Burden Hours: 43,674.
    Estimated Annual Hourly Burden Cost: $2,459.
    Estimated Annual Cost Burden: $2,607,405.

List of Subjects in 20 CFR Part 655

    Administrative practice and procedure, Foreign workers, Employment, 
Employment and training, Enforcement, Forest and forest products, 
Fraud, Health professions, Immigration, Labor, Passports and visas, 
Penalties, Reporting and recordkeeping requirements, Unemployment, 
Wages, Working conditions.

List of Subjects in 29 CFR Part 501

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

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

TITLE 20--EMPLOYEES' BENEFITS

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

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

    Authority: Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(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).

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


Sec.  655.1  Purpose 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.
    4. Revise subpart B to read as follows:

Subpart B--Labor Certification Process for Temporary Agricultural 
Employment in the United States (H-2A Workers)

Sec.
655.100 Scope and purpose of Subpart B.
655.101 Authority of the Office of Foreign Labor Certification 
(OFLC) Administrator.
655.102 Special procedures.
655.103 Overview of this Subpart and definition of terms.

Prefiling Procedures

655.120 Offered wage rate.
655.121 Job orders.
655.122 Contents of job offers.

Application for Temporary Employment Certification Filing Procedures

655.130 Application filing requirements.
655.131 Association filing requirements
655.132 H-2A Labor contractor (H-2ALC) filing requirements.
655.133 Requirements for agents.
655.134 Emergency situations.
655.135 Assurances and obligations of H-2A employers.

Processing of Application for Temporary Employment Certification

655.140 Review of applications.
655.141 Notice of acceptance.
655.142 Electronic job registry.
655.143 Notice of deficiency.
655.144 Submission of modified application.
655.145 Amendments to applications for temporary employment 
certification.

Post-Acceptance Requirements

655.150 Interstate clearance of job order.
655.151 Newspaper advertisements.
655.152 Advertising requirements.
655.153 Contact with former U.S. employees.
655.154 Additional positive recruitment.
655.155 Referrals of U.S. workers.
655.156 Recruitment report.
655.157 Withholding of U.S. workers prohibited.
655.158 Duration of positive recruitment.

Labor Certification Determinations

655.160 Determinations.
655.161 Criteria for certification.
655.162 Approved certification.
655.163 Certification fee.
655.164 Denied certification.
655.165 Partial certification.
655.166 Appeal procedures.
655.167 Document retention requirements.

Post Certification

655.170 Extensions.
655.171 Appeals.
655.172 Withdrawal of job order and application for temporary 
employment certification.
655.173 Setting meal charges; petition for higher meal charges.
655.174 Public disclosure.

Integrity Measures

655.180 Audit.
655.181 Revocation.
655.182 Debarment.
655.183 Less than substantial violations.
655.184 Applications involving fraud or willful misrepresentation.
655.185 Job service complaint system; enforcement of work contracts.


Sec.  655.100  Scope and purpose of Subpart B.

    This subpart sets out the procedures established by the Secretary 
of the United States Department of Labor (the Secretary) under the 
authority given in 8 U.S.C. 1188 to acquire information sufficient to 
make factual determinations of:
    (a) Whether there are sufficient able, willing, and qualified 
United States (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.

[[Page 45940]]

Sec.  655.101  Authority of the Office of Foreign Labor Certification 
(OFLC) Administrator.

    The Secretary has delegated her authority to make determinations 
under 8 U.S.C. 1188 to the Assistant Secretary for the Employment and 
Training Administration (ETA), who in turn has delegated that authority 
to the Office of Foreign Labor Certification (OFLC). The determinations 
are made by the OFLC Administrator who, in turn, may delegate this 
responsibility to designated staff members; e.g., a Certifying Officer 
(CO).


Sec.  655.102  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 OFLC 
Administrator has the authority to establish, continue, revise, or 
revoke special procedures for processing certain H-2A Application for 
Temporary Employment Certification. Employers must demonstrate upon 
written application to the OFLC Administrator that special procedures 
are necessary. These include special procedures currently 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 harvesting 
crews. Similarly, 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 OFLC Administrator has the authority to 
establish monthly, weekly, or semi-monthly adverse effect wage rates 
(AEWR) for those occupations for a statewide or other geographical 
area. Prior to making determinations under this section, the OFLC 
Administrator may consult with affected employer and worker 
representatives.


Sec.  655.103  Overview of this Subpart and definition of terms.

    (a) Overview. In order to bring nonimmigrant workers to the U.S. to 
perform agricultural work, an employer must first demonstrate to the 
Secretary that there are not sufficient U.S. workers able, willing, and 
qualified to perform the work in the area of intended employment at the 
time needed and that the employment of foreign workers will not 
adversely affect the wages and working condition of U.S. workers 
similarly employed. This rule describes a process by which the 
Department of Labor (Department or DOL) makes such a determination and 
certifies her determination to the Department of Homeland Security 
(DHS).
    (b) Definitions.
    Administrative Law Judge (ALJ). A person within the Department's 
Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 
3105.
    Adverse effect wage rate (AEWR). The annual weighted average hourly 
wage for field and livestock workers (combined) in the States or 
regions as published annually by the U.S. Department of Agriculture 
(USDA) based on its quarterly wage survey.
    Agent. 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 subpart with respect to a specific application; and
    (3) Is not under suspension, debarment, expulsion, or disbarment 
from practice before any court, the Department, the Executive Office 
for Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
    Agricultural association. Any nonprofit or cooperative association 
of farmers, growers, or ranchers (including but not limited to 
processing establishments, canneries, gins, packing sheds, nurseries, 
or other similar 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 
8 U.S.C. 1188. An agricultural association may act as the agent of an 
employer, or may act as the sole or joint employer of any worker 
subject to 8 U.S.C. 1188.
    Area of intended employment. The geographic area within normal 
commuting distance of the place of the job opportunity for which the 
certification is sought. There is no rigid measure of distance that 
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). 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. 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. Such a person is also 
permitted to act as an agent under this subpart. No attorney who is 
under suspension, debarment, expulsion, or disbarment from practice 
before any court, the Department, the Executive Office for Immigration 
Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an 
employer under this subpart
    Certifying Officer (CO). The person who makes determination on an 
Application for Temporary Labor Certification filed under the H-2A 
program. The OFLC Administrator is the national CO. Other COs may be 
designated by the OFLC Administrator to also make the determinations 
required under this subpart.
    Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved H-2A Application for 
Temporary Labor Certification in any work included in the job order, or 
in any agricultural work performed by the H-2A workers. To qualify as 
corresponding employment the work must be performed during the validity 
period of the job order, including any approved extension thereof.
    Date of need. The first date the employer requires the services of 
H-2A workers as indicated in the Application for Temporary Labor 
Certification.
    Employee. A person who is engaged to perform work for an employer, 
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. A person (including any individual, partnership, 
association, corporation, cooperative, firm, joint stock company, 
trust, or other organization with legal rights and duties) that:
    (1) Has a place of business (physical location) in the U.S. and a 
means by

[[Page 45941]]

which it may be contacted for employment;
    (2) Has an employer relationship (such as the ability to hire, pay, 
fire, supervise or otherwise control the work of employee) with respect 
to an H-2A worker or a worker in corresponding employment; and
    (3) Possesses, for purposes of filing an Application for Temporary 
Employment Certification, a valid Federal Employer Identification 
Number (FEIN).
    Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
    Fixed-site employer. 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 8 
U.S.C. 1188, 29 CFR part 501, or this subpart as incident to or in 
conjunction with the owner's or operator's own agricultural operation.
    H-2A Labor Contractor (H-2ALC). Any person who meets the definition 
of employer under this subpart 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 8 U.S.C. 1188, 29 CFR part 501, or this subpart.
    H-2A worker. Any temporary foreign worker who is lawfully present 
in the U.S. and authorized by DHS to perform agricultural labor or 
services of a temporary or seasonal nature pursuant to 8 U.S.C. 
1101(a)(15)(H)(ii)(a), as amended.
    Job offer. The offer made by an employer or potential employer of 
H-2A workers to both U.S. and H-2A workers describing all the material 
terms and conditions of employment, including those relating to wages, 
working conditions, and other benefits.
    Job opportunity. Full-time employment at a place in the U.S. to 
which U.S. workers can be referred.
    Job Order. The document containing the terms and conditions of 
employment that is posted by the State Workforce Agency (SWA) on its 
inter- and intra-State job clearance systems based on the employer's 
Form ETA-790, as submitted to the SWA.
    Joint employment. Where two or more employers each have sufficient 
definitional indicia of being an employer to be considered the employer 
of a worker, those employers will be considered to jointly employ that 
worker. Each employer in a joint employment relationship to a worker is 
considered a joint employer of that worker.
    Master application. An Application for Temporary Labor 
Certification filed by an association of agricultural producers as a 
joint employer with its employer-members. A master application must 
cover the same occupations and comparable agricultural employment; the 
same start date of need for all employer-members listed on the 
Application for Temporary Employment Certification; and may cover 
multiple areas of intended employment within a single State.
    National Processing Center (NPC). The office within OFLC in which 
the COs operate and which are charged with the adjudication of 
Applications for Temporary Employment Certification.
    Office of Foreign Labor Certification (OFLC). 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 8 
U.S.C. 1101(a)(15)(H)(ii)(a).
    OFLC Administrator. The primary official of the Office of Foreign 
Labor Certification (OFLC), or the OFLC Administrator's designee.
    Positive recruitment. The active participation of an employer or 
its authorized hiring agent, performed under the auspices and direction 
of the OFLC, in recruiting and interviewing 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 practice. A practice engaged in 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; and
    (2) This 50 percent or more of employers also employs 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, and frequency of wage payments, but non-H-
2A employers only for determinations concerning the provision of 
advance transportation and the utilization of labor contractors.
    Prevailing wage. Wage established pursuant to 20 CFR 653.501(d)(4).
    State Workforce Agency (SWA). State government agency that receives 
funds pursuant to the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to 
administer the State's public labor exchange activities.
    Strike. A concerted stoppage of work by employees as a result of a 
labor dispute, or any concerted slowdown or other concerted 
interruption of operation (including stoppage by reason of the 
expiration of a collective bargaining agreement).
    Successor in interest. Where an employer has violated 8 U.S.C. 
1188, 29 CFR part 501, or these regulations, and has ceased doing 
business or cannot be located for purposes of enforcement, a successor 
in interest to that employer may be held liable for the duties and 
obligations of the violating employer in certain circumstances. The 
following factors, as used under Title VII of the Civil Rights Act and 
the Vietnam Era Veterans' Readjustment Assistance Act, may be 
considered in determining whether an employer is a successor in 
interest; no one factor is dispositive, but all of the circumstances 
will be considered as a whole:
    (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) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (7) Similarity in machinery, equipment, and production methods;
    (8) Similarity of products and services; and
    (9) The ability of the predecessor to provide relief.
    For purposes of debarment only, the primary consideration will be 
the personal involvement of the firm's ownership, management, 
supervisors, and others associated with the firm in the violation(s) at 
issue.
    Temporary agricultural labor certification. Certification made by 
the OFLC Administrator 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 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), 
and 1188.
    United States (U.S.). The continental U.S., 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

[[Page 45942]]

2008, Pub. L. 110-229, Title VII, the Commonwealth of the Northern 
Mariana Islands.
    United States worker (U.S. worker). 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 8 U.S.C. 1157, is granted 
asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by 
the INA or by DHS) to be employed in the U.S.; or
    (3) An individual who is an authorized alien (as defined in 8 
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker 
is engaging.
    Wages. All forms of cash remuneration to a worker by an employer in 
payment for personal services.
    Work contract. All the material terms and conditions of employment 
relating to wages, hours, working conditions, and other benefits, 
including those required by 8 U.S.C. 1188, 29 CFR part 501, or this 
subpart. The 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 will be the terms of the job order and any 
obligations required under 8 U.S.C. 1188, 28 CFR part 501, or this 
subpart.
    (c) Definition of agricultural labor or services. For the purposes 
of this subpart, agricultural labor or services, pursuant to 8 U.S.C. 
1101(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and 
applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26 
U.S.C. 3121(g); 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); the 
pressing of apples for cider on a farm; logging employment; 
reforestation activities; or pine straw activities.
    (1) Agricultural labor for the purpose of paragraph (c) of this 
section means all service performed:
    (i) 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 fur-bearing animals and wildlife;
    (ii) In the employ of the owner or tenant or other operator of a 
farm, in connection with the operation, management, conservation, 
improvement, 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;
    (iii) In connection with the production or harvesting of any 
commodity defined as an agricultural commodity in section 15(g) of the 
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in 
connection with the ginning of cotton, or in connection with the 
operation or maintenance of ditches, canals, reservoirs, or waterways, 
not owned or operated for profit, used exclusively for supplying and 
storing water for farming purposes;
    (iv) 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;
    (v) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
paragraph (c)(1)(iv) 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 shall be 
deemed a cooperative organization if the number of operators comprising 
such group is more than 20 at any time during the calendar year in 
which such service is performed;
    (vi) The provisions of paragraphs (c)(1)(iv) and (c)(1)(v) shall 
not be deemed to be applicable with respect to service 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
    (vii) On a farm operated for profit if such service is not in the 
course of the employer's trade or business or is domestic service in a 
private home of the employer.
    As used in 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.
    (2) Agriculture. For purposes of paragraph (c) 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 defined as 
agricultural commodities in 1141j(g) of title 12, the raising of 
livestock, bees, fur-bearing animals, or poultry, and any practices 
(including any forestry or lumbering operations) performed by a farmer 
or on a farm as an incident to or in conjunction with such farming 
operations, including preparation for market, delivery to storage or to 
market or to carriers for transportation to market. See sec. 29 U.S.C. 
203(f), as amended (sec. 3(f) of the FLSA, as codified). Under 12 
U.S.C. 1141j(g) agricultural commodities include, in addition to other 
agricultural commodities, crude gum (oleoresin) from a living tree, and 
the following products as processed by the original producer of the 
crude gum (oleoresin) from which derived: gum spirits of turpentine and 
gum rosin. In addition as defined in 7 U.S.C. 92, 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.
    (3) Apple pressing for cider. The pressing of apples for cider on a 
farm, as the term farm is defined and applied in sec. 3121(g) of the 
Internal Revenue Code at 26 U.S.C. 3121(g) or as applied in sec. 3(f) 
of the FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR Part 780.
    (4) Logging employment. Operations associated with felling and 
moving trees and logs from the stump to the point of delivery, such as, 
but not limited to, marking danger trees and trees/logs to be cut to 
length, felling, limbing, bucking, debarking, chipping, yarding, 
loading, unloading, storing, and transporting machines, equipment and 
personnel to, from and between logging sites.
    (5) Reforestation activities. Predominately manual forestry work 
that includes, but is not limited to, tree planting, brush clearing and 
pre-commercial tree thinning.
    (6) Pine straw activities. Certain activities predominately 
performed using hand tools, including but not limited to the raking, 
gathering, baling, and loading of pine straw that is a product of pine 
trees that are managed using agricultural or horticultural/
silvicultural techniques.
    (d) Definition of a temporary or seasonal nature. For the purposes 
of

[[Page 45943]]

this subpart, employment is of a seasonal nature where it is tied to a 
certain time of year by an event or pattern, such as a short annual 
growing cycle or a specific aspect of a longer cycle, and requires 
labor levels far above those necessary for ongoing operations. 
Employment is of a temporary nature where the employer's need to fill 
the position with a temporary worker will, except in extraordinary 
circumstances, last no longer than 1 year.

Prefiling Procedures


Sec.  655.120  Offered wage rate.

    (a) To comply with its obligation under Sec.  655.122 (l), an 
employer must offer, advertise in its recruitment, and pay a wage that 
is the highest of the AEWR, the prevailing hourly wage or piece rate, 
or the Federal or State minimum wage, except where a special procedure 
is approved for an occupation or specific class of agricultural 
employment.
    (b) If the prevailing hourly wage rate or piece rate is adjusted 
during a work contract, and is higher than the highest of the AEWR, the 
prevailing wage, or the Federal or State minimum wage, the employer 
must pay that higher prevailing wage or piece rate, upon notice to the 
employer by the Department.
    (c) The OFLC Administrator will publish, at least once in each 
calendar year, on a date to be determined by the OFLC Administrator, 
the AEWRs for each State as a notice in the Federal Register.


Sec.  655.121  Job orders.

    (a) Area of intended employment.
    (1) Prior to filing an Application for Temporary Employment 
Certification, the employer must submit a job order to the SWA serving 
the area of intended employment for intrastate clearance, identifying 
it as a job order to be placed in connection with a future Application 
for Temporary Labor Certification for H-2A workers. The employer must 
submit this job order no more than 75 calendar days and no fewer than 
60 calendar days before the date of need. If the job opportunity is 
located in more than one State within the same area of intended 
employment, the employer may submit a job order to any one of the SWAs 
having jurisdiction over the anticipated worksites.
    (2) Where the job order is being placed in connection with a future 
master application to be filed by an association of agricultural 
employers as a joint employer, the association may submit a single job 
order to be placed in the name of the association on behalf of all 
employers that will be duly named on the Application for Temporary 
Employment Certification.
    (3) The job order submitted to the SWA must satisfy the 
requirements for agricultural clearance orders in 20 CFR part 653, 
subpart F and the requirements set forth in Sec.  655.122.
    (b) SWA review. The SWA will review the contents of the job order 
for compliance with the requirements specified in 20 CFR part 653, 
subpart F and this subpart and work with the employer to address any 
noted deficiencies. Any issue with respect to whether a job order may 
properly be placed in the job order system that cannot be resolved with 
the applicable SWA must be first brought to the attention of the CO(s) 
in the NPC and, if necessary, the OFLC Administrator who may direct 
that the job order be placed following a written determination that the 
applicable program requirement(s) has been met. If the Department 
concludes that the job order is not acceptable, it will so inform the 
employer using the procedures applicable to a denial of certification 
set forth in Sec.  655.164.
    (c) Intrastate clearance. Upon its clearance of the job order, the 
SWA must promptly place the job order in intrastate clearance and 
commence recruitment of U.S. workers.
    (d) Duration of job order posting. The SWA must keep the job order 
on its active file until the end of the recruitment period, as set 
forth in Sec.  655.135(d), and must refer each U.S. worker who applies 
(or on whose behalf an Application for Temporary Labor Certification is 
made) for the job opportunity.
    (e) Modifications to the job order.
    (1) Prior to the issuance of the final determination, the CO may 
require modifications to the job order when the CO determines that the 
offer of employment does not contain all the minimum benefits, wages, 
and working condition provisions. If any such modifications are 
required after a Notice of Acceptance has been issued by the CO as 
described in Sec.  655.141 of this subpart, the modifications must be 
made or certification will be denied pursuant to Sec.  655.164 of this 
subpart; however, the certification determination will not be delayed 
beyond 30 calendar days prior to the date of need as a result of such 
modification.
    (2) The employer may request a modification of the job order prior 
to the submission of an Application for Temporary Employment 
Certification. However, the employer may not reject referrals against 
the job order based upon a failure on the part of the applicant to meet 
the amended criteria, if such referral was made prior to the amendment 
of the job order. The employer may not amend the job order on or after 
the date of filing an Application for Temporary Employment 
Certification.


Sec.  655.122  Contents of job offers.

    (a) Prohibition against preferential treatment of aliens. 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. Job offers may not 
impose on U.S. workers any restrictions or obligations that will not be 
imposed on the employer's H-2A workers. This does not relieve the 
employer from providing to H-2A workers at least the same minimum level 
of benefits, wages, and working conditions which are being offered to 
U.S. workers consistent with this section.
    (b) Job qualifications and requirements. Each job qualification and 
requirement listed in the job offer must be bona fide and consistent 
with the normal and accepted qualifications required by employers that 
do not use H-2A workers in the same or comparable occupations and 
crops. Either the CO or the SWA may require the employer to submit 
documentation to substantiate the appropriateness of any job 
qualification specified in the job offer.
    (c) Minimum benefits, wages, and working conditions. Every job 
offer accompanying an Application for Temporary Employment 
Certification must include each of the minimum benefit, wage, and 
working condition provisions listed in paragraphs (d) through (p) of 
this section.
    (d) Housing.
    (1) Obligation to provide housing. The employer must provide 
housing at no cost to the H-2A workers and those workers in 
corresponding employment who are not reasonably able to return to their 
residence within the same day. Housing must be provided through one of 
the following means:
    (i) Employer-provided housing. Employer-provided housing must meet 
the full set of DOL Occupational Safety and Health Administration 
(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 of this chapter. Requests 
by employers whose housing does not meet the applicable standards for 
conditional access to the interstate clearance system, will be 
processed under the procedures set forth at Sec.  654.403 of this 
chapter; or

[[Page 45944]]

    (ii) Rental and/or public accommodations. Rental or public 
accommodations or other substantially similar class of habitation must 
meet 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 to the satisfaction of the CO that the housing 
complies with the local, State, or Federal housing standards.
    (2) Standards for range housing. Housing for workers principally 
engaged in the range production of livestock must 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 OFLC.
    (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 by the individual worker(s) found to have been 
responsible for 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 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, it 
must be provided to workers with families who request it.
    (6) Certified housing that becomes unavailable. If after a request 
to certify 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 this 
section. The employer must promptly 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 this section. If, upon inspection, the SWA determines 
the substituted housing does not meet the applicable housing standards, 
the SWA must promptly provide written notification to the employer to 
cure the deficiencies with a copy to the CO. An employer's failure to 
comply with the applicable standards will result in either a denial of 
a pending Application for Temporary Employment Certification or 
revocation of the temporary labor certification under this subpart.
    (e) Workers' compensation.
    (1) 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.
    (2) Prior to issuance of the temporary labor certification, the 
employer must provide the CO with proof of workers' compensation 
insurance coverage meeting the requirements of this paragraph, 
including 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. The employer must provide to the 
worker, without charge or deposit charge, all tools, supplies, and 
equipment required to perform the duties assigned.
    (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.  655.173.
    (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 come to work 
for the employer, whether in the U.S. or abroad to the place of 
employment. When it is the prevailing practice of non-H-2A agricultural 
employers in the occupation in the area to do so, or when 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 workers in corresponding employment who are 
traveling to the employer's worksite. 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 permitted under paragraph (f) of 
this section. Note that the FLSA applies independently of the H-2A 
requirements and imposes obligations on employers regarding payment of 
wages.
    (2) Transportation from place of employment. If the worker 
completes the work contract period, or if the employee is terminated 
without cause, and the worker has no immediate 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. If the worker has contracted with a 
subsequent employer who has not agreed in such work contract to provide 
or pay for the worker's transportation and daily subsistence expenses 
from the employer's worksite to such subsequent employer's worksite, 
the employer must provide or pay for such expenses. If the worker has 
contracted with a subsequent employer who has agreed in such work 
contract to provide or pay for the worker's transportation and daily 
subsistence expenses from the employer's worksite to such subsequent 
employer's worksite, the subsequent employer must provide or pay for 
such expenses. The employer is not relieved of its obligation to 
provide or pay for return transportation and subsistence if an H-2A 
worker is displaced as a result of the employer's compliance with the 
50 percent rule as described in Sec.  655.135(d) of this subpart

[[Page 45945]]

with respect to the referrals made after the employer's date of need.
    (3) Transportation between living quarters and worksite. The 
employer must provide transportation between housing provided or 
secured by the employer and the employer's worksite at no cost to the 
worker.
    (4) Employer-provided transportation. All employer-provided 
transportation must comply with all applicable Federal, State or local 
laws and regulations, and must provide, at a minimum, the same 
transportation safety standards, driver licensure, and vehicle 
insurance as required under 29 U.S.C. 1841 and 29 CFR 500.105 and 29 
CFR 500.120 to 500.128. If workers' compensation is used to cover 
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 and they must have property damage insurance.
    (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.
    (i) 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 that has been approved by the CO.
    (ii) 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.
    (iii) 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 (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 hours for the work contract, 
before the guarantee is calculated. Continuing with the above example, 
the worker would have to be guaranteed employment for 354 hours (10 
weeks x 48 hours/week = 480 hours -8 hours (Federal holiday) x 75 
percent = 354 hours).
    (iv) 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 during the total work 
contract period the employer affords the U.S. or H-2A worker 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. An employer will not 
be considered to have met the work guarantee if the employer has merely 
offered work on three-fourths of the workdays if each workday did not 
consist of a full number of hours of work time as specified in the job 
order.
    (2) Guarantee for piece rate paid worker. If the worker is 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 work 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 this 
subpart.
    (4) Displaced H-2A worker. The employer is not liable for payment 
of the three-fourths guarantee to an H-2A worker whom the CO certifies 
is displaced because of the employer's compliance with the 50 percent 
rule described in Sec.  655.35(d) with respect to referrals made during 
that period.
    (5) Obligation to provide housing and meals. Notwithstanding the 
three-fourths guarantee contained in this section, employers are 
obligated to provide housing and meals in accordance with paragraphs 
(d) and (g) of this section 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 representative, and by the worker and

[[Page 45946]]

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 therefor.
    (4) The employer must retain the records for not less than 5 years 
after the date of the certification.
    (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 (showing offers 
in accordance with the three-fourths guarantee as determined in 
paragraph (i) of this section, separate from any hours offered 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;
    (6) If piece rates are used, the units produced daily;
    (7) Beginning and ending dates of the pay period; and
    (8) The employer's name, address and FEIN.
    (l) Rates of pay. If the worker is paid by the hour, the employer 
must pay the worker at least the AEWR in effect at the time work is 
performed, 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.
    (1) The offered wage may not be based on commission, bonuses, or 
other incentives, unless the employer guarantees a wage paid on a 
weekly, semi-monthly, 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; or
    (2) If the worker is paid on a piece rate basis and at the end of 
the pay period the piece rate does not result 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:
    (i) 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 be no 
more than those required by the employer in 1977, unless the OFLC 
Administrator approves a higher minimum, or, if the employer first 
applied for H-2A temporary labor certification after 1977, such 
standards must be no more than those normally required (at the time of 
the first Application for Temporary Labor Certification) by other 
employers for the 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 or according to the prevailing practice in the area of 
intended employment, whichever is more frequent. Employers must pay 
wages when due.
    (n) Abandonment of employment or termination for cause. If the 
worker voluntarily abandons employment before the end of the contract 
period, or is terminated for cause, and the employer notifies the NPC, 
and DHS in the case of an H-2A worker, 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 occurs, the employer will not be responsible for 
providing or paying for the subsequent transportation and subsistence 
expenses of that H-2A worker under this section, and that worker is not 
entitled to the three-fourths guarantee described in paragraph (i) of 
this section. Abandonment will be deemed to begin after an H-2A worker 
fails to report for work at the regularly scheduled time for 5 
consecutive working days without the consent of the employer.
    (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 make efforts to transfer the worker to other comparable 
employment acceptable to the worker, consistent with existing 
immigration law, as applicable. If such transfer is not affected, 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 that 
would be acceptable for Form I-9 purposes supporting such employment as 
being authorized pursuant to 8 CFR 274a.12(b)(21) upon transfer), 
whichever the worker prefers;
    (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 must be computed as set forth in 
paragraph (h) of this section. The amount of the transportation payment 
must not be 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 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. The employer may 
deduct the cost of the worker's transportation and daily subsistence 
expenses to the place of employment which were borne directly by the 
employer. In such circumstances, the job offer must state that the 
worker will be reimbursed the full amount of such deduction upon the 
worker's completion of 50 percent of the work contract period. However, 
an employer subject to the FLSA may not make deductions that would 
violate the FLSA.
    (q) Disclosure of work contract. The employer must provide to the 
worker, no later then on the day the work commences, a copy of the work 
contract between the employer and the worker in a language understood 
by the worker as necessary or reasonable. At a minimum, the work 
contract must contain all of the

[[Page 45947]]

provisions required by this section. In the absence of a separate, 
written work contract entered into between the employer and the worker, 
the required terms of the job order and the certified Application for 
Temporary Employment Certification will be the work contract.

Application for Temporary Employment Certification Filing Procedures


Sec.  655.130  Application filing requirements.

    All agricultural employers who desire to hire H-2A foreign 
agricultural workers must apply for a certification from the Secretary 
by filing an Application for Temporary Employment Certification with 
the NPC designated by the OFLC Administrator. The following section 
provides the procedures employers must follow when filing.
    (a) What to file. An employer, whether individual, association, or 
H-2ALC, that desires to apply for temporary employment certification of 
one or more nonimmigrant foreign workers must file a completed 
Application for Temporary Employment Certification form and, unless a 
specific exemption applies, a copy of the DOL Agricultural and Food 
Processing Clearance Order form submitted to the SWA serving the area 
of intended employment, as set forth in Sec.  655.121(a).
    (b) Timeliness. A completed Application for Temporary Employment 
Certification must be filed no less than 45 calendar days before the 
employer's date of need.
    (c) Location and method of filing. The employer may send the 
Application for Temporary Employment Certification and all required 
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 for Temporary Labor Certification must be mailed, and will 
also post these addresses on the OFLC Internet Web site at http://www.foreignlaborcert.doleta.gov/. The Department may also require 
Applications for Temporary Labor Certification, at a future date, to be 
filed electronically in addition to or instead of by mail, notice of 
which will be published in the Federal Register.
    (d) Original signature. The Application for Temporary Employment 
Certification 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. An association filing as an agent may not sign on behalf of 
its members but must obtain each member's signature on each Application 
for Temporary Labor Certification prior to filing.
    (e) Information received in the course of processing Applications 
for Temporary Labor Certification and program integrity measures such 
as audits may be forwarded from OFLC to Wage and Hour Division (WHD) 
for enforcement purposes.


Sec.  655.131  Association filing requirements.

    If an association files an Application for Temporary Labor 
Certification, in addition to complying with all the assurances, 
guarantees, and other requirements contained in this subpart and in 
part 653, subpart F, of this chapter, the following requirements also 
apply.
    (a) Individual applications. Associations of agricultural employers 
may file an Application for Temporary Employment Certification for H-2A 
workers as a sole employer, a joint employer, or agent. The association 
must identify in the Application for Temporary Employment Certification 
in what capacity it is filing. The association must retain 
documentation substantiating the employer or agency status of the 
association and be prepared to submit such documentation in response to 
a Notice of Deficiency from the CO prior to issuing a Final 
Determination, or in the event of an audit.
    (b) Master applications. An association may file a master 
application on behalf of its employer-members. The master application 
is available only when the association is filing as a joint employer. 
An association of agricultural producers may submit a master 
application covering the same occupation and comparable work available 
with a number of its employer-members 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 for Temporary Labor Certification 
and all employer-members are located in the same State. The association 
must identify on the Application for Temporary Employment Certification 
by name, address, total number of workers needed, and the crops and 
agricultural work to be performed, each employer that will employ H-2A 
workers. The association, as appropriate, will receive a certified 
Application for Temporary Employment Certification that can be copied 
and sent to the United States Citizenship and Immigration Services 
(USCIS) with each employer-member's petition.


Sec.  655.132  H-2A Labor contractor (H-2ALC) filing requirements.

    If an H-2ALC intends to file an Application for Temporary 
Employment Certification, 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, including Assurances and Obligations of H-2A Employers, and in 
part 653, subpart F, of this chapter.
    (a) Scope of H-2ALC Applications. An Application for Temporary 
Employment Certification filed by an H-2ALC must be limited to a single 
area of intended employment in which the fixed-site employer(s) to whom 
the H-2ALC is furnishing employees will be utilizing the employees.
    (b) Required information and submissions. In filing the Application 
for Temporary Employment Certification, the H-2ALC must include the 
following:
    (1) Identify on the Application for Temporary Employment 
Certification and job offer 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.
    (2) Provide a copy of the Migrant and Seasonal Agricultural Worker 
Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of 
Registration, if required under MSPA at 29 U.S.C. 1801 et seq., 
identifying the specific farm labor contracting activities the H-2ALC 
is authorized to perform as an FLC.
    (3) Provide proof of its ability to discharge financial obligations 
under the H-2A program through a surety bond as required by 29 CFR 
501.9, with documentation from the issuer identifying the name, 
address, phone number, and contact person for the surety, and providing 
the amount of the bond (as calculated pursuant to 29 CFR 501.9) and any 
identifying designation utilized by the surety for the bond.
    (4) Provide copies of the fully-executed work contracts with each 
fixed-site agricultural business identified under paragraph (b)(1) of 
this section.
    (5) Where the fixed-site agricultural business will provide housing 
or

[[Page 45948]]

transportation to the workers, provide proof that:
    (i) All housing used by workers and owned, operated or secured by 
the fixed-site agricultural business complies with the applicable 
standards as set forth in Sec.  655.122(d) and certified by the SWA; 
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 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 500.105 and 500.120 to 500.128, except where 
workers' compensation is used to cover such transportation as described 
in Sec.  655.125(h).


Sec.  655.133  Requirements for agents.

    (a) An agent filing an Application for Temporary Employment 
Certification on behalf of an employer must provide a copy of the agent 
agreement or other document demonstrating the agent's authority to 
represent the employer.
    (b) In addition the agent must provide a copy of the MSPA FLC 
Certificate of Registration, if required under MSPA at 29 U.S.C. 1801 
et seq., identifying the specific farm labor contracting activities the 
agent is authorized to perform.


Sec.  655.134  Emergency situations.

    (a) Waiver of time period. The CO may waive the time period for 
filing 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 
has sufficient time to test the domestic labor market on an expedited 
basis to make the determinations required by Sec.  655.100.
    (b) Employer requirements. The employer requesting a waiver of the 
required time period must concurrently submit to NPC and to the SWA 
serving the area of intended employment a completed Application for 
Temporary Employment Certification, a completed job offer on the 
Agricultural and Food Processing Clearance Order form, 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 whether the request is for 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.
    (c) Processing of emergency applications. The CO will process 
emergency Applications for Temporary Labor Certification in a manner 
consistent with the provisions set forth in Sec. Sec.  655.140-145 and 
make a determination on the Application for Temporary Employment 
Certification in accordance with Sec. Sec.  655.160-167. The CO may 
advise the employer in writing that the certification cannot be granted 
because, pursuant to paragraph (a) of this section, the request for 
emergency filing was not justified and there is not sufficient time to 
test the availability of U.S. workers such that the CO can make a 
determination on the Application for Temporary Labor Certification in 
accordance with Sec.  655.161. Such notification will so inform the 
employer using the procedures applicable to a denial of certification 
set forth in Sec.  655.164.


Sec.  655.135  Assurances and obligations of H-2A employers.

    An employer seeking to employ H-2A workers must agree as part of 
the Application for Temporary Employment Certification and job offer 
that it will abide by the requirements of this subpart and make each of 
the following additional assurances:
    (a) Non-discriminatory hiring practices. The job opportunity is, 
and through the recruitment period must continue to be, open to any 
qualified U.S. worker regardless of race, color, national origin, age, 
sex, religion, handicap, or citizenship. Rejections of any U.S. workers 
who applied or apply for the job must be only for lawful, job related 
reasons, and those not rejected on this basis have been or will be 
hired. In addition, the employer has and will continue to retain 
records of all hires and rejections as required by Sec.  655.167.
    (b) No strike or lockout. The worksite for which the employer is 
requesting H-2A certification does not currently have workers on strike 
or being locked out in the course of a labor dispute.
    (c) Recruitment requirements. The employer has and will continue to 
cooperate with the SWA by accepting referrals of all eligible U.S. 
workers who apply (or on whose behalf an Application for Temporary 
Employment Certification is made) for the job opportunity until the end 
of the recruitment period as specified in paragraph (d) and must 
independently conduct the positive recruitment activities, as specified 
in Sec.  655.154, until the actual date on which the H-2A workers 
depart for the place of work, or 3 calendar days prior to the first 
date the employer requires the services of the H-2A workers, whichever 
occurs first.
    (d) Fifty percent rule. From the time the foreign workers depart 
for the employer's place of employment, the employer must provide 
employment to any qualified, eligible U.S. worker who applies to the 
employer until 50 percent of the period of the work contract has 
elapsed. Start of the work contract timeline is calculated from the 
first date of need stated on the Application for Temporary Employment 
Certification, under which the foreign worker who is in the job was 
hired. This provision will not apply to any employer who certifies to 
the CO in the Application for Temporary Employment Certification that 
the employer:
    (1) Did not, during any calendar quarter during the preceding 
calendar year, use more than 500 man-days of agricultural labor, as 
defined in sec. 203(u) of Title 29;
    (2) Is not a member of an association which has petitioned for 
certification under this subpart for its members; and
    (3) Has not otherwise associated with other employers who are 
petitioning for temporary foreign workers under this subpart.
    (e) Comply with applicable laws. During the period of employment 
that is the subject of the Application for Temporary Employment 
Certification, the employer must comply with all applicable Federal, 
State and local laws and regulations, including health and safety laws. 
H-2A employers may also be subject to the FLSA. The FLSA operates 
independently of the H-2A program and has specific requirements that 
address payment of wages, including deductions from wages, the payment 
of Federal minimum wage and payment of overtime.
    (f) Job opportunity is full-time. The job opportunity is a full-
time temporary position, calculated to be at least 35 hours per work 
week.
    (g) No recent or future layoffs. 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

[[Page 45949]]

employer has laid off such workers, it has offered the job opportunity 
that is the subject of the Application for Temporary Labor 
Certification 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.
    (h) No unfair treatment. The employer has not and will not 
intimidate, threaten, restrain, coerce, blacklist, discharge 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:
    (1) Filed a complaint under or related to 8 U.S.C. 1188, or this 
subpart or any other Department regulation promulgated thereunder;
    (2) Instituted or caused to be instituted any proceeding under or 
related to 8 U.S.C. 1188 or this subpart or any other Department 
regulation promulgated thereunder;
    (3) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1188 or this subpart or any other Department 
regulation promulgated thereunder;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to 8 U.S.C. 1188 or this subpart or any 
other Department regulation promulgated thereunder; or
    (5) Exercised or asserted on behalf of himself/herself or others 
any right or protection afforded by 8 U.S.C. 1188 or this subpart or 
any other Department regulation promulgated thereunder.
    (i) Notify workers of duty to leave United States.
    (1) The employer must 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 paragraph (2) below, unless the H-2A worker is being 
sponsored by another subsequent H-2A employer.
    (2) As defined further in DHS regulations, a temporary labor 
certification limits the validity period of an H-2A petition, and 
therefore, the authorized period of stay for an H-2A worker. See 8 CFR 
214.2(h)(5)(vii). 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. See 8 CFR 214.2(h)(5)(viii)(B).
    (j) Comply with the prohibition against employees paying fees. The 
employer and its agents have not sought or received payment of any kind 
from any employee subject to 8 U.S.C. 1188 for any activity related to 
obtaining H-2A 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. Subject to the provisions of the FLSA, 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 fees.
    (k) Contracts with third parties comply with prohibitions. The 
employer has contractually forbidden any foreign labor contractor or 
recruiter (or any agent of such foreign labor contractor or recruiter) 
whom the employer engages, either directly or indirectly, in 
international recruitment of H-2A workers to seek or receive payments 
or other compensation from prospective employees, except as provided 
for in DHS regulations at 8 CFR 214.2(h)(5)(xi)(A). This documentation 
is available upon request by the CO or another Federal party.
    (l) Notice of worker rights. The employer must post and maintain in 
a conspicuous location at the place of employment, a poster provided by 
the Secretary in English, and, to the extent necessary, language common 
to a significant portion of the workers if they are not fluent in 
English, which sets out the rights and protections for workers employed 
pursuant to 8 U.S.C. 1188.

Processing of Applications for Temporary Employment Certification


Sec.  655.140  Review of applications.

    (a) NPC review. The CO will promptly review the Application for 
Temporary Employment Certification and job order for compliance with 
all applicable program requirements, including compliance with the 
requirements set forth in this subpart.
    (b) Mailing and postmark requirements. Any notice or request sent 
by the CO(s) to an employer requiring a response will be sent using the 
provided address via traditional methods to assure next day delivery. 
The employer's response to such a notice or request must be filed using 
traditional methods to assure next day delivery and be sent by the date 
due or the next business day if the due date falls on a Sunday or 
Federal Holiday.


Sec.  655.141  Notice of acceptance.

    (a) Notification timeline. When the CO determines the Application 
for Temporary Labor Certification and job order are complete and meet 
the requirements set forth in this subpart, the CO will notify the 
employer within 7 calendar days of the CO's receipt of the Application 
for Temporary Labor Certification. A copy will be sent to the SWA 
serving the area of intended employment.
    (b) Notice content. The notice must:
    (1) Authorize conditional access to the interstate clearance system 
and direct the SWA to circulate a copy of the job order to other such 
States the CO determines to be potential sources of U.S. workers;
    (2) Direct the employer to engage in positive recruitment of U.S. 
workers in a manner consistent with Sec.  655.154 and to submit a 
report of its positive recruitment efforts as specified in Sec.  
655.156 prior to making a Final Determination on the Application for 
Temporary Employment Certification;
    (3) State that positive recruitment is in addition to and will 
occur during the period of time that the job order is being circulated 
by the SWA(s) for interstate clearance under Sec.  655.150 of this 
subpart and will terminate on the actual date on which the H-2A workers 
depart for the place of work, or 3 calendar days prior to the first 
date the employer requires the services of the H-2A workers, whichever 
occurs first;
    (4) State that the CO will make a determination either to grant or 
deny the Application for Temporary Employment Certification no later 
than 30 calendar days before the date of need, except as provided for 
under Sec.  655.144 for modified Applications for Temporary Labor 
Certification; and
    (5) Will specify the time frames when positive recruitment must 
occur, including newspaper advertisements.


Sec.  655.142  Electronic job registry.

    (a) Location of and placement in the electronic job registry. Upon 
acceptance of the Application for Temporary Labor Certification under 
Sec.  655.141, the CO will promptly place for public examination a copy 
of the job order on an electronic job registry maintained by the 
Department, including any required modifications approved by the CO, as 
specified in Sec.  655.144.
    (b) Length of posting on electronic job registry. Unless otherwise 
noted, the Department must keep the job order posted on the Electronic 
Job Registry

[[Page 45950]]

until the end of 50 percent of the contract period as set forth in 
Sec.  655.135(d).


Sec.  655.143  Notice of deficiency.

    (a) Notification timeline. When the CO determines the Application 
for Temporary Labor Certification and job order are incomplete, contain 
errors or inaccuracies, or do not meet the requirements set forth in 
this subpart, the CO will notify the employer within 7 calendar days of 
the CO's receipt of the Application for Temporary Employment 
Certification. A copy of this notification will be sent to the SWA 
serving the area of intended employment.
    (b) Notice content. The notice will:
    (1) State the reason(s) why the Application for Temporary 
Employment Certification or job order fails to meet the criteria for 
acceptance, citing the relevant regulatory standard(s);
    (2) Offer the employer an opportunity to submit a modified 
Application for Temporary Employment Certification within 5 business 
days from date of receipt stating the modification that is needed for 
the CO to issue the Notice of Acceptance;
    (3) Except as provided for under the expedited review or de novo 
administrative hearing provisions 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 for Temporary Employment 
Certification within 5 business days and in a manner specified by the 
CO;
    (4) Offer the employer an opportunity to request an expedited 
administrative review or a de novo administrative hearing before an 
Administrative Law Judge (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 ALJ 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
    (5) State that if the employer does not comply with the 
requirements under 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 for Temporary Employment 
Certification in accordance with the labor certification determination 
provisions in Sec.  655.164.
    (c) Appeal from notices of deficiency. The employer may timely 
request an expedited administrative review or de novo hearing before an 
ALJ by following the procedures set forth in Sec.  655.171.


Sec.  655.144  Submission of modified applications.

    (a) Submission requirements and certification delays. If the 
employer chooses to submit a modified Application for Temporary 
Employment Certification, the CO's Final Determination will be 
postponed by 1 calendar day for each day that passes beyond the 5 
business-day period allowed under Sec.  655.143(b) to submit a modified 
Application for Temporary Labor Certification, up to maximum of 5 days. 
The Application for Temporary Employment Certification will be deemed 
abandoned if the employer does not submit a modified Application for 
Temporary Labor Certification within 12 calendar days after the notice 
of deficiency was issued.
    (b) Provisions for denial of modified Application for Temporary 
Employment Certification. If the modified Application for Temporary 
Employment Certification is not approved, the CO will deny the 
Application for Temporary Labor Certification in accordance with the 
labor certification determination provisions in Sec.  655.164.
    (c) Appeal from denial of modified Application for Temporary 
Employment Certification. The procedures for appealing a denial of a 
modified Application for Temporary Labor Certification are the same as 
for a non-modified Application for Temporary Labor Certification as 
long as the employer timely requests an expedited administrative review 
or de novo hearing before an ALJ by following the procedures set forth 
in Sec.  655.171.


Sec.  655.145  Amendments to applications for temporary employment 
certification.

    (a) Increases in number of workers. Application for Temporary Labor 
Certification may be amended at any time before the CO's certification 
determination to increase the number of workers requested in the 
initial Application for Temporary Labor Certification 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, and the employer demonstrates that 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.
    (b) Minor changes to the period of employment. Applications for 
Temporary Labor Certification may be amended to make minor changes in 
the total period of employment. Changes may not be effected until 
submitted in written form to the CO and the employer receives approval 
from the CO. 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 any 
change(s) would have on the adequacy of the underlying test of the 
domestic labor market for the job opportunity. An employer must 
demonstrate that the change to the period of employment could not have 
been foreseen, and the crops or commodities will be in jeopardy prior 
to the expiration of an additional recruitment period. If the request 
is for a delay in the start date and is made after workers have 
departed for the employer's place of work, the CO may only approve the 
change if the employer includes with the request a written assurance 
signed and dated by the employer that all workers who are already 
traveling to the job site 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.

Post-Acceptance Requirements


Sec.  655.150  Interstate clearance of job order.

    (a) SWA posts in interstate clearance system. The SWA, on behalf of 
the employer, must promptly place the job order in interstate clearance 
to all States designated by the CO. At a minimum, the CO will instruct 
the SWA to transmit a copy of its active job order to all States listed 
in the job order as anticipated worksites covering the area of intended 
employment.
    (b) Duration of posting. Each of the SWAs to which the job order 
was transmitted must keep the job order on its active file until 50 
percent of the contract term has elapsed, and must refer each U.S. 
worker who applies (or on whose behalf an Application for Temporary 
Labor Certification is made) for the job opportunity.


Sec.  655.151  Newspaper advertisements.

    (a) How to place advertisements.

[[Page 45951]]

    (1) The employer must place an advertisement (in a language other 
than English, where the CO determines appropriate) on 2 separate days, 
which may be consecutive, one of which must be a Sunday (except as 
provided in paragraph (b) 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. Newspaper 
advertisements must satisfy the requirements set forth in Sec.  
655.152.
    (2) If the job opportunity is located in a rural area that does not 
have a newspaper with a Sunday edition, the CO may direct the employer, 
in place of a Sunday edition, to advertise in the regularly published 
daily edition with the widest circulation in the area of intended 
employment.
    (b) When to place advertisements. The employer's obligation to 
place newspaper advertisements must occur during the period of time 
that the job order is being circulated by the SWA(s) for interstate 
clearance under Sec.  655.150.


Sec.  655.152  Advertising requirements.

    All advertising conducted to satisfy the required recruitment 
activities under Sec.  655.151 must meet the requirements set forth in 
this section and must contain terms and conditions of employment which 
are not less favorable than those offered to the H-2A workers. All 
advertising must contain the following information:
    (a) The employer's name, 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 of intended 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 start and end dates 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 of the State in which the advertisement is run;
    (e) The three-fourths guarantee specified in Sec.  655.122(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 or paid by 
the employer upon completion of 50 percent of the work contract, or 
earlier, if appropriate;
    (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 apply for the job 
opportunity at the nearest office of the SWA of the State in which the 
advertisement; and if the worksite is remote relative to the population 
that is most likely to apply to the job opportunity, a alternative 
accessible to that population where an employer may conduct interviews; 
and
    (k) Contact information for the applicable SWA and, if available, 
the job order number.


Sec.  655.153  Contact with former U.S. employees.

    The employer must contact by mail or other effective means its 
former U.S. workers (except those who were dismissed for cause or 
abandoned the worksite) employed by the employer in the occupation at 
the place of employment during the previous year and solicit their 
return to the job. This contact must occur during the period of time 
that the job order is being circulated by the SWA(s) for interstate 
clearance and documentation maintained in the event of an audit.


Sec.  655.154  Additional positive recruitment.

    (a) Where to conduct additional recruitment. The employer must 
conduct positive recruitment within a multistate region of traditional 
or expected labor supply where the CO 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.
    (b) Additional requirements should be comparable to non-H-2A 
employers in the area. The CO will ensure that the effort, including 
the location(s) and method(s) of the positive recruitment required of 
the potential H-2A employer must be no less than the normal recruitment 
efforts of non-H-2A agricultural employers of comparable or smaller 
size in the area of intended employment, and the kind and degree of 
recruitment efforts which the potential H-2A employer made to obtain 
foreign workers.
    (c) CO discretion to order additional positive recruitment. The CO 
may require such additional recruitment as determined necessary.
    (d) Proof of recruitment. The CO will specify the documentation or 
other supporting evidence that must be maintained by the employer as 
proof that the positive recruitment requirements were met.


Sec.  655.155  Referrals of U.S. workers.

    SWAs may only refer for employment individuals who have been 
apprised of all the material terms and conditions of employment and 
have indicated, by accepting referral to the job opportunity, that he 
or she is qualified, able, willing, and available for employment.


Sec.  655.156  Recruitment report.

    (a) Requirements of a recruitment report. The employer must 
prepare, sign, and date a written recruitment report. The recruitment 
report must be submitted on a date specified by the CO in the Notice of 
Acceptance set forth in Sec.  655.141 and contain the following 
information:
    (1) Identify the name of each recruitment source;
    (2) State the name and contact information of each U.S. worker who 
applied or was referred to the job opportunity up to the date of the 
preparation of the recruitment report, and the disposition of each 
worker;
    (3) Confirm that former U.S. employees were contacted and by what 
means; and
    (4) If applicable, for each U.S. worker who applied for the 
position but was not hired, explain the lawful job-related reason(s) 
for not hiring the U.S. worker.
    (b) Duty to update recruitment report. The employer must continue 
to maintain the recruitment report throughout the recruitment period 
including the 50 percent period. The updated report is not 
automatically submitted to the Department, but must be made available 
in the event of a post-certification audit or upon request by 
authorized representatives of the Secretary.


Sec.  655.157  Withholding of U.S. workers prohibited.

    (a) Filing a complaint. Any employer who has reason to believe that 
a person

[[Page 45952]]

or entity has willfully and knowingly withheld U.S. workers prior to 
the arrival at the worksite of H-2A workers in order to force the 
hiring of U.S. workers during the recruitment period, as set forth in 
Sec.  655.135(d), 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) Duty to investigate. Upon receipt, 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) Duty to suspend the recruitment period. Where the CO 
determines, after conducting the interviews required by paragraph (b), 
that the employer's complaint is valid and justified, the CO will 
immediately suspend the Application for Temporary Labor Certification 
of the recruitment period, as set forth in Sec.  655.135(d), to the 
employer. The CO's determination is the final decision of the 
Secretary.


Sec.  655.158  Duration of positive recruitment.

    Except as otherwise noted, the obligation to engage in positive 
recruitment described in Sec. Sec.  655.150-655.154 shall terminate on 
the date H-2A workers depart for the employer's place of work.

Labor Certification Determinations


Sec.  655.160  Determination.

    Except as otherwise noted in this paragraph, the CO will make a 
determination either to grant or deny the Application for Temporary 
Employment Certification no later than 30 calendar days before the date 
of need identified in the Application for Temporary Labor 
Certification. An Application for Temporary Employment Certification 
that are modified under Sec.  655.144 or that otherwise does not meet 
the requirements for certification in this subpart are is not subject 
to the 30-day timeframe for certification.


Sec.  655.161  Criteria for certification.

    (a) The criteria for certification include whether the employer has 
established the need for the agricultural services or labor to be 
performed on a temporary or seasonal basis; complied with the 
requirements of parts 653 and 654 of this chapter; complied with all of 
this subpart, including but not limited to the timeliness requirements 
in Sec.  655.130(b); complied with the offered wage rate criteria in 
Sec.  655.120; made all the assurances in Sec.  655.135; and met all 
the recruitment obligations required by Sec.  655.121 and Sec.  
655.152.
    (b) In making a determination as to whether there are insufficient 
U.S. workers to fill the employer's job opportunity, the CO will count 
as available any U.S. worker referred by the SWA or any U.S. worker who 
applied (or on whose behalf an Application for Temporary Employment 
Certification is made) directly to the employer, but who was rejected 
by the employer for other than a lawful job-related reason or who has 
not been provided with a lawful job-related reason for rejection by the 
employer.


Sec.  655.162  Approved certification.

    If temporary labor certification is granted, the CO will send the 
certified Application for Temporary Employment Certification and a 
Final Determination letter to the employer by means normally assuring 
next-day delivery and a copy, if appropriate, to the employer's agent 
or attorney.


Sec.  655.163  Certification fee.

    A determination by the CO to grant an Application for Temporary 
Employment Certification in whole or in part will include a bill for 
the required certification fees. Each employer of H-2A workers under 
the Application for Temporary Employment Certification (except joint 
employer associations, which may 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 for Temporary Employment Certification (in 
whole or in part), as follows:
    (a) Amount. The Application for Temporary Employment Certification 
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 Labor 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 for Temporary Employment 
Certification. The fees must be paid by check or money order made 
payable to United States Department of Labor. In the case of an 
agricultural association acting as a joint employer applying on behalf 
of its H-2A employer members, the aggregate fees for all employers of 
H-2A workers under the Application for Temporary Employment 
Certification must be paid by one check or money order.
    (b) Timeliness. Fees must be received by the CO no more than 30 
days after the date of the certification. Non-payment or untimely 
payment may be considered a substantial violation subject to the 
procedures in Sec.  655.182.


Sec.  655.164  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 and a copy, if appropriate, to the employer's agent or 
attorney. The Final Determination Letter will:
    (a) State the reason(s) certification is denied, citing the 
relevant regulatory standards and/or special procedures;
    (b) 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), or other means normally 
assuring next day delivery, a written request to the Chief ALJ 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
    (c) 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 Employment 
Certification.


Sec.  655.165  Partial certification.

    The CO may 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 during the 
course of processing the Application for Temporary Employment 
Certification, an audit, or otherwise. The number of workers certified 
will be reduced by one for each referred U.S. worker who is able, 
willing, and qualified, and who will be available at the time and place 
needed and has not been rejected for lawful job-related reasons, to 
perform the services or labor. If a partial labor certification is 
issued, the Final Determination letter will:
    (a) State the reason(s) why either the period of need and/or the 
number of H-

[[Page 45953]]

2A workers requested has been reduced, citing the relevant regulatory 
standards and/or special procedures;
    (b) 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 ALJ 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
    (c) 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 partial certification is final and the 
Department will not further consider that Application for Temporary 
Employment Certification.


Sec.  655.166  Appeal procedures.

    If the employer timely requests an expedited administrative review 
or de novo hearing before an ALJ under Sec.  655.165(c), the procedures 
at Sec.  655.171 will be followed.


Sec.  655.167  Document retention requirements.

    (a) Entities required to retain documents. All employers filing an 
Application for Temporary Employment Certification requesting H-2A 
agricultural workers under this subpart are required to retain the 
documents and records proving compliance with this subpart.
    (b) Period of required retention. Records and documents must be 
retained for a period of 5 years from the date of certification of the 
Application for Temporary Employment Certification or from the date of 
determination if the Application for Temporary Labor Certification is 
denied or withdrawn.
    (c) Documents and records to be retained by all applicants.
    (1) Proof of recruitment efforts, including:
    (i) Job order placement as specified in Sec.  655.121;
    (ii) Advertising as specified in Sec.  655.152, or, if used, 
professional, trade, or ethnic publications;
    (iii) Contact with former U.S. workers as specified in Sec.  
655.153; or
    (iv) Additional positive recruitment efforts (as specified in Sec.  
655.154).
    (2) Substantiation of information submitted in the recruitment 
report prepared in accordance with Sec.  655.156, such as evidence of 
nonapplicability of contact of former employees as specified in Sec.  
655.153.
    (3) The final recruitment report and any supporting resumes and 
contact information as specified in Sec.  655.156(b).
    (4) Proof of workers' compensation insurance or State law coverage 
as specified in Sec.  655.122(e).
    (5) Records of each worker's earnings as specified in Sec.  
655.122(j).
    (6) The work contract or a copy of the Application for Temporary 
Employment Certification as defined in 29 CFR 501.10 and specified in 
Sec.  655.122(q).
    (d) Additional retention requirement for associations filing 
Application for Temporary Employment Certification. In addition to the 
documents specified in paragraph (c) above, Associations must retain 
documentation substantiating their status as an employer or agent, as 
specified in Sec.  655.131.

Post Certification


Sec.  655.170  Extensions.

    An employer may apply for extensions of the period of employment in 
the following circumstances.
    (a) Short-term extension. Employers seeking extensions of 2 weeks 
or less of the certified Application for Temporary Employment 
Certification must apply directly to DHS for approval. If granted, the 
Application for Temporary Employment Certification will be deemed 
extended for such period as is approved by DHS.
    (b) Long-term extension. Employers seeking extensions of more than 
2 weeks may apply to the CO. Such requests must be related to weather 
conditions or other factors beyond the control of the employer (which 
may include unforeseen changes in market conditions). Such requests 
must be 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 notify the employer of the 
decision in writing if time allows, or will otherwise notify the 
employer of the decision. The CO will not grant an extension where the 
total work contract period under that Application for Temporary 
Employment Certification and extensions would be 12 months or more, 
except in extraordinary circumstances. The employer may not appeal a 
denial of a request for an extension.


Sec.  655.171  Appeals.

    Where authorized in this subpart, employers may request an 
administrative review or de novo hearing before an ALJ of a decision by 
the CO. In such cases, the CO will send a copy of the OFLC 
administrative file to the Chief ALJ by means normally assuring next-
day delivery. The Chief ALJ will immediately assign an ALJ (which may 
be a panel of such persons designated by the Chief ALJ from the Board 
of Alien Labor Certification Appeals (BALCA).
    (a) Administrative review. Where the employer has requested 
administrative review, within 5 business days after receipt of the ETA 
administrative 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, or remand to the CO for 
further action. The decision of the ALJ must specify the reasons for 
the action taken and must be immediately provided to the employer, the 
CO, the OFLC Administrator 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) Conduct of hearing. Where the employer has requested a 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 OFLC 
administrative 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, or remand to the CO for 
further action. The decision of the ALJ must specify the reasons for 
the action taken and must be immediately provided to the employer, CO, 
OFLC Administrator and DHS by means normally assuring next-day 
delivery. The ALJ's decision is the final decision of the Secretary.


Sec.  655.172  Withdrawal of job order and application for temporary 
employment certification.

    (a) Employers may withdraw a job order from intrastate posting if 
the employer no longer plans to file an H-2A Application for Temporary 
Labor Certification. However, a withdrawal of a job order does not 
nullify existing obligations to those workers recruited in

[[Page 45954]]

connection with the placement of a job order pursuant to this subpart 
or the filing of an Application for Temporary Employment Certification.
    (b) Employers may withdraw an Application for Temporary Labor 
Certification once it has been formally accepted by the NPC. However, 
the employer is still obligated to comply with the terms and conditions 
of employment contained in the Application for Temporary Labor 
Certification with respect to workers recruited in connection with that 
application.


Sec.  655.173  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 OFLC Administrator 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 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) 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) 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 rights. 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 ALJ, pursuant 
to Sec.  655.171.


Sec.  655.174  Public disclosure.

    The Department will maintain an electronic file accessible to the 
public with information on all employers applying for temporary 
agricultural labor certifications. The database will include such 
information as the number of workers requested, the date filed, the 
date decided, and the final disposition.

Integrity Measures


Sec.  655.180  Audit.

    The Department will conduct audits of Application for Temporary 
Employment Certification for which certifications have been granted.
    (a) Discretion. The Application for Temporary Employment 
Certification selected for audit will be chosen within the sole 
discretion of the Department.
    (b) Audit letter. Where an Application for Temporary Employment 
Certification is selected for audit, the CO will issue an audit letter 
to the employer and a copy, if appropriate, to the employer's agent or 
attorney. The audit letter will:
    (1) State the documentation that must be submitted by the employer;
    (2) Specify a date no more than 30 days from the date of the audit 
letter by which the required documentation must be received by the CO; 
and
    (3) Advise that failure to comply with the audit process may result 
in the revocation of the certification or program debarment.
    (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) Potential referrals. In addition to steps in this subpart, the 
CO may determine to provide the audit findings and underlying 
documentation to DHS or another appropriate enforcement agency. The CO 
will 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.  655.181  Revocation.

    (a) Basis for DOL revocation. The CO, in consultation with the OFLC 
Administrator, may revoke a temporary agricultural labor certification 
approved under this subpart, if the CO finds:
    (1) The issuance of the temporary agricultural labor certification 
was not justified based on criteria set forth under 8 U.S.C. 1188;
    (2) The employer substantially violated a material term or 
condition of the approved temporary agricultural labor certification, 
as defined in Sec.  655.182(d);
    (3) The employer failed to cooperate with a DOL investigation or 
with a DOL official performing an investigation, inspection, audit (as 
discussed in Sec.  655.180), or law enforcement function under 8 U.S.C. 
1188, 29 CFR part 501, or this subpart; or
    (4) The employer failed to comply with one or more sanctions or 
remedies imposed by the WHD, or with one or more decisions or orders of 
the Secretary or a court order secured by the Secretary under 8 U.S.C. 
1188, 29 CFR part 501, or this subpart.
    (b) DOL procedures for revocation.
    (1) Notice of Revocation. If the CO makes a determination to revoke 
an employer's temporary labor certification, the CO will send to the 
employer (and its attorney or agent) a Notice of Revocation. The Notice 
will contain a detailed statement of the grounds for the revocation, 
and it will inform the employer of its right to submit rebuttal 
evidence or to appeal. If the employer does not file rebuttal evidence 
or an appeal within 14 days of the date of the Notice of Revocation, 
the Notice is the final decision of the Secretary and will take effect 
immediately at the end of the 14-day period.
    (2) Rebuttal. The employer may submit evidence to rebut the grounds 
stated in the Notice of Revocation within 14 calendar days of the date 
the Notice is issued. If rebuttal evidence is timely filed by the 
employer, the CO will inform the employer of the CO's final 
determination on the revocation within 14 calendar days of receiving 
the rebuttal evidence. If the CO determines that the certification 
should be revoked, the CO will inform the employer of its right to 
appeal according to the procedures of Sec.  655.171. The employer must 
file the appeal within 10 calendar days after the CO's final 
determination, or the CO's determination is the final

[[Page 45955]]

decision of the Secretary and will take effect immediately at the end 
of the 10-day period.
    (3) Appeal. An employer may appeal a Notice of Revocation, or a 
final determination of the CO after the review of rebuttal evidence, 
according to the appeal procedures of Sec.  655.171. The ALJ's decision 
is the final decision of the Secretary.
    (4) Stay. The timely filing of rebuttal evidence or an 
administrative appeal will stay the revocation pending the outcome of 
those proceedings.
    (5) Decision. If the temporary agricultural labor certification is 
revoked, the CO will send a copy of the final decision of the Secretary 
to DHS and the Department of State (DOS).
    (c) Employer's obligations in the event of revocation. If an 
employer's temporary agricultural labor certification is revoked 
pursuant to this section, the employer is responsible for:
    (1) Reimbursement of actual inbound transportation and subsistence 
expenses, as if the worker meets the requirements for payment under 
Sec.  655.122(h)(1);
    (2) The worker's outbound transportation expenses, as if the worker 
meets the requirements for payment under Sec.  655.122(h)(2);
    (3) Payment to the worker of the amount due under the three-fourths 
guarantee as required by Sec.  655.122(i); and
    (4) Any other wages, benefits, and working conditions due or owing 
to the worker under this subpart.


Sec.  655.182  Debarment.

    (a) Debarment of an employer. The OFLC Administrator may debar an 
employer or any successor in interest to that employer from receiving 
future labor certifications under this subpart, subject to the time 
limits set forth in paragraph (c) of this section, if the OFLC 
Administrator finds that the employer substantially violated a material 
term or condition of its temporary labor certification, with respect to 
H-2A workers, workers in corresponding employment, or U.S. workers 
improperly rejected for employment, or improperly laid off or 
displaced.
    (b) Debarment of an agent or attorney. The OFLC Administrator may 
debar an agent or attorney from participating in any action under 8 
U.S.C. 1188, this subpart, or 29 CFR part 501, if the OFLC 
Administrator finds that the agent or attorney participated in, had 
knowledge of, or had reason to know of, an employer's substantial 
violation. The OFLC Administrator may not issue future labor 
certifications under this subpart to any employer represented by a 
debarred agent or attorney, subject to the time limits set forth in 
paragraph (c) of this section.
    (c) Statute of Limitations and Period of Debarment.
    (1) The OFLC Administrator must issue any Notice of Debarment no 
later than 2 years after the occurrence of the violation.
    (2) No employer, attorney, or agent may be debarred under this 
subpart for more than 3 years from the date of the final agency 
decision.
    (d) Definition of violation. For the purposes of this section, a 
violation includes:
    (1) One or more acts of commission or omission on the part of the 
employer or the employer's agent which involve:
    (i) Failure to pay or provide the required wages, benefits or 
working conditions to the employer's H-2A workers and/or workers in 
corresponding employment;
    (ii) Failure, except for lawful, job-related reasons, to offer 
employment to qualified U.S. workers who applied for the job 
opportunity for which certification was sought;
    (iii) Failure to comply with the employer's obligations to recruit 
U.S. workers;
    (iv) Improper layoff or displacement of U.S. workers or workers in 
corresponding employment;
    (v) Failure to comply with one or more sanctions or remedies 
imposed by the WHD Administrator for violation(s) of contractual or 
other H-2A obligations, or with one or more decisions or orders of the 
Secretary or a court under 8 U.S.C. 1188, 29 CFR part 501, or this 
subpart;
    (vi) Impeding an investigation of an employer under 8 U.S.C. 1188 
or 29 CFR part 501, or an audit under Sec.  655.180 of this subpart;
    (vii) Employing an H-2A worker outside the area of intended 
employment, in an activity/activities not listed in the job order, or 
outside the validity period of employment of the job order, including 
any approved extension thereof;
    (viii) A violation of the requirements of Sec.  655.135(j) and (k);
    (ix) A violation of any of the provisions listed in 29 CFR 
501.4(a); or
    (x) A single heinous act showing such flagrant disregard for the 
law that future compliance with program requirements cannot reasonably 
be expected;
    (2) The employer's failure to pay a necessary fee in a timely 
manner;
    (3) Fraud involving the Application for Temporary Employment 
Certification; or
    (4) The employer making a material misrepresentation of fact during 
the application process.
    (e) Determining whether a violation is substantial. In determining 
whether a violation is so substantial so as to merit debarment, the 
factors the CO may consider include, but are not limited to, the 
following:
    (1) Previous history of violation(s) of 8 U.S.C. 1188, 29 CFR part 
501, or this subpart;
    (2) The number of H-2A workers, workers in corresponding 
employment, or U.S. workers who were and/or are affected by the 
violation(s);
    (3) The gravity of the violation(s);
    (4) Efforts made in good faith to comply with 8 U.S.C. 1188, 29 CFR 
part 501, and this subpart;
    (5) Explanation from the person charged with the violation(s);
    (6) Commitment to future compliance, taking into account the public 
health, interest, or safety, and whether the person has previously 
violated 8 U.S.C. 1188;
    (7) The extent to which the violator achieved a financial gain due 
to the violation(s), or the potential financial loss or potential 
injury to the worker(s).
    (f) Debarment procedure.
    (1) Notice of Debarment. If the CO makes a determination to debar 
an employer, attorney, or agent, the CO will send that person a Notice 
of Debarment. The Notice will state the reason for the debarment 
finding, including a detailed explanation of the grounds for and the 
duration of the debarment, and the Notice will state the person's 
opportunity to request a debarment hearing. The Notice will 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 review is properly filed within 30 days from the issuance 
of the Notice of Debarment. The timely filing of an administrative 
appeal stays the debarment pending the outcome of the appeal.
    (2) Hearing. Within 10 days of receipt of the request for a 
hearing, the OFLC Administrator will send a certified copy of the ETA 
case file to the Chief ALJ by means normally assuring next-day 
delivery. The Chief ALJ 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

[[Page 45956]]

considered to be a complaint to which an answer is required.
    (3) Decision. After the hearing, the ALJ must affirm, reverse, or 
modify the OFLC Administrator's determination. The ALJ will prepare the 
decision within 60 days after completion of the hearing and closing of 
the record. The ALJ's decision will be provided immediately to the 
employer, OFLC Administrator, 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).
    (4) Review by the ARB.
    (i) 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 will 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 
will be deemed the final agency action. If a petition for review is 
accepted, the decision of the ALJ will 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.
    (ii) Upon receipt of the ARB's notice to accept the petition, the 
Office of Administrative Law Judges will promptly forward a copy of the 
complete hearing record to the ARB.
    (iii) Where the ARB has determined to review such decision and 
order, the ARB will notify each party of the issue(s) raised, the form 
in which submissions must be made (e.g., briefs or oral argument), and 
the time within which such presentation must be submitted.
    (5) ARB Decision. 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.
    (g) Concurrent debarment jurisdiction. OFLC and the WHD have 
concurrent jurisdiction to impose a debarment remedy under this section 
or under 29 CFR 501.20. When considering debarment, OFLC and the WHD 
may inform one another and may coordinate their activities, so that a 
specific violation for which debarment is imposed is cited in a single 
debarment proceeding. Copies of final debarment decisions will be 
forwarded to DHS promptly.
    (h) Debarment involving members of associations. If the OFLC 
Administrator determines that an individual employer-member of a joint 
employer association has committed a substantial violation, the 
debarment determination will apply only to that member unless the OFLC 
Administrator determines that the association or another association 
member participated in the violation, in which case the debarment will 
be invoked against the association or other complicit association 
member(s) as well.
    (i) Debarment involving associations acting as joint employers. If 
the OFLC Administrator determines that an association acting as a joint 
employer with its members has committed a substantial violation, the 
debarment determination will apply only to the association, and will 
not be applied to any individual employer-member of the association. 
However, if the OFLC Administrator determines that the member 
participated in, had knowledge of, or had reason to know of the 
violation, the debarment may be invoked against the complicit 
association member 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.
    (j) Debarment involving associations acting as sole employers. If 
the OFLC Administrator determines that an association acting as a sole 
employer has committed a substantial violation, the debarment 
determination will apply only to the association and any successor in 
interest to the debarred association.


Sec.  655.183  Less than substantial violations.

    (a) Requirement of special procedures. If the OFLC Administrator 
determines that a less than substantial violation has occurred, but the 
OFLC Administrator has reason to believe that past actions on the part 
of the employer (or agent or attorney) may have had and may continue to 
have a chilling or otherwise negative effect on the recruitment, 
employment, and retention of U.S. workers, the OFLC Administrator may 
require the employer to conform to special procedures before and after 
the temporary labor certification determination. These special 
procedures may include special on-site positive recruitment and 
streamlined interviewing and referral techniques. The special 
procedures are designed to enhance U.S. worker recruitment and 
retention in the next year as a condition for receiving a temporary 
agricultural labor certification. Such requirements will be reasonable; 
will not require the employer to offer better wages, working 
conditions, and benefits than those specified in Sec.  655.122; and 
will be no more than deemed necessary to assure employer compliance 
with the test of U.S. worker availability and adverse effect criteria 
of this subpart.
    (b) Notification of required special procedures. The OFLC 
Administrator will notify the employer (or agent or attorney) in 
writing of the special procedures that will be required in the coming 
year. The notification will state the reasons for the imposition of the 
requirements, state that the employer's agreement to accept the 
conditions will constitute inclusion of them as bona fide conditions 
and terms of a temporary agricultural labor certification, and will 
offer the employer an opportunity to request an administrative review 
or a de novo hearing before an ALJ. If an administrative review or de 
novo hearing is requested, the procedures prescribed in Sec.  655.171 
will apply.
    (c) Failure to comply with special procedures. If the OFLC 
Administrator determines that the employer has failed to comply with 
special procedures required pursuant to paragraph (a) of this section, 
the OFLC Administrator will send a written notice to the employer, 
stating that the employer's otherwise affirmative H-2A certification 
determination will be reduced by 25 percent of the total number of H-2A 
workers requested (which cannot be more than those requested in the 
previous year) for a period of 1 year. Notice of such a reduction in 
the number of workers requested will be conveyed to the employer by the 
OFLC Administrator in the OFLC Administrator's written certification 
determination. The notice will offer the employer an opportunity to 
request administrative review or a de novo hearing before an ALJ. If 
administrative review or a de novo hearing is requested, the procedures 
prescribed in Sec.  655.171 will apply, provided that if the ALJ 
affirms the OFLC Administrator's determination that the employer has 
failed to comply with special procedures required by paragraph (a) of 
this section, the reduction in the number of workers requested will be 
25 percent of the total number of H-2A workers requested (which cannot 
be more than those

[[Page 45957]]

requested in the previous year) for a period of 1 year.


Sec.  655.184  Applications involving fraud or willful 
misrepresentation.

    (a) Referral for investigation. If the CO discovers possible fraud 
or willful misrepresentation involving an Application for Temporary 
Labor Certification, the CO may refer the matter to the DHS and the 
Department's Office of the Inspector General for investigation.
    (b) Sanctions. If the WHD, a court or the DHS determines that there 
was fraud or willful misrepresentation involving an Application for 
Temporary Labor Certification and certification has been granted, a 
finding under this paragraph will be cause to revoke the certification. 
The finding of fraud or willful misrepresentation may also constitute a 
debarrable violation under Sec.  655.182.


Sec.  655.185  Job service complaint system; enforcement of work 
contracts.

    (a) Filing with DOL. Complaints arising under this subpart must be 
filed through the Job Service Complaint System, as described in 20 CFR 
part 658, subpart E. Complaints involving allegations of fraud or 
misrepresentation must be referred by the SWA to the CO for appropriate 
handling and resolution. Complaints that involve worker contracts must 
be referred by the SWA to the WHD for appropriate handling and 
resolution, as described in 29 CFR part 501. As part of this process, 
the WHD may report the results of its investigation to the OFLC 
Administrator for consideration of employer penalties or such other 
action as may be appropriate.
    (b) Filing with the Department of Justice. 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, will be 
referred to the U.S. Department of Justice, Civil Rights Division, 
Office of Special Counsel for Unfair Immigration Related Employment 
Practices (OSC), in addition to any activity, investigation, and/or 
enforcement action taken by ETA or a SWA. Likewise, if OSC becomes 
aware of a violation of these regulations, it may provide such 
information to the appropriate SWA and the CO.

TITLE 29--LABOR

    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 between Federal agencies.
501.3 Definitions.
501.4 Discrimination prohibited.
501.5 Waiver of rights prohibited.
501.6 Investigation authority of Secretary.
501.7 Cooperation with Federal officials.
501.8 Accuracy of information, statements, data.
501.9 Surety bond.
Subpart B--Enforcement
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 pollection.
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 
(OALJ).
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.

    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 
obligations, including requirements under 8 U.S.C. 1188 and 20 CFR part 
655, subpart B applicable to the employment of H-2A workers and workers 
in corresponding employment, including obligations to offer employment 
to eligible United States (U.S.) workers and to not lay off or displace 
U.S. workers in a manner prohibited by these regulations or 20 CFR part 
655, subpart B.


Sec.  501.1  Purpose and scope.

    (a) Statutory standards. 8 U.S.C. 1188 provides that:
    (1) A petition to import an alien as an H-2A worker (as defined at 
8 U.S.C. 1188) may not be approved by the Secretary of the Department 
of Homeland Security (DHS) unless the petitioner has applied to the 
U.S. Secretary 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) The Secretary is authorized to take actions that assure 
compliance with the terms and conditions of employment under 8 U.S.C. 
1188, the regulations at 20 CFR part 655, subpart B, or these 
regulations, including imposing appropriate penalties, and seeking 
injunctive relief and specific performance of contractual obligations. 
See 8 U.S.C. 1188(g)(2).
    (b) Role of the Employment and Training Administration (ETA). The 
issuance and denial of labor certification under 8 U.S.C. 1188 has been 
delegated by the Secretary to ETA, an agency within the U.S. Department 
of Labor (the Department or DOL), who in turn has delegated that 
authority to the Office of Foreign Labor Certification (OFLC). In 
general, matters concerning the obligations of an employer of H-2A 
workers related to the labor certification process are administered by 
OFLC, including obligations and assurances made by employers, 
overseeing employer recruitment and assuring program integrity. The 
regulations pertaining to the issuance, denial, and

[[Page 45958]]

revocation of labor certification for temporary foreign workers by the 
OFLC are found in 20 CFR part 655, subpart B.
    (c) Role of the Employment Standards Administration (ESA), Wage and 
Hour Division (WHD). Certain investigatory, inspection, and law 
enforcement functions to carry out the provisions under 8 U.S.C. 1188 
have been delegated by the Secretary to the WHD. In general, matters 
concerning the obligations under a work contract between an employer of 
H-2A workers and the H-2A workers and workers in corresponding 
employment are enforced by WHD, including whether employment was 
offered to U.S. workers as required under 8 U.S.C. 1188 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 
to impose penalties, to debar from future certifications, to recommend 
revocation of existing certification(s), and to seek injunctive relief 
and specific performance of contractual obligations, including recovery 
of unpaid wages and reinstatement of laid off or displaced U.S. 
workers.
    (d) Effect of regulations. The enforcement functions carried out by 
the WHD under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and these 
regulations apply to the employment of any H-2A worker and any other 
worker in corresponding employment as the result of any Application for 
Temporary Employment Certification filed with the Department on and 
after the effective date of these regulations.


Sec.  501.2  Coordination between Federal agencies.

    (a) 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.
    (b) Information received in the course of processing applications, 
program integrity measures, or enforcement actions may be shared 
between OFLC and WHD, or other agencies as appropriate, including the 
Department of State (DOS) and DHS, for enforcement purposes.
    (c) A specific violation for which debarment is imposed will be 
cited in a single debarment proceeding. OFLC and the WHD may coordinate 
their activities to achieve this result. Copies of final debarment 
decisions will be forwarded to the DHS promptly.


Sec.  501.3  Definitions.

    (a) Definitions of terms used in this part.
    Administrative Law Judge (ALJ). A person within the Department's 
Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 
3105.
    Adverse effect wage rate (AEWR). The annual weighted average hourly 
wage for field and livestock workers (combined) in the States or 
regions as published annually by the U.S. Department of Agriculture 
(USDA) based on its quarterly wage survey.
    Agent. 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 for Temporary Labor 
Certification; and
    (3) Is not under suspension, debarment, expulsion, or disbarment 
from practice before any court, the Department, the Executive Office 
for Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
    Agricultural association. Any nonprofit or cooperative association 
of farmers, growers, or ranchers (including but not limited to 
processing establishments, canneries, gins, packing sheds, nurseries, 
or other similar 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 
8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part. An 
agricultural association may act as the agent of an employer, or may 
act as the sole or joint employer of any worker subject to 8 U.S.C. 
1188.
    Area of intended employment. The geographic area within normal 
commuting distance of the place of the job opportunity for which the 
certification is sought. There is no rigid measure of distance that 
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). 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.
    Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved H-2A Application for 
Temporary Labor Certification in any work included in the job order, or 
in any agricultural work performed by the H-2A workers. To qualify as 
corresponding employment the work must be performed during the validity 
period of the job order, including any approved extension thereof.
    Date of need. The first date the employer requires the services of 
H-2A workers as indicated in the Application for Temporary Employment 
Certification.
    Employee. A person who is engaged to perform work for an employer, 
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. A person (including any individual, partnership, 
association, corporation, cooperative, firm, joint stock company, 
trust, or other organization with legal rights and duties) 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 (such as the ability to hire, pay, 
fire, supervise or otherwise control the work of employee) with respect 
to an H-2A worker or a worker in corresponding employment; and
    (3) Possesses, for purposes of filing an Application for Temporary 
Employment Certification, a valid Federal Employer Identification 
Number (FEIN).
    Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.

[[Page 45959]]

    Fixed-site employer. 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 8 U.S.C. 
1188, 20 CFR part 655, subpart B or this part, as incident to or in 
conjunction with the owner's or operator's own agricultural operation.
    H-2A Labor Contractor (H-2ALC). Any person who meets the definition 
of employer under this part 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 8 U.S.C. 1188, 20 CFR part 655, subpart B or this 
part.
    H-2A worker. Any temporary foreign worker who is lawfully present 
in the U.S. and authorized by DHS to perform agricultural labor or 
services of a temporary or seasonal nature pursuant to 8 U.S.C. 
1101(a)(15)(H)(ii)(a).
    Job offer. The offer made by an employer or potential employer of 
H-2A workers to both U.S. and H-2A workers describing all the material 
terms and conditions of employment, including those relating to wages, 
working conditions, and other benefits.
    Job opportunity. Full-time employment at a place in the U.S. to 
which U.S. workers can be referred.
    Job order. The document containing the terms and conditions of 
employment that is posted by the SWA on its inter- and intra-state job 
clearance systems based on the employer's Form ETA-790, as submitted to 
the SWA.
    Joint employment. Where two or more employers each have sufficient 
definitional indicia of an employer to be considered the employer of a 
worker, those employers will be considered to jointly employ that 
worker. Each employer in a joint employment relationship to a worker is 
considered a joint employer of that worker.
    Prevailing wage. Wage established pursuant to 20 CFR 653.501(d)(4).
    State Workforce Agency (SWA). State government agency that receives 
funds pursuant to the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to 
administer the State's public labor exchange activities.
    Successor in interest. Where an employer has violated 8 U.S.C. 
1188, 20 CFR part 655, subpart B, or these regulations, and has ceased 
doing business or cannot be located for purposes of enforcement, a 
successor in interest to that employer may be held liable for the 
duties and obligations of the violating employer in certain 
circumstances. The following factors, as used under Title VII of the 
Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance 
Act, may be considered in determining whether an employer is a 
successor in interest; no one factor is dispositive, but all of the 
circumstances will be considered as a whole:

(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) Whether the former management or owner retains a direct or indirect 
interest in the new enterprise;
(7) Similarity in machinery, equipment, and production methods;
(8) Similarity of products and services; and
(9) The ability of the predecessor to provide relief.
    For purposes of debarment only, the primary consideration will be 
the personal involvement of the firm's ownership, management, 
supervisors, and others associated with the firm in the violations at 
issue.
    Temporary agricultural labor certification. Certification made by 
the OFLC Administrator 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 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), 
and 1188.
    United States (U.S.). The continental U.S., 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 worker (U.S. worker). 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 8 U.S.C. 1157, is granted 
asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by 
the INA or by DHS) to be employed in the U.S.; or
    (3) An individual who is an authorized alien (as defined in 8 
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker 
is engaging.
    WHD Administrator. The Administrator of the Wage and Hour Division 
(WHD), and such authorized representatives as may be designated to 
perform any of the functions of the WHD Administrator under this part.
    Wages. All forms of cash remuneration to a worker by an employer in 
payment for personal services.
    Work contract. All the material terms and conditions of employment 
relating to wages, hours, working conditions, and other benefits, 
including those required by 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or this part. The 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 will be the terms of the job 
order and any obligations required under 8 U.S.C. 1188, 20 CFR part 
655, subpart B or this part.
    (b) Definition of agricultural labor or services. For the purposes 
of this part, agricultural labor or services, pursuant to 8 U.S.C. 
1101(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and 
applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26 
U.S.C. 3121(g); 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); the 
pressing of apples for cider on a farm; logging employment; 
reforestation activities; or pine straw activities.
    (1) Agricultural labor for the purpose of paragraph (b) of this 
section means all service performed:
    (i) 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 fur-bearing animals and wildlife;
    (ii) In the employ of the owner or tenant or other operator of a 
farm, in connection with the operation, management, conservation, 
improvement, 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;
    (iii) In connection with the production or harvesting of any 
commodity defined as an agricultural commodity in section 15(g) of the

[[Page 45960]]

Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in 
connection with the ginning of cotton, or in connection with the 
operation or maintenance of ditches, canals, reservoirs, or waterways, 
not owned or operated for profit, used exclusively for supplying and 
storing water for farming purposes;
    (iv) 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;
    (v) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
paragraph (b)(1)(iv) 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 shall be 
deemed a cooperative organization if the number of operators comprising 
such group is more than 20 at any time during the calendar year in 
which such service is performed;
    (vi) The provisions of paragraphs (b)(1)(iv) and (b)(1)(v) shall 
not be deemed to be applicable with respect to service 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
    (vii) On a farm operated for profit if such service is not in the 
course of the employer's trade or business or is domestic service in a 
private home of the employer.
    As used in 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.
    (2) Agriculture. For purposes of paragraph (b) 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 defined as 
agricultural commodities in 1141j(g) of title 12, the raising of 
livestock, bees, fur-bearing animals, or poultry, and any practices 
(including any forestry or lumbering operations) performed by a farmer 
or on a farm as an incident to or in conjunction with such farming 
operations, including preparation for market, delivery to storage or to 
market or to carriers for transportation to market. See sec. 29 U.S.C. 
203(f), as amended (sec. 3(f) of the FLSA, as codified). Under 12 
U.S.C. 1141j(g) agricultural commodities include, in addition to other 
agricultural commodities, crude gum (oleoresin) from a living tree, and 
the following products as processed by the original producer of the 
crude gum (oleoresin) from which derived: gum spirits of turpentine and 
gum rosin. In addition as defined in 7 U.S.C. 92, 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.
    (3) Apple pressing for cider. The pressing of apples for cider on a 
farm, as the term farm is defined and applied in sec. 3121(g) of the 
Internal Revenue Code at 26 U.S.C. 3121(g) or as applied in sec. 3(f) 
of FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780.
    (4) Logging employment. Operations associated with felling and 
moving trees and logs from the stump to the point of delivery, such as, 
but not limited to, marking danger trees and trees/logs to be cut to 
length, felling, limbing, bucking, debarking, chipping, yarding, 
loading, unloading, storing, and transporting machines, equipment and 
personnel to, from and between logging sites.
    (5) Reforestation activities. Predominately manual forestry work 
that includes, but is not limited to, tree planting, brush clearing and 
pre-commercial tree thinning.
    (6) Pine straw activities. Certain activities predominately 
performed using hand tools, including but not limited to the raking, 
gathering, baling, and loading of pine straw that is a product of pine 
trees that are managed using agricultural or horticultural/
silvicultural techniques.
    (c) Definition of a temporary or seasonal nature. For the purposes 
of this part, employment is of a seasonal nature where it is tied to a 
certain time of year by an event or pattern, such as a short annual 
growing cycle or a specific aspect of a longer cycle, and requires 
labor levels far above those necessary for ongoing operations. 
Employment is of a temporary nature where the employer's need to fill 
the position with a temporary worker will, except in extraordinary 
circumstances, last no longer than 1 year.


Sec.  501.4  Discrimination prohibited.

    (a) A person may not intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any manner discriminate against any person 
who has:
    (1) Filed a complaint under or related to 8 U.S.C. 1188 or these 
regulations;
    (2) Instituted or caused to be instituted any proceedings related 
to 8 U.S.C. 1188 or these regulations;
    (3) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1188 or these regulations;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to 8 U.S.C. 1188, or to this subpart or any 
other Department regulation promulgated pursuant to 8 U.S.C. 1188; or
    (5) Exercised or asserted on behalf of himself or others any right 
or protection afforded by 8 U.S.C. 1188 or these regulations.
    (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, initiate debarment proceedings, and 
recommend to OFLC revocation of any such violator's current labor 
certification. Complaints alleging discrimination against workers or 
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.  501.5  Waiver of rights prohibited.

    A person may not seek to have an H-2A worker, a worker in 
corresponding employment, or a U.S. worker improperly rejected for 
employment or improperly laid off or displaced waive any rights 
conferred under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these 
regulations. Any agreement by an employee purporting to waive or modify 
any rights given to said person under these provisions shall be void as 
contrary to public policy except as follows:
    (1) Waivers or modifications of rights or obligations hereunder in 
favor of the Secretary shall be valid for purposes of enforcement; and
    (2) Agreements in settlement of private litigation are permitted.

[[Page 45961]]

Sec.  501.6  Investigation authority of Secretary.

    (a) General. The Secretary, through the WHD, may investigate to 
determine compliance with obligations under 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or these regulations, either pursuant to a complaint or 
otherwise, as may be appropriate. In connection with such an 
investigation, WHD may enter and inspect any premises, land, property, 
housing, vehicles, and records (and make transcriptions thereof), 
question any person and gather any information as may be appropriate.
    (b) Confidential investigation. The WHD 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.
    (c) Report of violations. Any person may report a violation of the 
obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B, 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 WHD for the geographic area in which the reported 
violation is alleged to have occurred.


Sec.  501.7  Cooperation with Federal officials.

    All persons must cooperate with any Federal officials assigned to 
perform an investigation, inspection, or law enforcement function 
pursuant to 8 U.S.C. 1188 and these regulations during the performance 
of such duties. The WHD will take such action as it deems appropriate, 
including initiating debarment proceedings, seeking an injunction to 
bar any failure to cooperate with an investigation and/or assessing a 
civil money penalty therefor. In addition, the WHD will report the 
matter to OFLC, and may recommend to OFLC 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. 114.


Sec.  501.8  Accuracy of information, statements, data.

    Information, statements and data submitted in compliance with 8 
U.S.C. 1188 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 a 
material fact by any trick, scheme, or device, 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.  501.9  Surety bond.

    (a) Every H-2ALC must obtain a surety bond demonstrating its 
ability to discharge financial obligations under the H-2A program. 
Documentation from the issuer must be provided with the Application for 
Temporary Employment Certification identifying the name, address, phone 
number, and contact person for the surety, and providing the amount of 
the bond (as calculated in this section), date of its issuance and 
expiration and any identifying designation utilized by the surety for 
the bond.
    (b) The bond must be payable to the Administrator, Wage and Hour 
Division, United States Department of Labor, 200 Constitution Avenue, 
NW., Room S-3502, Washington, DC 20210. It will obligate the surety to 
pay any sums to the WHD Administrator for wages and benefits owed to an 
H-2A worker or to a worker in corresponding employment, or to a U.S. 
worker improperly rejected or improperly laid off or displaced, 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 must be written to cover 
liability incurred during the term of the period listed in the 
Application for Temporary Employment Certification 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.
    (c) The bond must be in the amount of $5,000 for a labor 
certification for which a H-2ALC will employ fewer than 25 workers; 
$10,000 for a labor certification for which a H-2ALC will employ 25 to 
49 workers; $20,000 for a labor certification for which a H-2ALC will 
employ 50 to 74 workers; $50,000 for a labor certification for which a 
H-2ALC will employ 75 to 99 workers; and $75,000 for a labor 
certification for which a H-2ALC will employ 100 or more workers. The 
amount of the bond may be increased by the WHD Administrator 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.
    (d) The bond must remain in force for a period of no less than 2 
years from the date on which the labor certification expires. If the 
WHD has commenced any enforcement action under these regulations 
against the employer or any successor in interest by that date, the 
bond shall remain in force until the conclusion of such action and any 
appeal or related litigation. Surety bonds may not be canceled or 
terminated unless 45 days' notice is provided by the surety in writing 
to the WHD Administrator, at the address set forth in paragraph (b).

Subpart B--Enforcement


Sec.  501.15  Enforcement.

    The investigation, inspection, and law enforcement functions to 
carry out the provisions of 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or these regulations, as provided in these regulations for enforcement 
by the WHD, pertain to the employment of any H-2A worker, any worker in 
corresponding employment, or any U.S. worker improperly rejected for 
employment or improperly laid off or displaced. Such enforcement 
includes the work contract provisions as defined in Sec.  501.3(a).


Sec.  501.16  Sanctions and remedies--general.

    Whenever the WHD Administrator believes that 8 U.S.C. 1188, 20 CFR 
part 655, subpart B, 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)(1) Institute appropriate administrative proceedings, including: 
The recovery of unpaid wages (including recovery of recruitment fees 
paid in the absence of required contract clauses (see 20 CFR 
655.135(k)); the enforcement of provisions of the work contract, 8 
U.S.C. 1188, 20 CFR part 655, subpart B, or these regulations; the 
assessment of a civil money penalty; make whole relief for any person 
who has been discriminated against; reinstatement and make-whole relief 
for any U.S. worker who has been improperly rejected for employment, 
laid off or displaced; or debarment for up to 3 years.
    (2) The remedies referenced in paragraph (1) will be sought either 
directly from the employer, or from its successor in interest, as 
appropriate. In the case of an H-2ALC, the remedies will be sought from 
the H-2ALC directly and/or monetary relief (other than civil money 
penalties) from the insurer who issued the surety bond to the H-2ALC, 
as required by 20 CFR part

[[Page 45962]]

655, subpart B and section 501.9 of this part.
    (b) Petition any appropriate District Court of the U.S. for 
temporary or permanent injunctive relief, including to prohibit the 
withholding of unpaid wages and/or for reinstatement, or to restrain 
violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these 
regulations, by any person.
    (c) Petition any appropriate District Court of the U.S. for an 
order directing specific performance of covered contractual 
obligations.


Sec.  501.17  Concurrent actions.

    OFLC has primary responsibility to make all determinations 
regarding the issuance, denial, or revocation of a labor certification 
as described in Sec.  501.1(b) of this part and in 20 CFR part 655, 
subpart B. The WHD has primary responsibility to make all 
determinations regarding the enforcement functions as described in 
Sec.  501.1(c) of this part. 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 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or these regulations. OFLC and the WHD have concurrent jurisdiction to 
impose a debarment remedy under 20 CFR 655.182 or under Sec.  501.20 of 
these regulations.


Sec.  501.18  Representation of the Secretary.

    The Solicitor of Labor, through authorized representatives, shall 
represent the WHD Administrator and the Secretary in all administrative 
hearings under 8 U.S.C. 1188 and these regulations.


Sec.  501.19  Civil money penalty assessment.

    (a) A civil money penalty may be assessed by the WHD Administrator 
for each violation of the work contract, or the obligations imposed by 
8 U.S.C. 1188, 20 CFR part 655, subpart B, or these regulations. Each 
failure to pay an individual worker properly or to honor the terms or 
conditions of a worker's employment required by 8 U.S.C. 1188, 20 CFR 
part 655, subpart B, or these regulations constitutes a separate 
violation.
    (b) In determining the amount of penalty to be assessed for each 
violation, the WHD Administrator shall consider the type of violation 
committed and other relevant factors. The factors that may be 
considered include, but are not limited to, the following:
    (1) Previous history of violation(s) of 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or these regulations;
    (2) The number of H-2A workers, workers in corresponding 
employment, or U.S. workers who were and/or are affected by the 
violation(s);
    (3) The gravity of the violation(s);
    (4) Efforts made in good faith to comply with 8 U.S.C. 1188, 20 CFR 
part 655, subpart B, and these regulations;
    (5) Explanation from the person charged with the violation(s);
    (6) Commitment to future compliance, taking into account the public 
health, interest or safety, and whether the person has previously 
violated 8 U.S.C. 1188;
    (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 each violation of the work contract 
or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these 
regulations will not exceed $1,500 per violation, with the following 
exceptions:
    (1) A civil money penalty for each willful violation of the work 
contract, or of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these 
regulations, or for each act of discrimination prohibited by Sec.  
501.4 shall not exceed $5,000;
    (2) A civil money penalty for a violation of a housing or 
transportation safety and health provision of the work contract, or any 
obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these 
regulations, that proximately causes the death or serious injury of any 
worker shall not exceed $50,000 per worker;
    (3) For purposes of this section, the term serious injury includes, 
but is not limited to:
    (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.
    (4) A civil money penalty for a repeat or willful violation of a 
housing or transportation safety and health provision of the work 
contract, or any obligation under 8 U.S.C. 1188, 20 CFR part 655, 
subpart B, or these regulations, that proximately causes the death or 
serious injury of any worker, shall not exceed $100,000 per worker.
    (d) A civil money penalty for failure to cooperate with a WHD 
investigation shall not exceed $5,000 per investigation.
    (e) A civil money penalty for laying off or displacing any U.S. 
worker employed in work or activities that are encompassed by the 
approved Application for Temporary Labor Certification for H-2A workers 
in the area of intended employment either within 60 days preceding the 
date of need or during the validity period of the job order, including 
any approved extension thereof, other than for a lawful, job-related 
reason, shall not exceed $15,000 per violation per worker. Such layoff 
shall be permitted where all H-2A workers were laid off first.
    (f) A civil money penalty for improperly rejecting a U.S. worker 
who is an applicant for employment, in violation of 8 U.S.C. 1188, 20 
CFR part 655, subpart B, or these regulations, shall not exceed $15,000 
per violation per worker.


Sec.  501.20  Debarment and revocation.

    (a) Debarment of an employer. The WHD Administrator may debar an 
employer or any successor in interest to that employer from receiving 
future labor certifications under 20 CFR part 655, subpart B, subject 
to the time limits set forth in paragraph (c) of this section, if: The 
WHD Administrator finds that the employer substantially violated a 
material term or condition of its temporary labor certification, with 
respect to H-2A workers, workers in corresponding employment, or U.S. 
workers improperly rejected for employment, or improperly laid off or 
displaced, by issuing a Notice of Debarment.
    (b) Debarment of an agent or an attorney. The WHD Administrator may 
debar an agent or attorney from participating in any action under 8 
U.S.C. 1188, 20 CFR part 655, subpart B or 29 CFR part 501, if the WHD 
Administrator finds that the agent or attorney participated in, had 
knowledge of, or had reason to know of, an employer's substantial 
violation, by issuing a Notice of Debarment. The OFLC Administrator may 
not issue future labor certifications to any employer represented by a 
debarred agent or attorney, subject to the time limits set forth in 
paragraph (c) of this section.
    (c) Statute of Limitations and Period of Debarment.
    (1) The WHD Administrator must issue any Notice of Debarment no 
later than 2 years after the occurrence of the violation.
    (2) No employer, attorney, or agent may be debarred under this 
subpart for more than 3 years from the date of the final agency 
decision.

[[Page 45963]]

    (d) Definition of violation. For the purposes of this section, a 
violation includes:
    (1) One or more acts of commission or omission on the part of the 
employer or the employer's agent which involve:
    (i) Failure to pay or provide the required wages, benefits or 
working conditions to the employer's H-2A workers and/or workers in 
corresponding employment;
    (ii) Failure, except for lawful, job-related reasons, to offer 
employment to qualified U.S. workers who applied for the job 
opportunity for which certification was sought;
    (iii) Failure to comply with the employer's obligations to recruit 
U.S. workers;
    (iv) Improper layoff or displacement of U.S. workers or workers in 
corresponding employment;
    (v) Failure to comply with one or more sanctions or remedies 
imposed by the WHD Administrator for violation(s) of contractual or 
other H-2A obligations, or with one or more decisions or orders of the 
Secretary or a court under 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or these regulations;
    (vi) Impeding an investigation of an employer under 8 U.S.C. 1188, 
20 CFR part 655, Subpart B, or these regulations;
    (vii) Employing an H-2A worker outside the area of intended 
employment, or in an activity/activities not listed in the job order, 
or outside the validity period of employment of the job order, 
including any approved extension thereof;
    (viii) A violation of the requirements of Sec.  655.135(j) and (k);
    (ix) A violation of any of the provisions listed in Sec.  501.4(a) 
of this subpart; or
    (x) A single heinous act showing such flagrant disregard for the 
law that future compliance with program requirements cannot reasonably 
be expected.
    (2) In determining whether a violation is so substantial as to 
merit debarment, the factors set forth in Sec.  501.19(b) shall be 
considered.
    (e) Procedural Requirements. 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, must identify appeal opportunities under Sec.  501.33 and a 
time frame under which such rights must be exercised and must comply 
with Sec.  501.32. The debarment will take effect 30 days from the date 
the Notice of Debarment is issued, unless a request for review is 
properly filed within 30 days from the issuance of the Notice of 
Debarment. The timely filing of an administrative appeal stays the 
debarment pending the outcome of the appeal as provided in Sec.  
501.33(d).
    (f) Debarment involving members of associations. If, after 
investigation, the WHD Administrator determines that an individual 
employer-member of a joint employer association has committed a 
substantial violation, the debarment determination will apply only to 
that member unless the WHD Administrator determines that the 
association or another association member participated in the 
violation, in which case the debarment will be invoked against the 
association or other complicit association member(s) as well.
    (g) Debarment involving associations acting as sole employers. If, 
after investigation, the WHD Administrator determines that an 
association acting as a sole employer has committed a substantial 
violation, the debarment determination will apply only to the 
association and any successor in interest to the debarred association.
    (h) Debarment involving associations acting as joint employers. If, 
after investigation, the WHD Administrator determines that an 
association acting as a joint employer with its members has committed a 
substantial violation, the debarment determination will apply only to 
the association, and will not be applied to any individual employer-
member of the association. However, if the WHD Administrator determines 
that the member participated in, had knowledge of, or had reason to 
know of the violation, the debarment may be invoked against the 
complicit association member 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.
    (i) Revocation. The WHD may recommend to the OFLC Administrator the 
revocation of a temporary agricultural labor certification if the WHD 
finds that the employer:
    (1) Substantially violated a material term or condition of the 
approved temporary labor certification;
    (2) Failed to cooperate with a DOL investigation or with a DOL 
official performing an investigation, inspection, or law enforcement 
function under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part; 
or
    (3) Failed to comply with one or more sanctions or remedies imposed 
by the WHD, or with one or more decisions or orders of the Secretary or 
a court order secured by the Secretary under 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or this part.
    (j) Res Judicata. In considering a recommendation made by the WHD 
to revoke a temporary agricultural labor certification, the OFLC 
Administrator shall treat a final agency determination that the 
employer has committed a violation as res judicata and shall not 
reconsider such a determination.


Sec.  501.21  Failure to cooperate with investigations.

    (a) No person shall refuse to cooperate with any employee of the 
Secretary who is exercising or attempting to exercise this 
investigative or enforcement authority.
    (b) Where an employer (or employer's agent or attorney) does not 
cooperate with an investigation concerning the employment of an H-2A 
worker, a worker in corresponding employment, or a U.S. worker who has 
been improperly rejected for employment or improperly laid off or 
displaced, WHD may make such information available to OFLC and may 
recommend that OFLC revoke the existing certification that is the basis 
for the employment of the H-2A workers giving rise to the 
investigation. In addition, WHD may take such action as appropriate, 
including initiating proceedings for the debarment of the employer from 
future certification for up to 3 years, seeking an injunction, and/or 
assessing civil money penalties against any person who has failed to 
cooperate with a WHD investigation. 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 a civil money penalty assessment is directed in a final order 
by the WHD Administrator, by an ALJ, or by the Administrative Review 
Board (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 WHD Administrator 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 assess civil money

[[Page 45964]]

penalties, to debar, or to increase the amount of a surety bond and 
which may be applied to the enforcement of provisions of the work 
contract, or obligations under 8 U.S.C. 1188, 20 CFR part 655, subpart 
B, or these regulations, or to the collection of monetary relief due as 
a result of any violation. Except with respect to the imposition of 
civil money penalties, debarment, or an increase in the amount of a 
surety bond, 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 WHD Administrator decides to assess a civil money 
penalty, to debar, to increase a surety bond, or to proceed 
administratively to enforce contractual obligations, or obligations 
under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these regulations, 
including for the recovery of the monetary relief, 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 WHD Administrator including 
the amount of any monetary relief due or actions necessary to fulfill a 
contractual obligation or obligations under 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or these regulations, the amount of any civil money 
penalty assessment, whether debarment is sought and the term, and any 
change in the amount of the surety bond, and the reason or reasons 
therefor.
    (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 WHD 
Administrator 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. Requests may be made by certified mail or by means 
normally assuring overnight delivery.
    (d) The determination shall take effect on the start date 
identified in the written notice of 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, provided that any surety bond remains in effect 
until the conclusion of any such proceedings.

Rules of Practice


Sec.  501.34  General.

    (a) 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.
    (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, 
any oral or documentary evidence may be received in proceedings under 
this part. The Federal Rules of Evidence and subpart B of the Rules of 
Practice and Procedure for Administrative Hearings Before the Office of 
Administrative Law Judges (29 CFR part 18, subpart B) will not apply, 
but principles designed to ensure production of relevant and probative 
evidence shall guide the admission of evidence. The ALJ may exclude 
evidence which is immaterial, irrelevant, or unduly repetitive.


Sec.  501.35  Commencement of proceeding.

    Each administrative proceeding permitted under 8 U.S.C. 1188 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 8 U.S.C. 1188 
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 WHD 
Administrator 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 WHD Administrator, by the 
Associate Solicitor for the Division of Fair Labor Standards or by the 
Regional Solicitor for the Region in which the action arose, will, 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 ALJ, 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 WHD Administrator 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 ALJ 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

[[Page 45965]]

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 deter 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 and an order is submitted within the time allowed therefore, 
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 WHD Administrator.
    (b) The decision of the ALJ shall include a statement of the 
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 WHD Administrator. The 
reason or reasons for such order shall be stated in the decision.
    (c) The decision shall be served on all parties and the ARB in 
person or by certified mail.
    (d) The decision concerning civil money penalties, debarment, 
monetary relief, and/or enforcement of other contractual obligations 
under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and/or this part, 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 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.
    (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 
(OALJ).

    Upon receipt of the ARB's Notice pursuant to Sec.  501.42 of these 
regulations, the OALJ 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 the parties 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 ALJ, 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 ALJ 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.

    Signed in Washington this 27th day of August 2009.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
Shelby Hallmark,
Acting Assistant Secretary, Employment Standards Administration.
[FR Doc. E9-21017 Filed 9-3-09; 8:45 am]
BILLING CODE 4510-FP-P