[Federal Register Volume 75, Number 29 (Friday, February 12, 2010)]
[Rules and Regulations]
[Pages 6884-6995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2731]
[[Page 6883]]
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Part II
Department of Labor
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Employment and Training Administration
20 CFR Part 655
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Wage and Hour Division
29 CFR Part 501
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Temporary Agricultural Employment of H-2A Aliens in the United States;
Final Rule
Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 /
Rules and Regulations
[[Page 6884]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 501
RIN 1205-AB55
Temporary Agricultural Employment of H-2A Aliens in the United
States
AGENCY: Employment and Training Administration, and Wage and Hour
Division, Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (the Department or DOL) is amending
its regulations governing the certification of temporary employment of
nonimmigrant workers in temporary or seasonal agricultural employment
and the enforcement of the contractual obligations applicable to
employers of such nonimmigrant workers. The Department is also amending
the regulations at 29 CFR part 501 to provide for enhanced enforcement
under the H-2A program requirements so that workers are appropriately
protected when employers fail to meet their obligations under the H-2A
program.
DATES: This Final Rule is effective March 15, 2010.
FOR FURTHER INFORMATION CONTACT: For further information on 20 CFR part
655, contact William L. Carlson, Ph.D., Administrator, Office of
Foreign Labor Certification, Employment and Training Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312,
Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free
number). Individuals with hearing or speech impairments may access the
telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
For further information on 29 CFR part 501 contact James Kessler,
Farm Labor Branch Chief, Wage and Hour Division, U.S. Department of
Labor, 200 Constitution Avenue, NW., Room S-3510, Washington, DC 20210;
Telephone (202) 693-0070 (this is not a toll-free number). Individuals
with hearing or speech impairments may access the telephone number
above via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Revisions to 20 CFR Part 655 Subpart B
A. Statutory and Regulatory Background
The H-2A nonimmigrant worker visa program enables United States
(U.S.) agricultural employers to employ foreign workers on a temporary
basis to perform agricultural labor or services. Section
101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (INA or the
Act), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and
1188.\1\ The INA authorizes the Secretary of the Department of Homeland
Security (DHS) to permit employers to import foreign workers to perform
temporary agricultural labor or services of a temporary or seasonal
nature if the Secretary of the U.S. DOL (Secretary) certifies that:
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\1\ For ease of reference, all subsequent sections of the INA
will be referred to by their corresponding section in the United
States Code (U.S.C.).
(A) There are not sufficient U.S. workers who are able, willing,
and qualified, and who will be available at the time and place
needed to perform the labor or services involved in the petition;
and
(B) The employment of the alien in such labor or services will
not adversely affect the wages and working conditions of workers in
the United States similarly employed.
8 U.S.C. 1188(a)(1). The Secretary has delegated these
responsibilities, through the Assistant Secretary, Employment and
Training Administration (ETA), to ETA's Office of Foreign Labor
Certification (OFLC). The Secretary has delegated responsibility for
enforcement of the worker protections to the Administrator of the Wage
and Hour Division (WHD). The Department's H-2A regulations remained
largely unchanged from the 1987 Rule until 2008. In 2008, the
Department significantly revised these regulations at 73 FR 77110, Dec.
18, 2008 (the 2008 Final Rule). Over the past several months, the
Department undertook a review of the policy decisions reflected in the
2008 Final Rule, specifically reviewing the worker protections afforded
under that rule. This review resulted in a Notice of Proposed
Rulemaking (NPRM) published in September 2009, 74 FR 45906, Sep. 4,
2009.
B. Overview of Comments Received
The Department received almost 7,000 comments on the proposed rule.
We have determined that 349 of these comments were completely unique,
13 were considered duplicates, and 6,577 were considered a form letter
or based on a form letter.
Commenters represented a broad range of constituencies for the H-2A
program, including individual farmers, farm workers, farm associations,
farm worker advocate groups, agents, law firms, farm labor bureaus,
State Workforce Agencies (SWAs), State Government Officials, U.S.
Congress Members and Committees, and various interested members of the
public. The Department received comments both in support of and in
opposition to the proposed regulation, which are discussed in greater
detail below. These comments raised a variety of concerns, some general
and some pertaining to specific provisions or specific proposals. After
reviewing the comments thoughtfully and systematically, the Department
has modified several provisions and retained others as originally
proposed in the NPRM. In addition, there were several commenters that
requested that due to the timing of the regulation falling during
harvest time for many farmers and based on the complexity of the issues
addressed, the Department should provide additional time to comment on
the proposed rule. In response to these comments, the Department
provided an additional 15 days for comments on the proposed rule.
The Department received many comments that were deemed to be beyond
the scope of the proposed rule. Some of these issues included pending
legislation, the H-2B temporary nonagricultural worker program,
comprehensive immigration reform, and specific issues related to the
control of our nation's borders. These are issues that cannot be
resolved or implemented through this regulatory process or are not
within the purview of the Department. Additionally, comments submitted
in a manner inconsistent with the specific directions of the NPRM or
submitted after the comment period closed were not considered.
The Department received many comments challenging the Department's
decision to engage in new rulemaking for the H-2A program. The
Department has inherent authority to change its regulations in
accordance with the Administrative Procedure Act (APA). In this Final
Rule we provide an appropriate justification for all of the changes
that we are making to the H-2A program.
The Department received requests by several commenters that the
proposed rule be published in Spanish since the workers who use the
program predominantly speak and write Spanish as their first language.
The APA at 5 U.S.C. 552(a)(1) requires agencies to
[[Page 6885]]
publish regulations in the Federal Register. The Department initiated
conversations with the Office of the Federal Register on the subject of
publishing regulations in a language other than English. However, the
Office of the Federal Register informed the Department that based on
its limited resources and personnel it is unable to publish any
documents in a language other than English.
C. Severability
To the extent that any portion of this Final Rule is declared
invalid by a court, the Department intends for all other parts of the
Final Rule that are capable of operating in the absence of the specific
portion that has been invalidated to remain in effect. Thus, even if a
court decision invalidating a portion of this Final Rule results in a
partial reversion to the current regulations or to the statutory
language itself, the Department intends that the rest of the Final Rule
continue to operate, if at all possible in tandem with the reverted
provisions.
II. Discussion of Comments Received
The Department has addressed those areas in which it received
comments. With regard to specific provisions on which the Department
did not receive comments, it has retained the provisions as proposed,
except where clarifying edits have been made, which have been explained
below.
A. Section 655.103 Overview of This Subpart and Definition of Terms
1. Section 655.103(a) Overview
The overview section in the proposed rule was shortened from the
2008 Final Rule to avoid any possibility that it may contain mandates
not contained in the sections following it. The Department received no
comments on this change and is leaving the section unchanged in the
Final Rule.
2. Section 655.103(b) Definitions
For the purposes of this section, the Department has included a
discussion of those definitions that received comments. Any definitions
that did not receive comments have been retained as proposed without
further changes, unless otherwise noted.
a. Agricultural Association
The NPRM proposed a slight change to the definition of agricultural
association. The 2008 Final Rule seemed to imply that an agricultural
association could be both an agent of its employer members and an
employer at the same time. The NPRM clarified that an agricultural
association could either be an agent or an employer (whether a sole
employer or joint with its members) but not both. The Department
received no comments on this change; therefore, the Final Rule reflects
the language proposed in the NPRM without any modification.
b. Area of Intended Employment
The NPRM made no significant changes from the 2008 Final Rule in
the definition of area of intended employment. The only changes were in
the elimination of the redundancies and the use of etc. in the listing
of examples of the factual circumstances that could constitute a normal
commuting distance or commuting area. One commenter suggested that the
Department add a definite number of miles, such as 75 miles, within
which all work locations must be located. The commenter suggested that
because of the size of the area of intended employment coupled with the
length of the certification period, U.S. workers who only want to do
one kind of agricultural job may be dissuaded from applying. Another
commenter suggested narrowing the area of intended employment because
commuting distances within an area of intended employment could be
upwards of 90 miles and it would be unreasonable for the Department to
expect U.S. workers to commute such a distance every day without being
provided housing.
The Department understands the concerns of both commenters;
however, their concerns are misplaced. The term area of intended
employment is used in conjunction with recruitment, which should cast a
net as wide as possible to inform all potential U.S. workers of an
upcoming contract in their area. U.S. workers are entitled to the same
housing as the H-2A workers if they are not reasonably able to return
to their residence within the same day as discussed under Sec.
655.122(d)(1).
As for the commenter's concern that a worker who only wanted to do
one type of agricultural activity would be precluded from applying,
changing the definition of an area of intended employment would not
alleviate such a situation. The term is used primarily for recruitment
purposes to ensure that the designated SWAs receive the job order so
that U.S. workers have the opportunity to apply for the job. Therefore,
the Final Rule adopts the definition as proposed in the NPRM, with the
exception of a minor editorial change.
c. Corresponding Employment
In the definition of corresponding employment, the Department
proposed that all workers employed by H-2A employers doing work
performed by H-2A workers be considered engaged in corresponding
employment. The proposal returns to the requirements of the 1987 Rule,
with one difference which is explained below. The Final Rule adopts the
language of the NPRM as proposed.
The change from the 1987 Rule is the addition of the phrase or in
any agricultural work performed by the H-2A workers. This language was
added to address the adverse impact on U.S. workers when an H-2A
employer engages H-2A workers in agricultural work outside the scope of
work found in the approved job order, including work impermissibly
performed outside the area of intended employment. Domestic workers
should not be disadvantaged when an employer violates the terms and
conditions of the H-2A job order. This does not require that every
worker on a farm be paid the H-2A required wage. It does, however,
require that workers employed by an H-2A employer who perform the same
agricultural work as the employer's H-2A workers be paid at least the
H-2A required wage for that work.
A number of commenters opposed the proposal to return to the prior
definition of corresponding employment because they agreed with the
rationale offered for the change in the 2008 Final Rule (which limited
the protections to newly hired workers). These commenters stated that
we provided no basis for a return to the prior definition, offered no
evidence to support the proposed definition, and did not account for
the increased costs. A labor contractor opposed the definition because
it would require the payment of the Adverse Effect Wage Rate (AEWR) to
non-H-2A workers who performed incidental work that was also performed
by H-2A workers.
A worker advocate favored the proposal because it would ensure that
U.S. workers would not be adversely affected by H-2A workers. Another
advocacy organization supported the proposal because it would not
penalize local workers and would contribute to a stable workforce.
The effect of the proposed definition which would require U.S.
workers to be paid the same wages and conditions that H-2A workers
receive when performing the same work is not new. Hearings were held in
1962 to address the impact on the wages and working conditions of
domestic workers due to the use of temporary foreign workers to perform
agricultural work. The 1980 Senate Judiciary Report on Temporary Worker
Programs discussing the 1962 hearings
[[Page 6886]]
stated that U.S. employers were required to offer domestic workers
wages equal to foreign workers as a prerequisite for labor
certification. See Congressional Research Service: ``Report to the
Senate Committee on the Judiciary: Temporary Worker Programs:
Background and Issues, 53 (1980).'' For many years, the H-2 program has
required employers to pay wage rates to domestic workers as determined
by DOL. See 32 FR 4571, Mar. 28, 1967.
The preamble to the 1979 H-2 rulemaking provided that employers
must offer and provide U.S. workers at least the same level of wages,
benefits, and working conditions offered or provided to foreign
workers. See 43 FR 10308, Mar. 10, 1979. The 1987 Rule continued the
application of this principle and introduced the term corresponding
employment, stating that those regulations were applicable to the
employment of other workers hired by employers of H-2A workers in the
occupations and for the period of time set forth in the job order
approved by ETA as a condition for granting the H-2A certification. The
regulations made specific reference to workers in corresponding
employment hired by H-2A employers as well as to any other worker
employed in corresponding employment. See 52 FR 20527-20528, and 20531,
Jun. 1, 1987.
Courts have consistently upheld the Department's interpretation
that the wages and benefits offered or provided to the H-2A workers
must also be provided to domestic workers. See Farmer v. Employment
Security Comm'n of N.C., 4 F.3d 1274, 1276, n.2, 3 (4th Cir. 1993) (H-
2A employers must make certain benefits available to all temporary
agricultural laborers); see also Williams v. Usery, 531 F.2d 305, 306
(5th Cir. 1976) (the Secretary's authority is limited to making an
economic determination of what rate must be paid all workers to
neutralize any adverse effect resulting from the influx of temporary
foreign workers), and NAACP, Jefferson County v. Donovan, 566 F.Supp.
1202, 1205 (D.D.C. 1983) (the AEWR is the rate at which DOL requires
growers to pay all of their farm workers before the Department will
allow them to import alien labor; the purpose of requiring payment of
the AEWR is to prevent importation of nonimmigrant laborers from having
an adverse effect on the prevailing wage rate).
The 2008 Final Rule stripped these protections from longtime
employees of H-2A employers, applying H-2A protections only to newly-
hired workers and the H-2A workers themselves. The preamble to the 2008
Final Rule reasoned that longtime U.S. workers paid below the AEWR were
no worse off for the hiring of H-2A workers at the higher AEWR and
therefore were not adversely affected by the hiring of H-2A workers. On
further review, this explanation fails to account for the role of the
AEWR in protecting against possible wage depression from the
introduction of foreign workers. Further, as one commenter observed,
since newly-hired employees are entitled to the AEWR, a longtime
employee may quit his current employment and re-apply for the same job
with the same employer to obtain the new higher AEWR. This anomaly puts
too high a premium on longtime employees knowing the AEWR,
understanding their rights under the regulations, and having the
security, rare in low-wage agricultural employment, to quit a job with
the expectation of being immediately rehired. Under this Final Rule,
longtime U.S. workers will be entitled to the wage rates paid to H-2A
employees without having to quit their jobs and be rehired.
One commenter noted that the proposal ignores market-based
principles. Another asserted that supervisors who occasionally did jobs
performed by H-2A workers would have to be paid the AEWR. As explained
above, the AEWR is intended to supplement wage rates that have been
depressed by the presence of H-2A and other foreign workers. In that
sense it is not reflective of market forces. Supervisors presumably
would be paid more than the AEWR and the Final Rule does not require
that their wages be reduced. To the extent that is not the case, the
requirement to pay them the AEWR would only apply for the period of
time they perform work done by H-2A workers.
One commenter requested that the definition of corresponding
employment be expanded to include joint employment, and another
requested that U.S. workers of fixed-site employers be included in the
definition when their employer contracts with an H-2A Labor Contractor
(H-2ALC) to provide H-2A workers. We do not believe it is necessary to
include joint employment in the definition of corresponding employment,
as the regulatory definition of joint employment makes clear that each
employer in a joint employment relationship bears all of the
obligations of an employer. Accordingly, U.S. workers employed by a
joint employer of H-2A workers would be in corresponding employment, if
performing the same work. However, the INA limits the Secretary's
enforcement authority to employers (or joint employers) of H-2A
workers. See 8 U.S.C. 1188(g)(2).
d. H-2A Labor Contractors (H-2ALCs)
The definition of an H-2ALC in the Final Rule remains unchanged
from the NPRM. One commenter questioned whether the Department should
grant certification to labor contractors to participate in the program,
noting that, for growers, the H-2A program is a means to obtain the
labor needed to meet their end, the production of a farm commodity,
whereas for the labor contractor, the H-2A workers themselves are the
desired end. Some commenters objected to the inclusion of the
activities of recruitment and employment in the definition of an H-
2ALC, asserting that these activities are only applicable to domestic
migrant and seasonal workers already covered by the Migrant and
Seasonal Agricultural Worker Protection Act (MSPA). Because the
Department's enforcement experience shows agricultural labor
contractors have lower compliance rates than fixed-site agricultural
employers, additional obligations are required for them. This requires
a definition that distinguishes each type of employer. The fact that
some H-2ALCs engage in activities covered by other statutes (such as
MSPA) does not mean that the Department should ignore those activities
when they relate to H-2A workers.
A representative of the sheep shearing industry objected to the
potential classification of sheep shearing contractors as H-2ALCs. The
argument presented by this commenter is that Congress specifically
exempted employers in this industry from farm labor contractor (FLC)
licensing requirements under MSPA; therefore, they should be exempt
from being considered H-2ALCs.
The definition of an H-2ALC broadly encompasses employers who seek
to participate in the H-2A program, but do not fit the definition of a
fixed-site employer. The shearing contractor does not have a fixed site
where the agricultural activities are performed; therefore, it cannot
be a fixed-site employer and by default is an H-2ALC. The fact that
shearing contractors are exempt from MSPA licensing requirements does
not affect their status as H-2ALCs.
In addition, this commenter mistakenly believes that the name and
location of each ranch where the shearing will take place must be in
the advertisement. This was a requirement in the 2008 Final Rule, but
was eliminated in the NPRM. The NPRM proposed to require that
advertisements
[[Page 6887]]
contain the geographic area of intended employment with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the labor or services.
Therefore, the Department does not believe this to be a significant
burden warranting a special definition of employer for the shearing
industry.
This commenter also asserted that sheep shearing contractors will
have to file separate applications for each area of intended employment
and in some cases may have to file two different applications for one
area of intended employment, if the contractor must return to the same
area of intended employment after moving to a different area of
intended employment. This commenter points out that under the 1987 Rule
and the 2008 Final Rule there were special procedures for shearing
contractors that provided for itinerary work and required only one
application. The NPRM did not remove the special procedures at Sec.
655.102. In addition, the ``Special Procedures for Employers in the
Itinerant Animal Shearing Industry Under the H-2A Program'' found in
Training and Employment Guidance Letter No. 17-06 are still in effect
and would permit a sheep shearing employer to file an itinerary-based
application. Therefore, the Department is not persuaded that this is a
valid reason to exempt shearing contractors from the definition of an
H-2ALC.
e. Job Opportunity
One commenter opined that the new definition of job opportunity
offered by the NPRM was not as specific as the 1987 Rule because it
does not include the words job opening. The commenter contended that a
definition of job opportunity without a reference to a job opening is
invalid. The Department disagrees. There is no meaningful distinction
between the two concepts and adding the phrase job opening would be
redundant.
f. Job Order
The definition of job order has been modified in this Final Rule to
add the word material for consistency with the definitions of job offer
and work contract.
g. Master Application
The NPRM proposed to include a definition of master application.
Although we did not receive comments directly addressing the
definition, based on comments received on the treatment of master
applications in Sec. 655.131(b), we are clarifying several aspects
including that a master application may cover multiple areas of
intended employment within a single State but no more than two
contiguous States. These clarifications are discussed in more detail in
the preamble for that section.
h. Positive Recruitment
The 2008 Final Rule definition included the concept of interviewing
qualified and eligible individuals. The NPRM added the language that
positive recruitment is performed under the auspices and direction of
the OFLC. The Department received no comments on the definition of this
term; therefore, the definition is unchanged in the Final Rule.
i. Prevailing Practice
The 2008 Final Rule defined the term prevailing whereas the NPRM
defined the term prevailing practice. We have returned to the
formulation used in the 1987 Rule which defines prevailing practice.
This definition applies to certain terms of employment, e.g., family
housing, which must be offered by employers if they reflect prevailing
practice, i.e., are offered by a majority of the employers employing a
majority of the workers in the area. Since the term prevailing wage is
otherwise defined, there is no need for a definition of the term
prevailing.
j. Prevailing Wage
The NPRM defined prevailing wage as the wage established under 20
CFR 653.501(d)(4). The Department received no comments on this change.
Therefore, the Final Rule adopts the language of the NPRM without
change.
k. Successor in Interest
The NPRM proposed no substantive changes to the definition of
successor in interest; however, it added one factor to the
circumstances that may be considered in determining whether an employer
is a successor in interest. The change clarified that whether the
former management or persons with an ownership interest in the prior
firm retain a management interest in the successor firm may be
considered in the successor determination. One commenter opposed the
proposed clarification, but did not provide a reason for its
opposition. The definition is adopted as proposed.
l. United States
The NPRM included in the definition of United States language
regarding the transition program effective date of the application of
Federal immigration law to the Commonwealth of the Northern Mariana
Islands (CNMI). That transition program effective date having passed,
we have accordingly deleted that language as CNMI now is included
automatically in the definition of United States under U.S. immigration
law.
m. United States Worker
The NPRM included a definition of U.S. workers that referenced, as
did the 2008 Final Rule, the INA. Although no comments were received on
this definition we have edited the definition for clarity.
3. Section 655.103(c) Definition of Agricultural Labor or Services
The NPRM proposed to modify the definition of agricultural labor or
services in several ways. It proposed to retain all three of the
statutory definitions set forth in the INA, which include agricultural
labor as defined in sec. 3121(g) of the Internal Revenue Code of 1986
(IRC), agriculture as defined in sec. 3(f) of the Fair Labor Standards
Act (FLSA), and the pressing of apples for cider on a farm, 8 U.S.C.
1188(a)(15)(H)(ii)(a). The NPRM proposed to remove three provisions
from the definition. The first expressly provided that an activity is
agriculture, even though it meets only one of the statutory
definitions. The second allowed H-2A employees to engage in certain
activities that are not included in the statutory definitions, provided
that H-2B workers were not performing the same work in the same place.
The third allowed H-2A workers to perform work that was not listed on
the Application for Temporary Employment Certification (Application),
so long as it was less than 20 percent of the work and incidental to
the agricultural work performed. The Final Rule retains the first
provision that had been proposed for removal but removes the latter two
provisions. The NPRM also had proposed to retain logging employment in
the definition and to add reforestation and pine straw activities. The
Final Rule retains logging, but does not add reforestation and pine
straw activities.
The IRC and FLSA definitions include work performed by a farmer or
on a farm cultivating, raising, or harvesting crops and raising
livestock and other animals and bees, including the operation and
maintenance of the farm. The IRC definition also includes the packing
and processing of agricultural and horticultural commodities so long as
more than half of the commodities are produced by the farmer performing
the packing and processing.
The FLSA definition has been interpreted to have a primary meaning
(e.g., production, cultivation, growing and harvesting of any
agricultural or
[[Page 6888]]
horticultural commodities) as well as a broader secondary meaning that
includes any practices performed by a farmer or on a farm as an
incident to or in conjunction with such farming operations, including
preparation for market, delivery to storage or to market, and delivery
to carriers for transportation to market.
In 2008, changes to FLSA regulations at 29 CFR part 780 and 29 CFR
part 788 addressing Christmas tree production were published
simultaneously with the H-2A regulations. These changes to FLSA
regulations did not change the applicability of H-2A to Christmas tree
production. The H-2A definition of agricultural labor or services
includes the IRC definition of this term. The IRC recognizes as
agricultural labor those services performed in the employ of any person
in connection with the planting, raising, cultivating, and harvesting
of Christmas trees when such services are performed on a farm.
Therefore, such activities come within the scope of H-2A.
a. An Occupation Included in Either Statutory Definition
The NPRM proposed the removal of a clarifying sentence stating that
an occupation included in either the IRC or the FLSA definition is
considered agricultural labor or services even though the occupation
does not appear in both definitions. This means that if the work is
within the scope of either the IRC or the FLSA definition of
agriculture, then the work is within the scope of the H-2A program.
Although the Department believed that this principle was clear and the
provision superfluous, several commenters found it useful. The Final
Rule reinstates the deleted sentence, with slight editorial
modifications.
b. Removal of Handling, Packing, Processing, and Other Non-Agricultural
Activities Where the Farmer Processed Less Than 50 Percent of the
Commodity
The NPRM also proposed the removal of the definition of
agricultural labor and services that had been added in the 2008 Final
Rule that permitted handling, planting, drying, packing, packaging,
processing, freezing, grading, storing, or delivering to storage or to
market or to a carrier for transportation to market, in its
unmanufactured state, any agricultural or horticultural commodity while
in the employ of the operator of a farm where no H-2B workers are
employed to perform the same work at the same establishment. This
provision allowed activities defined as nonagricultural work under the
FLSA and the IRC to be performed by H-2A workers, so long as no H-2B
workers were employed at the same worksite doing the same work. The
Final Rule adopts the proposed deletion, returning to the definition
used in the 1987 Rule.
A few commenters sought the Department's rationale for the removal
of this language. One commenter expressed disappointment regarding the
proposed removal, asserting that it was a major change that would
impact packing houses that might not be able to obtain workers through
the H-2B program due to the annual cap on that program. This commenter
further asserted that since such H-2B workers often worked alongside H-
2A workers and their jobs are clearly in the stream of agriculture, the
language should be re-inserted.
The 2008 Final Rule's definition was problematic because it allowed
a farmer to employ both H-2A workers and H-2B workers to perform
identical work, so long as the H-2A workers and the H-2B workers were
employed in different locations. Congress clearly intended to create
two separate programs: H-2A for agricultural work and H-2B for other,
nonagricultural work. Compare 8 U.S.C. 1101(a)(15)(H)(ii)(a) and 8
U.S.C. 1101(a)(15)(H)(ii)(b). A regulation that allows H-2A workers and
H-2B workers to perform the same activity is inconsistent with this
Congressional intent. Furthermore, Congress has already addressed the
proper classification of packing and processing work by including the
IRC definition, which specifies that these activities are considered
agricultural labor only if more than 50 percent of the commodity on
which the work is being performed has been produced by the farmer. In
other words, work in a packing shed on a farm, packing apples or
peaches which are grown on the same farm, falls within the definition
and thus within the H-2A program. However, if more than 50 percent of
the apples or peaches being packed come from other farms, the work is
no longer considered agriculture.
The Department believes that this statutory limitation is
meaningful, and that Congress intended it to apply to different types
of work. As a result, the Department has determined that it is
appropriate to return to the definition of agriculture as set forth in
the 1987 Rule and has deleted this provision.
c. Removal of Minor and Incidental Activities
Further, the NPRM proposed the removal of the phrase other work
typically performed on a farm that is not specifically listed on the
Application and is minor (i.e., less than 20 percent of the total time
worked) and incidental to the agricultural labor or services for which
the H-2A worker was sought. Several commenters objected to this change,
asserting that the removal of this language would unfairly limit their
flexibility in assigning H-2A workers to different kinds of work, and/
or to work which was not listed on the job order. Commenters also
expressed fears that the removal of the 20 percent tolerance for work
that is not listed on the Application would subject employers to
debarment if H-2A workers perform work that is outside the scope of the
job order for even a small fraction of their time.
The comments appear to reflect a misunderstanding of the 2008 Final
Rule's use of the terms minor and incidental. For example, commenters
complained that they would no longer be able to assign H-2A workers to
such nonagricultural work as directing traffic at retail outlets (as
opposed to roadside stands selling agricultural goods produced on the
farm), and unloading truckloads of purchased merchandise (as opposed to
farm products) to be offered for sale to retail customers. These
activities are not incidental to the agricultural activities performed
by H-2A workers, and they do not appear to relate to agriculture in any
way. In light of these comments, it appears that the language added to
the definition of agriculture led to confusion rather than
clarification.
On further review, the Department believes that the proposed return
to the 1987 Rule definition still provides farmers adequate flexibility
in the use of H-2A workers, while respecting congressional intent that
the work be agricultural in nature. These workers can, for example:
Work at a farmer's roadside retail stand; handle, package or sell
agricultural or horticultural goods produced on the farm; or perform
maintenance work on farm buildings and machinery. These activities are
performed by a farmer or on a farm and are incidental to farming
operations, and therefore meet the FLSA definition of agriculture. In
addition, the IRC definition of agricultural labor or services
encompasses a broad range of activities, such as the management of
wildlife on a farm, the ginning of cotton, or the handling, planting,
drying, packing, packaging, processing, freezing, grading, storing, or
delivering to storage or to market, of any agricultural or
horticultural commodity, as long as more than 50 percent of the goods
were produced by the farmer-employer. These definitions provide
considerable latitude to the employer as to the type of work for which
H-2A
[[Page 6889]]
workers may be used. They have been used for decades and are well
understood.
Further, the INA is clear that in order for the Secretary to
certify a petition, an applicant must demonstrate that there are not
sufficient workers to perform the labor or services involved in the
petition. It is incongruous to claim that such a broad degree of
flexibility is needed to encompass work that has not yet been
identified, while representing in the Application for H-2A workers that
there are not enough U.S. workers available to perform such work. To
approve an Application that would allow a worker to perform a
substantial amount of work that was not included in the Application
would not be in keeping with the plain statutory language requiring the
Department to find that there are not enough workers available to
perform the work for which H-2A workers are being sought. The 2008
Final Rule's 20 percent tolerance allowed H-2A workers to work a full
day a week, every week for the entire job order, in work other than
that listed on the Application. This broad language effectively allowed
an employer to apply for 10 workers although the employer had only
identified work for which eight workers were needed. This permitted an
employer with a substantial number of H-2A workers to routinely assign
them unadvertised work that would have been sufficient to support the
hiring of additional U.S. workers. Such a tolerance is not minor and is
inconsistent with the statutory standard. Therefore, the Final Rule
deletes this provision from the definition.
Finally, several commenters expressed concerns that removing the
reference to incidental work from the definition of agricultural labor
or services, coupled with proposed changes in the provisions addressing
revocation and debarment, might lead to an employer being debarred for
having assigned a worker outside the scope of the job order for even a
small fraction of time. However, the Department does not intend to
debar an employer whose H-2A workers perform an insubstantial amount of
agricultural work not listed in the Application. In exercising our
enforcement discretion when an employer has worked an H-2A worker
outside the scope of the activities listed on the job order due to
unplanned and uncontrollable events (such as a freeze that prevents
planting or heavy rains that prevent harvesting), the Department will
consider the employer's explanation, so long as the activities are
within the scope of H-2A agriculture, have been occasional or sporadic,
and the time spent in total is not substantial. Moreover, the debarment
regulations require that the violation be substantial, and that a
number of factors must be considered in making that determination,
including: An employer's previous history of violations; the number of
workers affected; the gravity of the violation; the employer's
explanation, if any; its good faith; and its commitment to future
compliance. Under these criteria, the good faith assignment of a worker
to work not listed in the Application for a small amount of time would
not result in debarment. The Final Rule deletes the provision providing
a blanket 20 percent tolerance for work outside the scope of the
Application, as proposed.
d. Definition of Agricultural Labor or Services--Inclusion of
Reforestation and Pine Straw Activities
The Department proposed that the definition of agricultural labor
or services include reforestation activities, defined as predominately
manual forestry work including but not limited to tree planting, brush
clearing, and pre-commercial tree thinning. It also proposed to include
pine straw activities, defined as certain activities predominately
performed using hand tools, including but not limited to raking,
gathering, baling, and loading of pine straw, a product of pine trees
that are managed using agricultural or horticultural/silvicultural
techniques. Currently, employers engaged in these activities may use
the H-2B program. Reforestation, a sub-industry of forestry, is
commonly performed by migrant crews who are overseen by labor
contractors and share the same characteristics as traditional
agricultural crews. The same reasoning was used in proposing to include
pine straw activities within the scope of the H-2A program.
Overwhelmingly, the comments were opposed to adding reforestation
activities and pine straw activities to the H-2A program. We are
convinced by these comments and therefore the Final Rule does not
include reforestation and pine straw activities.
A number of employer commenters claimed that the way in which
contracts are awarded to reforestation companies would preclude
applicants from being able to file H-2A applications in realistic
timeframes and would make it difficult to comply with H-2A provisions;
they asserted that such contracts are often for short duration, making
it particularly difficult to provide documentation that housing,
typically hotels or motels, had been secured far in advance. Some of
the commenters projected their increased costs and predicted the costs
could put them out of business or preclude them from using the program
to employ an authorized workforce.
Employee advocates indicated they were concerned about moving such
workers into the H-2A program, since such a change would mean these
workers would lose the protections afforded to them by the MSPA,
particularly the right to a Federal cause of action to enforce these
rights, replete with statutory liquidated damages for violations.
Commenters indicated that the loss of protections under MSPA outweighed
whatever additional benefits or protections inclusion in the H-2A
program would offer. Several commenters suggested that the better
course of action would be for the Department to provide additional
protections to these workers through changes in the regulations that
govern the H-2B program.
Only a few commenters supported the proposed change. One stated
that the activities were agricultural and thus it was unreasonable for
forestry contractors to have all the regulatory responsibilities of
agricultural employers but be denied access to agricultural labor under
the H-2A visa program. Others supported the change based on the reasons
the Department had used in making the proposal. A State agency
supported the proposal but cautioned there would be increased efforts
and costs for their agency to carry out additional housing inspections
and prevailing wage and practices surveys. We received only one comment
that specifically addressed the proposed inclusion of pine straw
activities, and it supported the inclusion based on a circuit court
decision that found that these activities fell within the definition of
agriculture under MSPA. We note that the court in this decision did not
rely on the definitions of agriculture used in either the FLSA or the
IRC, which are the statutory definitions included in the H-2A program.
See Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d 1163 (11th Cir.
2003).
Taking into account the lack of support from all sides to the
proposed inclusion of reforestation activities and pine straw
activities in the H-2A program, the Department has decided not to
include these activities in the definition of agricultural labor or
services in the Final Rule. We will consider whether it is appropriate
to propose additional protections for these workers in any future
revision of the H-2B program.
[[Page 6890]]
e. Definition of Agricultural Labor or Services--Logging
The NPRM proposed to keep logging in the H-2A program; however, the
definition section of the NPRM proposed a more detailed definition of
logging employment. The justification for this decision to include
logging in the definition was contained in the preamble to the 2008
Final Rule.
The Department received some comments on the inclusion of logging
in general and the definition in particular. One commenter indicated no
opposition to the inclusion of logging in the definition of
agricultural labor or services but noted that the Department offered no
justification for inclusion of logging in the NPRM. Another commenter
stated that the rationale for including logging in the definition is
inconsistent with prior regulations and principles of statutory
interpretation. This commenter asserted that the statutory language of
8 U.S.C. 1101(a)(15)(H)(ii)(b) clearly encompasses all temporary
service or labor other than agricultural labor or services, and argued
that the Department arbitrarily used the phrase agricultural labor or
services (defined by several statutory provisions) as authority to
expand the scope of the H-2A program to cover virtually all work with
renewable natural resources. The commenter argued that the division of
8 U.S.C. 1101(a)(15)(H)(ii) into (a) and (b) (devolving into the H-2A
and H-2B programs) was not intended to grant the Department unlimited
discretion to make legislative changes, as proposed in Sec.
655.103(b).
The same commenter asserted that the inclusion of logging in the
definition as in 2008 would constitute a substantial change from past
practice that does not protect U.S. workers. This commenter also
contended that moving these workers from a visa program with caps to
one without statutory caps would not assist in protecting them from
exploitation by labor contractors. Instead the commenter proposed that
the more stringent labor protections applicable to H-2ALCs be
incorporated into the H-2B regulations for all temporary foreign
workers not working at fixed locations.
The Department disagrees with this commenter. Congress clearly gave
the Secretary authority to define agricultural labor and services
through regulation. 8 U.S.C. 1101(a)(15)(H)(ii)(a). As stated
previously, the Department's rationale was discussed in detail in the
2008 Final Rule. Proposed changes to the H-2B regulations are not a
part of this rulemaking.
A reforestation contractor noted that logging was included under
the H-2A program due to misconceptions about the industry, namely that
the companies are mainly labor contractors who hire and move migrant
crews. This commenter indicated that several logging employers would be
interested in using temporary, seasonal foreign workers to fill labor
shortfalls if the program allowed for working conditions and benefits
that are common to prevailing logging employer practices. The commenter
did not specify the prevailing logging practices being referenced;
however, we believe that inclusion of logging activities in the H-2A
program appropriately balances the interests of logging employers and
workers.
A State agency indicated that the Department's definition of
logging operations is consistent with the definition used by the
Occupational Safety and Health Administration (OSHA) and commended the
Department. However, the commenter was concerned that the definition of
logging employment might encompass certain positions such as logging
supervisors, mechanics, mechanics' helpers, and operations engineers
(who cut and maintain roads for access). The commenter stated that
these positions do not meet the standards for H-2A agricultural
employment and do not constitute employment on an agricultural
employer's farmstead. This commenter requested that the Department
clarify that these positions are not included in the H-2A program. The
NPRM definition identifies the types of logging activities for which
labor certification may be granted. We did not intend to change the
scope of logging activities adopted by the 2008 Final Rule and
therefore employees who were previously granted logging status may
continue to be certified under the definition now contained in the H-2A
program. The Final Rule retains the language from the NPRM.
4. Section 655.103(d) Temporary or Seasonal Nature
a. General Comments Regarding Temporary or Seasonal Nature
The NPRM proposed to adopt the definition of temporary or seasonal
nature currently used by DHS in its H-2A regulations. The Department
received more than a dozen comments on this proposed change in the
definition. All of them opposed the change. Many found that there was
no rational basis for the change and stated that the preamble
explanation was insufficient. Many said that the existing definition
had worked effectively for more than 20 years and should be retained.
Of those who explained why, the primary reason stated was that the DHS
definition is meant to apply to the worker, not the employer, and DOL
is tasked with determining the needs of the employer rather than the
worker; therefore, the DHS definition used in the NPRM is
inappropriate. Many of the commenters pointed out that the existing
definition is well-established and is the subject of many years of
precedential court decisions. These commenters asserted that departing
from this well-established definition would be highly disruptive to the
program.
Other commenters believe that the definition of temporary or
seasonal nature in the NPRM is too vague and requires further
delineation if it is to be kept. Specifically, these commenters point
out that adding short to annual growing cycle limits the timeframe, and
the requirement for labor levels far above those necessary for ongoing
operations during that short timeframe could exclude small farmers who
might only need one or two additional employees during the peak of
their season.
The Department has decided to retain the language of the NPRM which
was not intended to create any substantive change in how the Department
administers the program. If additional clarification is needed in the
future, we will provide such clarification through the use of guidance
memoranda, bulletins, special procedures (as applicable) and other
guidance documentation.
b. Treatment of the Dairy Industry Under the Definition of Temporary or
Seasonal Nature
The Department received numerous comments requesting the inclusion
of the dairy industry in the definition of agricultural labor or
services.
All of these commenters expressed a critical need for foreign labor
in the dairy industry. Several commenters referenced an internal survey
of a national organization of milk producers that indicated that an
estimated 62 percent of milk production on these farms was attributed
to immigrant labor. One commenter asserted that domestic workers do not
want to fill the available jobs in the dairy industry. Another
commenter stated that a shortage of domestic labor is particularly
acute in this industry, in which employers experience year-round
employment needs and must invest significant resources into employee
recruitment and retention.
[[Page 6891]]
Most of these commenters sought the inclusion of dairy under H-2A
special procedures, likening the dairy industry to sheepherders (and
also loggers and cider pressers) whose need is not temporary, but who
enjoy the benefits of the program. One commenter argued that the
industry should be included on an expanded temporary basis of 1 year at
a time. This commenter referred to isolated, anecdotal evidence from
before the passage of the Immigration Reform and Control Act of 1986
(IRCA) where the Department permitted successive 1-year certifications
for an employer that demonstrated a particular need.
The determination of whether a particular dairy activity is
eligible for an H-2A certification rests on a finding that the duration
of the activity and the need for that activity is temporary or
seasonal. The majority of activities encompassed by the dairy industry,
and milk production in particular, are year-round activities and
therefore cannot be classified as temporary. The Department has no
legal authority, nor is there legislative precedent, that would allow
for the inclusion of the entire dairy industry in the H-2A program.
Sheepherders, which many of the commenters cited as an example of
an exception to the definition of temporary, owe their inclusion in the
program to a statutory provision dating back to the 1950s. That
legislative inclusion was implicitly ratified in IRCA. No such
legislative inclusion of the dairy industry as a whole has yet to be
provided by Congress.
Prefiling Procedures
5. Section 655.120 Offered Wage Rate
In response to comments, the Final Rule adds the agreed-upon
collectively bargained wage to the list of required wage rates. The
rationale for this change is explained below, after the discussion of
the AEWR.
a. The Department's Execution of the Offered Wage Rate
(i) The Provision of an AEWR in the H-2A Program
The Department has decided to retain the concept of an AEWR as part
of the H-2A program and that the basis for computing the H-2A AEWR
shall be the annual average of combined crop and livestock workers'
wages applicable for each state as reported by the U.S. Department of
Agriculture's (USDA) Farm Labor Survey (FLS) reports. This section
discusses the Department's rationale for retaining the AEWR and then
discusses the Department's rationale for changing the methodology used
to calculate the AEWR.
(ii) The Need for an AEWR
The admission of temporary foreign workers under the H-2A program
is predicated on a certification by the Secretary that
the employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers in the
United States similarly employed.
(8 U.S.C. 1188(a)(1)(B)).
Accordingly, under Sec. 655.120(a) of this Final Rule, an employer
must offer, advertise in its recruitment, and pay a wage that is the
highest of the AEWR, the prevailing hourly wage or piece rate, the
collectively bargained wage rate, or the Federal or State minimum wage,
except where a special procedure is approved.
This requirement reflects a longstanding concern that there is a
potential for the entry of foreign workers to depress the wages and
working conditions of domestic agricultural workers. The AEWR is the
minimum wage rate that agricultural employers seeking nonimmigrant
foreign workers must offer to and pay their U.S. and foreign workers if
the prevailing wage rate, the collectively bargained wage rate, and any
Federal or State minimum wage rates are below the AEWR. The AEWR is
designed to prevent the potential wage-depressive impact of foreign
workers on the domestic agricultural workforce. The AEWR is a wage
floor, and its existence does not prevent the worker from seeking, or
the employer from paying, a higher wage.
From the outset of the Federal Government's involvement in the
admission of temporary foreign agricultural workers, the Government has
sought to protect similarly employed U.S. workers from the potential
adverse effect such employment would have on their wages. Since 1953,
the Department has computed and published AEWRs for the temporary
employment of nonimmigrant foreign workers for agricultural employment
under various admission programs. See H.N. Dellon, ``Foreign
Agricultural Workers and the Prevention of Adverse Effect'', 17 Labor
Law Journal 739 (1966) for a detailed history of the early decades of
publication of AEWRs by the Department. Mr. Dellon's article notes
that, as far back as 1953, employers seeking to employ foreign
nationals to work in various crop activities (in that case, under the
Bracero Program) were required to pay not less than a wage established
by DOL. AEWRs began to be set periodically on a statewide basis, first
for a subset of States based on applications for temporary foreign
workers and subsequently for all States (except Alaska).
As time passed, the establishment of AEWRs became more formalized,
and AEWRs were computed and set for the H-2 program as well, after
public notice and comment. See, e.g., 29 FR 19101-19102, Dec. 30, 1964;
32 FR 4569, 4571, Mar. 28, 1967; and 35 FR 12394-12395, Aug. 4, 1970.
Economic theory provides the initial justification for the use of
an AEWR. Economic theory holds that, other things being constant, any
increase in the supply of labor available in a labor market segment
would result in a decrease in the equilibrium wage. This theory-based
observation of the effect of increased labor supply is the basis for
the concern that currently employed, or incumbent, farm workers would
be adversely affected by lowered wages as a result of an influx of
temporary foreign farm workers.
Similarly, economic theory holds that, under conditions of an
emerging labor shortage, the previously observed wage (prevailing local
wage) may not reflect the equilibrium wage.\2\ Instead, adjustments
would occur over time \3\ and the observed wage would increase by an
amount sufficient to attract more workers until supply and demand were
met in equilibrium. Absent an increase of workers under the H-2A
program, wages would rise above the currently observed wage in order to
dispel the labor shortage until sufficient additional domestic labor
was attracted into the market from neighboring geographic areas or
other occupations. By computing an AEWR to approximate the equilibrium
wage that would result absent an influx of temporary foreign workers,
the AEWR serves to put incumbent farm workers in the position they
would have been in but for the H-2A program. In this sense, the AEWR
avoids adverse effects on currently employed workers by preventing
wages from stagnating at the local prevailing
[[Page 6892]]
wage rate when they would have otherwise risen to a higher equilibrium
level over time.
---------------------------------------------------------------------------
\2\ The notion that a single point wage would be observed for a
market in equilibrium is a simplification. In the abstract, an
equilibrium wage is the wage at which the quantity of labor supplied
by workers matches the quantity of labor demanded by employers. In
practical reality a range of individual wage contract amounts may be
observed reflecting individual labor productivity differences,
relative bargaining strengths of contracting parties, timing of
employment contracts, imperfect knowledge of market conditions by
one or both parties, location factors and a myriad of other
influences, but this array of individual wage contract values yields
a particular average as a measure of the distribution's central
tendency, and this average is conveniently referenced as the
equilibrium wage.
\3\ Including, given enough time, the possibility of
substitution of capital for labor.
---------------------------------------------------------------------------
In practical application, there are a number of obstacles and
limitations that hinder the market adjustment process to an equilibrium
wage as indicated by the theoretical labor market analysis. Foremost of
these is the limitation imposed by inefficiency in the transmission of
information about labor market conditions (job openings, revised wage
offers, conditions of employment, etc.) across both physical and social
distances. Information transmission inefficiencies affect all labor
markets. Most jobs in the U.S. are filled through informal information
and referral processes. It has been estimated that fewer than 20
percent of job openings are listed on public labor exchange information
systems or advertised in public media.\4\
---------------------------------------------------------------------------
\4\ See Bayer, Patrick, Ross, Stephen, and Topa, Giorgio,
``Place of Work and Place of Residence: Informal Hiring Networks and
Labor Market Outcomes.'' National Bureau of Economic Research
Working Paper No. 11019, 2005 for a review of research regarding the
impact of differences in access to labor market information and
social networks in shaping the different wage and employment
outcomes of different groups of workers. See Ozga, S.A., ``Imperfect
Markets Through Lack of Information.'' Quarterly Journal of
Economics, February 1960, 74(1), pp. 29-52, for a theoretical
discussion of the effects of imperfect information flows on labor
market dynamics. See Holzer, Harry J., ``Informal Job Search and
Black Youth Unemployment.'' American Economic Review, June 1987,
77(3), pp. 446-452 for a discussion of how minorities, and
especially youth, are disadvantaged by the relative inefficiency of
their informal job search and labor market information networks.
---------------------------------------------------------------------------
Farm workers are especially likely to be disadvantaged in terms of
access to information about new or changing labor market conditions or
job opportunities. The physical distances and relative social isolation
typical of many rural environments slows the transmission of
information by word-of-mouth. Even though seasonal migrant workers may
move great distances from one crop area to another over the course of
the planting, tending and harvesting seasons, their knowledge is often
limited to a familiar circuit of employment opportunities, and they
often lack rapid access to information that would enable them to alter
routine migration patterns to take advantage of new opportunities. The
low educational attainment of farm workers is a major barrier to
efficient access and rapid response to changing labor market
conditions. Over 45 percent of U.S. citizens who are employed as hired
farm workers do not have a high school diploma, and 21 percent of U.S.
citizens employed as hired farm labor have less than a 10th grade
education.\5\ These farm workers with low educational attainment,
numbering over 246,000 U.S. citizens, and many more if permanent
resident non-citizens are included, often have limited reading ability
and limited access to newspapers and other media in which job
opportunities and wage offers might be advertised. They are also
disproportionately poor, and their economic status may limit their
physical access to public labor market information and assistance
resources.
---------------------------------------------------------------------------
\5\ Based on analysis of 2005-2009 data from the Current
Population Survey (CPS), Annual Social and Economic Conditions
Supplement. The analysis of CPS data was restricted to U.S. citizens
because non-citizens in the sample could not be identified as
legally documented residents or not.
---------------------------------------------------------------------------
The resulting limitations in the flow of labor market information
hinder the rapid adjustment of wages to a market equilibrium level.
This situation can lead to localized short-run critical shortages of
farm labor and result in spikes in farm labor wages that are much
greater in magnitude than would be the case if information flowed more
readily and markets adjusted more rapidly to a final equilibrium. Wide
fluctuations in local wages may create a hardship for farmers who need
to plan financially for expected labor costs. Unexpectedly large
increases in labor costs may reduce profits. Shortages of labor at
critical times may cause tangible waste if crops cannot be harvested at
the appropriate time. It was in part to alleviate such difficulties
facing farmers, as well as to discourage the unauthorized employment of
workers, that Congress enacted legislation to facilitate the temporary
importation of foreign labor to meet short-term gaps in the domestic
supply of labor in critical locales. However, Congress also recognized
the need to protect the wages and access to jobs of citizens and other
permanent residents employed in the farm labor sector, and Congress
placed with the Secretary the responsibility to ensure that the process
of importation of foreign labor to aid farmers did not cause damage to
the economic condition of domestic farm workers.
The apparent existence of a shortage of domestic workers, at least
temporarily, is the basis on which employers apply to import temporary
foreign H-2A workers. The requirement that employers first attempt to
recruit domestic labor by listing job openings and wage offers with
SWAs which are part of the public labor exchange system and to
advertise openings in appropriate media is an essential part of the
process of protecting domestic workers. However, as a result of the
known limitations faced by farm workers in obtaining information from
these sources, there may not be enough time for additional domestic
workers to enter the local farm labor market. In such cases, because
there is a long history of temporary migrant work in the U.S. and
because the potential supply of foreign low-wage agricultural workers
is great, the importation of foreign workers might more expediently
address the labor shortage. However, because such an influx of labor
would imply that the wages of incumbent domestic workers would not
adjust upward, the use of an AEWR circumvents this adverse affect on
incumbent workers.
(iii) The Use of the Prevailing Wage Does Not Provide Sufficient
Protection
A farm association commented that there is no valid economic
justification for a separate AEWR standard in addition to the
prevailing and statutory minimum wage. Another comment suggested that
the concept of an AEWR is an outdated notion. They stated that the AEWR
was created at a time when there was no Federal minimum wage for
agricultural employees. The purpose of the AEWR, therefore, was to
create a floor on the prevailing wage rate. Subsequently, the
Government has established a Federal minimum wage for agricultural
employees. The commenter asserted that once the agricultural minimum
wage was established, the AEWR was retained simply as a matter of
economic theory. The commenter further contended that keeping an AEWR
that is higher than the prevailing wage actually has an adverse effect
on employment of U.S. workers because it precludes access to jobs that
would otherwise be available if there were a competitive wage. The
commenter stated that he has moved to less labor-intensive farm
practices as a direct result of the higher than market wage rate he has
to pay based on the AEWR.
The commenter concluded that there is no current reason to have an
AEWR. The commenter proposed that the Department refrain from further
efforts to determine which of several flawed surveys are appropriate
for the AEWR. Instead the Department should eliminate the AEWR and use
the prevailing wage as the baseline for the H-2A program.
An AEWR distinct from a prevailing wage concept \6\ is most
relevant in cases in which the local prevailing wage is
[[Page 6893]]
lower than the wage considered over a larger geographic area (within
which movement of domestic labor is feasible) or over a broader
occupation/crop/activity definition (within which reasonably ready
transfer of skills is feasible). In such cases, the introduction of
foreign workers paid at the local prevailing wage fails to account for
the fact that the labor shortage would have otherwise resulted in
higher local wages. The use of the observed local prevailing wage would
adversely affect domestic workers by filling job vacancies with foreign
workers before wages were allowed to adjust upward to alleviate the
labor shortage in the imperfectly functioning labor market information
system.
---------------------------------------------------------------------------
\6\ Under the 2008 Final Rule, which also retained the concept
of an AEWR, the methodology used to calculate the AEWR was such that
the AEWR was essentially the same as the prevailing wage.
---------------------------------------------------------------------------
Thus, to more fully protect domestic workers from the adverse
effects of temporary foreign workers, it is appropriate to compute
wages based on a broader geographic area or broader occupation
definition than the more specific prevailing wage computation when the
local prevailing wage is below the average found in the broader market
area. In this case, application of the AEWR is an attempt to
approximate the equilibrium wage that would have resulted but for the
introduction of foreign workers. The AEWR is, in essence, a prevailing
wage concept defined over a broader geographic or occupational field,
recognizing the relevant parameters over which wages could have
adjusted to an equilibrium level in the absence of additional temporary
workers under the H-2A program.
In cases in which the AEWR is not higher than the prevailing wage,
minimum wage, or collectively bargained wage, incumbent domestic
workers would be disadvantaged by the use of the AEWR instead of the
higher alternative.\7\ In these cases, the local shortage of labor
exists despite a wage rate prevailing at a local level (or a mandated
minimum wage or a collectively bargained wage) that is generally higher
than wage average over a broader area, suggesting that wages have not
fully adjusted to an equilibrium level. Therefore, in these cases, the
AEWR is not binding on employers because use of a higher alternative
wage would afford greater protection to incumbent workers. The
difference between the local prevailing wage (which would be paid to
temporary foreign workers) and the lower wage in the broader geographic
or occupational definition area (represented by the AEWR) provides an
incentive for domestic resident workers to shift their labor supply
into the affected market and to benefit from additional employment
opportunities and potentially higher wages than are available to them
elsewhere. Because employers would otherwise be compelled to pay the
minimum wage (by law), the collectively bargained wage (by contract) or
the prevailing wage (by market forces), the Final Rule only codifies
what the employers would otherwise do. The requirement that imported
foreign temporary workers be paid no less than the highest of the AEWR,
the local prevailing wage, the collectively bargained wage, or the
applicable legal minimum wage ensures that domestic workers receive the
greatest potential protection from adverse effects on their wages and
working conditions, including the adverse effect of being denied access
to the opportunity to earn a higher equilibrium wage that would have
resulted as the market (perhaps slowly) adjusted in the absence of the
guest workers.
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\7\ Evidence suggests that the AEWR would be the highest of the
computed wage alternatives, and therefore binding on employers, in
the vast majority of cases. In Fiscal Year (FY) 2009, the AEWR was
not applicable in only 10 percent of the cases certified under the
Rule before the 2008 Final Rule.
---------------------------------------------------------------------------
(iv) Evidence of Current Wage Depression Is Not Needed
Citing various sources of evidence, some comments have suggested
that the use of an AEWR is not justified because there is no evidence
of wage depression in agriculture. One farm organization noted that, in
the proposed rule, the Department justified the use of an AEWR despite
the fact that the Department readily acknowledges that evidence is not
conclusive on the existence of past adverse effect. Similarly, another
association of agricultural employers asserted that there is no longer
a rationale for an AEWR because wages in the agricultural industry have
increased over time.
First and foremost, regardless of any past adverse effect that the
use of low-skilled foreign labor may or may not have had on the wages
paid to authorized agricultural workers, the Department considers the
forward-looking need to protect U.S. workers whose low skills make them
particularly vulnerable to even relatively mild--and thus very
difficult to capture empirically--wage stagnation or deflation that has
the potential to result from the hiring of immigrant labor. The lack of
evidence of wage depression at present is not evidence that an AEWR is
unnecessary; rather, it may be evidence that the imposition of the AEWR
heretofore has been successful in shielding domestic farm workers from
the potentially wage depressing effects of overly large numbers of
temporary foreign workers. The fact, discussed below, that the
localized wage adopted as the AEWR in the 2008 Final Rule has led to
significant decreases in farm worker wage in many cases suggests that
an AEWR linked to a wider geographic area and a wider spectrum of
occupations has provided the protection it was intended to provide.
Furthermore, the Department recognizes that the empirical evidence
is inconclusive about the past impact of immigration on wages and
believes that the provision of an AEWR in the face of such uncertainty
will serve to ensure that wages and working conditions are not
adversely affected. The 2008 Final Rule reviewed evidence on the
depressive effects of immigration on wages and explicitly reiterated
the conclusion stated in the 1989 Rule that evidence of wage depression
in the agricultural sector was inconclusive. 73 FR 77168, Dec. 18,
2008. In the 1989 Rule, the Department noted that some studies had
identified wage depression in specific agricultural labor markets, but
labeled that evidence anecdotal. The Department further noted that even
this anecdotal evidence of wage depression was highly localized and
concentrated in specific areas and crop activities. 54 FR 28043, Jul.
5, 1989.
According to the 2008 Final Rule preamble, evidence developed
during the 20 years after the 1989 Rule did not provide additional
clarity on the issue of wage depression. The 2008 Final Rule cited
experts who continued to claim that unauthorized workers cause wage
depression (e.g., Michael J. Wishnie, ``Prohibiting the Employment of
Unauthorized Immigrants: The Experiment Fails'', 2007 U. Chic. Leg.
For. 193, 215 (2007) (asserting that unauthorized workers certainly
contributed to the depression of wages and working conditions for U.S.
workers). However, the rule also cited experts who suggested that the
evidence was mixed. Thus, the 2008 Final Rule, after considering the
comments received on the subject of wage depression, and after
reviewing relevant literature in an attempt to identify empirical
support for the assertions made in those comments, reaffirmed the
Department's conclusion in the 1989 rulemaking that evidence of wage
depression in the agricultural sector is inconclusive. Furthermore, the
2008 Final Rule also stated that: there is no conclusive evidence one
way or the other regarding the existence of wage depression in
localized agricultural labor markets. 73 FR 77168-77169, Dec. 18, 2008.
[[Page 6894]]
Additional research not previously considered suggests that any
adverse wage effects would be more likely to affect lower-skill
workers. See Pia M. Orrenius, Michael Nicholson, ``Immigrants in the
U.S. Economy: A Host-Country Perspective,'' Journal of Business
Strategies, vol. 26, 2009, which concludes that those who suffer the
most severe negative wage impacts are prior immigrants, who are the
most substitutable for new immigrants. See also Vernon M. Briggs Jr.,
``Illegal Immigration: The Impact on Wages and Employment of Black
Workers,'' U.S. Civil Rights Commission, April 4, 2008, Washington, DC,
which suggests that low skilled workers, many of whom are black, have
been more dramatically affected by immigration over time.
Most contemporary research on the economic impacts of immigration
deals with the effects of permanent immigration (whether authorized or
not) on wages of incumbent workers across the economy generally, and
not specifically in agriculture. To some extent it is not surprising
that the results are unclear, because the effects of increased labor
supply in particular labor markets from immigration are at least
partially (and perhaps more than) offset in general economic
equilibrium terms by the increase in aggregate demand from the
formation of new households. The specific labor market impacts of
permanent immigrants are also attenuated by the fact that immigrants
are not limited by law to particular industries, occupations or places
of residence. They may adapt to current economic conditions and seek
opportunities in relatively fast growing economic areas where their
potentially negative impact on wages is subsumed under a strong upward
trend.
For several reasons, temporary authorized importation of foreign
farm labor may differ from permanent immigration in its impact on labor
markets. The guest workers are by definition admitted for only a
temporary time, and their shelter and sometimes food are provided by
the employer. They do not bring family; they do not set up permanent
households; most of their earnings return to their home countries so
that they add relatively little to the domestic economy; and their
labor is not transferable to other industries where wages and jobs may
be growing faster. The Department is concerned that the potential
adverse impact on domestic workers of large numbers of authorized
temporary foreign workers admitted under the H-2A program may be
greater than the negative impact (if any) of similar numbers of
permanent immigrants who contribute positively to aggregate economic
demand through household formation and whose impact on agricultural
wages may be reduced by their potential mobility to move into other
industries.
Thus, in light of the uncertainty about the wage effects of
immigration and the likelihood that any impact would be felt more
severely by low-skill workers, the Department believes that the risk of
wage depression must be recognized and therefore that there is a
rational basis for the use of an AEWR.
The Department also recognizes the potential for the presence of
unauthorized workers to exert a stagnating influence on agricultural
wages. Evidence from the National Agricultural Workers Survey (NAWS)
suggests that about 60 percent of hired farm workers may not have legal
authorization to work. This large presence of unauthorized workers in
the agricultural workforce heightens the concern about stagnating
agricultural wages for authorized workers.\8\
---------------------------------------------------------------------------
\8\ The ability of unauthorized workers to move readily between
agricultural jobs and jobs in other industries such as construction
may account for the lack of evidence of wage depression. In
contrast, workers admitted under the H-2A program are restricted to
working only in the agricultural sector, and therefore the wage-
depressive effects of the influx of such workers are concentrated.
---------------------------------------------------------------------------
(v) The AEWR Is Unique to the H-2A Program
One commenter focused on an apparent inconsistency between the H-2A
program and other temporary worker programs, none of which requires an
AEWR in addition to a prevailing wage, suggesting that, because there
is no provision for an AEWR in other guest worker programs, there is no
justification for providing for an AEWR in the H-2A program.
For other programs, the Department currently applies the assumption
that U.S. workers in the same occupation will be adequately protected
from having their wages adversely affected by the hiring of foreign
workers so long as the workers are paid prevailing wage rates. Congress
itself has applied this assumption by statute with respect to admitting
foreign workers under the H-1B program. 8 U.S.C. 1182(n)(1)(A),
1182(p).
However, the Department established special adverse effect wage
rates for the H-2A program. The very existence of a separate program
for temporary guest workers in agriculture demonstrates that the
agricultural industry is unique and that temporary foreign agricultural
workers, and domestic resident agricultural workers in general, may be
quite different than workers in other industries subject to the H-1B
and H-2B programs. Workers in agricultural labor or services often
perform work in remote locations for short periods of time and
therefore may have little or no access to community or government
resources, decreasing their ability to obtain information about
alternative employment opportunities that could enable them to bargain
more effectively. In addition, the concentration of foreign temporary
workers in a single industry sector amplifies the impact of the
employment of guest workers on domestic workers. Therefore, the
Department believes that the fact that an AEWR is not used in other
programs is not indicative of its appropriateness for the H-2A program.
There is ample evidence that agricultural workers are a
particularly vulnerable population. They are often hired on a seasonal
basis and are required to move from place to place. In part as a
consequence of their low educational attainment, low skills, low rates
of unionization and high rates of unemployment, agricultural workers
have limited ability to negotiate wages and working conditions with
farm operators or agricultural services employers. The Department
believes that the limited bargaining power of agricultural workers
exacerbates the problem of stagnating prevailing wages and slow
adjustment to higher equilibrium wages in the face of labor shortages,
justifying the use of an AEWR separate and distinct from local
prevailing wages.
The vulnerable condition of U.S. agricultural workers is described
in a report by the USDA's Economic Research Service (ERS), available at
http://www.ers.usda.gov/Briefing/LaborAndEducation/FarmLabor.htm. The
report found that in 2006 the average annual unemployment rate for
hired farm workers (8.5 percent) was nearly twice the unemployment rate
for U.S. workers across all occupations (4.5 percent). High
unemployment is in part attributable to the seasonality of farm work.
Total employment levels for hired farm workers vary significantly
depending on the time of year. As an example of seasonal employment
fluctuations, the ERS report pointed to National Agricultural
Statistics Service (NASS) data in 2006 which indicated that 1,195,000
hired farm workers were employed in mid-July, compared with only
796,000 in mid-January.
The ERS report also noted the concentration of hired farm workers
in the Southwest. According to data from the Current Population Survey
(CPS), roughly 40 percent of all hired farm
[[Page 6895]]
workers live in the Southwest, and 20 percent live in each of the South
and Midwest regions. Almost half of all hired farm workers live in just
five States: California, Texas, North Carolina, Washington, and Oregon.
The geographic concentration of farm workers suggests that 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.
Moreover, many of the other temporary foreign labor programs
administered by the Department are subject to statutory visa caps.
Historically, those programs have never involved the influx of large
numbers of foreign workers into a particular labor market because the
influx of workers is spread throughout several industries. 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, there is a heightened risk that the employment 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 lower than it would have been had it adjusted to an
equilibrium wage to dispel the shortage through normal market processes
involving domestic labor supply flows in response to equilibrium wage
changes. The most effective way to remedy this adverse effect on
domestic agricultural workers is to impose a wage floor that
approximates the equilibrium wage that would have resulted, and the
most effective way to approximate such a wage is to consider a broader
geographic area than the local area considered for prevailing wages.\9\
---------------------------------------------------------------------------
\9\ As mentioned previously, in cases in which the AEWR is not
the highest of the prevailing wage, Federal or State minimum wage or
collectively bargained wage, use of the AEWR would be a disadvantage
to incumbent workers, and the highest wage rate among the listed
choices is a closer approximation of the position the workers would
have been in, absent the H-2A program.
---------------------------------------------------------------------------
One commenter suggested that the current 66,000 visa cap on the H-
2B program would be sufficient to flood any particular labor market
anyway, assuming all the positions in that labor market were certified
by the DOL. Rather than arguing against the use of an AEWR to prevent
localized wage depression, this comment simply suggests that localized
wage depression is theoretically possible under a prevailing wage
concept as provided for under the H-2B program. The Department has not
found that entry of workers using H-2B visas has adversely affected
local labor markets, because in fact, these workers are employed in a
wide variety of industry sectors, including landscaping, hospitality,
construction, reforestation, and retail trade. Nevertheless, the
Department has noted the concentration of agricultural workers in
localized areas and therefore the greater likelihood of adverse effects
on local agricultural labor markets. Thus, the Department recognizes
the usefulness of an AEWR in the context of the H-2A program.
The Department continues to consider valid the justification cited
in the 1989 Rule, stating that 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 in order to protect against the
possibility that the anticipated expansion of the H-2A program will
itself create wage depression or stagnation. See 54 FR 28037, July 5,
1989.
The Department continues to believe that the use of an AEWR is
necessary in order to effectuate its statutory mandate of protecting
domestic agricultural workers from the possibility of adverse effects
on their wages or working conditions. In drawing this conclusion, the
Department follows the approach in the 2008 Final Rule. The Department
is firmly committed to the principle that the wage rates required by
the H-2A program should ensure that the wages of U.S. workers will not
be adversely affected by the hiring of H-2A workers, and therefore
declines to jettison the AEWR concept. 73 FR 77110, Dec. 18, 2008.
b. Determining the AEWR
The Department has chosen to calculate the AEWR for each State
within a given region as the annual average combined hourly wage for
field and livestock workers derived from the USDA's NASS quarterly FLS.
Hourly wage rates are calculated based on employers' reports of total
wages paid and total hours worked for all hired workers during the
survey reference week each quarter.
The FLS is conducted each year in January, April, July and October,
and results are published the following month. Annual average estimates
for the number of all hired workers, hours worked by hired workers and
wage rates are included in the October FLS report, which is published
in November. Information about the methodology of the FLS is publicly
available at: http://usda.mannlib.cornell.edu/usda/current/FarmLabo/FarmLabo-11-20-2009.pdf.
The FLS defines work as work done on a farm or ranch in connection
with the production of agricultural products, including nursery and
greenhouse products and animal specialties such as fur farms or
apiaries. It also includes work done off the farm to handle farm-
related business, such as trips to buy feed or deliver products to
local markets.
The FLS defines hired workers as anyone, other than workers
supplied by a services contractor, who was paid for at least 1 hour of
agricultural work on a farm or a ranch. Worker type is determined by
what the employee was primarily hired to do, not necessarily what work
was done during the survey week. The survey seeks data on four types of
hired workers: Field workers, livestock workers, supervisors (hired
managers, range foremen, and crew leaders) and other workers engaged in
agricultural work not included in the other three categories.
The FLS report is based on farmers' gross wages paid to workers
grouped into two broad categories: Field workers and livestock workers.
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. Field workers
include employees engaged in planting, tending and harvesting crops,
including operation of farm machinery on crop farms. Livestock workers
include employees tending livestock, milking cows or caring for
poultry, including operation of farm machinery on livestock or poultry
operations.\10\
---------------------------------------------------------------------------
\10\ 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 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.
The target population for the establishment portion of the FLS is
all farms that sell, or would normally sell, at least $1,000 worth of
agricultural
[[Page 6896]]
products during the year. The target population for the agricultural
services survey covering California and Florida is all operations that
provide agricultural services to farmers.
The USDA survey is designed to produce statistically reliable
estimates of overall hired labor use and costs for California, Florida
and Hawaii, and provide data for other States except Alaska under 15
multistate groupings. For California, Florida and Hawaii, the AEWR each
year will be set as the annual average of the previous calendar year's
four quarterly FLS hourly wage estimates for field and livestock
workers (combined) in each of these States. For the other States the
AEWR will be set as the annual average of the previous calendar year's
four quarterly FLS hourly wage estimates for field and livestock
workers (combined) of the FLS multistate crop region to which the State
belongs. Every State in the same region will be assigned the same AEWR
amount. The State groupings are as follows.
------------------------------------------------------------------------
------------------------------------------------------------------------
Northeast I............................ Connecticut, Maine,
Massachusetts, New Hampshire,
New York, Rhode Island and
Vermont.
Northeast II........................... Delaware, Maryland, New Jersey
and Pennsylvania.
Appalachian I.......................... Virginia and North Carolina.
Appalachian II......................... Kentucky, Tennessee and West
Virginia.
Southeast.............................. Alabama, Georgia and South
Carolina.
Delta.................................. Arkansas, Louisiana and
Mississippi.
Cornbelt I............................. Illinois, Indiana and Ohio.
Cornbelt II............................ Iowa and Missouri.
Lake................................... Michigan, Minnesota and
Wisconsin.
Northern Plains........................ Kansas, Nebraska, North Dakota
and South Dakota.
Southern Plains........................ Oklahoma and Texas.
Mountain I............................. Idaho, Montana and Wyoming.
Mountain II............................ Colorado, Utah and Nevada.
Mountain III........................... Arizona and New Mexico.
Pacific................................ Oregon and Washington.
------------------------------------------------------------------------
The selection of the Bureau of Labor Statistics (BLS) Occupational
Employment Survey (OES) in the 2008 Final Rule was based on an
underestimation of its inadequacies. The OES agricultural wage data has
a number of significant shortcomings with respect to its accuracy as a
measure of the wages of hired farm labor suitable to be used as the
AEWR. Perhaps its most substantial shortcoming in this context is that
the OES data do not include wages paid by farm employers. Data is not
gathered directly from farmers but from non-farm establishments whose
operations support farm production, rather than engage in farm
production. Therefore, the OES results for the farm workers and
laborers, crop, nursery and greenhouse occupation category reflects
only the subset of farm workers and laborers employed by agricultural
support services employers--companies that provide agricultural labor
supply to farmers on a contract basis. The survey does not include data
on farm workers who are directly hired by farm operators and represent
the majority of hired farm labor. According to the latest OES data, the
covered agricultural establishments represent employment of 451,770
hired agricultural workers of all types--about one-third of the 1.2
million total number of all hired farm workers of all types identified
by the USDA FLS. Given that the employees of non-farm establishments
constitute a minority of the overall agricultural labor force, the
Department has concluded that these data are therefore not
representative of the farm labor supply and do not provide an
appropriately representative sample for the labor engaged by H-2A
employers.
The adoption of the BLS OES methodology in the 2008 Final Rule was
intended to simplify the wage determination process for the H-2A
program while maintaining adverse effect wage protection similar to
that previously provided by the FLS. It was never the Department's
intention to produce a substantial and across-the-board reduction in
the level of wage protection provided by the AEWR. The 2008 Final Rule
explicitly stated that the decision to adopt the OES method for
computing the AEWR does not reflect any belief on the part of the
Department that all AEWRs are currently artificially high and that they
therefore should all be lowered. Nonetheless, average wage levels
certified under the H-2A program have declined by over 10 percent
nationwide: On a State-by-State basis, only seven States did not
experience a decline (See Table 1; Data based on the full set of H-2A
application records received in fiscal years (FY) 2008 and 2009).
Several commenters representing employers and grower associations
questioned the conclusion expressed in the NPRM that the change in the
AEWR computation method had negatively impacted wage floors set under
the H-2A program and asked for more specific data. Accordingly, the
Department has analyzed the records for FY 2008 and FY 2009 H-2A
certifications. The FY 2008 certifications included records for 5,392
applications that were fully or partially approved in the last full
year of AEWR computation under the procedure specified in the 1989 Rule
(relying on the NASS averages for crop and livestock workers). The FY
2009 certifications included 4,857 applications that were fully or
partially approved, of which about 40 percent were received before the
January 2009 effective date of the 2008 Final Rule and were processed
under the 1989 computation method. The fact that in FY 2009 some
applications were certified under different methods provides a very
useful basis for comparison of the relative impact of the computation
method change from the FLS data source to the OES data source. The
analysis focused on the applications for hourly paid farm and livestock
workers for which the AEWR is most likely to be the wage floor
determinant. The analysis excluded 906 applications in FY 2008 and 610
applications in FY 2009 that were applications for custom combine and
other specialized equipment operators or cattle or sheep range workers
paid on a monthly or weekly basis (the wages for these jobs are
determined predominantly by local, crop or livestock specific
prevailing wage surveys). The excluded applications had de minimis
effect on the comparative averages for FY 2008 and FY 2009 wage
comparisons shown below since the excluded observations included
approximately equal numbers of applications involving relatively high-
paid custom combine operators and relatively low-paid sheepherders.
Table 1 shows the National and State average wage certifications for FY
2008, for the applications certified under the 1989 Rule in FY 2009 and
for the applications certified under the 2008 Final Rule in FY 2009.
The average wage amounts are the average of the certified minimum
wages of the approved applications weighted by the number of workers
approved for each application. The average wages reflect the combined
effects of the AEWR, the applicable local prevailing wage and the
applicable legal Federal or State minimum wage, whichever was highest
for each application. In some cases the AEWR was the determining
parameter for the wage certified and in other cases a local prevailing
wage or a legal minimum wage was the determining parameter. The change
in the method of calculating the AEWR is reflected in the changes in
the share of applications in which the applicable prevailing wage or
legal minimum wage was higher than the applicable AEWR and in the
average certified wages for applications processed before and after the
change.
The change to the OES method of computing the AEWR resulted in the
[[Page 6897]]
average certified wage for H-2A workers decreasing nationwide to $8.02
per hour, an 11.2 percent decrease compared to the $9.04 per hour
average for FY 2009 applications that were received before January 19,
2009 and processed under the prior rules, and a 10.8 percent decrease
compared to the $9.00 per hour average wage rate for FY 2008
applications, for all of which the wage determination was made under
the prior rule. The only States that did not see a fall in the average
H-2A wage amount following the implementation of the 2008 Final Rule
were Alaska, Delaware, Hawaii, Minnesota, Montana, North Dakota, and
South Dakota. These States accounted for 1,252 H-2A workers, less than
2.4 percent of the 52,420 total number of H-2A workers certified under
the 2008 Final Rule in FY 2009. It is noteworthy that the decline in
average wage certification amounts would have been greater were it not
for the significant increase following the implementation of the OES
AEWR computation method in the proportion of applications in which the
wage floor determination reflects a legal minimum wage or a local
prevailing wage greater than the applicable AEWR level. In FY 2009, for
applications processed under the 2008 Final Rule (i.e., applications
received after January 19, 2009), 60 percent of the applications were
approved at a wage higher than the applicable AEWR because the
applicable prevailing or legal minimum wage was higher. This is in
contrast to only 10 percent in which the AEWR was not applicable among
applications processed in FY 2009 under the prior rule.
Table 1--State and National Average Certified H-2A Wage Rates FY 2008 and FY 2009
----------------------------------------------------------------------------------------------------------------
08-09 Change
FY 08 average Pre Jan. 19, Post Jan. 19, (FY 2008 vs 09 Change (pre
State wage level 2009 wage 2009 wage post Jan. 19) Jan 19 vs post
level level chg Jan. 19)
----------------------------------------------------------------------------------------------------------------
AK.............................. $8.00 $8.00 $8.25 $0.25 $0.25
AL.............................. 8.52 8.53 7.39 -1.12 -1.13
AR.............................. 8.25 8.44 7.42 -0.83 -1.03
AZ.............................. 8.55 8.73 8.09 -0.46 -0.64
CA.............................. 9.44 9.29 8.65 -0.80 -0.64
CO.............................. 8.93 9.45 8.15 -0.78 -1.30
CT.............................. 9.63 9.60 9.22 -0.40 -0.38
DE.............................. 12.67 9.70 13.78 1.11 4.08
FL.............................. 8.62 8.82 7.45 -1.17 -1.37
GA.............................. 8.52 8.53 7.31 -1.22 -1.23
HI.............................. 10.83 10.86 10.90 0.08 0.04
IA.............................. 10.42 10.39 7.46 -2.96 -2.93
ID.............................. 8.76 8.77 7.95 -0.81 -0.83
IL.............................. 10.09 9.90 7.76 -2.33 -2.14
IN.............................. 9.90 9.90 8.53 -1.37 -1.37
KS.............................. 9.64 9.85 9.78 0.14 -0.07
KY.............................. 8.87 9.13 7.38 -1.49 -1.75
LA.............................. 8.19 8.47 8.14 -0.05 -0.33
MA.............................. 9.66 9.63 8.30 -1.36 -1.33
MD.............................. 9.42 9.70 9.07 -0.34 -0.63
ME.............................. 9.68 9.70 9.48 -0.20 -0.22
MI.............................. 9.90 10.02 8.24 -1.66 -1.78
MN.............................. 9.85 10.03 10.03 0.18 0.00
MO.............................. 10.14 10.44 9.56 -0.58 -0.89
MS.............................. 8.16 8.45 7.51 -0.64 -0.94
MT.............................. 8.78 8.75 9.29 0.51 0.54
NC.............................. 8.91 8.88 7.40 -1.51 -1.48
ND.............................. 9.66 10.89 11.61 1.96 0.73
NE.............................. 9.66 9.90 9.54 -0.11 -0.36
NH.............................. 9.67 9.70 8.39 -1.28 -1.31
NJ.............................. 9.34 9.76 8.48 -0.86 -1.28
NM.............................. 8.59 9.00 8.74 0.15 -0.26
NV.............................. 9.28 9.42 8.98 -0.30 -0.44
NY.............................. 9.64 9.72 9.13 -0.51 -0.59
OH.............................. 9.92 9.96 9.26 -0.66 -0.70
OK.............................. 9.06 9.13 8.94 -0.12 -0.19
OR.............................. 9.93 .............. 9.89 -0.04 ..............
PA.............................. 9.49 9.70 8.72 -0.77 -0.98
RI.............................. 9.63 10.00 .............. .............. ..............
SC.............................. 8.51 8.53 7.26 -1.25 -1.27
SD.............................. 9.68 9.94 10.11 0.43 0.17
TN.............................. 8.89 9.10 7.44 -1.45 -1.65
TX.............................. 8.83 9.03 8.75 -0.08 -0.28
UT.............................. 9.04 9.45 8.85 -0.19 -0.60
VA.............................. 8.95 8.87 7.55 -1.41 -1.32
VT.............................. 9.66 .............. 9.62 -0.04 ..............
WA.............................. 9.93 9.94 8.74 -1.19 -1.20
WI.............................. 9.78 10.04 8.44 -1.34 -1.60
WV.............................. 8.65 9.13 7.39 -1.26 -1.74
WY.............................. 8.73 9.01 8.45 -0.28 -0.56
Nationwide...................... 9.00 9.04 8.02 -0.98 -1.01
----------------------------------------------------------------------------------------------------------------
Note: Empty cells indicate no applications.
[[Page 6898]]
Because of the proportionate size of the decrease and the
widespread extent of the decreases, the Department has concluded that
the continued use of the OES method to calculate the H-2A AEWR entails
a significant risk that U.S. workers may in the future experience wage
depression as a result of unchecked expansion of the demand for foreign
workers.
Some employers and employer association commenters suggested that
the AEWR computed on the basis of OES data is a better reflection of
actual agricultural labor market conditions than the average wage based
on the FLS. This view is incorrect and reflects a misunderstanding of
the role of the AEWR. As already noted, the AEWR is most relevant in
cases in which the local prevailing wage is lower than the wage
considered over a larger geographic area or over a broader definition
of occupation, crop, and/or activity. In this regard, the OES data are
inadequate. The OES data does not include any survey observations of
wages paid to workers who are employed directly by farm operators. It
only includes data from employers who operate farm support operations,
including contract suppliers of temporary farm labor. Workers in
agricultural crop and livestock occupations who are employed by support
services establishments account for about one-third of total hired
agricultural crop and livestock employment. The predominant majority
are directly hired by farmers.
In the 2008 Final Rule, the Department recognized this deficiency
in the OES data, but assumed that earnings in the support services
sector reported in the OES data would be equivalent to, and a
reasonable proxy for, wages paid by farm employers. Subsequent analysis
of empirical data by the Department has shown that this assumption was
seriously flawed. The agricultural occupations of workers employed in
the agricultural support services sector (the only sector directly
represented in the OES survey results) differ significantly from the
vast majority of the agricultural occupations performed by workers who
are employed directly by farm establishments. These differences range
across characteristics that significantly affect potential productivity
and earnings. Based on data from the Annual Social and Economic
Supplement (also known as the March supplement) of the U.S. Census
Bureau's CPS describing annual earnings, weeks worked, and weekly hours
worked for persons with any work experience during calendar years 2004
through 2008, hired agricultural laborers employed by agriculture
support services establishments were comprised of 59 percent non-
citizens and 41 percent U.S. citizens. In contrast, just 37 percent of
similar workers directly employed by farm establishments were non-
citizens and 63 percent were U.S. citizens. While the legal status of
non-citizen workers in the sample is unknown, it has been generally
observed across a wide range of industries and occupations that non-
citizens tend to earn lower wages than do U.S. citizens. For example,
the CPS data we analyzed showed that across all occupations and
industries, mean hourly earnings of non-citizens in the 2004-2008
period were 28 percent less than mean hourly earnings of citizens.
Educational attainment is also an important determinant of
earnings. Hired agricultural workers tend to have lower-than-average
educational attainment compared to the general workforce, but the
differences between hired agricultural workers employed by agriculture
service sector establishments compared to those employed directly by
farm establishments are striking and reflect in part the higher share
of non-citizens found in the agriculture service establishment compared
to the farm establishments. For agriculture service establishments, 60
percent of workers had completed no more than the 9th grade, compared
to 41 percent of hired agriculture workers employed directly by farm
establishments. Over 26 percent of workers employed directly by farm
establishments had a high school diploma, compared to 19 percent of
those employed by agriculture service establishments, and 15 percent of
hired farm laborers employed directly by farm establishments had some
post-secondary education, compared to only 6 percent for employees of
agriculture support service establishments. These differences in
characteristics of hired agricultural workers employed by agricultural
support service establishments (the only category of agriculture
establishments reflected in the OES wage data) compared to workers
employed directly by farm establishments helps to explain the large
differences in wages between the two sectors. On average over the 2004-
2008 period, persons who were employed directly by farm establishments
earned on average $10.87 per hour (median $8.33 per hour), compared to
a mean of $9.32 per hour (median $7.15 per hour) for those employed by
support service establishments. Whether in terms of mean or median,
workers employed in the support services sector earned 14 percent less.
All data are in real 2009 dollar equivalent terms.
The Department's error in the 2008 Final Rule of assuming that the
OES data for workers employed by agricultural support services
establishments would be a reasonable proxy for wages paid by farm
establishments was compounded by a second erroneous assumption. In the
2008 Final Rule, the Department added the option for applicants for H-
2A workers to specify a skill level for the job opportunity. These
skill levels correspond to points on the percentile distributions of
wages below and above the OES median for each occupation. The
Department assumed that employers would seek a variety of skill levels
in occupations for which workers were sought--some higher and some
lower than the occupational median, but that the overall result would
likely be balanced and average to the median. The FY 2009
implementation experience revealed a significantly different outcome:
73 percent of applicants for H-2A workers specified the lowest
available skill level--corresponding to the wage earned by the lowest
paid 16 percent of observations in the OES data. Only 8 percent of
applicants specified a skill level that translated into a wage above
the OES median. This bias toward low skill job specifications
compounded the downward wage bias created by the omission of farm
establishment observations from the OES data. Both the shift to the OES
data source and the use of skill levels contributed to the downward
bias in the AEWR-based wage determinations for the applications in
which the wage determination was made using the rule for applications
received on or after January 17, 2009.
The FLS is the only annually available data source that actually
uses information sourced directly from farmers. This is a strong
advantage of the FLS as the AEWR data source compared to all other
alternatives. The OES data do not include observations of wages paid by
farm establishments. Other potential data sources that do include
earnings information for hired farm workers employed by farming
establishments include the annual CPS work experience supplement (the
Annual Social and Economic Conditions (ASEC) supplement), the CPS
monthly (outgoing rotation) earner study supplement and the Census
Bureau's American Community Survey (ACS). However, the CPS data (both
the ASEC supplement and the monthly earner supplement) contain too few
[[Page 6899]]
observations for disaggregation of estimates to State or significant
multistate regions; the analysis of CPS work experience data for this
rulemaking entailed pooling of 5 years of data to obtain sufficient
observations. The sample of the CPS is designed to reliably produce
total annual labor force characteristics on a State-by-State basis.
State (and, to a greater extent, substate) sub-samples of the CPS
generally cannot support reliable estimation on a monthly basis for the
relatively small category of agricultural employment. Because of a
concern about the statistical significance for tabulations covering
less than a full calendar year, the BLS does not regard CPS statewide
tabulations covering less than a full calendar year as fit for
publication and cannot account for seasonal fluctuations in the sub-
national monthly CPS tabulations. Furthermore, the ACS data entail an
unacceptable time lag of over a year and do not readily allow for
calculation of hourly earnings. On balance, the USDA FLS is the best
source available.
Many comments by farm organizations, individual farmers, and
elected officials expressed concerns that wages vary across the U.S. by
geographic location, by specific agricultural occupation, and by level
of skill. Therefore, these commenters argued that an AEWR that does not
take into account these variables will adversely affect U.S. workers.
Accordingly, a farm association proposed that DOL continue using the
BLS data to determine the AEWR because it gives a more accurate picture
of market-based wages actually being paid for agricultural jobs being
performed at various skill levels.
The Department does not agree with the assertion that the OES data
provide a more accurate picture of market-based wages. In addition to
the fact that the FLS and not the OES includes data about what farm
establishments actually pay for hired labor (as discussed previously),
the commenters' focus on localized labor market conditions overlooks
the important role of the FLS's broader geographic and occupational
coverage in protecting domestic workers from wage depression or
stagnation resulting from an influx of foreign workers into the context
of small, isolated geographic areas or niche crop markets. 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 before receiving a
labor certification for employing H-2A workers.
A related consideration is the potential inefficiency of labor
market information transmission systems. By providing a prevailing wage
defined over a broader geographic area and over a broader occupational
span (all field and livestock workers, rather than a narrow crop or job
description), use of the FLS provides a check on the expansion of
foreign labor importation to prevent undermining job opportunities and
wages for domestic farm workers. Using the FLS average wage derived
from data across a relatively broad geographic and occupational span
reflects the view that farm labor is mobile across relatively wide
areas and farm laborers' skills are adaptable across a relatively wide
range of crop or livestock activities and occupations. The use of the
FLS wage average as an AEWR appropriately limits the importation of
foreign labor to cases where the value of the labor need is more than
marginal; the relatively higher willingness to pay signaled by farmers
who do import foreign workers temporarily under these circumstances
(because domestic labor was not immediately forthcoming) may serve to
mobilize domestic farm labor in neighboring counties and States to
enter the subject labor market over the longer term and obviate the
need to rely on importation of foreign labor on an ongoing basis. In
this way, the AEWR based on the FLS data source balances the needs of
both farmers and domestic farm workers. The 2008 Final Rule did not
sufficiently account for these labor market attributes and the
Department believes that, by returning to an AEWR based on the FLS'
regionally-based methodology, that inconsistency will be remedied.
The employer and employer association commenters that argued that
precise tailoring of H-2A wages to local labor market conditions is
critical to preventing an adverse effect on wages of U.S. workers may
not fully understand the dynamics of farm worker labor markets and
labor market information flows described above. Furthermore, those who
argue that it is essential that the AEWR have as great a degree of
geographic refinement as possible, reflecting market conditions for
each locality across the country, miss the essential point that the
importation of foreign labor should not serve as an obstacle to normal
market adjustment processes and labor mobility in the broader regional
market perspective. We have carefully considered the arguments of some
commenters that the aggregation of a widely diverse national
agricultural landscape into just 15 regions (and 3 stand-alone States)
results in extremely broad generalizations that fail to account for
specific market conditions at the local level. After due consideration,
we conclude that a broadly-based AEWR protects the long-term well-being
of domestic workers in terms of wages and access to job opportunities
and it also benefits farmers in the long-run by preserving market
adjustment processes that encourage efficient allocation of resources,
innovation, and adaptation to changing competitive circumstances.
DOL consistently has set statewide AEWRs rather than substate or
crop-specific AEWRs because of the absence of data from which to
measure wage depression at the local level. To the extent that wage
depression does exist on a concentrated local basis, the USDA's
aggregation of wage data at broad regional levels immunizes the survey
from the effects of any localized wage depression that might exist.
Many employer and association commenters expressed concern that an
appropriate AEWR that reflects market realities and labor costs should
include wage data relating to the specific occupation and level of
skill or experience required for a position.
Several farm organizations and individual farmers expressed
concerns that the FLS produces an artificially high wage rate, in part
because it includes many occupations which are not related to the jobs
H-2A workers are hired to perform. Commenters also argued that the
Department's reliance on USDA FLS data does not provide refined data by
skill level or experience, occupations, or geographic locales of
workers typically sought by agricultural employers in the H-2A program.
Commenters also pointed out that the USDA FLS population includes not
only the lower-skilled crop field workers typically sought by
agricultural employers who turn to the H-2A program for labor, but also
inspectors, animal breeding technicians, and trained animal handlers--
all occupations that provide a poor basis for determining H-2A wages
because they are rarely, if ever, filled by H-2A workers. In response
to these comments,
[[Page 6900]]
we examined the records of FY 2008 and FY 2009 H-2A applications and
found numerous examples of requests for foreign workers to fill jobs as
inspectors, animal breeding technicians (inseminators), and other
specialized occupations. For example, the FY 2009 applications included
requests for 12 equine trainers and breeding specialists, 38
agricultural product inspectors and graders, 5 non-equine animal
trainers, 43 operating engineers, 312 beekeepers, 25 artificial
inseminators, 23 logging crane operators, 18 farm equipment mechanics
and 14 reptile specialists. Therefore, this objection to the use of FLS
data is unfounded.
The OES occupational detail is a unique feature of the survey. One
State agriculture department noted that this approach allows local
farmers and ranchers to reimburse immigrant workers with fair, market-
based wages specific to the location of employment. It is also in part
the reason that the survey is used in other foreign worker programs
administered by the Department, including the H-1B and H-2B programs.
The Department believes that the BLS OES wage survey suffers from
higher error rates than the USDA FLS, and is a less reliable source of
data about farm workers' wage rates. One study of OES data found that
employment in some of the metro and non-metro areas is very small,
increasing relative standards errors. For example, for the occupation
of farm workers and laborers, crop, nursery, and greenhouse employment
numbers may be very small for some States--see Kentucky (200) or West
Virginia (190) as compared to California (146,220). As expected, the
subsequent relative standard errors for States with few observations is
relatively high--meaning that the reliability of the wage statistics is
relatively low, which result in data that are not precisely measured.
For example, the 90 percent confidence interval for the $8.28 hourly
mean wage for California is from $8.20 to $8.36 as compared to the 90
percent confidence interval for the $11.52 hourly mean wage for Montana
which is from $10.24 to $12.80. Furthermore, a SWA noted that the OES
survey program used in the 2008 Final Rule is a complex, confusing
system resulting in multiple H-2A wage rates for various geographical
areas within a State.
Several farmers pointed out that another unique feature of OES is
that it offers the ability to establish four wage level benchmarks
commonly associated with the concepts of experience, skill,
responsibility, and difficulty variations within each occupation. The
four skill levels for each occupation afford the employer and the
Department the opportunity to more closely associate the level of skill
required for the job opportunity to the relevant OES job category and,
in turn, the appropriate AEWR.
The Department has carefully considered these comments and does not
find the notion of meaningful skill differences among most agricultural
workers to be generally credible. The perception expressed by some
commenters that the OES data actually differentiates workers by skill
is simply false. The OES wage levels are not determined by surveying
the actual skill level of workers, but rather by applying an arithmetic
formula. These are arbitrary percent cut-offs of the distribution of
earnings within the occupations. Therefore, the associated occupational
skill levels are not well defined, and H-2A wage differences do not
accurately reflect meaningful differences in skills or job complexity.
Moreover, the Department finds that the notion of meaningful skill
differences among agricultural workers is unfounded. Most of the
occupations and activities relevant to the H-2A program involve skills
that are readily learned in a very short time on the job,\11\ skills
peak quickly, rather than increasing with long-term experience, and
skills related to one crop or activity are readily transferred to other
crops or activities.
---------------------------------------------------------------------------
\11\ According to the Employment Projection Program at BLS, for
crop, nursery, and greenhouse farm workers and laborers, the most
significant source of post-secondary education or training is short-
term on-the-job training. See http://www.bls.gov/opub/mlr/2007/11/art5full.pdf.
---------------------------------------------------------------------------
The preamble to the 2008 Final Rule states that the Department is
statutorily obligated to use the four-tier wage system. Although the
relevant statute is not clear on its face, the Department has now
concluded that this statement is an incorrect reading of the statute.
The legislation establishing the four-tier system was part of the
Consolidated Appropriations Act 2005, Pub. L. 108-447 and is contained
in a section titled the L-1 Visa and H-1B Visa Reform Act. The specific
part of that Act describing the four-tier system, sec. 423, is titled
H-1B Prevailing Wage Level. In addition, the legislation specifically
identifies the visa categories to which it applies and H-2A visas are
not included in the list. While the Department had the discretion to
use the four-tier system in the H-2A program if the facts supported
that outcome, it is simply wrong to state that the Department is
statutorily required to use it. Moreover, for the reasons stated above,
the Department has concluded that the OES four-tier wage system is
inappropriate for use in the H-2A program.
(i) Survey Frequency and Data Availability
The FLS and publication schedule provide timely data for purposes
of calculating the relevant State AEWRs. Specifically, the FLS 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. The scope and frequency of the survey means
that all crops and activities now covered by the H-2A program will be
included in the survey data and that peak work periods also will be
covered. This is in contrast to the OES data, which are published 1
year after collection of the most recent data panel. Furthermore, OES
data are only collected in May and November, which are not times of
peak work for many crops and activities covered by H-2A.
(ii) Accuracy of Data
The Department also weighed concerns over the accuracy of AEWRs
based on the USDA FLS because the FLS is not based on reported hourly
wage rates. Instead, the USDA's FLS asks employers to report total
gross wages and total hours worked for all hired workers for the two
reference weeks of the survey. Based on this information, the survey
constructs annual average earnings for the broad general categories of
field workers and livestock workers as the ratio of gross wages to
hours worked. The hourly AEWR thus is not based on reported hourly
wages, but rather on the basis of the numerator (total gross wages for
the combined occupations) and denominator (total hours for the combined
occupations) derived from the information supplied by employers.
The USDA FLS asks employers about their workers' total earnings and
total hours worked to derive average hourly rates. In OES,
establishments report the number of workers in a certain occupation
earning within each of 12 wage intervals. To calculate the mean hourly
wage of each occupation, total weighted hourly wages are summed across
all wage intervals and divided by the occupation's weighted survey
employment. Furthermore, the mean hourly wage rate for all workers in
any given wage interval is not computed using grouped data collected by
the OES survey. Rather, the mean wage for each interval is based on
occupational wage
[[Page 6901]]
data collected by the BLS Office of Compensation and Working Conditions
for the National Compensation Survey (NCS). Although smaller than the
OES in terms of sample size, the NCS program, unlike OES, collects
individual wage data. However, agriculture establishments are excluded
from the scope of the NCS. Farm worker data is derived from workers
employed through companies listing themselves as nonagricultural
establishments. Therefore, the Department believes that the FLS is
superior to the OES for purposes of computing the H-2A AEWR.
(iii) The Department's Decision To Return to the NASS FLS Methodology
Even if one accepted the argument that the geography, occupational,
and other attributes of data available from the OES are desirable
features, the Department finds that none of these individually or
together would offset the disadvantage that the OES does not gather
data directly from farmers but from non-farm establishments whose
operations support farmer production, rather than engage in farm
production. For example, the OES results for the farm workers and
laborers, crop, nursery and greenhouse occupation category reflects
only the subset of farm workers and laborers employed by agricultural
support services employers--companies who provide agricultural labor
supply to farmers on a contract basis. The survey does not include data
on the majority of farm workers who are directly hired by farm
operators. Because the data demonstrate that workers employed by
support services establishments are less educated and less likely to be
U.S. citizens than employees of farm establishments, and therefore
typically have substantially lower wage rates, the OES survey is not an
appropriate data source for ensuring that the importation of guest
workers does not adversely affect U.S. workers.
For this and all of the other reasons discussed, the Department
will return to its 1987 Rule methodology for the formulation of the
AEWR. The Department will annually publish for each State within a
given geographical region 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.
c. Collective Bargaining Wage
The Department did not propose adding the term collective
bargaining wage in the provision regarding the required wage to be
offered. Several commenters, however, suggested that the Department
address the use of collective bargaining wages in required wages. Some
commenters suggested that the collective bargaining wage rate be cited
as the first wage to be imposed, looking to the highest of the AEWR,
prevailing, or minimum wages only in the absence of a collective
bargaining wage rate, in order to recognize that wages paid under
collective bargaining agreements between a union and an employer do not
adversely affect the wages of workers similarly employed. Others
suggested the Department recognize wages set by collective bargaining
agreements as prevailing, in the alternative or as an exception to the
AEWR.
After consideration, the Department has decided to amend the
provision to add the term an agreed-upon collective bargaining wage to
the required wage rate options for employers. This amendment requires
employers to use a collective bargaining wage if it is the highest
wage, thus avoiding the potential payment of a collective bargaining
wage that is less than the other wages. At the same time, it
acknowledges the role of the collectively bargained wage as a potential
legitimate wage.
d. Increase in Prevailing Wage During the Contract Period
In the NPRM, the Department proposed that if the prevailing wage
rate is adjusted during the work contract and the new adjusted wage is
higher than the required wage at the time of certification, the
employer must pay that higher wage upon notification by the Department.
We are retaining this requirement with modifications based on (a)
above.
The Department received several comments in favor of this proposal.
One commenter expressed support for the proposed increase but suggested
the Department further amend the requirement to include within the list
of applicable wages the hourly wage or piece rate paid to the
employer's non-H-2A workers in the current or immediately preceding
season for comparable employment. The Department declines to adopt this
recommended change as not necessary to fulfill the statutory
requirement to ensure that U.S. workers are not adversely affected.
Some commenters opposed the proposed adjustment, contending in one
case that the proposal is contrary to current practice in other
temporary programs, and that the Department provided inadequate
justification for the change. These commenters also indicated that the
application in mid-season of any increase would be detrimental to
employers who have already budgeted for the season based on wages in
effect at the time of recruitment.
Employers participating in the H-2A program have historically been
required to offer and pay the highest of the AEWR, the prevailing wage
or the Federal or State minimum wage at the time the work is performed.
The wage adjustment under this provision is intended to ensure that the
workers in the program are consistently receiving at least the highest
of the applicable wages. As explained above, the wage adjustment also
ensures that the wages reflect the wage in the area of intended
employment in those relatively rare cases when that wage exceeds the
AEWR. Accordingly, this adjustment, as stated in the Final Rule, will
only affect a limited number of employers whose OFLC-approved offered
wage rate falls below the permissible floor once the new wage rates are
issued.
The Department recognizes that these wage adjustments may alter
employer budgets for the season. However, the change is intended to
ensure workers are paid throughout the life of their contracts at an
appropriate wage. Therefore, employers are encouraged to include into
their contingency planning certain flexibility to account for any
possible wage adjustments.
6. Section 655.121 Job Orders
a. Area of Intended Employment
(i). Submission of the Job Order to the SWA
The Department proposed to continue the longstanding practice of
requiring employers to submit job orders to the SWA serving the area of
intended employment for intrastate clearance in order to test the local
labor market and determine the availability of U.S. workers before
filing an Application. The Department further proposed that 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. The Final Rule also requires that the SWA must forward
the job order to the companion SWAs to have it placed in all locations
simultaneously.
The Department received several comments on this proposal. A farm
worker advocacy association commented that the filing of the job order
alone and the elimination of the contemporaneous filing of the
Application inappropriately reduces the oversight by the OFLC during
the early
[[Page 6902]]
stages of the H-2A process. This commenter was concerned about the
sufficiency of OFLC oversight during the pre-certification period when
OFLC staff previously used this period to address serious deficiencies
in the Application that affected material terms of employment and
recruitment, including job terms and conditions as publicized to both
U.S. and foreign workers.
Several commenters supported the Department's proposed regulation.
One noted that it would reintroduce much-needed checks and balances
into the process. Others indicated that the submission of the job order
and initiation of recruitment prior to certification would increase the
potential for hiring local workers. They also suggested that
recruitment of U.S. workers may satisfy the need for agricultural labor
and eliminate the need for a labor certification. As noted in the NPRM,
the INA requires employers to engage in recruitment through the 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.
Accordingly, the Final Rule retains the language of the NPRM.
(ii). Submission 75-60 Days Prior to Date of Need
The Department proposed to retain the 2008 Final Rule requirement
that the employer 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. The Department received several comments about this proposal. The
Department received two comments from State agencies supporting the
longer recruitment timeframe, one noting that the timeframe will permit
the SWA to review the proposed terms and conditions, assure that the
wages offered meet the required wage, and commence required recruitment
by placing the job order into intrastate clearance.
Most commenters, however, opposed the 75 to 60 day recruitment
period. Many of them advocated a return to the 45-day posting of the
job order, reasoning that it provides a more appropriate timeframe for
employers to assess the local job market as well as to anticipate labor
demands of the coming crop. Other commenters explained that growers,
particularly small and mid-sized growers, must account for a variety of
factors in order to decide what crops to plant and the amount of
acreage, and that they do not make those decisions 75 to 60 days in
advance. These commenters also expressed the concern that very few
local agricultural workers commit to a job 75 to 60 days in advance and
many of those who do commit often do not report for work on the date of
need. One of these commenters expressed concern that the longer
recruitment period would penalize employers because early hires may no
longer be available at the time the work begins, leaving the employer
with a labor shortage.
A few commenters echoed the same concerns and argued for a shorter
timeframe. These commenters criticized the Department's rationale for
extending the recruitment period. The same commenters referenced the
Department's statements in the NPRM indicating that the use of the H-2A
program since the implementation of the 2008 Final Rule has decreased,
arguing that there should be less need for a longer timeframe due to
fewer demands on the Department's resources.
Many commenters advocated for the return to the 45-day timeframe
because the shorter recruitment period would be counterbalanced by the
50 percent rule that tends to provide longer exposure to H-2A job
opportunities for U.S. workers. One commenter argued that the longer
recruitment period was more acceptable when it was combined with a
shorter 30-day referral period. Another commenter, a State farm bureau,
also opposed the proposal, noting that the 15 to 30 days' increase in
pre-employment recruiting was initially implemented by the Department
in exchange for the elimination of the 50 percent rule and reduction in
the referral period to 30 days after the start date.
One commenter noted that the Department presented no evidence
indicating that referrals made further from the date of need are more
numerous than those closer to the date of need. Another referred to
Congressional testimony from a former association executive asserting
that in his experience recruiting closer to the date of need produces
more applicants and that prospective job applicants in these industries
do not look for work 120 or even 45 days in advance.
A law firm representing growers urged the Department to allow
growers to file their proposed job orders on the shortest, most
administratively feasible timeframe. It also noted that the
Department's policies should be designed to allow flexibility and
entrepreneurial expansion and development of agricultural production
and work opportunities, and not restrict the growth of job
opportunities or agricultural products.
Some commenters cited the statement in the NPRM that the Department
approves most applications by the 27th to 29th day before the date of
need as evidence that the current system of filing on the 45th day
before the date of need and certifying by the 30th day before the date
of need is working and need not be changed. The Department is bound by
the statute to make a final determination on each temporary
agricultural labor certification by the 30th day before the date of
need. The fact that the Department is generally able to meet the
statutory deadline does not mean that the Department is able to certify
based on a robust record of the employer's recruitment efforts. As
discussed above, the extension of the recruitment period will enable
the Department to make its certification with better information on
recruitment.
Based on its long program experience, the Department believes that
beginning recruitment 45 days before the date of need is insufficient
because it provides the Department with only 15 days to assess the
availability of U.S. workers in the relevant job market and to permit
them sufficient time to seek and be hired for these jobs. (In fact,
since it must first accept the Application and authorize recruitment,
the Department has traditionally had only about a week to review
recruitment efforts.) The Department has determined that the 75 to 60
day timeframe most adequately balances the Department's statutory duty
to ensure that U.S. workers have access to meaningful employment
opportunities (and are not adversely affected by the employment of
foreign workers), with the agricultural employers' legitimate need to
meet labor demands. In response to the commenter's argument that
unpredictable factors often affect an employer's labor needs, the
Department notes that its Final Rule retains a provision that permits
an employer to amend its Application prior to certification to increase
the number of workers needed. Giving growers the ability to request
additional workers is intended to provide flexibility and account for
the contingencies affecting agricultural production. Furthermore, the
Department recognizes that some local job applicants who accept an
offer of employment in agriculture, as in all other industries, on
occasion fail to report for work as agreed. Employers in those
circumstances must temporarily re-distribute the workload while seeking
to hire a replacement. We reemphasize that while the Final Rule permits
the submission of the job order as much as 75 days before the start
date, employers are only required to submit their job orders 60 days
prior to the start date. The Department believes that this
[[Page 6903]]
timeframe enhances the ability of domestic workers to access these
employment opportunities.
As discussed throughout this Final Rule, the Department's primary
concern with respect to its statutory mandate is restoring necessary
protections to U.S. and foreign workers while maintaining a fair and
reliable process for addressing legitimate employer needs. As adopted,
the 75 to 60 day timeframe is necessary to ensure the orderly and
timely administration of the program and provides the necessary
flexibility for the Department, the SWAs and employers to meet the
program's statutory requirements and objectives. The demand on
Departmental resources, although relevant, is not a decisive factor in
implementing a workable timeframe.
The Department has determined that in addition to providing U.S.
workers with longer exposure to H-2A job opportunities through the
reinstatement of the 50 percent rule, the longer pre-filing timeframe
will ensure that the job order meets all applicable programmatic
requirements. The Department has determined that both a longer
recruitment period and a longer referral period are necessary to meet
the statutory and policy objectives of the H-2A program. While there
had been some discussion about balancing the initiation of recruitment
with the termination of the employer's obligation to hire domestic
applicants, the two issues are unrelated and deal with different
aspects of recruitment. The need to start the recruitment process
slightly earlier will also assist the Department to more effectively
meet our obligation to make a certification decision 30 days before the
start date. This is unrelated to the need to ensure the continued
availability of these positions to U.S. workers through post-
certification hiring requirements. We have discussed above why
recruitment needs to start at least 60 days before the start date. We
discuss later in this preamble why the Department has determined that
the post-certification hiring is best met through the 50 percent rule.
Having considered the issues raised by commenters, the Department
has decided to keep the provision in the Final Rule. Therefore, the
Department has determined that the 75 to 60 day timeframe provides
adequate time to resolve any pre-filing issues in a way that will not
negatively impact the employer's ability to timely meet its labor
needs.
b. SWA Review
In the NPRM the Department proposed that SWAs review the contents
of the job order and address any noted deficiencies. As noted above, it
also provided for the involvement of the Certifying Officer (CO) to
resolve any issues regarding the placement of job orders in the
intrastate clearance system. The Department received a number of
comments addressing this provision. Many of the commenters expressed
concern over the broad discretion granted to the SWAs to determine the
sufficiency of the job order, and the lack of CO involvement to resolve
outstanding issues prior to the filing of the Application. These
commenters proposed to limit the SWA review to a specified timeframe.
A few expressed support for the retention by the OFLC of ultimate
decision-making authority regarding the sufficiency of job orders but
expressed concern over what they deemed an inordinate level of
decision-making authority in the hands of the SWAs. These commenters
were primarily concerned with the resulting lack of uniformity in
adjudication and enforcement due to differences between the SWAs in
rule interpretation and the likelihood that disparate adjudications
will result in confusion for both employers and workers.
One commenter stated that having multiple points of acceptance will
cause confusion and disruption in program use for large and small
growers because States may differ from one another in their
interpretations of the statutory and regulatory requirements and some
are not even consistent internally. In addition, the commenter was
concerned about the potential for inconsistency between what the SWA
accepts at the pre-filing stage and the later determination by the CO
regarding the sufficiency of the job order.
Another commenter indicated support for the reduced role of the
SWAs in the H-2A labor certification process under the 2008 Final Rule.
This commenter contended that most of the delay in processing of H-2A
visas has been caused by SWA staff, who it asserted have been slow to
perform their duties under the program. This commenter proposed that
the Department limit the role of the SWAs to the inspection of worker
housing and workplace conditions after approval.
A large growers' association expressed dissatisfaction with the
process for placing job orders with the SWA. It asserted that since the
filing of the Application is predicated on the acceptance by the SWA,
the Department failed to provide a meaningful relief mechanism for
employers to address issues with the SWAs imposing unwarranted
requirements.
The Department expressed above its belief that SWAs remain, as they
have always been, the arbiters of the acceptability of job orders. The
Department also recognizes the need for employers to have an acceptable
and timely process by which orders are fully evaluated and issues
addressed with each SWA. Therefore, the Department has decided to amend
its procedures for SWA acceptance of the H-2A job order to allow for a
timely process of the acceptance or rejection of job orders.
Under the INA, the Department has the ultimate responsibility for
all labor certification determinations. The Final Rule does not
abrogate that authority. However, the Department has determined that
the involvement of the SWAs at the outset of mandatory recruitment will
benefit the process because, as discussed above, SWAs have unique
expertise in assisting employers in preparing job orders and making
initial determinations regarding their sufficiency. In addition, SWAs
are experienced in providing services to farm workers and helping them
navigate the employment process. In order to balance our obligations
under the INA with involvement of the SWAs in the process, the Final
Rule creates a process so that disagreements between the employer and
the SWA about the contents of the job order can be expeditiously
resolved. This provision also ensures uniformity of determinations and
places the ultimate decision regarding the sufficiency of a job order
with the CO.
The Department's Final Rule therefore adopts a process in which the
SWA must either accept or reject the job order. After considering
comments advocating that the Final Rule include a timeline, the
Department has determined that 7 calendar days, rather than the 5 days
proposed by some commenters, provides the SWA with adequate time to
make a determination on even the most substantial job orders. In the
event the SWA and the employer cannot reach a mutually agreeable
solution regarding the job order in the timeframe outlined in the
revised regulation, the SWA must reject the job order by written notice
specifying the reasons for rejection, i.e. the deficiencies in the job
order, to the employer, and the employer must respond. The Final Rule
adds the requirement that once the employer responds to the SWA
notification of deficiencies, the SWA must respond to the employer's
response within 3
[[Page 6904]]
calendar days. If the job order deficiencies still remain unresolved,
the Department's regulations permit the employer to use the emergency
filing procedures to file its Application (and the job order) directly
with the National Processing Center (NPC); such circumstances will
constitute the good cause contemplated by that provision. The CO will
then follow the procedures for accepting or rejecting the job order as
outlined in this revised provision.
The Department's regulations provide for the involvement of the CO
in instances where issues with the job order are not resolved between
the employer and the SWA. As explained above, the Department's Final
Rule adopts a timeframe under which the SWA must either accept or
reject the job order within 7 calendar days and respond within 3
calendar days where the employer responds to the notification of
deficiencies. If the deficiencies remain unresolved, the Final Rule
provides for the filing of Applications on an emergency basis where the
employer and the SWA cannot reach a timely resolution regarding the
placement of the job order.
The Department does not anticipate significant discrepancies
between SWA determinations in various States. In our experience,
differences in SWA processing of job orders are often attributable to
the differences in experience with the local industries and labor
markets, and the resulting distinctions in treatment are legitimate
outgrowths of those differences. The Department is relying on the SWAs
to apply their broad, historical experience in administering our
nation's public workforce system and understanding of the practical
application of program requirements to the process of clearing job
orders. SWAs process job orders as part of their essential functions
and have processed H-2 and H-2A job orders since the inception of the
program. Employers are encouraged to work with the SWAs early in the
process, including on crafting the requirements of job orders, to
ensure that their job orders meet all requirements, and are timely
accepted for intrastate clearance. In addition, the Department
anticipates that CO determinations about job orders will in most
instances agree with those of the SWA. The Department will provide
training and on-going guidance for the SWAs and program users, in order
to foster a clear understanding of program and other regulatory
requirements and ensure uniformity in determinations.
c. Intrastate Clearance
The Department proposed to continue the requirement of having the
employer whose job opportunity is in more than one State file with only
one SWA serving the area of intended employment.
A commenter suggested that each work site be evaluated to determine
whether there is more than one area of intended employment for a
particular job opportunity. This commenter proposed a change to require
that the employer simultaneously submit a job order to each SWA serving
an area of intended employment where the job opportunity is located in
more than one State.
An individual commenter proposed that the SWA placing the job order
in intrastate clearance share the listing with other SWAs in States
bordering the State containing the area of intended employment. This
commenter argued that State lines should not stand in the way of
recruitment of local residents where the area of commuting distance
encompasses more than one State. This commenter further argued that
permitting the forwarding of job orders to neighboring States would
save the employer the costs of applying for an H-2A labor certification
if the employer is able to fill the job openings with local workers.
The Department agrees with the intent of these comments and has
modified the rule to require the SWA to forward the job order to the
other SWAs having jurisdiction over the area of intended employment.
However, we believe the requirement for filing with multiple States
would be confusing to employers and place an undue burden on them.
Since SWAs have existing mechanisms to accomplish this task, this is a
more appropriate activity for the SWA, rather than the employer, to
undertake.
d. Duration of Job Order Posting
The Department is clarifying that Form ETA-790, the Agricultural
and Food Processing Clearance Order, is to be used for the submission
of the job order to the SWA. The Department received one comment
opposing duplication in filing and processing arguing that the most
substantive and voluminous portion of an application is the Form ETA-
790. The Form ETA-790 must be used by all employers seeking to recruit
agricultural labor in the U.S., pursuant to the Wagner-Peyser
regulations at 20 CFR 653.401. Those regulations were not part of this
rulemaking so this comment was not considered.
e. Modifications to the Job Order
The Department proposed a process for the modification of job
orders. Several commenters expressed concern regarding the proposed
provision permitting the CO to direct modification of a job order after
SWA acceptance and before the issuance of a labor certification. Some
of the commenters argued that there should be finality in the process,
including one point of acceptance for a job order. Some commenters
further argued that since the employer is held to the terms and
conditions offered in the job order, the SWA and the CO should be bound
by the acceptance of those terms and conditions. A couple of commenters
expressed concern that corrections to the job order after SWA
acceptance and placement in intrastate clearance may result in
different groups of potential workers being recruited under differing
terms, and noted that workers recruited under a particular job order
need to be able to rely on the terms and conditions offered. One of
these commenters proposed that the Department limit all modifications
after acceptance to significant emergency situations such as Acts of
God. Another commenter opposed the provision permitting the CO to
direct an employer to modify the job order after a finding that the
previously accepted terms and conditions fail to fully comply with
program requirements. This commenter indicated that this provision
violates 8 U.S.C. 1188(c)(2), which requires DOL to state any
deficiencies that it finds in a labor certification application within
7 days.
The INA requires the Department to note any deficiencies in the
employer's Application within 7 days from receipt. We do not interpret
the provision requiring the Department to accept or reject an
Application within 7 days to limit the Department from requiring
modifications after acceptance. The INA cannot mean that the SWA's
acceptance of the Application forces the CO to overlook any apparent
violations. To interpret the statute in that way would require the
Department to either accept Applications which contain apparent
violations or to reject the Applications without giving the employer
the opportunity to correct the apparent violation of program
requirements. With respect to concerns about worker reliance on a job
order that subsequently has been modified, employers will now be
required to notify all workers recruited pursuant to that job order of
any material change in the terms and conditions of employment,
particularly to the extent that the terms of the job
[[Page 6905]]
order constitute part of the work contract as described in Sec.
655.122(q).
Another commenter argued that the Final Rule needs to address
changes by employers when changes are necessary because of unforeseen
business necessities that arise during the time between the beginning
of the recruitment period and certification.
The Final Rule retains a provision from the NPRM permitting the
employer to request modification of a job order before filing the
Application. As discussed above, many commenters noted that at this
point, 45 days from the date of need, most employers would have a
better idea regarding their plans for the season, including their labor
needs. Therefore, the Department's Final Rule retains the limitation on
employer modification of job orders.
f. Elimination of Requirement That SWAs Must Verify Employment
Eligibility (Form I-9, E-Verify)
As explained in the NPRM, the Department proposed to eliminate the
requirement 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 employer by the SWA under a job order. The
Final Rule follows the NPRM and no longer requires SWAs to verify
employment eligibility. This approach is logical and consistent with
employers' discretion and duties concerning all new hires--including
the checking of references, qualifications, etc. Nothing in the INA or
these regulations precludes the States from performing employment
verification voluntarily or pursuant to State law, nor do they prevent
the employer from relying on verification performed by the SWA so long
as it meets certain verification standards as set out in applicable DHS
regulations.
In their traditional role, the SWAs are only required to refer
candidates whose qualifications match the terms and conditions of the
job order to an employer's job opportunity. Requiring one small subset
of applicants who apply for H-2A positions to be subject to employment
eligibility verification raises the possibility of disparate impact.
A SWA referral does not in itself constitute an offer of employment
because the referred individual may be rejected for lawful, employment-
related reasons. In addition, the Department believes that SWA
resources are most effectively directed to the core functions of the
public workforce system, such as clearing job orders. For all the
reasons discussed above, the Department has retained the language from
the NPRM and eliminated the requirement that SWAs verify employment
eligibility of potential employees referred in connection with an H-2A
job order.
The Department received comments both for and against the
elimination of employment eligibility verification by the SWAs. Several
commenters expressed support for the Department's decision to return to
the previous practice of permitting the SWAs to determine for
themselves the method by which they would ensure workers were eligible
for referral.
Several commenters offered strong support for the Department's
proposal to remove the requirement that the SWA verify the employment
eligibility of job seekers before referral. Most of these commenters
explained that placing the burden of verification on the SWAs in the
2008 Final Rule was inappropriate and that it required States to impose
a greater barrier for people seeking H-2A job openings than on others,
resulting in disparate treatment of protected classes. One SWA further
indicated that people not authorized to work in the U.S. are unlikely
to seek work through government-run One-Stop Career Centers. Another
SWA noted that the Department simply lacks statutory authority to
require SWAs to conduct employment eligibility verification because 8
U.S.C. 1324a permits, but does not require, SWAs to complete I-9 forms
with regard to individuals they refer to jobs. One of these SWAs also
noted that it will continue to refer eligible job seekers using its
current right-to-work verification process, codified in its State law.
Another SWA voiced support for the elimination of the requirement and
pointed out that States are not funded to provide I-9 verification.
Another commenter indicated that freeing the SWAs of verification
responsibilities was a positive development given that the proposed
regulations call for greater SWA involvement in recruitment.
A few employer organizations objected to the elimination of the
verification requirement on the grounds that employers are required to
hire referred workers and that the SWAs should not refer workers who
are not eligible to be employed.
Other commenters discussed what they characterized as an
impermissible shifting of the financial and administrative burden of
employment verification back to employers who are already facing
difficult times and rising production costs. One commenter, a farm
bureau, noted that the resource issue for SWAs is no different than the
resource issues that family farmers regularly face but who verify
employment eligibility nonetheless. Another farm bureau described the
proposal of reverting to employer verification as contrary to the
Administration's commitment to eliminating illegal immigration.
Other commenters opposed the change in the requirement, noting that
the elimination of the requirement would burden the employers whose
Applications were only partially certified based on the number of
referred local workers who later turn out to be ineligible for
employment. Another commenter contended that, in the absence of SWA
verification, the Department should not count the SWA referrals against
the number of workers requested by an employer on an Application.
Other commenters accused the Department of compromising its
obligation to protect the jobs of domestic workers by eliminating the
employment eligibility verification requirement. One of these
commenters further asserted that the Department should take
responsibility for the referral activities of its State partners and
that the elimination of the employment eligibility verification
signifies that the Department condones the employment of illegal
aliens, which contributes to low wages, inadequate housing and a
shortage of viable job opportunities for U.S. workers. Another
commenter noted that the elimination of the verification requirement
undercuts the role of the SWA to determine the availability of U.S.
workers for employment before the filing of an Application. This
commenter asserted that the SWA's inability to determine the work
authorization of workers recruited and referred under the job order
fails to meet the SWA's legal obligation to determine that sufficient
able, willing, and qualified U.S. workers are available.
Several commenters expressed concerns that without SWA
verification, at least 75 percent of referred workers will later prove
ineligible for employment, with one commenter citing examples from its
experience. Most of these commenters further argued that the referral
of ineligible workers will place a burden on employers either to
continue to employ ineligible workers and run the risk of employer
sanctions, or dismiss these workers and find replacement workers in
time.
Several commenters opposed the change in the requirement, pointing
to the 2008 Final Rule's interpretation that 8 U.S.C. 1324a and DHS
regulations at 8 CFR 274a.2 and 274a.6 require the SWA to verify
employment eligibility
[[Page 6906]]
before referring applicants to the employer. Another commenter
challenged the Department's distinction between a referral and an offer
of employment, asserting that the distinction is meaningless since the
employer has no option to refuse to hire the worker referred by the SWA
if that person is willing, able, and qualified for employment. Another
commenter argued that the SWA is statutorily required to verify
employment eligibility of referrals because 8 U.S.C. 1188(c)(3) lists
as one condition for certification a requirement that the employer does
not actually have or has not been provided with referrals of qualified,
eligible individuals, and 8 U.S.C. 1188(i) defines an eligible
individual as being one who with respect to employment, is not an
unauthorized alien, as defined in 8 U.S.C. 1324a(h)(3). This commenter
further argued that the Department or the SWA must determine if
applicants from the pool of local workers are authorized to work in the
U.S. because, without this determination, DOL cannot deny any
application for labor certification on the basis of there being
qualified, eligible individuals.
Another commenter challenged the Department's rationale regarding
the disparate impact of employment verification on workers, referring
to the 2008 Final Rule rationale that the requirement to verify
employment eligibility does not violate constitutional prohibitions
against disparate impact. As explained further below, the Department
believes that this position in its 2008 Final Rule was erroneous, and
that disparate impact can result from the segregation of H-2A referrals
to comply with the verification requirement.
After thorough consideration of these comments, the Department has
concluded that it will retain the language of the NPRM. The Department
believes that its mandate to protect job opportunities for U.S. workers
and ensure that they are not adversely affected by the employment of
foreign workers will be best served by a requirement that reflects the
intent of Congress that the employer, and not the SWA, is responsible
for the ultimate verification that its labor force is comprised of
workers legally present and authorized to work in the U.S. Employers
are the group that is charged with this function under the statutory
verification process and have been since the imposition of employment
verification. The previous rule did not in any way relieve employers of
ensuring the employment eligibility of their workforce. Similarly,
removing the employment eligibility verification requirement from SWAs
also does not relieve employers of that duty.
The statute makes the plain statement that the employer may not
hire an unauthorized worker. 8 U.S.C. 1324a(a)(1). The same statute
enables employers to rely upon a referral by a State agency with the
proper employment verification documentation, but imposes no burden on
States to actually do so, in contrast to the burden it affirmatively
imposes on employers. 8 U.S.C. 1324a(a)(5).
The SWAs must administer a number of programs and functions,
including those related to foreign labor certification. Certain SWA job
service functions are funded by formula under the Wagner-Peyser Act and
the Workforce Investment Act. Other funding is received directly from
the OFLC for services the SWAs provide in connection with the
Department's labor certification programs. The Department has decided
that imposing the additional requirement of employment eligibility
verification of H-2A referrals denies the SWA the flexibility to decide
how best to allocate its resources.
Additionally, the Department continues to believe that requiring
the SWAs to conduct employment verification of applicants for H-2A job
opportunities prior to referral creates the potential for complaints of
disparate impact. By requiring this verification of referrals only in
job orders in which employers are seeking nonimmigrant workers, some
referrals to job orders that are identical with the sole exception of
the H-2A component are treated differently. The Department's concern
that this could in turn lead to differential treatment of H-2A job
orders generally and of referrals to those job orders specifically,
provides further cause for concern about continuing the obligation on
SWAs.
The suggestion by the commenters that this return to the pre-2008
requirements is unduly burdensome ignores the statutory requirement,
with which they have presumably always comported, to undertake
verification. The return to employer verification returns H-2A
employers to the same position as virtually all employers, including
non-H-2A agricultural employers. Thus, H-2A employers are subjected to
no greater burden than any other employers, with respect to employment
verification.
Traditionally employers are not required to hire each person
referred by the SWA, because they may reject potential hires for any
lawful, job-related reason. Furthermore, each employer has an
obligation to terminate any worker who upon acceptance of the job offer
proves ineligible to work in the U.S.; such grounds are, moreover, a
legitimate basis for rejecting the worker for purposes of the
recruitment report.
The Department declines to accept the commenters' interpretation of
the SWAs' obligations with respect to the verification of SWA
referrals. Because SWAs do not perform any activities that would
classify them as subject to 8 U.S.C. 1324a(a)(1)(B), the INA does not
require SWAs to engage in employment eligibility verification. In
addition, 8 U.S.C. 1188(3)(A) does not identify the referring entity
that would provide employers with eligible individuals within the
meaning of 8 U.S.C. 1188(i). The role of the SWA in the referral of
U.S. workers under the H-2A program is solely governed by the
Department's regulations, as 8 U.S.C. 1188 does not define the
methodology for the recruitment of U.S. workers, nor does it include
any references to the SWAs or other State actors. Section 655.155 of
this Final Rule directs the SWA to refer to employers only those
applicants who have been apprised of all material terms and conditions
of employment and have agreed that they are able, willing, qualified,
and available by agreeing to be referred to the job opportunity. This
provision makes it clear that the SWA is only required to perform its
traditional job service functions uniformly across all classes of
applicants and employers.
7. Section 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 material 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 work contract, or where there is no
written work contract, the job order, which is the document
representing the material terms and conditions of the job offer, must
be provided with its pertinent terms in a language the worker
understands.
[[Page 6907]]
The Department proposed to retain much of the 2008 Final Rule
requirements on job offers with some minor clarifications. The
Department's responses to comments are discussed in more detail below.
a. Prohibition Against Preferential Treatment
The NPRM proposed to return to the language in the 1987 Rule about
the requirement for the minimum wages and working conditions that must
be offered to foreign and U.S. workers.
One commenter proposed that the Department permit employers to
require experience for U.S. workers applying for H-2A job openings, to
increase the chance that the worker will complete the contract after
being reimbursed for transportation and any other allowable costs
incurred in the course of recruitment. This commenter justified the
proposed revision by stating that no similar mechanism is necessary to
keep the H-2A workers tied to the contract as their very status depends
on their continued performance under the work contract.
Another commenter noted its experience with employers who prefer an
H-2A workforce and therefore subject U.S. workers to conditions
intended to displace them, such as coercion, in-person interviews, and
production standards that they do not impose on their foreign workers.
This commenter indicated that strong protections are needed to protect
agricultural job opportunities for the domestic workforce, including
regulations that prevent different standards from being applied to
foreign and domestic applicants. Furthermore, this commenter urged the
Department not to allow an experience requirement proposed by other
commenters unless the same requirement applies to foreign workers.
Another commenter noted that many employers pay higher wages and
provide better benefits to year-round or long-term employees but that
those benefits should not result in the preferential treatment of U.S.
workers. Another commenter, an H-2A agent, asserted that this proposed
provision may have the opposite of the intended effect, particularly
with respect to wages, due to a requirement to offer H-2A workers the
same minimum level of benefits, wages, and working conditions being
offered to U.S. workers.
While the regulatory text did not prohibit employers from paying
U.S. workers more than H-2A workers, inartful preamble language caused
confusion as to whether U.S. workers can be provided benefits and/or
wages exceeding those offered and provided to H-2A workers. The
requirement is that the employer's job offer to U.S. workers be no less
than what the employer is offering, intends to offer, or will provide
to the employer's H-2A workers. Further, the contents of any job offer
under H-2A must contain--at a minimum--the wages and working conditions
found in this Final Rule. If a job offer to H-2A workers offers or
provides a wage or benefit greater than what is required, then the same
must be offered and provided to U.S. workers. Similarly, if the job
offer imposes a restriction or obligation (e.g., a productivity
standard or experience requirement), then that restriction or
obligation is applicable to all workers--both U.S. and H-2A--and no
additional or further restriction can be placed on only U.S. workers.
(Any such restriction or obligation must be stated in the job offer for
it to be applicable to any worker, whether U.S. or H-2A.) This does
not, however, preclude an employer from providing additional wages and
benefits to U.S. workers that are not being provided to H-2A workers.
There is no intention, for example, to require an employer to lower the
wages of a long-term or year-round U.S. employee to an H-2A-required
wage simply because such U.S. worker is engaged in corresponding
employment. Additionally, these regulations are not intended to require
an employer to raise the wage rate of all H-2A workers--and then by
extension, all other workers in corresponding employment--if a long-
term U.S. worker being paid a higher wage is engaged in corresponding
employment. The Department, therefore, retains the proposal with
clarifying edits.
b. Job Qualifications and Requirements
The Department proposed in the NPRM to retain the same requirements
with respect to the job qualifications and requirements as in the 2008
Final Rule. In addition, the Department 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.
Having considered the comments received in response to this proposal,
the Department has decided to retain the provision, as proposed.
The Department received several comments in response to this
provision. One commenter, a farm worker advocacy association, referred
to reports of persistent violations by employers who recruit foreign
workers under qualifications and job requirements that are inconsistent
with the Application and job order. This organization proposed a
revision to require qualifications and requirements comparable with the
employer's non-H-2A workers in the current or immediately preceding
season for similar employment.
Several commenters opposed the requirement that the SWA or the CO
may require the employer to provide documentation justifying job
qualifications or requirements. One asserted that the qualifications or
requirements of a job opening are within the purview of the employer's
business purposes and that neither the CO nor the SWA have an
understanding regarding what is or is not a reasonable qualification.
Another commenter indicated that the job requirements and
qualifications or other factors making a particular Application unique
must be acceptable if they are justified by business necessity.
According to this commenter, nothing in the INA requires an employer to
perform any job in the same manner as another employer in order to
obtain a labor certification. Another employer opposed the imposition
of the requirement, arguing that the provision is vague and unjustified
and that it contains no guidance on what types of documentation the SWA
or the CO would find sufficient, nor does it provide for an appeal
process for the employer. Further, the commenter argued, the Department
is giving no assurance that the requirement would be applied in a
consistent or objective manner.
The Department appreciates the proposal to require qualifications
from previous seasons but after careful consideration has determined
that it would be difficult to enforce this requirement on both
employers who did and those who did not participate in the program
during a prior season. Additionally, this requirement would unduly
intrude on the employer's discretion to make business decisions, while
not enhancing worker protections.
With respect to comments opposing the documentation requirement, 8
U.S.C. 1188(c)(3) provides that in determining questions of whether a
specific qualification is appropriate in a job offer, the Secretary
shall apply the normal and accepted qualifications required by non-H-2A
employers in the same or comparable occupations and crops. For decades,
the Department's regulations have applied this principle to both job
requirements and job qualifications. The Final Rule continues that
approach.
[[Page 6908]]
c. Minimum Benefits, Wages, Working Conditions
The NPRM proposed this section as an introduction to the section on
the contents of the job offer. The Department received comments
expressing support for these provisions that strengthen labor
protections for temporary foreign agricultural workers, such as wages,
housing, and employer-provided transportation.
The regulatory text has been edited to correct an inadvertent error
in paragraph designations and to make a minor editorial clarification.
d. Housing
Because the employer's obligation to provide housing is intertwined
with the requirement for housing inspections, issues related to the
employer's obligation to provide housing are addressed in this section.
Under the NPRM, an employer seeking to use the H-2A program would be
required to submit a job order to the SWA in the area of intended
employment for intrastate clearance. Concurrent with the filing of the
job order, the employer must request a housing inspection and,
consistent with the Wagner-Peyser Act regulations, the housing
inspection must be completed before issuance of the H-2A certification.
This proposal marked a change from the 2008 Final Rule which allowed
the NPC, under certain circumstances, to make a certification
determination on an Application 30 days before the employer's date of
need, even if the housing referenced in the Application had not yet
been physically inspected by the SWA
In addition, the NPRM proposed to clarify that the employer's
obligation to provide housing extends 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. The Department proposed
minor modification to the provision on certified housing that becomes
unavailable. While most of the 2008 Final Rule provision remains, the
Department proposed that the SWA be required to promptly notify the
employer of its obligation to correct deficiencies if the substituted
housing is or becomes out of compliance with applicable safety and
health standards after inspection. The Department also sought to
clarify available remedies for housing safety and health violations to
include denial of a pending Application or revocation of a future
Application. No changes were proposed to the 2008 Final Rule provisions
concerning housing safety and health standards, rental or public
accommodations, open range housing, deposit charges, charges for public
housing, and provision of family housing. After full consideration of
the comments, the Department is adopting all the housing-related
provisions as set out in the proposed rule, with minor editorial
modifications.
The Department received a number of comments on this proposal from
employers, grower associations, SWAs and worker advocates. One employer
association commented that the return to the 1987 Rule housing
inspection rules would cause delays in certifications, and as evidence
of this statement provided certification statistics from 2008 for its
members. This commenter asserted that between December 15, 2007 and
April 20, 2008, 89 certifications were issued for its members, of which
40 certifications were issued and received within 4 days of due date
(40 percent); 37 were received between the 5th day and the 10th day (37
percent); another eight were received between the 11th and 15th days (8
percent); and the rest were received between the 16th and 24th days (13
percent). According to this commenter, the certifications issued in
2008 under the 1987 Rule were on average late by 8.27 days. This
commenter also took issue with the Department's assumptions for the
time associated with processing and receipt of petition approval from
United States Citizenship and Immigration Services (USCIS), the worker
obtaining a visa from the Consulate, and transportation from Mexico to
the area of intended employment. It concluded that the proposed change
to the timing of the housing inspections would have a very significant
impact on the association's members. Another employer association
similarly stated that its members had seen improvements in processing
times as a result of the 2008 Final Rule and predicted certification
delays as a result of this provision. The association also criticized
the Department for ignoring its own detailed rationale in the preamble
of the 2008 Final Rule explaining why it was inappropriate to delay
certification determinations because of the SWA's delay in completing
housing inspections.
Other employers noted that the proposed change would result in less
time to make necessary repairs and improvements to housing, which in
one grower's view would ultimately work to the detriment of the workers
housed there. Other employers commented that requiring that the housing
inspection be completed before worker occupancy creates unnecessary
financial burdens by essentially requiring employers to ensure housing
is available prior to the actual need. An agricultural employer and H-
2A program user stated that inspecting occupied housing can be very
difficult for the inspector and has the potential to add huge
liabilities for employers; it asked whether the WHD intends to train
SWA staff on differentiating between compliance issues connected with
occupied housing and those connected with unoccupied housing. This
commenter further suggested that employers be given a specific and
reasonable time period to correct violations found in inspections of
occupied housing, and that penalties only be assessed if the employer
fails to correct the violations. Similarly, an association commented
that SWAs are not allowed to inspect occupied housing, which creates
difficulties if the employer is seeking to augment his or her existing
workforce or another grower is utilizing the housing during the H-2A
employer's off-season. This commenter also remarked that the Department
does not mandate pre-occupancy inspections of farm worker housing
outside of the H-2A program and suggested that this is an indication
that temporary housing is not a priority for the Department except in
the H-2A program.
Several commenters representing employers and employer interests
offered that the cost and availability of housing is one of the most
serious impediments to the use and expansion of the H-2A program, and
many suggested implementation of a system where employers could provide
workers a housing voucher instead of the employer directly providing
housing. These commenters also noted that the H-2A program is the only
employment-based immigrant or nonimmigrant worker program that requires
the employer to provide free housing to its workforce and suggested
that imposing the housing requirement only on agricultural employers is
unwarranted. One employer association stated that until Congress
eliminates this requirement on employers, the Department should limit
the practice and not expand employers' responsibility to serve as
unpaid landlords to their workforce.
In contrast to comments from employers and employer associations,
comments received from SWAs and employee advocates were generally
supportive of the proposed change. State agencies commenting in favor
of the provision represented States in which a significant number of H-
2A workers are employed and/or States where agriculture contributes
[[Page 6909]]
substantially to the State's economy. One SWA agreed with the proposed
change on the basis that it would protect growers by helping them
fulfill their housing obligations and ensure protections for workers.
Another SWA commented that requiring housing inspections to be
completed prior to H-2A certification will confirm that adequate
housing is being provided to the temporary foreign workers. Another
State agency found the provision consistent with its goal of assuring
safe and healthy living for migrant farm workers and stated that one
way they accomplish this is through their housing inspection program,
stating that eliminating the attestation process and requiring that
farm worker housing be inspected prior to occupancy is consistent with
their Department of Health's licensing and inspection program.
An employee advocate organization commented that while the proposed
provision is an important step in assuring compliance with housing
requirements, the proposed regulations still do not adequately address
the problem of ghosthousing, wherein employers list housing that is
never actually intended to be used to house workers. This commenter
explained that when there is no post-certification inspection
requirement, the potential exists for abuse by unscrupulous employers
who would purposefully arrange for the inspection of housing they have
no intention of using. It suggested adding a post-certification
inspection requirement for the SWA to inspect housing midway through
the certification period. In this commenter's view, such a requirement
would discourage the practice of an employer listing housing that
either does not exist, or exists but is not used. This commenter also
suggested the strengthening of the protections afforded to workers with
respect to housing, including an additional requirement for inspection
of substitute housing during occupancy; the elimination of references
in the regulations to conditional access to the interstate clearance
system based on the employer's assurance that housing will be in
compliance by a specified date; and the clarification that the
strictest standard applies to housing subject to multiple housing
standards (e.g., local, State and Federal).
The Department also received a few comments not directly related to
its proposed housing provisions. One commenter, a worker-led nonprofit
organization that recruits, trains and places H-2A workers, explained
that in the border region (e.g., Yuma County, AZ), many H-2A workers
have the option of returning to their homes and families at night, and
many prefer to do so rather than stay in employer-provided housing.
This commenter suggested establishment of a commission to develop an
alternative border-based housing policy for the H-2A program. Although
no changes were proposed to the provision of range housing or the
standards applicable to range housing, comments from an association
representing the sheep and livestock industries and a Federal Lands
Council urged the Department to continue to provide special procedures
for housing provided to sheepherders and workers engaged in the range
production of livestock. A SWA and an employee advocate provided
comment on the employer's obligation to provide family housing to
workers with families who request family housing when it is the
prevailing practice in the area of intended employment and occupation
(Sec. 655.122(d)(5)). Both commenters requested that the Department
clarify that if a State statute or court decision applicable to the
jurisdiction requires an employer to provide family housing, then the
State statute or court decision is to be considered the prevailing
practice with respect to the provision of family housing.
The INA requires employers to provide housing in accordance with
regulations issued by the Secretary. The employer may meet this
obligation by providing housing meeting the applicable regulations. The
Department recognizes that this requirement is unique to the H-2A
program, but statutory requirements prohibit the Department from
providing the flexibility suggested by some employers to authorize a
housing voucher in lieu of employer-furnished housing, to limit the
practice of H-2A employers providing housing to their workers, or to
relieve employers in border regions from this requirement. Likewise,
the Department is statutorily prohibited from requiring compliance with
the stricter of applicable local, State or Federal standards if
multiple standards apply to rental and/or public accommodations or
other substantially similar class of habitation.
Instead, the Department is returning to its position contained in
the 1987 Rule that employers must provide housing to their H-2A workers
and to their workers in corresponding employment who are not reasonably
able to return to their residence within the same day. As explained in
the section discussing the definition of corresponding employment, the
requirement on employers to provide housing to workers in corresponding
employment helps ensure that those workers receive the same level of
wages, benefits, and working conditions as the H-2A workers, and
therefore that the employment of the H-2A workers does not adversely
affect the employment of workers similarly employed.
With regard to the timing of housing inspections, from the 1987
Rule until January 2009, ETA's regulations required that employer-
furnished housing be inspected and certified as meeting applicable
standards as a condition of the Secretary granting H-2A certification
to the employer. This requirement was based on the Department's reading
that the INA requires that the Secretary make a certification
determination no later than 30 days before the date of need (8 U.S.C.
1188(c)(3)(A)) and that the determination of whether housing furnished
by the employer meets the applicable safety and health standards be
made no later than the date by which the Secretary is required to make
the certification determination (8 U.S.C. 1188(c)(4)). For more than 20
years, the Department read these two provisions in concert and
concluded that the certification determination could not be made unless
the employer-furnished housing had been inspected and found to meet
applicable safety and health standards. The 2008 Final Rule changed the
regulation to eliminate the requirement that housing be inspected and
approved before certification in all cases.
The INA establishes both the date by which the Secretary must make
the certification determination and the date by which the determination
of whether employer-furnished housing meets applicable standards must
be made. The Department believes the 1987 Rule reading, which is also
implemented in this Final Rule, is the more appropriate reading of
these statutory requirements and, notwithstanding the Department's
earlier statements, is more consistent with congressional intent to
ensure that U.S. workers are not adversely affected by the employment
of H-2A workers. Reinstatement of this process also benefits employers
by reconciling the Department's H-2A certification process with
applicable State laws requiring pre-occupancy inspection and
certification of worker housing. Contrary to the suggestion of one
commenter, the fact that the Department does not require pre-occupancy
inspection of housing provided to farm workers outside of the H-2A
program is not a reflection of the Department's priorities, but a
function of the
[[Page 6910]]
underlying statutory requirements and Departmental resources.
The Department also notes that reinstating the provision at Sec.
655.122(d)(1) concerning conditional access to the interstate clearance
system under the Wagner-Peyser regulations obviates the need for the
conditional certification determinations included in the 2008 Final
Rule. Employers whose housing has not yet been inspected may request
conditional access to the interstate clearance system under the
procedures set forth in 20 CFR 654.403. Likewise, employers whose
housing has been inspected and found not to meet the required standards
may seek conditional access to the interstate clearance system, thereby
allowing the employer an opportunity to make the necessary repairs or
improvements without penalizing the employer through denial of access
to the interstate clearance system. In either situation, if the
employer seeks and is granted conditional access to the interstate
clearance system, the continued review and processing of its H-2A
Application need not be held up. The Department believes this process
appropriately balances the requirement that workers are provided safe
and healthy housing while not unduly delaying H-2A certification
determinations. In response to the suggestion that the Department
eliminate all references to conditional access to the interstate
clearance system, this provision exists in the Department's regulations
implementing the Wagner-Peyser Act with respect to farm workers, which
the Department has not proposed amending at this time.
The Department understands that any delay in H-2A certification
determinations is of concern; however, based on the Department's
examination of program activity for FY 2007 and 2008, we do not
anticipate the inordinate delays assumed by employers and associations.
As explained in the proposed rule, certification determinations for FY
2007 and 2008 were made, on average, approximately 27 calendar days
before the employer's certified start date of need. That analysis does
not reveal the reason for the delay in certification determinations--
whether the delay was the result of a delayed housing inspection, the
failure of an employer to provide information requested by OFLC and
necessary for OFLC to make the certification determination, or for some
other reason. See discussion at 74 FR 45932, Sep. 4, 2009. The
Department appreciates that an individual H-2A program user or
association may have experienced certification determinations made
closer to their date of need than the average cited by the Department,
but believes that requiring that the housing be certified as meeting
applicable safety and health standards as a prerequisite to making the
certification determination is both required by the most reasonable
reading of the statute and is proper given the Department's
responsibility to protect U.S. and H-2A workers. As noted in the
proposed rule, the Department is not responsible for any downstream
delays in processing at either USCIS or the U.S. Consulate.
The Department recognizes that there are situations beyond an
employer's control which impact the availability of certified housing
the employer intended to use for housing workers and therefore has
retained the provision in Sec. 655.122(d)(6) for the substitution of
rental or public accommodation housing with a clarification that
substitute housing must meet applicable standards. Concerns raised by
employers that SWA staff may not be authorized to conduct, or may not
be sufficiently trained in the conduct of, inspections of occupied
housing will be addressed through the Department's current process for
providing guidance to SWAs on implementation of Departmental programs.
As explained in the discussion of 29 CFR part 501 in this preamble, the
Department will continue to exercise its discretion with respect to
allowing employers a reasonable opportunity to correct housing safety
and health violations before imposition of sanctions, such as
revocation and debarment.
Comments suggesting that the Department impose a requirement for
post-occupancy inspection of housing midway through the certification
period and post-occupancy inspection of substitute housing are outside
the scope of this rulemaking. However, the WHD does conduct inspections
of occupied housing during all H-2A investigations and during
agricultural investigations outside of the H-2A program when housing is
owned or controlled by the employer. Post-certification audits also
provide the Department with a tool for ensuring H-2A employers provide
housing meeting applicable standards to their workers.
The Department will continue to provide guidance to the SWAs with
respect to determining whether the prevailing practice in the area of
intended employment and occupation includes the provision of family
housing. The Department agrees with commenters that where agricultural
employers are required by State statute or applicable court decisions
to provide family housing to workers with families, the prevailing
practice is to provide family housing.
The Department does not believe that requiring completion of the
housing inspection before the certification determination is made will
result in negative economic consequences for employers. Some
agricultural employers commented that their financial burdens would
increase under this provision; however, these commenters provided no
evidence of increased financial burden for the Department's
consideration.
e. Workers' Compensation
The Department proposed to retain the 2008 Final Rule requirements
regarding an employer's statutory obligation to provide workers'
compensation insurance coverage in compliance with (or equivalent to)
State law. However, the Department also proposed to return to 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. The Final Rule adopts this requirement as
proposed.
Several commenters supported the proposed change, while others
asserted that the change was unnecessary. They contended that the
Department should simply accept the employer's attestation that it had
obtained adequate insurance coverage, without any proof. The Department
disagrees with that position. In an industry as dangerous as farming,
the availability of workers' compensation coverage is absolutely
critical. It is essential that the Department be satisfied that the
appropriate coverage is in place. Requiring employers to prove the
existence of such coverage creates no meaningful additional burden for
employers since they would have to retain that documentation in any
event.
f. Employer-Provided Items
The NPRM proposed to amend the 2008 Final Rule by requiring
employers to provide to the worker, without charge, all tools, supplies
and equipment necessary to complete the job. The Final Rule adopts this
provision without change.
The Department received few specific comments addressing this
provision. One commenter expressed general support for the provision.
Another commenter suggested the addition of language providing that if
any of these items are provided by the worker, the employer will
reimburse the worker for the cost of the items. It is not necessary to
adopt the additional language
[[Page 6911]]
suggested by the commenter, because the rule plainly and unequivocally
states that the employer must provide these items without charge.
Moreover, as discussed in more detail in the section regarding
deductions, employees must receive the required wage rate free and
clear. Therefore, unless specifically authorized by these regulations,
employees may not provide or have their pay docked for any item that is
an employer business expense where doing so would reduce their wages
below the required wage rate.
g. Meals
The Department proposed a meals provision identical to the 2008
Final Rule requiring the employer to provide three meals a day (which
the employer may provide for a charge in accordance with Sec. 655.173)
or free and convenient kitchen facilities to the workers enabling them
to prepare their own meals. The Department decided to retain this
provision without change in the Final Rule.
A few commenters addressed the proposed provision governing meals.
One commenter supported the mandatory provision of meals and other
benefits provided to workers. This commenter noted that entitlements,
such as meals, protect U.S. workers by creating a disincentive to use
foreign temporary labor solely because of lower cost.
Another commenter suggested that workers should be provided with
food preparation expenses if kitchens are not available. The Department
notes that the Final Rule requires that the employer either provide
workers with meals or furnish free and convenient cooking facilities
and that this is adequate to secure the benefit that was intended by
Congress.
h. Transportation; Daily Subsistence
The NPRM proposed to require an employer to pay the worker for the
reasonable costs incurred for transportation and subsistence from the
place from which the worker has come to the place of employment if the
worker completes 50 percent of the work contract period and the
employer has not previously advanced or provided transportation to the
place of employment and subsistence costs. If it is the prevailing
practice of non-H-2A agricultural employers to advance such costs, or
if the employer extends such benefits to similarly situated H-2A
workers, the employer must advance or provide such costs to workers in
corresponding employment who are traveling to the worksite. The
transportation reimbursement must be no less than the most economical
and reasonable common carrier transportation charges, and the daily
subsistence payment must be at least what the employer would charge the
worker for providing three meals a day (if applicable), but no less
than the amount permitted under Sec. 655.173(a). The NPRM, thus,
proposed to return to the language of the 1987 Rule that the
transportation reimbursement be for the cost from the place from which
the worker has departed. The NPRM also proposed to remind employers
that the FLSA applies independently of the H-2A requirements.
Section 655.122(h)(2) of the NPRM proposed to require employers to
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 completes the work contract period or is terminated
without cause (deleting the 2008 Final Rule's definition of the U.S.
consulate or port of entry as the place from which the worker
departed). Consistent with the 1987 Rule, the NPRM proposed that if the
worker has subsequent H-2A employment, the current employer must pay
for transportation to that worksite unless the subsequent employer has
agreed in the work contract to pay for transportation and daily
subsistence. The NPRM added that an employer is not relieved of its
obligation if an H-2A worker is displaced as a result of the employer's
compliance with the requirement to hire U.S. workers who are referred
within the first 50 percent of the contract period.
Section 655.122(h)(3) of the NPRM proposed to continue to require
employers to provide transportation between the workers' employer-
provided housing and the employer's worksite at no cost to the workers.
Finally, Sec. 655.122(h)(4) of the NPRM also proposed to require
that all employer-provided transportation comply with all applicable
laws and provide, at a minimum, the same transportation safety
standards, driver licensure, and vehicle insurance as required under 29
U.S.C. 1841, 29 CFR 500.105, and 29 CFR 500.120 to 500.128. The NPRM
thus proposed to extend the 2008 Final Rule's similar requirements,
which were applicable only to transportation between the living
quarters and the worksite, because such safety requirements already
exist elsewhere in other Federal, State or local transportation laws.
The Final Rule adopts Sec. 655.122(h) of the NPRM as proposed,
with a technical correction to an internal cross reference.
The vast majority of the comments pertained to Sec. 655.122(h)(1).
Numerous employers and their representatives objected to the proposed
change regarding the requirement to pay for transportation from the
place from which the worker has come, rather than transportation from
the consulate or port of entry. They stated that it makes more sense to
pay for transportation from the consulate, because that allows an
employer to know in advance or to estimate more precisely what its
costs will be. Some commenters expressed concern about how an employer
will know with certainty where a worker's home is and how much the
transportation from there to the consulate costs, and they wondered
whether they would be liable for whatever an employee claims his travel
costs were. Others stated that their first contact with the worker is
at the consulate, where the workers must go through government
screening to ensure that they meet the requirements for entry into the
U.S., and that there is not an employer-employee relationship until an
H-2A visa is issued at the consular office because that establishes the
worker's entitlement to enter the country. Several other employer
representatives emphasized that their disagreement was not with the
proposed regulation, but with the NPRM's inconsistent preamble
language, which described the requirement as to pay for the cost to and
from the worker's home. These commenters gave an example of an employee
whose home is in Hawaii, but who was recruited in New Haven, CT by the
Connecticut SWA, and they emphasized that it would be unreasonable to
require a Connecticut employer to return the worker to Hawaii. These
commenters noted that historically the requirement was to pay for
transportation to and from the point of recruitment, which may or may
not be the worker's home. They suggested that the Final Rule should
eliminate the inconsistency by clarifying that the requirement is the
same as it was in the 1987 Rule, which would eliminate the confusion
caused by the preamble and bring the costs within the control of the
eventual employer. Finally, as discussed in much more detail with
regard to Sec. 655.122(p), a number of employers encouraged the
Department to follow the FLSA interpretation that had been set forth in
the preamble to the 2008 Final Rule, which repudiated the decision in
Arriaga v. Florida Pacific Farms, 305 F.3d 1228 (11th Cir. 2002).
[[Page 6912]]
These commenters objected to any requirement to reimburse an employee's
transportation costs in the first workweek, rather than when the worker
has completed 50 percent of the work contract period. They emphasized
that the employee benefits from getting a job in the U.S., and so the
employer should not be viewed as the primary beneficiary of the
transportation.
In contrast, employee representatives approved of the proposed
change back to the requirements of the 1987 Rule. Employee commenters
noted that employees have suffered economically from the reduced
reimbursement only for costs from the consulate and, therefore,
welcomed the return to the prior rule. They also stated that U.S.
workers will no longer be at a competitive disadvantage regarding this
benefit. Other employee representatives stated that the reinstatement
of the former requirement is appropriate because the transportation
costs impose an undue burden on workers when the expense benefits
employers, and they emphasized that employers should be required to
bear the full cost of their decision to import foreign workers in order
to ensure that they do not prefer H-2A workers over U.S. workers. One
employee advocate specifically emphasized that it is important to make
clear that the FLSA applies independently of the H-2A requirements with
regard to transportation.
The Final Rule adopts Sec. 655.122(h)(1) as proposed. The
Department believes that it is appropriate to return to the language of
the 1987 Rule requiring employers to reimburse employees for their
inbound transportation from the place from which the worker has come to
work for the employer. The Department did not intend for the inartful
language in the preamble to the NPRM, referring to the worker's home,
to indicate a different standard that would be problematic for
employers to implement. The Department believes that employers will not
have difficulty returning to the standard that they used for more than
20 years. As a number of employer representatives acknowledged, whether
with regard to workers in the U.S. or workers recruited in a foreign
country, employers will know where they recruited the workers and,
thus, can predict and control their ultimate transportation costs.
Finally, with regard to the reference to the FLSA, an issue discussed
in detail with regard to Sec. 655.122(p), the Department believes that
it is important to remind employers of their obligations under other
statutes to enable them to ensure that they are in compliance with all
applicable laws.
In addition, a few employers or their representatives commented on
the proposal to incorporate the standards used under the MSPA governing
vehicle safety, licensure and insurance requirements for all employer-
provided transportation, rather than just for transportation between
the living quarters and the worksite (as did the 2008 Final Rule). They
objected to this requirement, stating that it was inappropriate to
apply MSPA standards to H-2A workers, who are statutorily excluded from
MSPA. However, the transportation of H-2A workers is an essential part
of the H-2A program. Transportation safety standards have been set for
H-2A workers in the Department's regulations from the outset of the
program, through the incorporation of existing standards. The 1987
Rule, for example, incorporated existing Federal, State, and local
transportation laws and regulations. As noted in the preamble to the
2008 Final Rule, the Department does not seek to apply MSPA to H-2A
workers and has no authority to do so. Rather, the regulation simply
adopts these established safety standards under the Department's H-2A
regulatory authority, in order to better assure the safety of H-2A
workers.
Finally, one employee representative stated that the current
subsistence allowance does not allow workers to purchase nutritionally
adequate meals during their journey to the workplace or their return
home. The commenter stated that the Department should determine an
appropriate dollar figure, such as by surveying meal prices in the
types of establishments frequented by charter bus companies and readily
available to passengers on common carriers or some other method, and
then indexing the amount for inflation. The Department did not propose
any changes to the subsistence amount or the methodology for setting
it; therefore, it believes that it would be outside the scope of this
rulemaking to adopt the suggested change. However, the Department notes
that it does update the subsistence amount each year to account for
inflation, based on the CPI.
i. Three-Fourths Guarantee
The NPRM proposed to retain the three-fourths guarantee from the
2008 Final Rule, which had clarified that the guarantee must 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 worker arrives at the place of employment.
The NPRM clarified the three-fourths guarantee requirement to ensure
that the guarantee will not have been met if the employer merely
offered some work to employees on three-fourths of the days in the
contract, if the workday did not consist of the full number of work
hours disclosed in the job order (e.g., hours offered on a day in which
fewer than the full number of hours stated in the job order have been
offered). The Department also proposed to retain the provision
addressing displaced H-2A workers, with a clarification that the
provision now refers to the reinstated 50 percent requirement. The
Final Rule generally adopts the proposal, with a minor clarifying edit.
The Department received several comments on the proposed three-
fourths guarantee requirement. Some commenters opposed the requirement
by stating that the three-fourths guarantee only benefits workers and
is therefore one-sided. Several commenters, including members of
Congress, supported the continuation of the three-fourths guarantee. A
few commenters noted that the three-fourths guarantee, as proposed in
the NPRM, does not go far enough to protect workers, and they offered
suggestions to make the requirement more meaningful.
Several commenters asserted that some employers manipulate the
period of employment and number of promised work hours in an attempt to
minimize the amount of the three-fourths guarantee. One commenter
stated its belief that employers purposefully evade the requirement by
overstating the hours of work in the job order and artificially
prolonging the season beyond the end of available work so that idle
workers voluntarily depart before the end of the stated contract period
and are no longer entitled to the three-fourths guarantee protection,
provided that the employer made the proper required notifications. The
commenter suggested that the Department impose on H-2A employment
contracts the first week guarantee already available to U.S. workers
under the interstate clearance order regulations (20 CFR
653.501(d)(2)(v)(A)), as well as an analogous last week guarantee. As
an alternative, this commenter suggested that the three-fourths
guarantee be applied to each successive 4-week period rather than once
to the entire contract period. Another commenter suggested that if it
became clear that the three-fourths guarantee could not be met, the
workers should have the option of demanding their three-fourths
guarantee and returning home at the expense of the employer. This
[[Page 6913]]
commenter also asserted that because job orders that include multiple
crops and/or multiple locations often do not have consecutive work
periods, workers experience days and sometimes weeks of down time with
no way of knowing whether they will be offered enough work to earn the
three-fourths guarantee. To address this uncertainty, the commenter
suggested that the monetary amount of the minimum three-fourths
guarantee be stated in the job order and job offer. The commenter urged
that if a job order exceeds a 3-month period and includes work to be
performed for consecutive periods in more than one type of crop or for
more than one fixed-site agricultural business, the three-fourths
guarantee should be calculated for the work period corresponding to
each crop and each area of intended employment. Lastly, this commenter
suggested that the proposed three-fourths guarantee requirement be
included in each contract for which an H-2ALC is providing workers and
that anticipated delays between jobs be disclosed so that potential
employees, both U.S. and foreign, have a clear idea of the amount of
work that will actually be offered.
Several commenters advocated requiring that all offered days of
work be at least 8 hours. Another commenter agreed, stating that the
three-fourths guarantee could be made a meaningful protection for farm
workers by requiring employers to guarantee each worker at least 8
hours of work per day over the course of the season. The commenter
asserted that such a requirement would prevent employers from
overestimating the number of workers needed to perform the job. This
commenter also suggested that the Department reinforce that job orders
must accurately reflect the applicant's true labor needs and that the
requirement for full-time employment means that the employer must offer
at least 35 hours per week to all workers under the job order
throughout the entire contract period. Additionally, several employer
commenters noted that the inclusion of a 35-hour full-time employment
requirement in the proposed definition of job offer would have an
impact on the amount of hours required to meet the three-fourths
guarantee.
The Department is aware that certain circumstances or events beyond
the control of the employer may make the fulfillment of the contract
impossible, and the Final Rule includes a provision that, upon a
finding of contract impossibility by the CO, the employer is relieved
of the full three-fourths guarantee obligation and is instead permitted
to reduce the guarantee to the time period from the start of the work
until the time of the contract's termination. The Department has
determined that the contract impossibility provision strikes an
appropriate balance between ensuring fairness to workers and
flexibility to employers.
Although many of these suggestions would further strengthen the
three-fourths guarantee requirement, the Department believes that it
would be inappropriate to implement such significant changes to a
fundamental and longstanding requirement of the program, without
affording the regulated community the opportunity to formally comment
on such proposals. Nevertheless, WHD will continue to carefully
evaluate the facts when it conducts investigations to evaluate whether
there has been any fraud with regard to dates of need specified in the
job order and will pay close attention to evidence of fraud or other
issues that may emerge over time. Moreover, the WHD plans to do
increased outreach to workers to ensure that they understand their
rights with regard to the three-fourths guarantee. Therefore, the
Department retains the requirement as proposed with a minor editorial
clarification.
j. Earnings Records
The NPRM proposed to require employers to retain payroll records
for not less than 5 years. Numerous comments objected to this extension
of the 2008 Final Rule's 3-year record retention requirement. The
Department has decided to return to the 3-year requirement. Discussion
of the comments can be found in the preamble section regarding document
retention requirements at Sec. 655.167.
k. Hours and Earnings Statements
Employers are required to provide earnings statements to workers
each pay period. The Department proposed that these statements include
the beginning and ending dates of the pay period, and the employer's
name, address and Federal Employment Identification Number. The Final
Rule retains these requirements as proposed. Several commenters
objected to this addition, stating that it would apply the requirements
of the MSPA to H-2A workers. The commenters noted that MSPA does not
include H-2A workers within its protections. See 29 U.S.C.
1802(8)(B)(ii) and (10)(B)(iii). The Department has determined that
this information, which is easily ascertainable by the employer, and
may be added to the existing earnings statement, is essential to the
employee's understanding as to whether he or she has been paid
correctly, as well as the identity of the employer. Employees will also
need this information if they are to report violations of the H-2A
provisions to the Department. Accordingly, this information is
important to assuring that the wages and working conditions of H-2A
workers do not adversely affect U.S. workers. While it is true that
this information is also required by MSPA regulations, that requirement
is not a reason to exclude it from earnings statements where it is
necessary to fulfill the H-2A statutory purpose.
l. Rates of Pay
The Department proposed to return to the approach taken in the 1987
Rule with respect to employer productivity standards. This Final Rule
retains the proposed language although the provision has been modified
to reflect the additional agreed-upon collective bargaining wage rate
factor discussed above. Under that provision employers must apply the
productivity standard that was normally required the year they first
used H-2A workers unless they entered the system prior to 1977. For
those employers who entered the system before that time, the 1977
standard applies. In either case, the OFLC Administrator may approve a
higher minimum. A number of employer associations objected to the
proposal on a number of grounds including questioning the need for any
regulation of productivity standards, expressing concerns about the use
of a 1977 baseline and noting the need to consider how technological
changes might impact productivity. We have carefully evaluated these
comments and believe that they do not reflect an appreciation of the
history surrounding this requirement or acknowledge the flexibility
built into the proposal.
The Department's regulations have reflected a concern about
productivity standards for more than 30 years. 43 FR 10313, Mar. 10,
1978. The concerns arose from program experience in which employers
that paid on a piece rate basis when facing rising hourly guarantees
would increase productivity standards rather than raise piece rates.
Initial efforts to address this issue by regulating piece rates were
unsatisfactory and the 1987 Rule took the alternative approach of
simply freezing productivity standards, subject to the employer making
a showing that technological developments justify higher standards.
That approach served the program well for 20 years and the comments
offer no compelling reasons to adopt a different approach. Nothing
[[Page 6914]]
negates our historic concern that rising hourly guarantees will
encourage employers to raise productivity standards rather than piece
rates. Likewise, the regulation has proven flexible enough to address
legitimate productivity increases. For example, apple growers were
allowed to raise productivity standards to reflect the introduction of
dwarf trees.
In addition, the Final Rule adds references to a collectively
bargained wage as one of the potential highest required wage rates, for
the reasons discussed above.
m. Frequency of Pay
The Department proposed to return to the 1987 Rule with regard to
the frequency of pay. The Final Rule provides that workers shall be
paid at least twice monthly or according to the prevailing practice in
the area of intended employment, whichever is more frequent. In
addition to stating the frequency of pay in the job order, the rule
adds a clarification that employees must actually be paid at the time
specified in the job order (i.e., when wages are due).
Commenters objected to the requirement that employees be paid when
the wages are due, stating that this is an MSPA requirement, and
therefore inapplicable to H-2A workers. The idea that an employer must
pay its workers based on its statement in the job order is not novel.
Courts have recognized that a prompt payment requirement is inherent in
the FLSA, and that employers must pay employees their wages on the day
their paycheck is ordinarily due. See, e.g., Biggs v. Wilson, 1 F.3d
1537 (9th Cir. 1993), cert. denied, 510 U.S. 1081 (1994). The promise
to pay a required wage is worth little if there is no requirement as to
when the wage should be paid.
n. Abandonment of Employment or Termination for Cause
The Department proposed to retain the requirements of the 2008
Final Rule on the abandonment of employment or termination for cause.
The Department has decided to adopt this provision as proposed, with
clarifying edits. Under the Final Rule, a worker is deemed to have
abandoned employment after he or she fails to report for work for 5
consecutive working days.
The Department received a few comments addressing this provision.
One commenter argued that this provision is one-sided because it
permits the employer, but not the employee, to be relieved of the
contract requirements in case of a material breach. The commenter
proposed a revision to the regulations to exclude circumstances where
the worker abandons employment because of the employer's material
breach of a term or condition of the contract.
The Department has decided against including this suggested
revision. The issue of an abandonment based on a material breach by the
employer is a fact-based scenario that is subject to inconsistent
interpretation and one over whose consequences (status of the H-2A
worker) the Department has no control. The issue of workers who
justifiably abandon employment can be best addressed through normal
Department enforcement processes against the offending employer. WHD
and/or ETA will address matters within each agency's purview, and make
appropriate referrals to other agencies, including DHS.
A few commenters argued that the requirement to report to DOL and
DHS within 2 days after discovering that a worker has abandoned
employment is not reasonable. The commenter proposed a change in the
requirement to permit the employer to wait until 2 days after the end
of the pay period during which the worker failed to report for work for
5 consecutive working days. The Department is not making this
recommended change because the Department believes it is important for
its regulations to mirror the DHS regulations on this point.
The NPRM clarified that notice for both H-2A workers and workers in
corresponding employment needs to be made to the NPC and notice
concerning an H-2A worker needs to be made to DHS. We note that the
regulatory language is specific to a worker voluntarily having
abandoned employment or having been terminated for cause. The factual
basis underlying any notification provided is subject to review during
an audit or investigation. If an audit or investigation finds that
fraud, misrepresentation or other violations were present, the employer
would not be relieved from the three-fourths guarantee requirement nor
from the obligation to provide outbound transportation.
The Department also made minor clarifications in the Final Rule to
reflect that the notification requirement relieving the employer of its
obligation for the three-fourths guarantee and outbound transportation
applies to both H-2A workers and workers in corresponding employment as
it had in previous rules.
o. Contract Impossibility
In the NPRM, the Department proposed to retain the 2008 Final Rule
requirements regarding contract impossibility and included an
additional obligation from the 1987 Rule that requires employers to
make efforts to transfer the worker to other comparable employment
acceptable to the worker in the event the employer is prevented from
fulfilling the requirements of the work contract. One commenter stated
that it believed that any transfer of a worker to other comparable
employment due to contract impossibility should be mutually acceptable
to the employer and the worker since both have a vital interest in the
worker's future employment and neither should be allowed unreasonably
to impede the other from future employment opportunities. The
Department believes, however, that if it were to require that such
transfers be mutually acceptable, the employer could object to any
comparable employment opportunity. The purpose of this section is to
protect the worker and maximize the worker's employment opportunities--
and not to create a means for an employer to protect its labor supply
for future seasons. Accordingly, the Department has retained the same
requirement in the Final Rule as proposed in the NPRM.
In addition, the Department has edited the section to eliminate the
requirement that the employer receive documentation of the new
assignment from the worker. This was removed to clarify that the first
employer is not the arbiter of the worker's status beyond employment
with the first employer.
p. Deductions
Section 655.122(p) of the NPRM proposed to require employers to
make all deductions required by law and to specify all other deductions
in the job offer. Further, it proposed that if an employer paid the
employee's transportation and daily subsistence expenses to the place
of employment, the employer could deduct those expenses from the
worker's paycheck, but the job offer had to state that the worker would
be reimbursed the full amount of the deduction upon the worker's
completion of 50 percent of the work contract period. Additionally, an
employer subject to the FLSA may not make deductions that would violate
the FLSA. The Final Rule generally adopts the rule as proposed, with a
new paragraph to more fully describe what is meant by the term
reasonable.
A large number of commenters addressed this provision. Numerous
employee advocates emphasized that farm workers' wages have been
reduced by inappropriate wage deductions. Some employee advocates and
[[Page 6915]]
Congressional representatives suggested that the Department should do
more to protect employees' wages from deductions for employer business
expenses, and to ensure that workers receive the full required wage
rate, by forbidding all deductions not required by law. Other employee
advocates stated that the regulation should clearly delineate which
deductions are permissible and which are not, rather than just
requiring that deductions be reasonable. Some also suggested that the
Department should strengthen the regulation by adding language
incorporating the free and clear principle found in the FLSA and
Service Contract Act regulations, thereby prohibiting any deductions or
de facto deductions for expenses that primarily benefit the employer if
the deductions would bring the employees' wages below the required
wage. These commenters noted that the higher wage rates guaranteed by
the requirements of the H-2A program can be subverted by unreasonable
or unauthorized deductions, just as the FLSA minimum wage can be
subverted. One farm worker advocacy organization specifically
emphasized that H-2A workers are among the poorest and most vulnerable
workers and should not be required to wait until they have completed 50
percent of the contract period to be reimbursed for their
transportation and transit meal expenses. Others stated that the
regulations should expressly forbid employers from recouping these
expenses in any later workweek.
In contrast, numerous employers and their representatives stated
that the requirement to reimburse employees for their inbound
transportation and subsistence at the 50 percent point is appropriate,
asserting that these costs are not for the primary benefit of the
employer. They commented that employers, therefore, should not be
required to reimburse these expenses in the first workweek under the
FLSA. Specifically, several employer associations stated that the
Department should return to the FLSA interpretation set forth in the
preamble to the 2008 Final Rule, repudiate the decision in Arriaga v.
Florida Pacific Farms, 305 F.3d 1228 (11th Cir. 2002), and conclude
that transportation and subsistence are not for the primary benefit of
the employer. Under that analysis, refusing to reimburse such costs
would not be a de facto deduction from the first week's wages that
could constitute a minimum wage violation under the FLSA. These
commenters emphasized that employers should not have to reimburse such
costs in the first workweek under the FLSA, since the H-2A regulations
provide that they must be reimbursed after the employee completes 50
percent of the job period. They also commented that the balance struck
by requiring reimbursement at the 50 percent point works well, because
both parties have an investment in the employment. A few of these
commenters predicted that the rate at which workers leave their H-2A
employment and stay in the U.S. out of visa status will increase if the
FLSA requires reimbursement in the first workweek. One employer
representative stated that while there may be some concern that
withholding reimbursement until the middle of the contract period may
go to the other extreme, the Department's final policy choice should
reflect the mutual benefits to both the employer and the employee.
The Department concludes that the Final Rule should mirror the
proposed rule, with additional clarifying language. The Department
believes that, in order to avoid confusion, it is important for this
regulation to continue to remind both employers and employees that,
where an employer is covered by the FLSA, the requirements of that
statute also will apply. As the WHD explained in Field Assistance
Bulletin 2009-2 (Aug. 21, 2009), which addressed the application of the
FLSA to employers utilizing the H-2B visa program, employers that are
covered by more than one law must always determine their wage
requirements under each applicable statute and then apply the highest
requirement in order to satisfy all laws. See Powell v. United States
Cartridge Co., 399 U.S. 497, 519 (1950). That Bulletin noted that an
employer may participate in the H-2B visa program only when it
demonstrates both that there are not sufficient U.S. workers available
and that the employment of foreign workers will not adversely affect
the wages and working conditions of similarly employed U.S. workers.
Employers who want to bring in H-2B guestworkers must first comply with
numerous requirements related to the recruitment of U.S. workers in
order to satisfy the Department that there are not sufficient U.S.
workers available. Any foreign workers who ultimately are brought in
under the program are permitted to work only on a temporary basis, with
no possibility of the job becoming permanent no matter how well the
employees perform or what skills they acquire. Moreover, the employees
may work only for the employer who received the labor certification for
the H-2B visa program. At the conclusion of the specified work period,
the workers must leave the country and they are not permitted to seek
subsequent work from another U.S. employer, unless that subsequent
employer also is certified under the H-2B program. In that context, the
WHD concluded in the Bulletin that, under the FLSA, the transportation
expenses and visa fees of H-2B employees are for the primary benefit of
the H-2B employers.
As the Bulletin noted, the H-2A visa program is similar to the H-2B
program, because it also provides for the temporary employment of
nonimmigrants only when there are not sufficient U.S. workers available
for the jobs and the employment of foreign workers will not adversely
affect the wages and working conditions of similarly employed U.S.
workers. The H-2A program also involves special recruiting requirements
directed at locating any available U.S. workers, and the H-2A workers
who enter the country are similarly limited to temporary employment for
the qualifying employer, and must leave the country at the end of the
work contract period unless they go to another qualifying employer.
Because of the similar statutory requirements and similar structure of
the H-2A and H-2B programs, the same FLSA analysis applies to the H-2A
program as was set forth in the Field Assistance Bulletin. Therefore,
an H-2A employer covered by the FLSA is responsible for paying inbound
transportation costs in the first workweek of employment to the extent
that shifting such costs to employees (either directly or indirectly)
would effectively bring their wages below the FLSA minimum wage.
The Bulletin also noted that, under the FLSA, there is no legal
difference between deducting a cost from a worker's wages and shifting
a cost to the employee to bear directly. Thus, employers may not make
deductions from employees' wages for employer expenses or require
employees to pay for such costs out of pocket, if that would bring them
below the minimum wage, because the minimum wage is received only when
wages are paid free and clear. The Department concludes that it is
appropriate to continue to remind employers and employees in the H-2A
regulations of the simultaneous applicability of the FLSA; otherwise,
the H-2A requirement that an employer reimburse transportation only
after the employee completes 50 percent of the contract period could
result in confusion regarding the FLSA requirement to ensure payment of
at
[[Page 6916]]
least the minimum wage in the first workweek.
Furthermore, in order to provide additional clarity, the Final Rule
describes what is meant by the statement that deductions must be
reasonable. The Department's regulations implementing the FLSA provide
that the reasonable cost of an item may not include a profit to the
employer or any affiliated person, 29 CFR 531.3(b), and that the cost
of furnishing any facility found to be primarily for the benefit or
convenience of the employer is not reasonable and cannot be counted in
computing wages. See 29 CFR 531.3(d)(1). This is so even if the
employer asserts that the employee has voluntarily agreed to bear such
costs. Moreover, wages cannot be considered to have been received
unless they are paid finally and unconditionally or free and clear,
without any kickback, directly or indirectly. See 29 CFR 531.35. Thus,
for example, if an employee must purchase a uniform with the employer's
logo, there would be a violation of the FLSA in any workweek when the
cost of such a uniform purchased by the employee cuts into the required
minimum or overtime wages. The same principles also apply under the
SCA. See 29 CFR 4.168. The Department believes that the same principles
also must apply to the H-2A required wage rate, in order to ensure that
the employee receives the legally required wage free and clear without
any inappropriate, unauthorized deductions. Therefore, the Final Rule
adds language similar to that found in the FLSA and SCA regulations,
with a cross-reference to the FLSA regulations.
However, the FLSA regulations recognize that an employer may make a
deduction from wages where the employee has voluntarily assigned a sum
to another, such as a creditor, donee, or other third party (e.g., for
insurance, union dues, or charitable donations), provided that neither
the employer nor any person acting in his behalf or interest derives
any benefit or profit from the transaction. See 29 CFR 531.40.
Therefore, the Final Rule does not prohibit all deductions or identify
the specific deductions that are permissible. Of course, Sec.
655.122(f) of this Final Rule requires employers to provide all tools,
supplies and equipment required to perform the job, without charge to
the worker, so no deductions for those items are permitted.
Finally, because the NPRM proposed to allow an employer to deduct
any inbound transportation and subsistence costs that the employer paid
directly, and to retain the longstanding requirement that an employer
must reimburse an employee for such expenses only when the employee has
completed 50 percent of the work contract period, the Final Rule does
not require an employer to reimburse an employee in the first workweek
up to the level of the H-2A required wage. The Department does not
believe that requiring reimbursement of inbound transportation and
subsistence expenses up to the H-2A required wage in the first workweek
would be appropriate, because the NPRM did not propose to modify the
longstanding requirement to reimburse these expenses only after an
employee completes 50 percent of the work contract period. Rather, the
Final Rule provides with regard to inbound transportation and
subsistence expenses that employers must comply with the FLSA, where
applicable, which means that their reimbursement obligation in the
first workweek for these expenses is limited to the FLSA minimum wage
level. However, all other deductions must be reasonable, as discussed
above, and other deductions are tested against the required H-2A wage
rate, not just the FLSA minimum wage. The requirement that all
deductions must be disclosed is retained as proposed; therefore,
deductions that are not disclosed are not permissible. The Department
understands the concerns expressed by the commenters regarding the
requirements of this regulation and will carefully monitor the
experiences of workers and growers under the new rule to determine
whether it is appropriate to revisit this issue in the future.
q. Disclosure of Work Contract
The 2008 Final Rule and earlier rules have required that a copy of
the work contract be provided to the worker and that the copy be
provided no later than on the day work commences. The NPRM proposed
that this disclosure be made, as necessary and reasonable, in a
language understood by the worker. This provision has been retained.
Some comments asserted that this requirement would require translations
into regional and village-specific dialects. The Department intends for
employers to make translations into major languages, and not every
dialect. The Department believes that employers should provide the
terms and conditions of employment to a prospective worker in a manner
that permits the worker to understand the nature of the employment
being offered, as well as the worker's commitment and rights under that
employment.
In addition, we received comments that suggested that the copy of
the work contract be provided on the day the worker's visa is issued or
at the time of recruitment. These comments stated that it is unfair to
allow a worker to travel hundreds or thousands of miles before learning
the terms and conditions of employment, and that far too often workers
are not accurately apprised of the terms of the work contract until
they are in the U.S. The Department agrees. Accordingly, the Final Rule
requires that a written copy of the work contract be provided to an H-
2A worker no later than the time at which the H-2A worker applies for
the visa in a language understood by the worker (as discussed above).
The written copy can be provided at any point in the hiring process
prior to this point to ensure that the H-2A worker has written notice
of the terms and conditions of employment prior to departing the
worker's home country. A written copy of the contract need not be
provided to each foreign worker who is a potential candidate for
employment during the process of recruiting or soliciting. However,
when the employer and the worker have reached a stage in discussing
employment that has gone beyond the recruiting or solicitation stage
and an offer of employment has been made, a copy of the work contract
has to be provided. For a worker in corresponding employment, a copy
needs to be provided no later than the day on which work begins,
although employers may be obligated to provide written disclosure
sooner to migrant or seasonal agricultural workers covered by MSPA.
Recognizing that some H-2A workers may move to subsequent approved H-2A
employment, the regulations provide in such situations that the copy be
provided no later than the time an offer of employment is made by the
subsequent H-2A employer. Finally, the requirement to provide a copy of
the work contract was already contained in the proposal, and this
change only modifies when the copy is to be provided. Therefore, any
additional costs would be negligible.
As discussed above, the Final Rule clarifies that employers who
have an approved modification of a job order must provide the revised
job order to the workers in the language understood by the workers. If
the modification of the job order is approved after the workers receive
the original job order or contract, disclosure of the revised terms and
conditions must occur as soon as practicable.
[[Page 6917]]
Application Filing Procedures
8. Section 655.130 Application Filing Requirements
a. What To File
The Department proposed to require employers to file an Application
with a copy of Form ETA-790. The Department received no comments in
response to this proposal; therefore, the Final Rule adopts the
language of the NPRM with minor clarifying edits.
b. Timeliness
The Department proposed to accept Applications no less than 45 days
from the date of need in order to assure compliance with its statutory
mandate to certify all applications within 30 days from the date of
need. The Department received no comments in response to this proposal;
therefore, the Final Rule adopts the language of the NPRM.
c. Location and Method of Filing
The Department proposed to accept Applications by U.S. mail or
private mail courier to the NPC. The Department received no comments in
response to this proposal; therefore, the Final Rule adopts the
language of the NPRM.
d. Signatures
The Department proposed, consistent with the 2008 Final Rule, to
require applicants to submit original forms and signatures. However,
the NPRM clarified that this requirement also applies to associations
filing as agents for their members, and requires them to obtain
signatures of all their employer-members before submitting the
Application to the Department. The Department clarified the existing
requirement to ensure that all employer-members are on notice of the
obligations each is assuming and must adhere to under the Application.
The Department is retaining this requirement.
The Department received comments opposing the signature requirement
and indicating that it would be both time consuming and burdensome for
associations. The commenters also objected to an alleged lack of
justification offered by the Department for imposing the requirement.
In order to foster fair play and full disclosure, the Department
has determined that it must require individual signatures of all
employers applying for a temporary labor certification. The Department
expects that this practice will result in better compliance and more
individual involvement by employers to assure that program requirements
are met and that both U.S. and foreign workers are treated fairly.
e. Other Comments on Application Filing Requirements
One commenter proposed that all documents filed with the SWA and
OFLC be made readily available to U.S. workers and their
representatives through the Freedom of Information Act (FOIA) or an
electronic means through a publicly accessible Web site. This comment
was addressed under the section dealing with the electronic job
registry, on which the Department intends to post, when the system is
available, all open and pending job orders.
9. Section 655.131 Association Filing Requirements
The Department proposed to continue allowing associations to file
on behalf of their members. The NPRM clarified the role of associations
as filers (sole employer, joint employer or agent), in order to assist
the association and employer-members in understanding the obligations
each party is undertaking with respect to the Application. As in the
past, an association will be required to 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). This requirement is a continuation from both the
1987 Rule and 2008 Final Rule that required an association of
agricultural producers to identify whether the association is the sole
employer, a joint employer with its employer-members, or the agent of
its employer-members. The Department is retaining this provision with a
change related to the filing of master applications, as discussed more
fully below.
One commenter generally opposed the provision indicating that it
should be dropped because it requires associations, agents and FLCs to
provide to DOL confidential and/or proprietary business information.
The Department notes that neither the NPRM nor the Final Rule requires
that program users submit information that is confidential or
constitutes proprietary business information. The Final Rule simply
requires that the association 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 audit. While we do not
believe that information submitted in response to a Notice of
Deficiency or an audit request would be confidential business
information, we want to reassure employers and associations that
information identified as confidential will be protected consistent
with Departmental regulations.
a. Individual Applications
As discussed above, the Department proposed to continue permitting
associations to file as individuals and is retaining this provision in
the Final Rule. The Department received no comments on this proposal.
b. Master Applications
As explained in the NPRM, master applications filed by associations
are clearly contemplated by the INA, and the Department has permitted
master applications as a matter of practice. In the 2008 Final Rule,
the Department recognized their use. The NPRM proposed to continue the
use of master applications but in a more limited fashion. The
Department is retaining the NPRM provision addressing master
applications with several changes. In response to many comments
received on this issue, the Department has reconsidered the one-State
limitation and has expanded the area of intended employment for
associations filing master applications to at most two contiguous
States. In addition, the Department is clarifying that a master
application may cover the same occupations or comparable agricultural
employment.
The Department received a number of comments in response to its
proposed regulations governing master applications. One commenter
expressed full support for the proposed changes indicating that they
will allow for better accountability in the advertising and referral
process.
Numerous commenters asserted that the proposed changes to the
provision governing the use of master applications will prove more
difficult for employers, without sufficient justification by the
Department for the changes. Many of these commenters noted that there
is no reason to limit the use of the master applications to only one
State, some noting that many farms cross over State lines.
Similarly, many asserted that a limitation to a single occupation
and comparable work is not justified because many farmers perform
different types of work on their farms, and forcing them to duplicate
the Application process for each type of job would greatly increase the
cost of meeting their labor needs, and in some cases negatively offset
the cost sharing
[[Page 6918]]
among the employers covered by a master application.
Several commenters opposed the single-State, single-occupation and
comparable work limitations, asserting they will incur greater
financial and administrative burdens due to a sudden increase in the
number of master applications they will be required to prepare and file
to cover all employers, workers and job occupations that would have
been covered by the same master application under the 2008 Final Rule.
These commenters proposed that the Department permit the bundling of
job orders and master applications to reach across State lines so long
as the jobs are similar and the wages are the same. The same commenters
opposed the increased paperwork burden.
Many commenters claimed that the changes appear unjustified and
that the Department failed to offer a justification based on instances
of violations or data indicating that master applications are being
abused in a way that would be addressed by proposed changes. Some
commenters asserted that this change, along with other changes in
requirements, will increase the cost of compliance and force some
employers out of the program.
One commenter indicated that narrowing the scope of master
applications that are essential for many H-2A employers will
particularly affect smaller employers or those with shorter seasonal
needs. According to this commenter, the one-State limitation fails to
account for weather patterns and climate that govern the seasons and
therefore drive most agricultural activities. Further, it is reasonable
to permit employers and workers in regions where similar activities
take place at the same time to increase efficiency and effectiveness by
working together through the use of master applications.
Another of these commenters noted that both labor and management
understand that multi-employer Applications offer a benefit to farm
workers by providing job opportunities. The same commenter contended
that the Department should provide employers with additional
flexibility rather than impose restrictive requirements. In addition,
it asserted that an additional benefit of the expanded availability of
master applications would result in greater work opportunities for
workers, lower costs for employer participation, and a higher level of
compliance among the participating farmers.
The Department agrees with the commenters regarding the benefits of
master applications and has therefore retained their use, as intended
in the INA. The Department's changes to the regulatory requirements are
not intended to discourage employers from utilizing master applications
but are rather designed to preserve program integrity and foremost, aim
at greater protections for U.S. and foreign workers. In addition, the
Final Rule continues to require a single date of need as a basic
element for a master application, as well as a longstanding requirement
that master applications may only be filed by an association acting as
a joint employer with its members. The Department highlights joint
responsibility of the association and its employer-members 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 labor certification.
The Department has modified the provision governing master
applications to expand the area of intended employment. The
modification strikes a balance between the programmatic goals of
protecting job opportunities for U.S. workers and ensuring uniform
enforcement of the terms and conditions and the need to provide
flexibility for employer associations. Monitoring program compliance
becomes more difficult and the potential for violations increases when
workers under a single application are dispersed across several States.
Limiting the area of intended employment to two contiguous States will
make it more likely that employers under the same application will
learn of and have the ability to correct potential problems and avoid
liability.
The Department has determined that limiting the master applications
to a single occupation or comparable work provides necessary
protections for both U.S. and foreign workers by providing a
disincentive to employers to overestimate job opportunities or
timeframes. Such limits also provide greater incentives to the domestic
U.S. workforce. Recruiting workers under a master application, with
many different job openings that may be located at different sites and
subject to different terms and conditions, may discourage some U.S.
workers from responding. This may also make the recruitment and
retention of U.S. workers more difficult because some workers may not
want to perform diverse activities. This requirement will also assist
employers in working together to ensure that terms and conditions are
met with respect to each set of workers employed under a specific
master application. The Department expects that the nature of the job
opportunities that can be included in a master application will largely
mirror how master applications were treated under the 1987 Rule. We
further note that the regulatory text has been changed to substitute
the word or for the word and in the phrase ``single occupation and
comparable work.''
Although associations may be required to prepare greater numbers of
applications, the requirement is intended to make it easier for them to
track compliance with the terms and conditions. As applications become
more specialized, the associations may find that the number of their
participating members increases for each application, therefore
preserving the cost-sharing benefits. Similarly, the need for
efficiency in processing applications is far outweighed by the
anticipated improvement in the process, and the increased protections
for both U.S. and foreign workers that will result.
The Department is supportive of the use of master applications by
employers (large and small) as a means to meet seasonal needs and
believes that the commenters' concerns regarding the impact of
limitations are exaggerated. The Final Rule returns to the traditional
use of master applications as operated between 1987 and 2009. The Final
Rule, with its expansion of the use of master applications beyond a
single State, preserves the flexibility inherent in the use of master
applications while ensuring that they are not vehicles for abuse or a
way to skirt program requirements. Nothing in the Final Rule impacts
employers with shorter seasonal needs.
10. Section 655.132 H-2A Labor Contractor (H-2ALC) Filing Requirements
The NPRM revised the provision by providing an introductory
paragraph that explained what other provisions of the regulations H-
2ALCs are subject to and deleted the redundant sections in the H-2ALC
section. The Final Rule adopts these changes as proposed, with minor
editorial clarifications.
The Department received many comments addressing the need for the
regulation of H-2ALCs. Most commenters agreed with the proposal that
specific obligations for H-2ALCs are necessary. However, a majority
felt that the Department did not go far enough to regulate H-2ALCs,
asserting that H-2ALCs are the most egregious violators of the H-2A
program. They pointed out that some H-2ALCs recruit workers when they
do not have actual jobs to offer; therefore, these commenters were
pleased that the Department is now requiring additional
[[Page 6919]]
documentation about their contracts and that the WHD has more
enforcement authority. One commenter contended that H-2ALCs exaggerate
their labor needs in order to maximize their profits by creating
something close to a Ponzi scheme in which foreign workers pay
exorbitant recruiting fees abroad. This commenter suggested that the
Department create a form for the contract between an H-2ALC and fixed-
site employer in order to ensure that all necessary information is
provided to the Department such as the legal name of the farm, its
address, number of workers needed, dates of need, tasks to be
performed, and the remuneration that the fixed-site employer intends to
pay an H-2ALC. One commenter requested that the Department explicitly
acknowledge State and Federal protections provided to all workers
during recruitment and employment including those related to
discrimination and retaliation. This same commenter requested that we
require an H-2ALC to provide a recruitment plan. Additionally, a
commenter recommended the creation of a Federal H-2ALC licensing and
continuing education requirement.
The Department believes that the proposed regulations provide
sufficient protections to address these commenters' concerns, and no
additional restrictions or forms or licensing requirements are
necessary at this time. The proposed protections, including the
requirements to submit proof of the H-2ALCs' work contracts, will help
eliminate these egregious abuses and therefore were retained.
a. Scope of H-2ALC Applications
As stated previously, the NPRM proposed to eliminate multiple areas
of intended employment in one Application and substituted a requirement
that each Application be limited to worksites in only one area of
intended employment. The Department received several substantive
comments on this particular provision.
A legal aid organization commended the Department for forbidding
multiple areas of employment in a single application. The commenter
claimed that U.S. workers are harmed because positive recruitment takes
place only at the initial area of intended employment and by the time
the itinerary reaches some of the later areas of intended employment,
the 50 percent rule has lapsed and the U.S. workers lack access to the
work opportunities. The commenter also asserted that the H-2A workers
incur unnecessary expense because there may be weeks of downtime
between areas of intended employment so they travel back home to Mexico
at their own expense. The commenter stated that this would not be the
case if the job order accurately reflected the actual work activities.
The Department believes that the enhanced restrictions on H-2ALCs
serve to address this issue and retains the provision as proposed in
the NPRM.
b. Required Information
(i) Identify Name and Location of Fixed-Site Employers and Crop
Activities
The requirement to list the name and location of each fixed-site
employer to which an H-2ALC expects to provide H-2A workers, including
the beginning and ending dates of when the workers are needed and a
description of the activities the workers are expected to perform and
crops upon which they will work, is the same in both the 2008 Final
Rule and the NPRM. The Department received several comments, all in
support of this provision. One farm worker advocacy group suggested
that the Department add an additional requirement to include the
monetary value of the three-fourths guarantee for the applicable work
performed at each fixed site. The three-fourths guarantee is not
calculated by each fixed-site employer; therefore, the Department
cannot implement this suggestion.
(ii) Required Information and Submissions
The Department did not receive any comments on this section of the
proposed rule. Therefore, the Department is adopting the provision as
proposed with minor editorial changes.
(iii) H-2A Labor Contractor (H-2ALC) Bond Requirements
The Department proposed to continue to require that an H-2ALC
obtain a bond to demonstrate its ability to meet its financial
obligations to its employees. This permits the Department to ensure
that labor contractors can meet their payroll and other obligations
contained in the terms of the job order and the H-2A program
obligations. The Final Rule requires that an H-2ALC submit the original
surety bond (and any extensions thereof) to the Department with the
Application. This change is not expected to place any additional burden
on an H-2ALC applicant since such applicants were previously required
to submit fundamental information from the bond that most applicants
accomplished by providing a copy of the bond. This requirement to
provide the bond itself will ensure that the Department has legal
recourse to make a claim to the surety against the bond following a
final order finding violations.
Several farm worker advocates suggested that H-2ALCs should have
the option of joint employment with each fixed-site employer in lieu of
the bond requirement. They noted that in that situation, fixed-site
employers would be held jointly responsible for the treatment of the
farm workers. The Department believes that the increased surety bond
amounts provide better protections.
(iv) Provide Copies of Work Contracts
The NPRM proposed to add a provision requiring H-2ALCs to provide
copies of their work contracts. The comments were generally in favor of
this requirement. One commenter requested that additional language be
added to this provision, specifically, that each contract disclose the
fact that an H-2ALC intends to employ H-2A workers in connection with
the contract and that workers employed at the same site at the same
time in any work included in the job order are employed in
corresponding employment. One commenter opined that we are requiring H-
2ALCs to provide too much confidential and proprietary business
information and that those provisions should be dropped.
The Department has determined that the requirement to include proof
of work contracts is appropriate for protecting agricultural workers,
and does not believe additional language is necessary. Additionally, as
stated above, the Department intends to protect any material identified
as confidential in accordance with Departmental regulations.
(v) Housing/Transportation
The NPRM required housing and transportation to comply with the
standards in Sec. 655.122, and relevant comments are addressed in the
preamble for that section. The Final Rule adopts the NPRM as proposed.
11. Section 655.133 Requirements for Agents
The NPRM proposed to require agents to provide, as a part of the
Application, copies of agreements demonstrating representation--in the
form of a contract, agency agreement, or other proof of the
relationship and the authority of the agent to represent the employer.
In addition, the Department proposed to require agents who are required
to register as FLCs under MSPA to provide proof of registration. The
Department is retaining this provision as proposed.
[[Page 6920]]
The Department received several comments discussing the enhanced
requirements for agents. One commenter objected to the changed
requirements arguing that agents, associations and labor contractors
should not be required to provide confidential/proprietary business
information.
Some commenters opposed the requirement arguing that the current
Form ETA-9142 Application for Temporary Employment Certification (Form
ETA-9142) already contains a section where the employer may authorize
another to act as an agent on its behalf and that providing the agency
agreement creates a redundancy in the application process. One of these
commenters indicated that both the employer and agent are required by
law to personally attest with original signatures to the accuracy of
all representations made in the Form ETA-9142, and knowingly
misrepresenting constitutes a felony criminal offense punishable by
$250,000 fines and up to 5 years in jail. In light of such severe
penalties, this commenter did not see the necessity for additional
information ascertaining the validity of the representation.
One commenter claimed that employers hire agents simply to assist
them with the paperwork and asserted that the scope of such
representation in most cases never involves activities that would
require the agent to register as a FLC. In addition, the commenter
posited that enhanced requirements are unnecessary because the
Department already imposes separate requirements on H-2ALCs and FLCs.
An association of employers opposed the enhanced requirements for
agents arguing that the proposed changes are punitive and the
Department did not provide justification for the new restrictions and
did not explain how they will correct or prevent any program abuses.
This commenter specifically opposed the requirement to submit agency
agreements and noted that this requirement will simply result in more
paperwork and cost for employers. The commenter further asserted that
the Department has no need for private contract information and should
be solely concerned with employer compliance with program requirements.
One commenter expressed concern about the possibility that its
proprietary information may be subject to public release under FOIA.
One commenter offered support for the enhanced requirements for
agents, including that agents obtain a bond and licensure.
The Final Rule adopts the provision as proposed. The Department is
requiring agents to supply copies of the agreements defining the scope
of the agency relationship in addition to completing all relevant
portions of the Application to ensure that there is a bona fide agency
relationship to ensure program integrity. The requirement, however, in
no way obligates either the agent or the employer to disclose any trade
secrets, or other proprietary business information. For example, the
Department has no interest in or need to know the amount of the fee
that the agent is charging the employer. The Final Rule only requires
the agent to provide sufficient documentation to clearly demonstrate
the scope of the agency.
Preserving program integrity requires the Department to ascertain
the validity and scope of the agency relationship. The current
application procedures require both the employer and the agent to
attest under penalty of perjury that all information provided on the
Form ETA-9142 is true and correct. It further includes a declaration by
the agent or employee of the employer that it is authorized to act on
its behalf in connection with the Application. This attestation,
however, simply evidences an existing relationship; unlike the actual
agency agreement, it does not define the scope of the agency
relationship and consequently the scope of employer's or agent's
liability. For these reasons, the Department is retaining the provision
as proposed.
In addition, the Department wishes to assure all commenters and
stakeholders that it will continue to follow all applicable legal and
internal procedures for complying with FOIA requests that ensure the
protection of private data.
The Department agrees with the commenter supporting the need for
enhanced requirements for agents. The Department, however, does not
feel that it is appropriate at this time to impose a bonding
requirement on agents unless the Department determines on a case by
case basis that they are more appropriately classified as H-2ALCs.
12. Section 655.134 Emergency Situations
The Department proposed to retain the criteria for accepting and
processing Applications filed less than 45 days before the date of need
on an emergency basis. The Department received no comments on this
proposal and retains it in the Final Rule, with minor editorial
clarifications.
13. Section 655.135 Assurances and Obligations of H-2A Employers
a. Non-Discriminatory Hiring Practices
The Department proposed to require employers to make certain
assurances as a condition for certification. The first of these
assurances was that the job opportunity remain open to any qualified
U.S. worker regardless of race, color, national origin, age, sex,
religion, handicap, or citizenship, and that rejections of U.S. workers
must be only for lawful, job-related reasons.
The Department received a few comments on this provision. The
Department received a comment that this provision is not necessary and
should be deleted because the employer is already required to comply
with all applicable laws. Another commenter suggested adding the phrase
and as otherwise provided by State law to the end of the first
sentence.
The Department does not agree with suggested deletion. The
provision is intended to be specific to the hiring practices of H-2A
employers, such that the jobs, even those filled by H-2A workers prior
to the end of the recruitment period, remain available to U.S. workers.
The Department declines to add the suggested phrase here because this
concept is addressed elsewhere in the regulation. Therefore, the Final
Rule contains the language proposed in the NPRM, with an edit
clarifying that the employer's obligations continue through the 50
percent point of the work contract.
b. No Strike or Lockout
The NPRM proposed that employers be required to assure the
Department that there was no strike or lockout in the course of a labor
dispute at the worksite.
The Department received several comments from various groups who
requested that the Department return to the language of the 1987 Rule
and the 2008 Final Rule which limited such assurance to strikes or
lockouts involving the specific job opportunity sought to be filled.
These commenters claimed that the proposed wording can leave too much
room for mischief among those who would seek to block the hiring of H-
2A workers. They expressed concern that the proposed language was broad
and would allow one or two workers to claim that they walked off the
job over a labor dispute and in such a situation the employer's
Application would be denied. They also pointed out that the National
Labor Relations Act does not cover agricultural employment, which means
that there is no official process for determining the existence of a
labor
[[Page 6921]]
dispute. These commenters state that the 1987 Rule language was
carefully crafted to make it clear that if a worker walks off the job
claiming a labor dispute, only the job opportunity vacated by that
worker, and not the entire Application, is barred from certification.
One of the commenters pointed out that the Department provided no
justification for the proposed change. Several of the commenters opined
that the proposed definition of strike in the definition section does
not alleviate this problem because concerted stoppage of work by
employees as a result of a labor dispute still allows two employees to
act in concert to prevent an Application from being certified.
The Department is concerned that narrowing the provision as
recommended by the commenters would unjustifiably limit the freedom of
agricultural workers to engage in concerted activity during a labor
dispute. This would be inconsistent with Congress' broad prohibition
against granting labor certifications where there is a strike or
lockout in the course of a labor dispute. The Department believes that
revising the language based on these comments would result in H-2A
workers performing not only the jobs identified in the certification,
but also the jobs performed by those workers engaged in the labor
dispute. Therefore, the Final Rule retains the language as proposed.
c. Recruitment Requirements
The Department proposed to require an assurance from the employer
that it had and would continue to cooperate with the SWA by accepting
referrals of all eligible U.S. workers who apply, or on whose behalf an
application is made, for a job through 50 percent of the contract
period including all extensions, and would conduct recruitment
activities as set forth in the regulation. The Department received no
comments on the section dealing with the assurance. Therefore the Final
Rule generally adopts the NPRM provision as proposed with minor
clarifying edits. This includes the deletion of the ``whichever occurs
first'' language regarding the end date of the positive recruitment. We
have modified this language to impose clarity that one date, if known,
will overrule the other. For a full discussion of this provision refer
to the preamble discussion under Sec. 655.158.
d. Fifty Percent Rule
The Department proposed reinstatement of the 50 percent rule, which
requires employers to hire U.S. workers through 50 percent of the
contract period, as outlined in 8 U.S.C. 1188(c)(3)(B)(i). We received
many comments for and against this proposal, and for the reasons
discussed below, the Department is retaining the provision as published
in the NPRM.
Several Congressional commenters supporting the rule noted that the
50 percent rule played a crucial role in the reservation of these jobs
for U.S. workers. Another commenter noted that the 50 percent rule was
not only an essential protection for U.S. workers, but a significant
inducement for employers to make serious attempts to recruit U.S.
workers as a condition of H-2A certification. Several commenters cited
the role that the rule plays in the continued opportunities for U.S.
workers for the jobs, close to and even beyond the start date of the
contract. Other commenters who supported a return to the 50 percent
rule noted that the longer referral period provides essential access to
U.S. workers with respect to H-2A jobs. Even some employer commenters
opposed to the reinstatement of the 50 percent rule recognized the
Department's statutory need to strike a balance between the priority
given to U.S. workers and the right of an employer, when it has met its
legal obligations, to employ H-2A workers.
Several employer commenters opposed to the rule focused on the
complications the H-2A employer faces in hiring an H-2A worker, only to
have the pattern of employment potentially disrupted by a domestic
worker. Other commenters asserted that U.S. workers are not well served
by the 50 percent rule when the employer does not want to hire them
because the foreign workers have arrived. A number of commenters stated
that there was not sufficient evidence that the rule worked as
intended. Many commenters referred to the alternative 30-day rule
imposed in the 2008 Final Rule as a preferred alternative.
Many commenters focused on the unreliability of the domestic
workforce referred during the 50 percent period. They noted that
referred workers were unlikely to even show up for interviews, and that
many of those who are hired last for no more than a few days. Others
noted that most employers receiving referrals during the 50 percent
period choose not to release the H-2A worker but retain that worker,
either in a superfluous position or as the potential replacement worker
for when the U.S. worker either does not show up for work or quits
employment. One commenter noted that, in its State, referrals more than
doubled in 2009 yet very few actually showed up for interviews and
ultimately they saw no increase in domestic workers accepting job
offers.
Some commenters objected to the cost of interviewing U.S. workers,
particularly for small farmers. One commenter questioned the return to
the 50 percent rule, noting what this commenter considered to be the
small number of workers (11,000) referred by One-Stop Career Centers
nationwide.
A commenter stated there is no evidence that the adoption of the
30-day rule in the 2008 Final Rule (as opposed to the 50 percent rule)
has adversely impacted U.S. workers. Another asked whether the
Department had come across new or different information regarding the
effectiveness of the 50 percent rule to merit its reinstatement.
The 50 percent rule predates the H-2A program; it was originally
created as part of the predecessor H-2 agricultural worker program in
1978. See Sec. 655.203(e); 43 FR 10316, Mar. 10, 1978. In 1986, IRCA
added the 50 percent rule to the INA as a temporary 3-year statutory
requirement, pending the findings of a study that the Department was
required to conduct and review other relevant materials, including
evidence of benefits to U.S. workers and costs to employers, addressing
the advisability of continuing a policy which requires an employer as a
condition for certification to continue to accept qualified, eligible
U.S. workers for employment after the date the H-2A workers depart for
work with the employer. 8 U.S.C 1188(c)(3)(B)(i). In the absence of the
enactment of Federal legislation prior to the end of the 3-year period,
Congress instructed the Secretary to publish the findings immediately
and promulgate an interim or final regulation based on the findings.
The study conducted during that time period included the two States
determined to have had the highest number of U.S. workers who responded
to referrals during the 50 percent period; it sought only to determine
the costs to employers that hired workers referred under the 50 percent
rule and the concomitant benefits to the U.S. workers hired under the
rule. Accordingly, in 1990, pursuant to what is now 8 U.S.C.
1188(c)(3)(B)(iii), ETA published an Interim Final Rule to continue the
50 percent requirement. 55 FR 29356, Jul. 19, 1990. The perceived
shortcomings of the study were cited by the Department in calling for
comments regarding the 50 percent rule in 2008, and in conducting
another study that attempted to secure additional information regarding
the effectiveness of the 50 percent rule. That
[[Page 6922]]
study, however, also was focused to meet the needs of the 2008 Final
Rulemaking process.\12\ It selected only 9 participants from each of
three stakeholder groups--farm employers, SWAs, and farm worker
advocates. Despite the protests of at least one commenter that this
study plainly demonstrates the ineffectiveness of the provision, the
study did not constitute a comprehensive analysis of the effectiveness
of the rule.
---------------------------------------------------------------------------
\12\ See ``Findings from Survey of Key Stakeholders on the H-2A
50 Percent Rule,'' HeiTech Services, Inc. Contract Number:
DOU069A20380, April 11, 2008.
---------------------------------------------------------------------------
The Department had a clear statutory obligation to determine if
there was a need to require employers to continue the longstanding
practice of accepting referrals from the time of departure of the H-2A
workforce until 50 percent of the contract period has elapsed. The
Department's obligation continues and must be implemented in
furtherance of the Congressional policy that aliens not be admitted
under this section unless there are not sufficient workers in the U.S.
who are able, willing, and qualified to perform the labor or service
needed and 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. 8 U.S.C. 1188(c)(3)(B)(iii). The
Department's promulgation of a different timeframe in 2008 Final Rule
as an alternative to the 50 percent rule was not in accordance with the
Department's Congressional mandate to ensure that foreign workers are
not admitted unless sufficient U.S. workers are unavailable and their
wages and working conditions will not be adversely affected.
We have considered the commenters' anecdotal concerns about the
unreliability of the domestic workforce referred during the 50 percent
period. However, the potential costs that may be incurred as a result
of U.S. workers leaving shortly after they are hired are outweighed by
the benefit to U.S. workers and the Department's statutory
responsibilities to ensure that U.S. workers continue to have access to
these jobs.
The Department believes the opportunity provided U.S. workers by
the 50 percent rule is not insignificant and notes that SWAs have a
duty through the labor exchange system to refer qualified individuals.
The States have within their grasp a variety of ways to ensure
referrals are coordinated and integrated to make sure that those most
in need of and desiring access to these opportunities are given the
required access through the 50 percent period. States are reminded of
their responsibility to use these tools to the fullest extent. Staff-
assisted referrals are one significant mechanism by which SWAs can
ensure that those seeking these particularized positions have access to
them. The Department notes that over the 20 years during which the 50
percent rule was in operation employers did not raise significant
concerns with regard to this policy.
With regard to the comment concerning new or different information
about the effectiveness of the 50 percent rule, the Department does not
rely on new information as the basis for the reinstatement of the 50
percent rule. The information that is available through these comments
is in conflict. While employers argue that this rule presents obstacles
to their effective operation, worker advocates and some SWAs contend
with equal vigor that the existence of the 50 percent rule is essential
to ensuring that agricultural job opportunities are available to
domestic workers. The 2008 study, which was based on employers that
employed only 12 percent of the H-2A workers, was an inadequate basis
upon which to change the Department's longstanding rule. The Department
finds the lack of definitive data to be the very reason to protect the
vulnerable domestic workforce, rather than deny it access to these
jobs.
The Department has accordingly determined it must protect the needs
of the U.S. worker population, even if there is potential uncertainty
for the employer in terms of managing labor supply and labor costs
during the life of the contract. Moreover, we note that this benefit,
if employers' comments are correct, is one very few U.S. workers avail
themselves of--thus making the cost to employers negligible.
With regard to comments that SWAs refer a small number of workers
under this rule, the Department does not believe that 11,000 job
opportunities for U.S. workers are inconsequential, particularly when
compared to the approximately 70,000 H-2A workers admitted. Moreover,
with respect to small farmers specifically mentioned as being unduly
burdened in this process, Congress provided the option of non-
compliance with the 50 percent rule in what is now 8 U.S.C.
1188(c)(3)(B)(ii), as implemented in the Final Rule.
i. Small Farm Exemption
The Department proposed a return to the 1987 Rule's small farm
exemption from the 50 percent rule. Most of those supporting the
proposal to reinstate this exemption further requested that the
Department eliminate the provisions limiting its application to those
small farms that are not members of an association filing a master
application (or otherwise associated with other employers). The
Department cannot accommodate this request. This limitation was not
regulatory, but statutory. See 8 U.S.C. 1188(c)(3)(B)(ii). In that
provision, Congress specifically excluded small employers who are
members of associations from the small-employer exemption to the 50
percent rule. The association, however, can assign any workers referred
under the 50 percent rule to employers who need additional workers or
who can more easily accommodate the referred workers, thus minimizing
or eliminating the burden on small farmers.
ii. Other Comments on the 50 Percent Rule
Another commenter asked whether the Department would reinstate
policy guidance addressing the referral of U.S. workers to an H-2A
employer after the arrival of the H-2A workers. The Department issued
guidance in 1993 and 2007 instructing SWAs to refer U.S. workers to an
H-2A employer whose H-2A workers have already arrived only if there is
no suitable alternative employment available or if the worker expresses
a preference for an H-2A employer's job opening. The Department does
not believe it is appropriate to include such guidance in the context
of the regulation.
e. Compliance With Applicable Laws
In the NPRM, the Department proposed to require employers to 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. This proposal expanded the
scope of the prior guarantees which, under both the 1987 Rule and the
2008 Final Rule, limited the required compliance to employment-related
laws. In addition, the proposed regulations made explicit that H-2A
employers may be subject to the provisions of the FLSA. The Department
has decided to retain the enhanced requirement in order to emphasize
and ensure that both H-2A and U.S. workers are provided all of the
protections to which they are entitled.
One commenter supported the expanded proposal, asserting that the
new assurance would assist State and local governments in curbing
illegal immigration and exploitation of foreign agricultural workers,
and it would also grant more uniform protections to all workers.
Another commenter supported
[[Page 6923]]
the enhanced provision but suggested a change to expand the protections
to the period of recruitment, as well as the duration of the work
contract.
The Department agrees that emphasis on compliance with all
applicable laws and regulations is intended to bolster protections for
both U.S. and foreign workers. The provision puts employers on notice
that they must comply with all applicable laws specifically as a
condition of program participation. In addition it provides State and
local agencies with an incentive to work together with the Department
to identify violators and address issues related to the employment of
temporary foreign agricultural workers.
As to the comment suggesting an expansion of the protection to the
period of recruitment as well as the duration of the work contract, we
believe that the prohibition against discrimination during the period
of recruitment provides adequate protection. Additionally, several
commenters requested that the Department prohibit employers from
holding or confiscating workers' passports, visas, or other immigration
documents. The Department recognizes the worker's right not to
relinquish possession of his or her passport to the employer.
Therefore, the Department is adding a provision to this section to
require employers to comply with existing Federal law that prohibits
confiscation of such documents (William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, 18 U.S.C. 1592(a)).
f. Job Opportunity is Full-Time
The NPRM proposed to require employers to offer only full-time
temporary employment of at least 35 hours per work week, an increase
from the 30 hours per week in the 2008 Final Rule. The Department made
this change on the basis that that a 35-hour work week more accurately
reflects agricultural work patterns and also strikes a more appropriate
balance between the employers' needs and the employment and income
needs of both U.S. and foreign workers.
The Department received a number of comments on this requirement.
Some of these comments addressed the increased requirement in the
context of the three-fourths guarantee which is also discussed
elsewhere in this preamble.
One commenter offered unqualified support for the proposed 35-hour
per week proposal. Another commenter, a legal aid organization,
proposed changes to the provision that would define a full-time job
opportunity as constituting 8 hours per day and no less than 40 hours
per week. Another commenter suggested that the Department adopt a 37-
hour per week requirement instead, because it would more accurately
reflect the reality in the field. As part of its justification, this
commenter argued that an increase in the hours would bolster the three-
fourths guarantee and ensure that workers are actually employed for the
duration of the contract.
Several commenters opposed the new definition of full-time
employment. Some commenters asserted that the increased hourly
requirement increases the obligation of the employer to meet the
minimum hour requirement and thus increases the number of hours for
purposes of the three-fourths guarantee. Another commenter indicated
that this would drive up costs for H-2A employers. Other commenters
asserted that the proposed change in the requirement would drive labor
costs up 16 percent because the requirement and the three-fourths
guarantee are now applicable not only to H-2A workers but also to U.S.
workers in corresponding employment. One commenter also argued that
this change is compounded by the change in the AEWR methodology
resulting in prohibitive costs for employers.
Some commenters suggested the Department retain the 30-hour per
week requirement because it provides farmers with more flexibility in
meeting the three-fourths guarantee when they are faced with unforeseen
circumstances such as inclement weather, etc. Several commenters argued
that the Department offers no justification for increasing the
requirement or statistical data indicating that 35 hours, instead of
30, strikes a more appropriate balance between employers' needs and the
needs of U.S. and foreign workers. One of these commenters argued that
farmers do not have the flexibility to set the sale prices in order to
absorb costs associated with the new proposal, which will result in
many family farms going out of business and loss of employment for U.S.
workers.
The Department's experience in program administration and
enforcement has shown that the 30-hour requirement does not adequately
reflect the reality of agricultural production and that most employers
over the course of the season offer well in excess of that number of
hours. Although the Department believes that agricultural employers
need some flexibility to account for the unpredictable factors
affecting agriculture, the Department's primary responsibility is to
ensure the availability and viability of job opportunities for U.S.
workers. The Department has determined that requiring employers to use
35 hours as the minimum threshold for full-time employment will strike
a more appropriate balance between the reality in the field, the
workers' needs for meaningful hours and wages, and the farmers' need
for flexibility. The Department is therefore retaining the 35-hour work
week, as proposed.
g. No Recent or Future Layoffs
The Department proposed to require an employer to assure 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. The Department has modified
the provision in response to comments and has clarified the
circumstances under which a layoff would not be improper.
The Department received a number of comments addressing the
proposal. One commenter expressed concern that the layoff provision
could create confusion and complications for certain employers with
long seasons; coupled with the longer recruitment provisions, the
employer may be required to begin recruitment of U.S. workers (and the
application process for H-2A workers) before or at the time that it is
dismissing workers associated with the prior work contract/prior
season. This commenter further argued that offering to re-hire these
workers may not remedy the situation because many of them may not
commit to a job opportunity until a later date. This commenter
recommended that the Department adopt a shorter recruitment period,
and/or a shorter layoff protection period and/or require employers to
attest to their intent to rehire all qualified U.S. workers who have
been laid off due to the season ending. Another commenter argued that
it and other employers in the industry regularly dismiss their year-
round employees between December and February. This commenter proposed
that the Department change the provision so it does not bar such
employers from using the program.
One commenter proposed changes to the provision to impose the
requirement on both the employer and the fixed-site business (to the
extent they are not one and the same). In addition, this commenter
proposed additional language to prohibit the employer or fixed-site
business from causing the layoff in addition to actually laying off the
workers.
In response to the concerns of employers with long seasons or who
dismiss their employees between December and February that they would
be barred from the program the Final
[[Page 6924]]
Rule clarifies that layoffs are permissible when H-2A workers are laid
off before any U.S. workers in corresponding employment are laid off.
We have previously made this point in 29 CFR 501.19(e) and have moved
it to this provision. Moreover, we note that the employer is required
to offer employment to all U.S. workers employed in the prior season.
The Department continues to believe that offering the maximum job
opportunities to U.S. workers is critical to the Department's
responsibilities under the H-2A program.
The Final Rule does not extend the concept of joint employment to
H-2ALCs and fixed-site employers at the same location for purposes of
the no layoff provision, where the fixed-site employer does not qualify
as a joint employer. Only an employer may lay off its own employees and
therefore each employer is individually responsible for ensuring that
it does so only for lawful, job-related reasons. Adding the proposed
language to the provision would create confusion regarding joint
employment and the ultimate responsibility for the workers under the
program.
h. No Unfair Treatment
The Department proposed to prohibit employers from intimidating,
threatening, coercing, blacklisting, discharging or in any manner
discriminating against workers or former workers who file a complaint
against the employer, 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 H-2A program. This provision
supplements existing provisions in these regulations requiring
compliance with Federal, State and local laws, and provisions which
prohibit unfair treatment. The Department is retaining the provision as
proposed.
Some commenters expressed unqualified support for the provision.
Other commenters proposed to add into this provision new language that
would include protections for workers who file complaints with the SWA
or assert rights or institute actions based on State employment or
housing law or regulations. A Congressional commenter proposed that the
Department consider additional protections, including visa extensions,
to prevent retaliation against foreign workers who file complaints
alleging unlawful conduct.
The Department believes that its provision requiring compliance
with all applicable Federal, State and local laws already provides for
the additional State-related protections proposed by one of the
commenters.
The Department supports providing protections to workers so that
they may complain of violations without fear of retaliation. However,
the Department does not have the authority to provide for an extension
of status or stay for a foreign worker; this authority rests
exclusively with DHS and the Department can take no action with respect
to extending the status of any individual worker.
i. Notify Workers of Duty To Leave United States
The NPRM proposed 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, approved by USCIS in a subsequent nonimmigrant worker
petition, from another H-2A employer. This continues a requirement in
the program which parallels DHS regulations. The Department received no
comments addressing this provision, and is retaining this provision as
modified.
j. Comply With the Prohibition Against Employees Paying Fees
The NPRM proposed to prohibit the employer or its agent from
seeking or receiving payment of any kind (including, but not limited
to, monetary payments, wage concessions, kickbacks, etc.) from an
employee for any activity related to obtaining the H-2A labor
certification, including payment of the employer's attorneys' fees,
application fees, or recruitment costs, but not costs that are the
responsibility of the workers, such as passport fees. The proposed rule
deleted the reference in the 2008 Final Rule to visa fees as a cost
that is the responsibility of the workers. The preamble to the NPRM
explained that visa fees, border inspection fees, and other government-
mandated fees are directly related to the employer's need for the
workers to enter the U.S. to work for the employer. The Final Rule
generally adopts the language as proposed, with the removal of the
reference to the FLSA as unnecessary.
Employee advocates generally endorsed the proposed prohibitions on
cost shifting. For example, one employee advocate stated that
exorbitant recruitment fees imposed on H-2A workers, including
transportation fees, passport and visa expenses, require workers to
bankrupt themselves and their families just to enter the U.S. This
commenter suggested, as did others, that the Department should further
clarify that fees are the responsibility of the employer and, because
they primarily benefit the employer, may not be recouped in a later
workweek. Another employee advocate suggested that the Department
should go further to eliminate employers' incentive to prefer H-2A to
U.S. workers and prevent employers from shifting to others the costs of
importing H-2A by expressly requiring the reimbursement of passport
fees, hotel costs while waiting in the consular city to interview for
and receive the work visa, and visa processing fees.
A number of employers and their representatives objected to the
requirement that employers pay the workers' visa fees. For example,
some commenters emphasized that consulate, border crossing and visa
fees should remain the responsibility of the workers, stating that
workers also benefit from the employment relationship and should have
some investment in the relationship. They predicted that there would be
increased absconding from the job upon arrival if employees did not
have a financial stake in their decision to enter the country. Other
employers and their representatives similarly commented that visa fees
should remain the responsibility of the worker, both in order to
control employers' costs, and because they are a natural cost of the
decision to go to another country for a job, from which the employee
also benefits. Others emphasized that facilitation of the visa
application process by foreign agents, compensated by the foreign
beneficiaries, is a longstanding practice, which eases the process at
the consulate; they stated that using such facilitators is not a
condition of employment, but a voluntary choice by the workers.
Moreover, they stated that some applicants will require such assistance
because they are not literate in English, do not have access to a
computer, or lack the ability to navigate the various Department of
State (DOS) forms, yet all of this assistance is outside the control
and knowledge of the employer. Another employer representative
expressed concern that if it fronted the worker money for the visa
appointment fee, the visa application fee and the visa printing fee,
its costs would be higher and the worker could simply take the money
and disappear. On the other hand, another employer
[[Page 6925]]
association acknowledged that many employers already advance these
costs or reimburse them in the first workweek as a result of the
decision in Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228
(11th Cir. 2002), which held that such visa-related costs are an
employer business expense. Moreover, several employer associations
stated that they strongly supported the prohibition on collecting fees
from workers, stating that it was an essential protection for foreign
workers, who are often subject to exploitation in their home countries.
A farm bureau similarly supported the concept that workers should not
be required to pay these fees, but it expressed concern about liability
for cross-border payments that it had no knowledge of and therefore
suggested deleting words like kickback, bribe, and tribute.
The Final Rule generally adopts the provision as proposed.
Government-mandated fees such as visa application, border crossing and
visa fees (including those imposed by the DOS or other government
contractors) are integral to the employer's choice to use the H-2A
program to bring foreign workers into the country. Such expenses
provide no benefit to the employee other than for that particular
limited employment situation. As the Department recognized in the
preamble to the 2008 Final Rule, requiring employers to bear the full
cost of their decision to import foreign workers is a necessary step
toward preventing the exploitation of foreign workers, with its
concomitant adverse effect on U.S. workers. Moreover, as one employer
association acknowledged, many employers already are advancing or
reimbursing these costs in the first workweek.
As to employer concerns that some unscrupulous individuals may take
money that the employer advances and never report for work, the
Department notes that employers are not obligated to advance such fees
to employees. Employers may wait and reimburse such fees in the
employee's first paycheck. Furthermore, the Department is not adopting
the suggestion of one employee advocate to require employers to
reimburse employees for their passport costs, because employees may use
their passport for personal purposes unrelated to their H-2A employment
with a particular employer. See Wage and Hour Division Field Assistance
Bulletin 2009-2, http://www.dol.gov/whd/FieldBulletins/FieldAssistanceBulletin2009_2.pdf. Finally, as noted in the preamble
to the 2008 Final Rule, employers are not responsible for an employee's
voluntary choice to use the services of an independent facilitator,
such as to assist the employee in obtaining access to the internet and
in dealing with the DOS, so long as such fees are not made a condition
of access to the job opportunity. However, as was also noted in that
preamble, the Department will monitor such activities to attempt to
ensure that any such charges are not de facto recruitment fees charged
for access to the H-2A program.
The Department does not believe it is appropriate to identify the
border crossing, visa, and other government-mandated fees that must be
paid by the employer with more specificity, as those fees may change
over time. Moreover, there is no need to repeat that such fees may not
be recouped in a later workweek, as the discussion of deductions under
Sec. 655.122(p) makes clear that deductions for such employer business
expenses may not be made if they bring the worker below the required H-
2A wage rate.
k. Contracts With Third Parties Comply With Prohibitions
The NPRM proposed to require an employer to assure that it has
contractually forbidden any foreign labor contractor or recruiter that
the employer engages in the international recruitment of H-2A workers
to seek or receive payments or other compensation from prospective
employees, except as allowed under the DHS regulation at 8 CFR
214.2(h)(5)(xi)(A). The proposal clarified that the contractual
prohibition must extend to any agent of the foreign labor contractor or
recruiter, and that the employer must make the documentation available
upon request. The Final Rule adopts this provision as proposed, with
minor clarifying corrections.
Employee representatives favored the proposed provision. For
example, one employee advocate applauded the proposal, which carries
forward the current rule's prohibition on shifting recruitment costs,
noting that recruitment fees are a burden on foreign H-2A workers and
their families. Another employee representative similarly expressed
approval of the prohibition against employers and their agents seeking
or receiving payments from prospective employees. Several unions
commented that farm workers often come to the U.S. as the indentured
servants of the recruiters and middlemen to whom they have promised to
pay thousands of dollars. Other commenters stated that more must be
done to protect vulnerable H-2A workers during recruitment abroad, with
the ultimate employers being made responsible for the recruiters they
use. One commenter suggested that the Department should require
employers to compensate their recruiters to eliminate the incentive for
them to charge fees to H-2A workers.
Some farmers expressed concern that they might be required to
reimburse employees who claim that they were forced to pay a foreign
recruiter a fee, even though the farmer's agent prohibited fees, and
they wanted the rule to be clear on what the farmer must do to comply.
Others similarly wondered how the Department would investigate workers'
claims of alleged payments abroad to verify whether they were paid, and
they wanted a clearer explanation of how the provision would be
enforced, with objective standards for compliance and a safe harbor if
the required contractual terms were in place. One employer
representative emphasized that the Arriaga decision did not require an
employer to pay recruiter fees if the employer is not in a position to
know of or exercise control over such payments. And one foreign
recruiter stated that it wanted to be able to charge employees a fee,
because farmers are not willing to pay recruiters until the employees
have worked for some time. Another labor recruiter stated that the
prohibition against charging workers for recruiter fees was a
respectable decision by the Department. However, it wanted some
assurance that the Department would enforce the prohibition, so that
responsible employers are not disadvantaged if unscrupulous parties
continue to charge workers fees.
As the preamble to the 2008 Final Rule emphasized, the Department
is adamant that recruitment of the foreign worker is an expense to be
borne by the employer and not by the foreign worker. Examples of
exploitation of foreign workers, who in some instances have been
required to give recruiters thousands of dollars to secure a job, have
been widely reported. The Department is concerned that workers who have
heavily indebted themselves to secure a place in the H-2A program may
be subject to exploitation in ways that would adversely affect the
wages and working conditions of U.S. workers by creating conditions
akin to indentured servitude, driving down wages and working conditions
for all workers, foreign and domestic.
For the same reasons, the Department continues to believe that
employers should be required to assure that they have contractually
forbidden their foreign labor contractors or recruiters from seeking or
receiving payment from prospective employees, and that the prohibition
should extend to their
[[Page 6926]]
agents. Contrary to the concerns expressed by some employer commenters,
as the 2008 Final Rule preamble recognized, the rule does not require
farmers to pay all costs that employees may claim that they paid to
recruiters abroad. Rather, the employer must contractually prohibit its
foreign labor recruiters and their agents from charging or receiving
such fees. In other words, paying such fees cannot be made a condition
of access to the job. In response to a recruiter's concern that the
Department enforce this requirement to ensure that responsible
employers are not disadvantaged while unscrupulous agencies continue to
charge workers fees so they can provide workers more cheaply, the
Department emphasizes that it will monitor these activities to the
extent possible to ensure that the required contractual terms are bona
fide. While the Department's power to enforce regulations across
international borders is constrained, it will attempt to ensure the
bona fides of such contracts and will work together with DHS, whose
regulations also preclude the approval of an H-2A petition and provide
for potential revocation if the employer knows or has reason to know
that the worker has paid, or has agreed to pay, fees to a recruiter or
facilitator as a condition of gaining access to the H-2A program. As
the 2008 preamble stated, when employers use recruiters, they must make
it abundantly clear that the recruiter and its agents are not to
receive remuneration from the alien recruited in exchange for access to
a job opportunity. For example, evidence showing that the employer paid
the recruiter no fee or an extraordinarily low fee, or continued to use
a recruiter about whom the employer had received numerous credible
complaints, could be an indication that the contractual prohibition was
not bona fide. Finally, we have deleted language referring to the DHS
regulations since those regulations defer to DOL regulations to the
extent that such costs and fees relating to transportation and certain
government mandated fees are prohibited by DOL.
l. Notice of Worker Rights
The Department proposed for the first time to require employers to
post and maintain in conspicuous locations at the worksite a poster
provided by the Department describing the rights and protections for
workers employed pursuant to the INA. The posting is required to be in
English and, to the extent necessary, in any language common to a
significant portion of the workers if they are not fluent in English. A
number of commenters stated that while they thought that having to
provide a written job contract or a copy of the job order was already
adequate, they did not object to the requirement to display a poster as
long as any necessary translations were provided by DOL. We note that
the posting of this notice will provide information not only to H-2A
workers but will also provide information to U.S. workers, including
workers who otherwise may not know that they may be engaged in
corresponding employment and be entitled to the terms and conditions of
H-2A employment.
Providing such notification of their rights to workers through a
worksite poster of their rights is consistent with other programs
administered and enforced by the Department. It ensures that both U.S.
and H-2A 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.
The Department is retaining this requirement, with clarification that
the poster be in any language common to a significant portion of
workers, as made available by DOL.
One commenter expressed opposition to this requirement, indicating
that farm operations have limited available space for posting
information and that posting may become nonproductive based on the
quantity of information posted.
One commenter proposed that the Department adopt a notification
requirement whereby the H-2A employer would have to notify the SWA
within 2 work days that the H-2A workers have arrived. This commenter
argued that this requirement would facilitate outreach by SWAs to H-2A
workers and facilitate an understanding by both H-2A and U.S. workers
of the work contract terms. It would also give the H-2A workers notice
of available resources should any challenges arise. The commenter noted
that State resources will also be better used if SWAs are not left to
guess or conduct various trips to see whether or not the H-2A workers
have arrived.
The Department has determined that requiring the posting of rights
specific to workers in the H-2A program is necessary to ensure worker
protections and program integrity. Although workers may have access to
other information or recourse for violations, directly providing them
with knowledge about their rights under the program is intended to
ensure timely reporting of violations. It further provides employers
with an additional incentive to fully comply with the assurances and
obligations under the program.
Several commenters requested that the Department prohibit employers
from holding or confiscating workers' passports, visas, or other
immigration documents. Some of these commenters noted that this
practice deters workers from leaving abusive situations or challenging
unfair employer conduct, and that employers use this practice to
control and exploit workers.
As required by the Trafficking Victims Protection Reauthorization
Act, the Department recognizes the need to inform a foreign worker of
his or her right not to relinquish possession of his/her passport to
the employer. Although the regulations already incorporate this
protection under the provision that requires employers to comply with
all applicable laws, the Department is adding a provision under the
Assurances section expressly to require employers to comply. The
Department anticipates that adding explicit references in these
provisions to these requirements will provide the necessary additional
worker protections.
The Department declines to adopt the requirement that an employer
notify the SWA within 2 working days that the H-2A workers have
arrived. The role of the SWAs under these regulations consists of
various activities involving the employer related to the recruitment of
H-2A workers, including placement of job orders and referring U.S.
workers to employers for the designated time period, and conducing
housing inspections. Arrival of the H-2A workers is not a key event in
these activities.
Processing of Applications for Temporary Employment Certification
14. Sections 655.140-655.145
The Department received no specific comments on the application
review process (Sec. 655.140), the Notice of Acceptance process (Sec.
655.141), the Notice of Deficiency process (Sec. 655.143), and
submission of modified applications (Sec. 655.144). However, the
Department did receive a comment from a law firm that made it clear to
the Department that the organization of this section created confusion.
The commenter thought that the Notice of Deficiency would be sent out
after the Notice of Acceptance. In reviewing this comment, the
Department decided that it would be best to reorganize the order of the
sections, delete a misplaced section, and make minor word changes to
facilitate a better understanding of the process. Thus, the Notice of
Deficiency section will be renumbered and become
[[Page 6927]]
Sec. 655.141 and the first sentence will begin with if the CO
determines the Application is incomplete instead of when the CO
determines the Application is incomplete. The submission of modified
applications will be renumbered and become Sec. 655.142 because only
Applications that were returned to the employer with a Notice of
Deficiency need to be modified; therefore, it is logical that it must
follow the Notice of Deficiency section. The Notice of Acceptance will
become Sec. 655.143 and the electronic job registry, which is used
only after any deficiencies have been cured and a Notice of Acceptance
has been issued, will become Sec. 655.144.
In addition, Sec. 655.141(c)(5) has been changed to state that the
employer must seek administrative review within 5 business days or
submit a modified application pursuant to Sec. 655.142. The language
in the NPRM which required that an application be denied unless the
modified application was received within 5 days would have negated the
purpose of Sec. 655.142.
15. Section 655.142 (now Sec. 655.144) Electronic Job Registry
The NPRM proposed for the first time the creation of an electronic
job registry. The comments received were almost equally divided between
those who supported it and those who opposed it. The major concern of
those who were against creating a new registry was that the Department
did not explain the concept in detail and it was hard for them to
understand why it would be any different from America's Job Bank.
Several growers' associations and a U.S. Senator declared that this
proposal is a waste of taxpayer dollars because the information is
already available through the SWAs. They believe that the only
justification for such a new database would be the elimination of all
the other recruitment requirements. Several of the commenters thought
the registry raises privacy issues. They feared that confidential
business information would be available on the Internet and would allow
advocacy litigators to harass the employers or simply subject the
employers to random non-legitimate referrals from across the country,
which require the employer to expend time and money responding to such
inquiries and referrals.
The NPRM proposed to create this registry for two reasons. One was
for public disclosure and transparency. The other was to have an
additional tool through which U.S. workers can be matched with
employers. A few of the commenters, including SWAs, who agreed with the
concept of the registry applauded the Department for more open public
disclosure of the information and admitted that the current systems are
not uniform and that it will be easier for them to track H-2A job
orders and enhance the efforts to match workers with jobs. One of the
SWAs thought the public disclosure would help relieve the SWA from the
time currently spent responding to inquiries from the media and
interest groups. The Department's experience has been that SWA
information is not uniform, and that the creation of the job registry
will greatly assist the dissemination of this information to the
public; that it will save tax dollars through the elimination of
numerous requests through the FOIA rather than cost them for what the
Department believes is not a redundant system.
A legal aid bureau commended the Department for proposing the
registry because it will alleviate the current frustrations experienced
by the public and stakeholders who must wait for responses to FOIA
requests. The Department also aims to reduce the substantial number of
the FOIA requests it receives each year by publishing the job orders
online.
Most of the other commenters who agreed with the registry also
acknowledged their hope that this Federal registry would become the
only electronic registry of H-2A job opportunities and be used in lieu
of either the newspaper advertisement or the SWA posting. Some SWAs
thought the idea was good in principle, but thought that the Department
should use an existing registry such as JobCentral. JobCentral is a
partnership between the National Association of State Workforce
Agencies and Direct Employers Association. SWAs can use the system at
no cost. The Department examined the option of using an existing
registry but found that the costs would impose an additional burden on
employers. Therefore, the Department has decided not to adopt this
proposal.
The NPRM did not provide a great deal of detail on how the registry
would operate. Those details are provided here. The Department will
announce through a notice in the Federal Register when the registry is
operational. After creating the infrastructure for the registry, the
Department plans to scan the Form ETA-790 after redacting confidential
information, as it would for a FOIA request. The redacted image of the
Form ETA-790 will be posted on the registry. This should alleviate
commenters' concerns about the public dissemination on the Internet of
confidential business information. The same search functions that are
available to currently search PDF files will be available to search the
postings on the registry. The Department believes this will be an
effective mechanism to make this information available to workers,
employers and advocates.
Post-Acceptance Requirements
16. Sections 655.150-655.158
The NPRM proposed both pre- and post-filing recruitment. The SWA
would, as always, be responsible for placing the job order. If the
initial test of the labor market did not yield enough U.S. workers, the
employer would file an Application with the Department. Once the CO
accepted the Application, the CO would direct the SWA to place the job
order in its interstate clearance system and send the job order to any
States designated by the CO to be traditional supply States. The
employer would be directed to place the newspaper advertisements where
the CO determines appropriate. As in both the 1987 Rule and the 2008
Final Rule, the NPRM requires that newspaper advertisements direct
applicants to report or apply for the job opportunity at the nearest
office of the local SWA where the ad appears.
The 1987 Rule contained very specific additional recruitment
requirements that an employer had to perform in order to comply with
the positive recruitment requirements of the regulations, such as radio
advertising, contacting FLCs, migrant workers and other potential
workers by letter and/or telephone, or contacting such entities as
schools, business and labor organizations, or fraternal and veterans'
organization. The 2008 Final Rule changed the additional recruitment
requirements by eliminating many of these steps and by requiring
employers to contact former U.S. employees. The NPRM proposed a hybrid
of the two earlier rules. The NPRM kept the 2008 Final Rule requirement
to contact former employees but proposed to give the CO discretion to
order additional recruitment as determined necessary, which could
include newspaper or radio advertising, contacting local unions or FLCs
or any other method used by non-H-2A employers, depending on the
prevailing practice in the area of intended employment.
The requirement to recruit in traditional or expected labor supply
States is a statutory requirement in 8 U.S.C. 1188(b)(4). The 1987 Rule
required the OFLC Administrator to ascertain the normal recruitment
practices of non-H-2A agricultural employers in the area to determine
what recruitment efforts, if any, should be
[[Page 6928]]
required of the employers in other traditional or expected labor supply
States. The 2008 Final Rule mandates that the Secretary publish a
Federal Register notice each year that specifies which States are
considered traditional or expected supply States and which newspapers
in those States are to be used for advertising. The NPRM eliminated the
Federal Register notice requirement and put the burden of determining
the places and methods of recruitment on the CO at the NPC. The NPRM
did not mention mandated newspaper advertising in the traditional or
expected supply States.
17. Section 655.150 Interstate Clearance of Job Order
One commenter misunderstood the proposed role of the SWA, thinking
that the NPRM proposed to return recruitment oversight to the SWA. In
fact, under the NPRM the NPC would take on that role. Another commenter
misunderstood the role of the SWA under the 2008 Final Rule by saying
that it does not require the SWA to place interstate job orders, when
in fact it does. Other commenters were against maintaining the
requirement for placing job orders through the interstate clearance
system. These commenters thought the interstate clearance system was an
antiquated process that does not produce enough U.S. workers. An
association of growers provided anecdotal evidence about how few
referrals are received by the growers in the commenter's State from the
interstate clearance system. This commenter contended that because the
number of referrals added up to less than 3 percent of the total number
of workers needed by its grower members, the system is a failure. The
Department recognizes that growers cannot, in all cases, meet their
labor needs through the domestic labor force. However, the Department's
objective is to make sure that every U.S. worker who wants a job in
agriculture is made aware of the opportunity. Use of the interstate
clearance system is also required by statute at 8 U.S.C. 1188(b)(4).
Congress specifically directed the Department to make sure that
employers' job orders are circulated in the interstate employment
service system. Therefore, the Department is not able to eliminate this
provision, and it is retained in the Final Rule with minor editorial
modifications.
18. Sections 655.151-655.152 Newspaper Advertisements/Advertising
Requirements
The Department proposed to require employers to engage in newspaper
advertisement as part of their positive recruitment efforts. The
Department removed proposed Sec. 655.151(b) because it was
inconsistent with the requirements of the CO to direct recruitment, but
has otherwise adopted the proposed provision with clarifying
modifications.
The Department received several comments, with only one in favor of
the newspaper advertising requirement. The vast majority requested that
the Department abolish this form of recruitment because it is both too
costly and ineffective. Several commenters, including one U.S. Senator,
requested that the Department justify the requirement for newspaper
advertising with statistical evidence of its efficacy.
The 2008 Final Rule eliminated a number of recruitment steps whose
value was questionable, difficult to monitor and burdensome on the
employer, such as mandatory contact with FLCs, schools, fraternal and
veterans' organizations, and nonprofit organizations. As commenters
pointed out during the comment period in this rulemaking and in the
rulemaking for the 2008 Final Rule, agricultural workers usually find
out about agricultural jobs by word of mouth. The Department agrees
but, as pointed out in the 2008 Final Rule, it is almost impossible to
mandate and enforce such a recruitment step. What the Department has
found over more than 20 years of H-2A program experience is that even
though the agricultural workers themselves may not frequently buy and
read the newspapers, their friends and relatives often do, as do job
placement agencies and those who advocate on behalf of, and provide
services to, such workers. None of the commenters presented the
Department with a viable alternative for getting notice of job
opportunities to interested constituencies. Therefore, the Department
declines to remove this requirement.
Some commenters specifically objected to the Sunday edition
requirement because it is more expensive to place the ad in the Sunday
edition and because that edition is more expensive to buy. Commenters
also pointed out that newspapers are going out of business because of
all of the new electronic media available. The Department does not
disagree with the commenters on these points. However, newspapers are
still the best medium in which to advertise low-skilled jobs, and
Sunday is still the most popular day for job listings. Therefore, the
Department declines to eliminate this requirement.
One comment requested that the Department allow associations of
agricultural producers acting as agents for their members and filing
master applications to advertise their master applications in lieu of
an individual advertisement for each member, and allow the association
to name itself in the advertisement instead of requiring it to list
every individual employer associated with the Application. The NPRM did
not change the master application concept. Master applications can only
be filed by associations who will be joint employers with their
members. The association only needs to place one advertisement on
behalf of itself and its members. Each member does not need to place an
individual ad. Likewise, the NPRM did not propose to require
associations filing master applications to list all of the members in
the advertisement. Quite the contrary, the language in Sec. 655.152(a)
requires only a statement that the names and locations of its members
can be obtained at the local SWA in the State where the advertisement
appeared. However, if the association wishes to file an Application as
an agent, it may do so only on an individual basis for each of its
members separately, and the advertisements would need to be run by each
individual member. The wording of the regulation in this particular
instance is very clear, and we decline to make any changes in the Final
Rule.
The Department received numerous comments on the new requirement
that advertisements should direct applicants to report or apply at
their local SWA. The NPRM included a provision requiring that where the
worksite is remote relative to the population most likely to apply for
the job opportunity, an accessible alternative location for any
required interviews must be provided by the employer.
One commenter, a SWA, agreed with this requirement. All of the
other SWAs that commented on the issue were against this provision,
because they thought it was an added cost burden that would require
farmers to rent and staff offices. Some of the commenters did point out
that a SWA would probably have space available for interviewing, but
that it still would force the farmer to lose valuable time on the farm
to travel to the interview site. Several asked why the Government is
requiring farmers to have face-to-face interviews when the virtual
office now exists allowing so many people in other professions to
conduct such interviews over the phone or other virtual means, the
Government is requiring farmers to conduct face-to-face interviews.
The Department agrees with these comments. The provision was
proposed because of the practice of some
[[Page 6929]]
employers to demand face-to-face interviews in remote places that cost
the worker not only transportation costs to arrive at the location, but
even an entrance fee to get on the property, such as a National Forest.
However, several farmers stated that if the workers cannot even
find their way to the worksite for an interview, then it is likely that
they will be unable to get themselves to the job site each day to
report to work or it is an indication that they are not interested. The
Department categorically disagrees with this assessment. The statute
requires that the job be advertised in other States and territories of
the U.S. where U.S. workers are willing to travel once offered the job,
such as to a remote job site.
After considering all of the comments, the Department has decided
to amend its regulation to resolve the problem identified by the
commenters. In-person interviews cannot play a significant role in the
H-2A process since numbers of domestic applicants, and all of the
prospective H-2A workers, are hired at locations distant from the area
of intended employment. Domestic applicants generally are interviewed,
if at all, by telephone. Potential H-2A workers are interviewed, if at
all, by an employer's representative overseas. The Final Rule reflects
these realities by requiring that employers who conduct interviews must
do so by telephone or establish a means by which applicants may be
interviewed in the location in which they are applying. We have also
continued the prohibition on employers requiring employees to pay fees
to apply for the job for which they are sought and on other fees such
as testing fees. The Department views entrance fees or access fees to
property where the interview is to be conducted as indicating a lack of
good faith in the recruitment of such workers. The interview process
must be one that represents little or no cost to the worker.
Some of the commenters claimed that the Department did not account
in our cost-benefit analysis for the cost to the employer of having
access to a place in which to conduct interviews. However, because we
are not and never have required in-person interviews of workers, and
because we also assumed employers who wanted face-to-face interviews
would use the free services of the One-Stop Career Centers, we need not
factor in any costs. Employers who wish to require more costly
interview methods do so by their own choice, not from any requirement
of these regulations.
19. Section 655.153 Contact With Former U.S. Employees
The 2008 Final Rule listed specific methods for contacting former
employees and methods of recording responses. The NPRM proposed to
simplify the procedures for contacting these former employees. A few
commenters opined that the new, less specific language meant that the
employer now had to send all correspondence to former U.S. employees by
certified mail. The NPRM allowed employers to continue to use the
methods described in the 2008 Final Rule, such as maintaining copies of
correspondence signed and dated by the employer or maintaining dated
logs demonstrating that each worker was contacted, including the phone
number, e-mail address, or other means used to make contact. However,
if it is easier for the employer to print out a list of previous
employees and attach a telephone bill that shows calls placed to all of
the employees, then the Department will not require that employer to
rewrite the entire contact list into a formal log. The 2008 Final Rule
also specifically required the employer to enter the data a second time
into the recruitment report. The recruitment report requirements are
clear in Sec. 655.156, and do not need to be repeated in this section.
All workers who apply or respond to solicitations must be listed in the
recruitment report.
A worker advocate group commended the Department on keeping the
requirement to contact former employees; however, it pointed out that
this provision has been very poorly enforced because many former
employees report being refused re-hire by companies using H-2A workers.
The Department believes the text of the rule provides clear and
appropriate requirements with which employers should be able to comply;
therefore the Final Rule adopts the NPRM language with minor editorial
changes.
20. Section 655.154 Additional Positive Recruitment
The requirements for positive recruitment and for recruitment in
traditional or expected labor supply States are mandated by statute.
Specifically, the statute requires that positive recruitment efforts be
made within a multistate region of traditional or expected labor supply
where the Secretary finds that there are a significant number of
qualified U.S. workers who, if recruited, would be willing to make
themselves available for work at the time and place needed.
The NPRM cited the statute and gave the CO discretion to determine
if any additional recruitment is necessary in such States. The CO would
order recruitment efforts that are normal for similar and smaller
employers in the area of intended employment.
Some commenters opined that the 2008 Final Rule was more specific
on how the traditional or expected labor supply States will be
determined than was the NPRM. The majority of commenters did not think
that giving the CO discretion to determine what the additional
recruitment should be and where was a good idea. These commenters
asserted that the NPRM lacks any objective and transparent standards,
which means that employers will be subject to inconsistent, arbitrary,
or contradictory directions from COs. Another commenter felt that the
Department did not have the right to delegate the Secretary's statutory
obligations to COs. Several commenters opined that the Department did
not explain how the States would be identified or how many would be
required.
One commenter went into great detail about the lack of rationale in
the NPRM for changing to a discretionary model from a specific model.
According to this commenter, the 2008 Final Rule contained an extensive
analysis of the rationale behind the requirements in the section in its
preamble and the Department failed to justify its reasons for departing
from the rationale. This commenter stated that the Department failed to
explain the basis for changing course and has provided so little
description of what the employers might expect that the Department
failed to provide the necessary notice and opportunity for comment to
the employers. This commenter requested that the Department return to
the 2008 Final Rule language.
An agricultural service provider concurred with many of the
comments mentioned above, citing its experience with current processing
procedures and noting the cost and futility of the advertising
currently required by the CO. Another commenter contended that
employers must be advised of the requirements and costs they will incur
before they decide to enter the program. We acknowledge this concern
and have accordingly sought to limit the expense to employers while
still satisfying the Department's statutory obligation to ensure
recruitment of U.S. workers in traditional labor supply States.
A U.S. Senator was concerned that there was no set limit on the
number of traditional or expected labor supply States that could be
designated whereas
[[Page 6930]]
before the Department had promised that there would never be more than
three States designated. The Department did not plan to designate more
than three but, in light of all the comments, has added that explicit
provision to the regulatory text. The Senator also opined that if the
Secretary believes that sufficient workers can be found in other
States, then the Secretary should expend the time and resources
necessary to find them instead of the employers having to do so.
One commenter believed that the Department was going to require
advertising in ethnic newspapers in the traditional or expected labor
supply States. The NPRM does not contain such a requirement. The NPRM
mentions ethnic newspapers only in the document retention requirements,
simply stating that if advertisements were run in an ethnic newspaper,
the employer must maintain proof of publication along with the other
documents listed in that section.
The Department has determined to retain the proposed requirement
with one modification that clarifies that the employer will not be
required to conduct positive recruitment in more than three States for
each area of intended employment.
First, commenters who suggested that the Department is
affirmatively obligated to locate domestic workers before a
certification can be denied are incorrect. Under 8 U.S.C. 1188(b)(4),
employers seeking to use H-2A workers must conduct positive recruitment
outside the local area.
In the NPRM, the Department moved from the rigid model imposed by
the 2008 Final Rule to one in which the CO has more discretion in order
to allow the Department more flexibility in gathering information to
determine where available workers may be found, even within a single
growing season. Since many farm workers migrate over the course of the
year and since the time it takes to perform various farm work
activities varies from year to year, the more flexible model proposed
in the NPRM gives the CO the opportunity to use current information to
determine the States to which to refer an employer to conduct positive
recruitment. The designation model of the 2008 Final Rule required the
Secretary make such designations on an annual basis by formally
soliciting and then reviewing information supplied from States,
employers, and worker organizations. The annual designation process was
an ambitious and unnecessarily formalized process of collecting
information from a wide range of sources, and then making a decision
for each State which three other States, if any, would be designated as
States in which positive recruitment must be conducted. This process
ties the CO's hands and prevents the CO from using later information
which may show that workers are available in a State different from one
of the pre-designated States or from using information that shows that
workers are not available in one of the pre-designated States. The
Department believes it can accomplish the same collection of
information through less formal means, and use that information more
effectively by allowing the CO some discretion in the selection of the
methods and areas in which they are employed based on the best and most
recent information available. The NPC already receives information on
the availability of workers from SWAs and will welcome, although not
require, information on labor supply from those same entities
identified previously to assist in its decisions on the best sources of
labor to be required of employers.
The types of recruitment used in the program have not varied
tremendously through the decades. The Department intends to continue to
rely on newspaper advertising. While not as important a recruitment
tool as it may have been in the past, we believe it remains valuable
and imposes no additional costs over what has been required since the
1987 Rule.
Finally, the Department did not plan to designate more than three
States but, in light of the comments, has added an explicit provision
to the regulatory text limiting to three the number of States in which
an employer will be required to conduct positive recruitment.
21. Section 655.155 Referrals of U.S. Workers
The NPRM proposed to eliminate the requirement that SWAs verify
employment eligibility and return to the standard of the 1987 Rule
requiring applicants to indicate that they are qualified. The
Department received numerous comments on this proposal, which are
discussed above.
22. Section 655.156 Recruitment Report
The NPRM proposed to have the employer submit the recruitment
report only once on a date certain as specified by the NPC in its
letter of acceptance. The NPRM preamble inadvertently included two
submissions of the recruitment report to the CO. The Department
received comments noting that submitting the report twice was an
unnecessary burden. The Department agrees and because the regulatory
text only required one submission, the Department clarifies its intent
to require only one submission of the recruitment report in this
preamble and does not make any changes to the Final Rule.
One commenter requested that the Department eliminate the need to
continue updating the recruitment report throughout the 50 percent rule
period because the employer's obligation to recruit ends when the H-2A
worker leaves to come to the U.S. While the employer's positive
recruitment obligation ends when the H-2A workers depart for the job
site, the obligation to continue to accept referrals or to process
potential gate hires continues throughout the period of the 50 percent
rule. The Department needs to be able to determine whether the employer
has met its obligations. Thus, the employer must continue to log those
referrals into the recruitment report and explain whether or not they
were hired and if not, what the lawful job-related reason was.
Therefore, the Department declines to change the requirement to update
the recruitment report and has made one minor editorial change to this
section.
23. Section 655.157 Withholding of U.S. Workers Prohibited
The statute prohibits the willful withholding of U.S. workers until
the beginning of the contract period in order to force the employer to
send the H-2A workers home under the 50 percent rule. One commenter
expressed support for the Department's inclusion of these provisions in
the proposed regulation. Another commenter requested that the
Department make a minor change to the section by inserting the words
``if possible'' after the requirement that the employer clearly
identify the person or entity that withheld the workers. This commenter
asserts that it is sometimes difficult for the employer to know who the
actual person or entity is. The Department declines to make this change
and retains the proposed language, because without identifying the
actual person or entity allegedly withholding U.S. workers the
Department has no facts upon which to investigate the complaint.
Additionally, the Department corrected a typographical error in this
provision.
24. Section 655.158 Duration of Positive Recruitment
The NPRM proposed, consistent with the INA, that positive
recruitment end on the date H-2A workers depart for the employer's
place of business.
One commenter claimed that the Department provided no rationale for
requiring recruitment up to and including the day the H-2A workers
[[Page 6931]]
depart for the employer's place of business and requests that the
Department remove this requirement. The same commenter also requested
that the Department adopt the additional provision from the 2008 Final
Rule of stopping the recruitment 3 days before the first date of need.
The Final Rule clarifies that unless the SWA is informed in writing of
a different date, the date that is the third day preceding the
employer's first date of need will be determined to be the date the H-
2A workers departed for the employer's place of business.
Labor Certification Determinations
25. Sections 655.160-655.167
The Department did not receive any comments that were within scope
for Sec. Sec. 655.160-.162. One commenter did suggest that we add
requirements for training new crew leaders and field supervisors to
Sec. 655.160, which only deals with the 30-day requirement for the
Department to adjudicate an Application. The Department does not
believe this suggestion is appropriate for this section and training of
employees of an H-2A employer, particularly in the H-2ALC context, is
dealt with more specifically in the H-2ALC section. The Department has
also made minor editorial changes to Sec. Sec. 655.164-.165, deleting
language believed to be unnecessary.
26. Section 655.163 Certification Fee
The NPRM did not propose to change the certification fee and
received one comment agreeing with the fee structure. The Department is
adopting the provision as proposed.
27. Section 655.166 Appeal Procedures (Now Determinations Based on
Unavailability)
The Final Rule simplifies the regulatory text by centralizing the
information about appeals in Sec. 655.171. A commenter identified one
type of determination for which appeal rights did not appear to be
included in the provision. Specifically, the commenter was referring to
the right to appeal a denial or partial denial, where U.S. workers were
found to be available, but later became unavailable. The INA requires
that this particular right to appeal must be adjudicated within 72
hours, while Sec. 655.171 only provides for 5-day turnarounds.
Therefore, the Department has added procedures similar to those in the
2008 Final Rule that provided the process for requesting such
redeterminations.
28. Section 655.167 Document Retention Requirements
The NPRM proposed a document retention requirement of 5 years. A
number of comments opposed the proposed increase to 5 years, from the
3-year requirement in the 2008 Final Rule. The reasons varied from
simply that the requirement being too burdensome on employers to the
need for consistency with other less onerous statutory document
retention requirements such as the FLSA and MSPA. In light of all the
comments, the Department has reconsidered its position on this issue
and changed the Final Rule to reflect a 3-year retention requirement.
Post-Certification Activities
29. Sections 655.170-655.174
The Department proposed certain post-certification activities.
These included the allowance and process for short-term extension
requests; appeals of denial of submitted Applications; employers'
obligations in the event of withdrawal of a job order; the setting of
(and process for appealing) meal charges; and the creation of public
disclosure data of H-2A applicants. The Department received comments on
most of these provisions.
30. Section 655.170 Extensions
The Department received one comment noting that the Department
eliminated the right to appeal denials of extension requests. The
commenter pointed out that the Department did not cite any relevant
statistics about extension requests, number of denials, number of
appeals, and number of unsuccessful appeals, nor did it provide any
justification for removing the right to appeal in the NPRM. The
Department agrees and has provided for appeal rights in these cases.
Additionally, the Department has included a requirement that employers
provide a copy of the approved extension to workers in accordance with
the disclosure requirements.
31. Section 655.171 Appeals
The Department has modified the provision concerning de novo
hearings to require that such hearings be held in 5 business days after
the Administrative Law Judge (ALJ) receipt of the administrative file.
While no comments were received on this provision, our administrative
experience has shown that the 5 calendar day provision was not
workable.
32. Section 655.172 Withdrawal of Job Orders and Application for
Temporary Employment Certification
The Department received no comments on this proposed section. It is
accordingly adopted as proposed.
33. Section 655.173 Setting Meal Charges, Petition for Higher Meal
Charges
The NPRM did not propose any changes to the section addressing meal
charges for workers. The Department received a comment from a farm
worker advocacy group that requested we include a statement that the
maximum meal charge set by these regulations is subject to applicable
State law and an employer may deduct only the lesser of the two. This
same commenter also wanted us to amend this section to prohibit
employers from deducting for days that the employers offered the
workers no work or less than 8 hours. This commenter contends that some
employers combine several crops into one job order and have such
lengthy down times as to cause workers' wages for a week to have a zero
balance once the meal charges are deducted.
With respect to meals, the employer must either provide three meals
a day (with an allowable charge) or must furnish free and convenient
cooking and kitchen facilities that will enable the workers to prepare
their own meals during the entire contract period. The commenter's
suggested language that an employer should be prohibited from charging
employees for meals consumed on days where no work was provided was not
proposed in the NPRM and it would not be appropriate to make this
change without the opportunity for public notice and comment. With
regard to meal charges and State law, the regulations elsewhere
specifically require the employer to comply with applicable State laws.
Therefore, the Department declines to make any changes to this
provision.
34. Section 655.174 Public Disclosure
The 2008 Final Rule did not discuss public disclosure. The
Department has been providing publicly accessible information about
users of the H-2A program on its Web site for several years now at
http://www.flcdatacenter.com/. The NPRM proposed to codify a
longstanding practice of disclosing this information.
The Department received several comments on this proposal. Several
thought it was duplicative of the electronic job registry proposed in
Sec. 655.142; however, it is not. The electronic job registry will be
a
[[Page 6932]]
temporary posting of scanned copies of the job order and other
pertinent documents for the duration of the recruitment and 50 percent
referral periods. Then those documents will be removed. The public
disclosure data will continue, as it is now, to be in a spreadsheet
format with only the most basic information, such as the name of the
employer, attorney, and agent, address of the employer, case number,
decision and date, contract period certified, number of workers
requested and number certified, occupation of certified workers, number
of work hours a week, wage rate, and the State where the foreign
workers will perform the work. This disclosure data will remain on the
OFLC Web site for at least 3 years.
Some commenters requested that the Department add language to this
section to clarify and reiterate that States must disclose all
information such as housing inspection reports, and other pertinent
documents when requested to do so under a FOIA. These commenters state
that the States are refusing to provide information under the guise of
protecting privacy. However, States are not subject to FOIA, which
governs Federal agencies. Therefore, the Department declines to add any
text to the regulatory language.
One farm worker advocacy group requested that we mandate employers
to contract with non-profit groups to provide ``Know Your Rights''
training to all first-time H-2A workers during paid work hours. This
request is beyond the scope of the NPRM. The cost associated with such
a requirement was not accounted for in the cost-benefit analysis and
employers did not have a chance to comment on such a requirement. The
Department believes that the new requirement that was proposed in the
NPRM and is in the Final Rule requiring employers to post a Department-
provided worker's rights poster will be sufficient to apprise foreign
workers of their rights.
Integrity Measures
35. Section 655.180 Audits
The Department proposed to make minor changes to the audit process
established in the 2008 Final Rule. The proposed section retains the
Department's discretion to choose which labor certifications requests
it will audit. The Department is retaining the proposed provision with
additional minor changes.
One commenter proposed a change to the language of the provision
substituting the word will for the word may in order to clarify that
the Department has the discretion to audit a particular Application,
not that it will necessarily audit each Application. The Department
agrees and made the requested change.
A few commenters contended that the audit procedure is a
duplicative process since both WHD and OFLC have concurrent enforcement
authority enabling each to separately audit an Application. These
commenters asserted that only WHD should have the enforcement authority
under the final regulations governing the H-2A program, because
duplicative enforcement will unnecessarily expend government resources
and create confusion and a burden for employers.
Several commenters contended that the 2008 Final Rule more
justifiably included the audit procedure because of its reliance on
self-attestations by employers, and that the NPRM proposed a full-
adjudication model, therefore eliminating the justification for using
the audit process. This commenter further argued that after
certification, the Department should have only one investigative
process--WHD investigations--and suggested that the Department
eliminate the audit procedures.
One commenter argued that should the proposed Audit procedures be
included in the final regulations, the Department should extend to 30
days the minimum time for a response to a Department audit request.
Two commenters, a national farm bureau and a grower's association,
opposed the requirement that the CO refer any findings of
discrimination to the Department of Justice (DOJ), arguing that such a
finding may or may not have merit considering the relative complexity
of discrimination law. These commenters argued that the Department's
proposed regulations attempt to deputize COs to make findings about
violations of law for which they have no mandate or expertise.
The Department disagrees with the commenters. The Department's
audit responsibilities rest solely with OFLC. These responsibilities
are distinct from its revocation and debarment authorities and
therefore are not duplicative. OFLC's authority to conduct audits is an
integral part of ensuring that both U.S. and foreign workers are
provided the full scope of protections available under the H-2A
program. The audit gives OFLC an opportunity to assess compliance and
instruct the employer to make changes or adjustments in its compliance
with the regulations and program requirements. OFLC focuses on the
issuance and denial of labor certifications, while WHD focuses on
whether employers have complied with the obligations to U.S. and H-2A
workers. While audits may lead to revocation and/or debarment, they
also allow OFLC to determine whether the certifications it has granted
have been correctly adjudicated so that it can adjust its processes to
more accurately adjudicate Applications.
The Department disagrees with those commenters who called for a
longer response period. The Final Rule provides for a timeframe of no
more than 30 days for an employer to respond to an audit letter. The
Department has concluded that the proposed timeframe strikes a balance
between the employer's need for sufficient time to prepare its audit
response and the Department's need to ascertain the level of compliance
in time to address any potential violations affecting U.S. and H-2A
workers.
Both the 2008 Final Rule and this Final Rule include the provision
requiring the CO to refer 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. The Department
wishes to clarify that it is not undertaking a new or separate mandate
to conduct audits for the purpose of identifying employers engaging in
alleged discriminatory hiring practices. Rather, the Final Rule
documents an existing practice under which the Department assists the
Office of the Special Counsel to carry out its responsibilities under 8
U.S.C. 1324B prohibiting unfair immigration-related employment
practices. Under the Final Rule, employers are placed on notice that
engaging in a practice to discourage U.S. workers from applying for H-
2A job opportunities or similar discriminatory practices may lead to
additional liability under the INA and the DOJ regulations at 28 CFR
part 44.
36. Section 655.181 Revocation
The NPRM proposed to expand the grounds upon which the Department
may revoke an approved labor certification. It also proposed to change
the revocation procedure so that the Department no longer sends a
Notice of Intent to Revoke. We received a number of comments on these
proposals. The Department has retained the provision with some
modifications. One edit clarifies throughout that it is the OFLC
Administrator, rather than the CO, who exercises the revocation
authority. The
[[Page 6933]]
Final Rule also amends the basis for revocation proposed at Sec.
655.181(a)(1) of the NPRM.
Several commenters generally objected to the expansion of the
Department's power of revocation authority. These commenters opposed
the NPRM's elimination of the many restrictions that the 2008 Final
Rule puts on the Department's authority to revoke. For example, the
standard proposed in the NPRM would allow revocation for any failure to
cooperate with a DOL investigation, rather than for only significant
failures to cooperate as in the 2008 Final Rule, and the proposed
standard would allow revocation for any substantial violation of a
material term or condition of the certification without requiring that
the violation be willful or that the employer be given an opportunity
to cure the violation.
One commenter stated that the proposed changes would allow
revocation if an employer submits documents in response to an audit
just 1 day late, even if the tardiness is due to an emergency or
weather that delays the mail. The same commenter also contended that
the proposed changes would allow the CO to revoke for one instance of
an H-2A ranch worker acting outside the area of intended employment,
even if his actions are to retrieve an animal that has wandered away
from the herd in order to comply with a State law that prohibits
sheepherders from abandoning sheep. Other commenters worried that
expansion of the grounds for revocation would allow the Department to
revoke certifications of well-intentioned employers making minor
errors.
Several employer associations stated that revocation is an
extremely harsh penalty. Because a revocation can have such a damaging
effect on the employer's business, these commenters believe that
revocation is appropriate only for employers who willfully commit
substantial violations. They argued that the restrictions built in to
the 2008 Final Rule's revocation standards ensure that the Department
does not apply such a severe penalty erroneously. Some of these
associations argued that revocation was too harsh a penalty for
anything other than fraud or willful misrepresentation and that the
Department's other enforcement methods (including audits, debarment,
and civil money penalties) were sufficient to address most violations.
One employer association argued that the Department does not have
the statutory authority to revoke certification on the expanded grounds
proposed in the NPRM. The same commenter acknowledged that some
revocation authority may be inferred when fraud has occurred, but the
statute does not give authority to revoke because DOL has decided to
revisit the merits of the Application. The commenter stated that
Congress was specific about the power to revoke previously approved
labor certifications: it gave DOL the power to notify DHS when
revocation should be imposed, but gave no authority for DOL to revoke a
previously approved petition. The commenter stated that the statute
does not give the Department the broad powers of authority asserted in
the NPRM, such as revoking because an H-2A worker performed an
incidental activity that is not specifically listed in the job order.
The same commenter argued that the Department has no legal
authority to revoke labor certifications according to the standards
proposed in the NPRM, because those standards are destructive to the H-
2A program. The commenter contends that this would constitute an
illegal taking under the Fifth Amendment.
Some employer associations objected to the proposal because the
Department did not support the necessity of expanding the revocation
power with any data. These commenters stated that the revocation
standards in the 2008 Final Rule are sufficient to enable the
Department to address substantial violations, and that the Department
has not presented data to justify departing from the 2008 Final Rule's
recent rejection of expanding the revocation authority. Several
employers argued generally that the heightened enforcement powers
contained in the 2008 Final Rule were an appropriate trade-off to the
Department's switch to an attestation-based model. These commenters
believe that it is only fair for the Department to relax the
enforcement standards if we are going to return to a certification
model.
Worker advocacy organizations were generally in favor of the NPRM's
expansion of the grounds for revocation, calling it an important
improvement to the H-2A regulations. One organization proposed that the
Department add that failure to cooperate in an investigation performed
by State or other officials enforcing employment or housing laws would
be grounds for revocation. One Member of Congress generally urged more
enforcement. The Department believes its revocation authority extends
only to substantial violations of the H-2A program requirements.
Congress explicitly endorsed the Department's revocation authority
as a means of validating the integrity of the program. The INA,
codified at 8 U.S.C. 1188(e)(1), specifically refers to a revocation of
certification when discussing determinations made by the Secretary. The
section does not indicate any limitations on the bases for which the
Secretary may determine that the certification should be revoked.
Therefore, we interpret the statute as acknowledging that the Secretary
has the authority to revoke a labor certification and as providing no
limitations on that authority.
The Department understands the concerns of the commenters and we
are aware of the severe effects revocation may have on an employer,
especially a small employer. The Department believes its revocation
authority extends only to substantial violations of the H-2A program
requirements. However, the Final Rule retains the text of the NPRM,
with some modifications. The removal of the 2008 Final Rule's
restrictions on our ability to revoke certifications will ensure that
we are able to act appropriately against employers whose grievous
actions undermine the integrity of the H-2A program and must be
remedied immediately, mid-certification. The Department intends to use
its authority to revoke only when an employer's actions warrant such
severe consequences. We do not intend to revoke certification if an
employer commits minor mistakes or in circumstances that are beyond an
employer's control. The changes are meant to ensure that when
revocation is appropriate, we have the ability to act.
The Department views our revocation authority as a tool generally
to be used to address an employer's flagrant violations. Therefore, we
have changed the first ground for revocation to clarify that the
Department may revoke if the temporary labor certification was
unjustified due to fraud or misrepresentation in the application
process.
We view revocation as a remedy to be used in situations that
require immediate action. Several commenters expressed their concern
that the Department would revoke certification mid-season because we
discovered that the employer had committed a substantial violation
during a previous certification. This would not fit our conception of
our revocation authority, and we regret that the NPRM caused some
employer associations to believe we would engage in such revocations
for past wrongs. The Department may revoke an employer's certification
to remedy actions described in Sec. 655.181(a)(1-4) taken during that
same potentially revocable certification. Debarment is the appropriate
remedy for
[[Page 6934]]
substantial violations committed during a certification that has
already ended; the Department's opportunity to revoke the certification
has expired.
The Department has many years of experience enforcing the H-2A
program. Over those many years, the constraints imposed by prior
regulatory language have made it difficult for us to take action in
response to flagrant violations. As explained above, we do not intend
to revoke certification for any and every violation. We believe that
revocation is an essential tool for protecting the integrity of the H-
2A program and for addressing violations that must be remedied
immediately. The expansion of the revocation power is simply meant to
ensure that we are able to use this valuable tool when appropriate.
The commenter's argument that revocation constitutes a taking is
premised on the view that the Department is going to use its expanded
revocation power to destroy the H-2A program. The Department has no
intention of destroying the H-2A program. On the contrary, as we have
explained, the Final Rule's changes to the revocation authority are
meant to ensure that the Department can use the revocation power to
protect the integrity of the H-2A program.
A few commenters stated that the proposed revocation standards are
vague and ambiguous. Some commenters also criticized the proposed
regulations because they mention but do not define ``material term,''
``failure to cooperate,'' or ``failed to comply.''
We disagree that the standards are vague. The Final Rule states
that an employer's substantial violation of a material term of the
labor certification is grounds for revocation. We believe that the list
of violations in Sec. 655.182(d) paired with the list of factors used
to determine whether those violations are substantial, listed in Sec.
655.182(e), communicate to employers the conduct that is unacceptable
in the H-2A program. These two subsections are referenced in the text
of the regulation stating grounds for revocation under Sec.
655.181(a)(2). The words ``material term or condition'' of a labor
certification were added by the 2008 Final Rule to communicate that
revocation is not to be used for just any violation of any term of the
certification.
The standards ``failure to cooperate with a DOL investigation'' and
``failure to comply'' are self-evident. We reiterate that we do not
intend to use our revocation authority to remedy minor errors or
violations.
A few employer associations commented on the proposed changes to
the revocation procedure. One claimed that the elimination of the
Notice of Intent to Revoke, replaced with a Notice to Revoke that will
be given immediate effect if the employer does not respond within 14
days, would not constitute a fair right of appeal. However, the Notice
of Intent to Revoke given under the 2008 Final Rule also took immediate
effect after 14 days if the employer did not respond by sending
rebuttal evidence. The 14-day time period sufficiently balances the
employer's right to appeal against the reality that circumstances
warranting revocation require immediate action. The Department would
not issue a Notice of Revocation if the reason for doing so did not
seriously jeopardize the integrity of the H-2A labor certification
process. Accordingly, it is imperative for the Department to be able to
act quickly, especially if the safety of the workers is at stake.
Some employer associations commented on the proposed revision to
the revocation procedure of the NPRM. Section 655.181(b)(1) states that
after reviewing any rebuttal evidence submitted by an employer, if the
CO determines that certification should be revoked, the CO will inform
the employer. This is a change from the language in the 2008 Final Rule
which stated that if, after reviewing the employer's timely filed
rebuttal evidence, the CO finds that the employer more likely than not
meets one or more of the bases for revocation, then the CO will inform
the employer. Some employer associations noted the proposed removal of
the words more likely than not and characterized this as diminishing
DOL's burden of proof in support of revocation.
The Final Rule does not contain the words ``more likely than not''.
The Department does not intend this to be a substantive change from the
2008 Final Rule; the language was changed merely for clarity. The
Department notes that it has no burden of proof at this stage of the
revocation procedure, and that the only purpose of reviewing rebuttal
evidence is to determine whether the circumstances reasonably appear to
warrant revocation. We would not issue a Notice of Revocation if we did
not believe that the reason for doing so seriously jeopardized the
integrity of the H-2A labor certification process.
One commenter stated that the NPRM eliminated the requirement that
the CO consult with the OFLC Administrator when determining whether to
revoke certification. What the commenter intended is unclear. The only
time the 2008 Final Rule refers to the CO consulting with the OFLC
Administrator is at the very beginning of the section describing
revocation. This language was not changed in the NPRM. In the Final
Rule, we clarify that the OFLC Administrator exercises revocation
authority, rather than the CO.
A worker advocacy organization proposed that the Department change
the revocation procedure to state that the Department shall commence an
investigation to determine whether to revoke certification if
information is provided to the OFLC by WHD, a SWA, an employee, or any
other person alleging that an H-2A employer or an H-2ALC has engaged in
activity constituting the basis for revocation. The organization also
proposed that any person who provided information that resulted in a
revocation be provided copies of the notices issued in the proceeding.
The Final Rule does not mandate that the Department commence an
investigation in response to every allegation, nor does it mandate that
the Department share the results of a revocation investigation with
every person who provided useful information over the course of an
investigation. Such a system would be unwieldy and an inefficient use
of resources.
37. Section 655.182 Debarment
The NPRM proposed to expand the Department's debarment authority.
It also proposed that the WHD have concurrent authority with the OFLC,
and it proposed changes to the debarment procedure so that the two
offices' procedures would be parallel. The Final Rule adopts these
provisions with minor changes.
a. Expansion of the Debarment Authority
Many employer associations asserted that the proposed rule's
expansion of the Department's debarment authority would discourage
participation in the H-2A program and lead to the program's eventual
demise. Some commenters stated that the expansion of the debarment
grounds in the 2008 Final Rule was sufficient to address any
enforcement problems the Department may have had in the past. These
commenters advocated that the Department maintain the debarment
authority as provided in the 2008 Final Rule. One stated that we should
return to the debarment provisions of the 1987 Rule. On the other hand,
farm worker advocacy organizations and a Member of Congress generally
supported the proposed expansion of the debarment grounds.
We have considered these comments and we believe that the resulting
debarment provision enables us to use our authority to uphold the
integrity of
[[Page 6935]]
the H-2A labor certification program without unfairly punishing
employers who use the program or discouraging their future use of the
program. The allegations that the Department is trying to destroy the
H-2A program are unfounded. This Final Rule is intended to improve the
H-2A program, by taking the best aspects of the 2008 Final Rule and of
previous rules to create a program that both protects workers and
enables agricultural employers to access an available labor supply.
b. Elimination of the Pattern or Practice Requirement
Several farm worker advocacy organizations and a Member of Congress
commented that they supported the proposal that the Department may
debar if a party commits one or more acts of commission or omission
that constitute a substantial violation, rather than requiring a
pattern or practice of such actions, as in both the 1987 Rule and the
2008 Final Rule.
Many employer associations commented that they disagreed with the
proposed deletion of the pattern or practice requirement. Many of these
commenters are concerned that the change would make it too easy for the
Department to engage in debarment proceedings and that the Department
is looking to debar employers for innocent mistakes or oversight--that
the Department may seek to punish a well-intentioned, honest employer
who commits minor mistakes or errors while attempting to follow the
rules of the program. These commenters characterize the H-2A program as
extremely complex, and one where unintentional mistakes are easily
made. Some stated that debarment should be reserved for the truly bad
actors in the program. The commenters also stated that the Department
provided no data to support the elimination of the pattern or practice
requirement.
The Department has considered these comments, and we have decided
to retain the NPRM's language deleting the pattern or practice
requirement in the Final Rule. We believe that by defining a
substantial violation as one or more acts of commission or omission, we
will be able to more effectively use our debarment authority to enforce
compliance with the rules of the H-2A program. In the past, the
requirement that the Department show a pattern or practice of
violations has obstructed us from using our debarment authority. As one
farm worker advocate recounted, these include instances of flagrant
violations, such as an employer who physically assaulted a worker whom
he believed had filed an OSHA complaint concerning working conditions
on the farm. The commenter stated that even though the employer was
found guilty of the charge in criminal court, he continued to be
certified and that since the employer had limited the physical assault
to a single worker, there was no pattern of substantial violations. By
eliminating the requirement that we show a pattern or practice of
violations, the Final Rule will enable the Department to remove an
employer like this from the H-2A program. This will allow us to better
fulfill our statutory duty to protect the integrity of the H-2A program
and to debar employers who commit substantial violations.
The Department appreciates the concern of employer associations
that by eliminating the pattern or practice requirement, the Department
will be able to use its debarment authority more easily. The Department
does not intend to debar employers who make minor, unintentional
mistakes in complying with the program. The factors listed in Sec.
655.182(e) of the NPRM have also been retained in the Final Rule. These
factors are intended to give employers guidance as to what factors the
Department will consider in determining whether a violation constitutes
a substantial violation to warrant debarment. The elimination of the
pattern or practice requirement was intended to ensure that the
Department is able to use debarment in circumstances that warrant the
penalty, not to punish well-intentioned employers that inadvertently
commit minor errors.
c. Specific Proposed Grounds for Debarment
i. Elimination of the Requirement That a Substantial Violation Be
Willful
Several employer associations objected that the NPRM eliminated the
many qualifiers in the 2008 Final Rule which required that actions be
willful or significant to be considered substantial violations. These
comments protested that the change would enable the Department to debar
employers who commit minor, unintentional mistakes when using the H-2A
program. One commenter argued that the term substantial was too broadly
defined, given no real qualitative measurement other than the proposed
factors. That commenter stated that this contrasted with the 2008 Final
Rule, which provided a detailed list of acts and omissions that meet
the definition of a substantial violation.
The Final Rule retains the language of the NPRM. As explained
above, the Department does not intend to debar well-intentioned
employers that commit inadvertent or minor mistakes. The Final Rule
includes the list of acts or omissions that meet the definition of a
substantial violation as proposed. The Department believes this
description of the factors the OFLC Administrator may consider when
determining whether debarment is appropriate in a particular
circumstance will provide clearer guidance and make the Department's
determinations more transparent to the regulated community.
Additionally, the term willful restricted the Department's ability to
use its debarment authority when appropriate, due to the strict legal
definitions given the term in other unrelated areas of the law. The
language of the Final Rule is intended to ensure that the Department is
able to use its debarment authority when appropriate.
ii. The Elimination of the Definition of Incidental Activities and Its
Effect on Debarment
Both the 2008 Final Rule and the NPRM permit debarment of employers
who use H-2A workers for activities outside the job order. The 2008
Final Rule, however, contains a qualifier providing that such
deviations will not result in debarment where they involve an activity
or activities minor and incidental to the activity/activities listed in
the job order. The NPRM did not contain this qualification and a number
of commenters were concerned that this signaled intent on the part of
the Department to debar employers who were only guilty of minor or good
faith deviations from the job order. This was not the Department's
objective, although the Department does not condone the use of H-2A
workers for activities not authorized by the statute.
Several farm worker advocacy organizations and a Member of Congress
expressed support of the NPRM's expansion of the grounds for debarment
to include employment of an H-2A worker outside the area of intended
employment. This remains grounds for debarment in the Final Rule.
The removal of the minor and incidental language from the
definition of agricultural labor and services is discussed above in the
definitions section.
iii. Debarment for Improper Displacement of U.S. Workers and Workers in
Corresponding Employment
The NPRM proposed to add the improper layoff or displacement of
U.S. workers or workers in corresponding employment as an additional
ground for debarment. Some farm worker advocacy organizations and a
Member of Congress commented that they support the proposed expansion
of the grounds for
[[Page 6936]]
debarment to include the improper displacement of U.S. workers.
Several employer associations objected to the added ground for
debarment. These commenters were concerned that the breadth of the
concepts of displacement and corresponding employment would allow a
significant expansion of the debarment authority.
The Final Rule includes this added ground for debarment. An
employer's improper displacement or layoff of U.S. workers frustrates
the very purpose of many of the protections for American workers
imposed by the INA itself--the primary goal of the H-2A program is to
allow agricultural employers access to the labor force they need while
protecting the employment opportunities for U.S. workers. Improper
displacement of U.S. workers clearly subverts a fundamental purpose of
the H-2A program. Additionally, the Department does not believe that
improper displacement needs to be more clearly defined--improper
displacement is any displacement caused by an employer's failure to
comply with the H-2A rules.
iv. Added Grounds of Debarment for Violations of the Anti-Fee Shifting
Provisions and the Anti-Discrimination Provisions
Several commenters objected to the proposed additional grounds that
would allow debarment of employers that violate the anti-fee shifting
provisions or anti-discrimination provisions of the proposed rule. The
commenters generally objected that these added grounds were an
unwarranted expansion of the Department's debarment authority.
The Final Rule retains the proposed added grounds for debarment.
Strict enforcement of the anti-fee shifting provisions and anti-
discrimination provisions is essential to providing needed protections
to H-2A workers and to workers in corresponding employment.
Additionally, strict enforcement of the anti-discrimination provisions
is essential to maintaining program integrity and compliance, because
intimidation of farm workers who file complaints or otherwise
participate in the enforcement process impairs the Department's ability
to effectively enforce the requirements of the H-2A program.
v. Failure To Pay Certification Fees in a Timely Manner
The NPRM proposed to define a substantial violation to include an
employer's failure to pay a necessary fee in a timely manner. The Final
Rule adopts this proposed change but clarifies that the ``necessary
fee'' to which the NPRM refers is the certification fee, described in
Sec. 655.163. One commenter contended that this ground for debarment
is overly harsh. The commenter stated that because the proposed rule
has eliminated the requirement of showing a pattern or practice of
violations, this means that the Department may debar an employer if a
fee payment arrives one day late in the mail. The commenter points out
that most employers who use the H-2A system live in rural areas where
mail delivery is not efficient, and the employers often live a far
distance from a post office. He points out that many agricultural
employers are small, family-run businesses that may not have enough
time to spare a person to go to the post office in times of bad
weather. Finally, the commenter argues that this proposed provision
departs from other immigration programs run by the Department, where
one late payment could never cause the harsh result that the employer
could not participate in the program for years to come.
The Department is very aware of the severe consequences that
debarment has for an employer's business, especially for a small
business. Again, the Department's objective in expanding the definition
of ``substantial violation'' is not to debar employers for minor errors
or circumstances beyond the employer's control. We expanded the
definition to ensure that we will be able to institute debarment
proceedings when circumstances warrant it, and to ensure that we are
not obstructed by our own regulatory language. The Department must take
very seriously the failure to pay the required certification fees in a
timely manner simply because we do not believe that it is an effective
use of our limited resources to track down employers who fail to pay
fees. By defining the late payment of certification fees as a
substantial violation in the Final Rule, we intend to impress upon
employers that the timely payment of such fees is their responsibility
which we expect them to fulfill if they choose to participate in the H-
2A program.
vi. Failure To Pay Wages
The NPRM did not propose changes to this requirement. One farm
worker advocacy organization commented that the Final Rule should
include an explicit statement that multiple reports of unpaid wages
will result in debarment. The same commenter stated that there should
also be a streamlined system for filing wage complaints and immediate
investigations upon receiving the complaints. We believe that the
explicit statement is unnecessary; the Final Rule includes as grounds
for debarment the failure to pay or provide the required wages to H-2A
workers or workers in corresponding employment. That provision would
allow the Department to debar an employer if the employer is found to
have failed to pay the required wages, especially if it failed to do so
multiple times. As for the streamlined system, we believe that this is
available through the Job Service Complaint System.
d. Grounds for Debarring Joint Employer Associations
Several employer associations commented on the NPRM's expansion of
the standard for debarment of members of joint employer associations to
any member that has reason to know of the association's debarrable
violation. These commenters stated that the standard is too expansive
and unduly harsh, and that the 2008 Final Rule's participation or
knowledge standard should be retained. Some commenters also objected
that the Department had not provided any data supporting the need for
this change.
The Final Rule retains the language proposed in the NPRM. The
Department's change to the debarment standard for members of joint
employer associations is consistent with the statutory language in 8
U.S.C. 1188(d)(3)(B)(1), which states that an individual producer-
member of a joint employer association will not be debarred if the
association commits a substantial violation unless the member
participated in, had knowledge of, or reason to know of the violation.
e. Debarment of Agents/Attorneys
The NPRM proposed to authorize the Department to debar agents and
attorneys. One commenter stated that the INA only gives the Department
authority to debar employers, and therefore the Department has no
authority to debar agents or attorneys. As explained in the 2008 Final
Rule's preamble, we believe that acts committed by agents and attorneys
of employers may constitute substantial violations and, accordingly,
that agents and attorneys of employers should be debarrable parties.
The commenter's argument that the statute does not give the
Department the power to debar agents or attorneys seems to be premised
on the argument that by naming one thing in the statute, Congress meant
to exclude all others, a legal maxim of statutory construction referred
to as expressio unius est exclusio alterius. However, this maxim
[[Page 6937]]
is limited in application. In order for it to apply, the necessary
implication is that Congress considered the unnamed possibility (such
as debarring agents or attorneys) and meant to exclude it, as opposed
to excluding the term inadvertently or simply deciding not to address
it. Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (citing
United Dominion Industries, Inc. v. United States, 532 U.S. 822, 836
(2001)). The application of the maxim can also be limited where the
exclusion would result in inconsistency or injustice or would undermine
the general purpose of the statute. See Ford v. United States, 273 U.S.
593, 612 (1927), and Herman & MacLean v. Huddleston, 459 U.S. 375, 387
n.23 (1983).
The INA makes no reference to the role of agents or attorneys in
its labor certification provisions. The involvement of two parties in
the H-2A certification process is strictly a construct of the
regulations. Therefore, it would be difficult to believe that Congress
actually considered acts committed by agents and attorneys, much less
deliberately excluded them when it drafted the debarment provision.
Additionally, if the Department were not able to debar agents or
attorneys, the integrity and effectiveness of the H-2A program
potentially would be at risk, which would seem to undermine the
Department's ability to carry out its responsibilities under the
statute. Criminal cases under other immigration programs are strong
evidence that agents and attorneys can commit flagrant violations of
the INA, sometimes without the knowledge of their clients.
Additionally, the Department has inherent authority to regulate the
conduct of attorneys and agents who practice before it. The Department
has invoked this authority to debar agents and attorneys under the PERM
and H-1B immigration programs. As discussed in the preamble to the PERM
fraud rule, there is extensive case law establishing that Federal
agencies have the authority to determine who can practice and
participate in administrative proceedings before them. The general
authority of an agency to prescribe its own rules of procedure is
sufficient authority for an agency to determine who may practice and
participate in administrative proceedings before it, even in the
absence of an express statutory provision authorizing that agency to
prescribe the qualifications of those individuals or entities. Koden v.
United States Department of Justice, 546 F.2d 228, 232-233 (7th Cir.
1977) (citing Goldsmith v. United States Board of Tax Appeals, 270 U.S.
117 (1926)). See also Schwebel v. Orrick, 153 F. Supp. 701, 704 (D.D.C.
1957) (The Securities and Exchange Commission has implied authority
under its general statutory power to make rules and regulations
necessary for the execution of its functions to establish
qualifications for the attorneys practicing before it and to take
disciplinary action against attorneys found guilty of unethical or
improper professional conduct). In addition, an agency with the power
to determine who may practice before it also has the authority to debar
or discipline such individuals for unprofessional conduct. See Koden,
564 F.2d at 233. Further, as the Department has the authority to
prescribe regulations for the performance of its business (as is the
case with all executive departments under 5 U.S.C. 301), it likewise
has the authority to determine who may practice or participate in
administrative proceedings before it and may debar or discipline those
individuals engaging in unprofessional conduct. The Department has
exercised such authority in the past in prescribing the qualifications
and procedures for denying the appearance of attorneys and other
representatives before the Department's Office of Administrative Law
Judges under 29 CFR 18.34(g). See also Smiley v. Director, Office of
Workers' Compensation Programs, 984 F.2d 278, 283 (9th Cir. 1993).
Accordingly, the Department has the authority to debar agents and
attorneys. We have decided to assert this authority to maintain the
integrity of the H-2A program and to be consistent with other
immigration programs.
The same commenter argued that the Department's assertion of its
authority to debar attorneys will have severe implications on attorney-
client privilege, impairing an attorney's ability to give advice about
these regulations to his or her clients, lest a client's question cause
the attorney to know or have reason to know about a client's
substantial violation. The Department acknowledges this concern.
However, as explained in the preamble to the 2008 Final Rule, the
Department does not intend to make attorneys (or agents) strictly
liable for debarrable offenses committed by their employer clients. The
Department does not intend to debar attorneys who obtain privileged
information during the course of representation regarding their
client's violations. We asserted authority to debar attorneys, like the
authority to debar agents, to ensure that we are able to address
substantial violations committed by the attorneys or agents themselves,
or committed in concert with the employers. The Department is not
seeking to debar attorneys who, while working to assist their clients
in complying with the H-2A program, make an error. Nor are we seeking
to debar attorneys whose clients disregard their legal advice and
commit substantial violations; the appropriate party to be debarred in
that situation would be the employer-client. However, the Department is
asserting its authority to debar attorneys who work in collusion with
their employer-clients to commit substantial violations. Therefore, in
response to the comments, we have modified the Final Rule to allow for
the debarment of attorneys only if the OFLC Administrator finds that
the attorney has participated in a substantial violation.
f. Statute of Limitations for Initiating Debarment Proceedings
The NPRM did not propose any changes to the statute of limitations
for debarment proceedings. One commenter suggested that the Department
change the time limitation to issue a Notice of Debarment. The
commenter suggested that rather than stating the notice must be issued
no later than 2 years after the occurrence of the violation, the
regulations should require a Notice of Debarment be issued no later
than 2 years from the time the debarring authority learns of the
debarrable activities.
However, the restriction to 2 years is mandated by the INA.
Accordingly it is maintained in the Final Rule.
g. Debarment Procedure
i. Concurrent Authority With WHD
The NPRM proposed and the Final Rule provides WHD the authority to
debar employers, agents, and attorneys who commit substantial
violations, in addition to OFLC's authority to debar. A number of
commenters supported this change from the 2008 Final Rule, because they
believe that it will strengthen and improve the efficiency of
enforcement of the H-2A regulations. Conversely, many employer
associations opposed concurrent debarment authority, predicting
inconsistencies in the two agencies' interpretation of the regulations.
These comments are discussed in the sections that discuss the debarment
authority of the WHD.
The Final Rule states that the OFLC and the WHD will coordinate
their activities so that only one debarment proceeding is imposed for
the same substantial violation. The Department notes that the two
agencies have been concurrently involved in debarment
[[Page 6938]]
proceedings from the beginning of the H-2A program, with WHD performing
the investigations and OFLC conducting the actual debarment proceedings
on WHD's recommendations. This experience the two agencies have in
coordinating their actions will help minimize any inconsistencies that
may exist between the agencies' interpretations of the program
requirements. Furthermore, the two agencies' debarment proceedings are
the same, which is intended to eliminate any inconsistencies between
the agencies' interpretations. Three grounds for debarment are listed
in Sec. 655.182(d)(2-4) that are not present in the regulations
governing WHD's involvement in the H-2A program, because these grounds
concern the processing of an employer's Application for H-2A labor
certification, which is solely within the jurisdiction of the OFLC. The
Department believes that conferring concurrent debarment authority on
both agencies will improve the quality of H-2A enforcement and increase
efficiency.
ii. Changes to the Debarment Procedure of OFLC
The NPRM proposed to extend concurrent debarment authority to the
WHD, and made changes to the OFLC debarment procedure so that it would
parallel the debarment procedure of the WHD. This included eliminating
the step wherein the OFLC sends the employer a Notice of Intent to
Debar, and eliminating the employer's opportunity to submit rebuttal
evidence to the OFLC Administrator upon receiving that Notice of
Intent. Instead, the proposed rule gave the employer an immediate right
to a hearing before the ALJ, and then the right to request review
before the Administrative Review Board (ARB). The Final Rule adopts
many of the proposed changes, but it amends the proposed elimination of
an employer's chance to submit rebuttal evidenced. The Final Rule also
clarifies that the OFLC Administrator rather than the CO will exercise
debarment authority, and the Final Rule makes minor changes relating to
service so as not to preclude, for example, electronic service.
Additionally, the Final Rule makes a minor change to the provision in
Sec. 655.182(f)(3) of the NPRM that stated the ALJ's decision after a
debarment hearing will be provided to the employer, OFLC Administrator,
DHS, and DOS by means normally assuring next-day delivery. The Final
Rule states that the ALJ's decision will be immediately provided to the
parties to the debarment hearing by means normally assuring next-day
delivery. This change was made so the language would include an
attorney or agent if that person (rather than the employer) was the
party subject to the debarment hearing. Additionally, the reference to
DHS and DOS was eliminated here because it is redundant; Sec.
655.182(g) states that final debarment decisions will be forwarded to
DHS promptly.
Many employer associations objected to the changes proposed to the
OFLC debarment procedures. A number of commenters objected to the
elimination of debarred parties' opportunity to submit rebuttal
evidence providing them with only one option to respond to a Notice of
Debarment, namely to request a hearing before the ALJ. Many commenters
stated that this would deny the parties due process.
The Department considered these comments and is restoring the right
to submit rebuttal evidence. The Final Rule adopts a hybrid approach.
The procedure for a debarment proceeding that is initiated by WHD will
still follow the procedure as proposed. A regulatory provision for
submission of rebuttal evidence by an employer in a debarment
proceeding conducted by the WHD is unnecessary--a WHD debarment
proceeding will be predicated on a WHD investigation that involves
numerous opportunities for communication between the WHD and the party
that is subject to the investigation. However, the procedure for a
debarment proceeding initiated by the OFLC will include a provision
allowing the party who receives a Notice of Debarment to choose first
to submit rebuttal evidence to the OFLC Administrator before requesting
a hearing before the ALJ. This procedure for OFLC debarments is better
suited to the method of OFLC investigations, which consist mainly of an
OFLC audit and written exchanges between the OFLC and the party subject
to debarment. This procedure for OFLC debarment is also more closely
parallel to the OFLC procedure for revocation. However, the OFLC
debarment procedure will still parallel WHD's debarment procedure after
the potentially debarred party's opportunity to submit rebuttal
evidence, including a party's opportunity to request a hearing before
an ALJ and then on appeal to the ARB. This procedure will ensure that
employers have ample opportunity to be heard during debarment
proceedings initiated by the OFLC while also maintaining the ARB as the
single highest authority for all debarments from the H-2A program,
whether initiated by the WHD or the OFLC. This will ensure consistency
in the application of debarment standards by both agencies.
Other employer associations commented that there should also be a
process by which an H-2A employer can appeal a Notice of Debarment. The
intended meaning of this comment is unclear since there is provision
for an appeal.
Finally, as in its comments regarding the revocation section, one
farm worker advocacy organization proposed that the regulations state
that the Department shall commence a debarment investigation if it
receives any information provided from a SWA, an employee, or other
person alleging activity that may constitute grounds for debarment. The
organization also proposed that any person who provided information
that resulted in a debarment be provided copies of the notices issued
in the proceeding. The Final Rule does not adopt such an inflexible
system for the same reasons mentioned under the revocation section--it
is inefficient and hinders the Department's discretion in enforcing its
regulations.
38. Section 655.183 Less Than Substantial Violations
The NPRM proposed to require an employer to follow special
requirements during its recruitment process if the Department believes
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 if
the Department determined that the employer was guilty of a less than
substantial violation of the terms of its labor certification. It also
proposed an appeals process the employer may pursue if it disagrees
with the Department's determination. The Final Rule retains this
provision as proposed.
A few employer associations opposed this section. Generally, they
stated that the provision is ill-defined, costly, and overly harsh. One
predicts that due to the Final Rule's expansion of the definition of a
substantial violation, virtually every employer who uses the H-2A
program will be subject to the special procedures referred to in this
section. The commenters also stated that the provision does not confer
sufficient due process to contest the imposition of these special
procedures, and that the Department fails to cite any evidence showing
the need for this provision.
This provision was included in the H-2A regulations from the 1987
Rule until the provision was removed, with no explanation, by the 2008
Final Rule. The Department is restoring the provision to this Final
Rule because it
[[Page 6939]]
allows added flexibility in enforcing the H-2A regulations. It also
gives the Department a mechanism to address employers' less severe
violations without pursuing the more serious remedies of revocation or
debarment. The Department believes that this added flexibility will
suit its enforcement goals while acknowledging employers' concerns
about the harshness of revocation or debarment.
39. Section 655.184 Applications Involving Fraud or Willful
Misrepresentation
The Department proposed a process for the referral of applications
involving potential fraud or misrepresentation to the DHS and the
Department's Office of the Inspector General for investigation and
action. The Department received no comments in response to this
proposal; therefore, the Final Rule adopts the language of the NPRM.
40. Section 655.185 Job Service Complaint System; Enforcement of Work
Contracts
The NPRM proposed to continue the requirements for the filing of
complaints arising under this subpart through the Job Service Complaint
System and the referral of complaints alleging discrimination against
eligible U.S. workers to the U.S. Department of Justice, Civil Rights
Division, Office of Special Counsel for Unfair Immigration Related
Employment Practices. These requirements were also included in the 2008
Final Rule. The proposed rule additionally requires the SWA to refer
complaints alleging fraud or misrepresentation to the attention of the
CO who will commence the audit process to determine whether the
allegations are valid and warrant imposing employer sanctions or
penalties. The Department is retaining the provision as proposed in the
NPRM.
One commenter misunderstood the proposed requirement for complaint
referral to the CO and stated that the filing with the CO may be
challenging for migrant and seasonal workers who rely on the SWA to
prepare and file their complaints. Another commenter who opposed this
requirement asserted that the CO does not have the ability to determine
whether or not a complaint alleging fraud is valid. Two employer
organizations also opposed the requirement, contending that the NPRM
did not include safeguards to prevent third parties from abusing the
system to harass employers. Another commenter proposed that the
Department implement user-friendly complaint procedures.
An association of growers proposed that the Department disallow
anonymous complaints so that employers can face their accusers. This
commenter also requested that the Department limit the application of
its integrity measures to only those cases in which it has additional
corroborative evidence, beyond the initial Job Service Complaint System
complaint. Furthermore, it proposed that the Department require that
Job Service Complaint System complaints consist of detailed written
statements signed under penalty of perjury.
Another commenter called for improved oversight of complaint
processing by the SWAs. This commenter also proposed a change to the
regulations to mandate the exchange of certain information (such as
outcomes of investigation or administrative proceedings conducted by
the SWA or any Federal agency) between the WHD and the OFLC and the
Office of Special Counsel for Unfair Immigration-Related Employment
Practices at DOJ and the OFLC.
The Job Service Complaint System is part of the State agencies'
mandate under the Wagner-Peyser Act. See Wagner-Peyser Act of 1933, as
amended, 29 U.S.C. 49 et seq.; 38 U.S.C. chapters 41 and 42; 5 U.S.C.
301 et seq.; 20 CFR. 658.410, 658.411 and 658.413 also issued under 44
U.S.C. 3501 et seq. These regulations apply to State agencies and
require them to establish and administer the Job Service Complaint
System in order to accept complaints from migrant and seasonal farm
workers. This enables workers who may already have a relationship with
the SWA as a result of referral to go back to the SWA for assistance.
The NPRM did not propose to amend the regulations governing the
operation of the Job Service Complaint System found in 20 CFR part 658,
subpart E. Therefore, the Department is unable to respond to the many
suggestions discussed above that would require changes to these
regulations.
The Department agrees that the SWAs play an essential role in
accepting and evaluating complaints from workers. The requirement that
the SWAs refer certain complaints to the CO is intended to bolster
program integrity by ensuring that the Department most effectively
directs its enforcement resources to curb and address program abuses.
In response to a commenter's assertion of potential abuse of the Job
Service Complaint System by third parties, the Department does not
anticipate that the Job Service Complaint System will be used as a
widespread tool to harass employers. Furthermore, under the Final Rule,
the COs will receive any complaints alleging fraud or misrepresentation
and will use their longstanding and extensive programmatic knowledge
and understanding of the user community to distinguish between
frivolous complaints and those asserting real and supported claims. No
entity will be subject to penalties or sanctions when the CO ascertains
that the employer is in compliance. Finally, closer cooperation with
its State partners in the area of enforcement will enable the
Department to ensure program integrity and increase protections for
both U.S. and foreign workers participating in the program.
In response to one commenter's suggestion that the regulations
mandate information sharing between different agencies, the Department
has determined that the part of that suggestion that is specific to
amendments to the Job Service Complaint System falls outside the scope
of this rulemaking as the process of the system is regulated by 20 CFR
658. However, this is not to say that information is not shared with
our sister agency. As explained further above and below, the Deparment
affirmatively shares information with DHS and other agencies, within
defined limits, to enable those agencies to take action.
Therefore, the Department is retaining this provision as proposed.
III. Revisions to 29 CFR Part 501
The Final Rule amends the Department's regulations at 29 CFR part
501, which set forth the responsibilities of the WHD to enforce the
legal, contractual and regulatory obligations of employers under the H-
2A program so that WHD can carry out its statutory mandate to protect
temporary H-2A workers and U.S. workers. These amendments are adopted
concurrent with and in order to complement the changes ETA is making in
its certification procedures.
Since this Final Rule makes changes to several of the existing
regulations in 29 CFR part 501, we have included the entire text of the
final regulations and not just the sections which have been amended.
a. Subpart A General Provisions
1. Sections 501.0 and 501.1 Introduction and Purpose and Scope
Consistent with its statutory mandate, the Department proposed to
amend its regulations in order to enhance its enforcement program and
better protect workers--including U.S. workers, H-2A workers, and/or
workers employed in
[[Page 6940]]
corresponding employment--from adverse effects and from potential abuse
by employers who fail to meet the requirements of the H-2A program or
violate its provisions. Modifications were proposed to Sec. Sec. 501.0
and 501.1 to more clearly outline the differing authority and
responsibilities of ETA and WHD, to identify the various groups of
workers who are entitled to protections under the program, and to state
the effective date of the Final Rule.
The Department is adopting the provisions as proposed, with
clarifications and the following change: since the NPRM was issued, the
Department has eliminated the Employment Standards Administration
(ESA), which was the former umbrella organization of the WHD.
Therefore, the Final Rule deletes the reference to ESA in Sec.
501.1(c).
Many commenters representing workers, farm worker advocacy
organizations, unions, SWAs, Congress, and individuals generally
supported the proposed changes to 29 CFR part 501, and they advocated
stronger enforcement of program requirements across the board. Several
of these commenters noted the long history of abuses under guest farm
worker programs, dating back to the Bracero program of the 1940's. They
noted that these workers are particularly vulnerable. Since their work
visas are tied to a single employer they are reluctant to complain for
fear of losing their jobs and being deported, and they often have
limited English skills and limited access to social services or legal
representation. These commenters welcomed the reversal of many aspects
of the 2008 Final Rule, and they endorsed more active enforcement by
WHD.
Most commenters representing employers generally opposed the
enhanced enforcement proposals. Many employers complained that the
proposal is not balanced, since it reinstates the labor certification
requirements of the 1987 Rule yet retains the elevated penalties which
were added by the 2008 Final Rule. They argued that the elevated
penalties were a trade-off for the streamlined attestation procedures
in the 2008 Final Rule, suggesting that one cannot be retained without
the other. One commenter asserted that the NPRM retains the most
burdensome and, in its view, punitive provisions of the 1987 Rule and
2008 Final Rule, while adding new and onerous requirements. A commenter
asserted that the proposed enforcement changes exceed the Department's
underlying statutory authority, that the NPRM failed to include any
citations or legal analysis supporting the changes, and that the
Department generally ignored its own analysis in the 2008 Final Rule.
The Department disagrees. The proposed changes are clearly
authorized by the INA, which authorizes the Secretary to deny
certifications and to take such other actions, including imposing
appropriate penalties and seeking appropriate injunctive relief and
specific performance of contractual obligations, as may be necessary to
ensure compliance with the terms and conditions of employment. The
Department believes that these enhanced enforcement regulations are
necessary to properly carry out its statutory obligations to protect
workers.
As explained both in the NPRM and in the foregoing preamble
sections, the Department has now determined that the 2008 Final Rule
did not effectively carry out the Department's statutory mandate to
protect workers and failed to allow for robust and meaningful
enforcement of the terms of the approved job orders and other
regulatory requirements. While most employers of temporary H-2A workers
are law-abiding, some are not. The Department has carefully crafted its
enhanced enforcement tools so as to continue allowing law-abiding
employers to use the program to recruit U.S. workers and/or guest
workers to meet their seasonal employment needs. At the same time, it
seeks to target those employers who fail to meet their legal
obligations to recruit and hire U.S. workers, and/or to offer required
wages and benefits to workers. We believe that the Final Rule achieves
the proper balance between meeting the seasonal labor needs of farmers
and protecting the rights of farm workers.
2. Section 501.2 Coordination Between Federal Agencies
The Department also proposed to expand Sec. 501.2 to allow broader
information sharing and coordination between agencies both within and
outside of DOL, and to grant WHD and OFLC express authority to share
information for enforcement purposes and, where appropriate, with other
agencies such as DHS and DOS which play a role in immigration
enforcement. In addition, because the Department proposed that ETA and
WHD have concurrent debarment authority, the Department also proposed
to limit its enforcement to only one debarment proceeding (by either
OFLC or WHD, but not both) resulting from a single set of operative
facts, and proposed that OFLC and the WHD would coordinate their
activities to accomplish this result. It also proposed that copies of
any final debarment decisions be forwarded by DOL to DHS so that it can
take appropriate action.
No comments were received on this proposed section. Therefore, the
Department is adopting the provision generally as proposed, with slight
wording changes.
3. Section 501.3 Definitions
As in the 2008 Final Rule, the NPRM proposed to incorporate the
definitions listed in 20 CFR part 655, subpart B that pertain to 29 CFR
part 501. The discussion of changes to the definitions can be found in
the preamble for 20 CFR part 655, subpart B above.
4. Section 501.4 Discrimination Prohibited
The Department proposed to move this provision from Sec. 501.3 to
Sec. 501.4, and to add a reference to debarment as a potential remedy
for employers or others who engage in prohibited discrimination, along
with other minor editorial changes. The Final Rule adopts the
provisions as proposed without change.
Worker advocacy organizations supported the proposal requiring
workers' compensation coverage and the submission of proof of coverage.
They also requested that the Final Rule include a provision making
discrimination against workers who file a workers' compensation claim a
violation of these regulations. This protection is already provided.
The regulation at 20 CFR 655.122(e), like the statutory provision it
implements, provides a right to workers' compensation coverage under
State law or, where the employee is not covered by State law, private
insurance. The right to workers' compensation coverage would be
meaningless if it did not include the right to file a claim under that
coverage without risking retaliation. Accordingly, the right to file a
claim is provided under the INA, as well as these regulations. Section
501.4(a)(5) states that discrimination against any person asserting a
right or protection afforded by the INA or these regulations is
prohibited. Therefore, persons filing workers' compensation claims
under a workers' compensation policy mandated by the statute are
protected from discrimination. In addition, as a condition of H-2A
certification, employers must agree to comply with Federal, State and
local laws and regulations during the period of employment. Where State
laws prohibit discrimination against employees making workers'
compensation claims, a violation of those laws would also be a
violation of these regulations.
[[Page 6941]]
5. Section 501.5 Waiver of Rights Prohibited
The Department proposed to renumber Sec. 501.5 (Waiver of rights
prohibited), which was previously Sec. 501.4, and to expand the
provision to cover U.S. workers who were improperly rejected for
employment or improperly laid off or displaced. The Final Rule adopts
the proposed amendment.
A legal services organization suggested expanding this provision to
also prohibit waivers of the FLSA, applicable State employment laws,
and State employee housing laws. The Department notes that the FLSA may
not be waived and that State laws may or may not be waivable. The
regulations require employers to certify their compliance with all
applicable State and local laws and regulations, including health and
safety laws. Therefore, the Department does not believe that such
additional references need to be included in the no-waiver provision.
6. Section 501.6 Investigation Authority of the Secretary
The Department proposed to renumber, substantially shorten and
revise this section to clarify and to eliminate duplication. The
Department is adopting the provisions as proposed without change.
Employee advocacy groups commented that this provision should be
expanded to require WHD to notify workers (in their language), as well
as advocates and local agencies whenever WHD conducts an investigation,
and that it notify workers and others of the outcome of investigations.
As a matter of enforcement policy, WHD already notifies complainants of
the status of their complaint(s), and makes every effort to do so in
languages understandable to the worker. Notifying all employees,
advocates and local agencies in every case is impracticable. However,
WHD is committed to doing outreach to advocates, workers, and affected
communities, and intends to work more closely with interested parties
in appropriate cases.
7. Section 501.7 Cooperation With Federal Officials
The NPRM proposed to require cooperation with any Federal official
investigating, inspecting, or enforcing compliance with the statute or
regulations. No comments were received addressing this section.
Therefore, the Final Rule adopts the provision as proposed.
8. Section 501.8 Accuracy of Information, Statements, Data
The NPRM also proposed to renumber Sec. 501.8, which was
previously Sec. 501.7, but did not otherwise change the provision. No
comments were received addressing this section. Therefore, the Final
Rule adopts the changes as proposed.
9. Section 501.9 Surety Bond
In order to assure compliance with the H-2A labor provisions and to
ensure the safety and economic security of covered employees of H-2ALCs
under the H-2A program, the NPRM proposed to continue the requirement
that H-2ALCs obtain and maintain a surety bond based on the number of
workers to be employed under the labor certification, throughout the
period it is in effect, including any extensions. The proposed rule
also retained the provision that enables the WHD to require, after
notice and the opportunity for a hearing, that an H-2ALC obtain a
surety bond with a face amount greater than the amounts specified in
the proposed regulation. The Department also proposed to enhance the
level of protection for workers by introducing new bond amount tiers
that are more closely and appropriately tied to the number of job
opportunities for which certification is sought. The Final Rule adopts
the NPRM with one change and minor clarifying edits. The Final Rule
requires H-2ALCs to provide the original surety bond with their
application, rather than just a copy.
In the 2008 Final Rule, surety bond amounts were set at $5,000 for
H-2ALCs seeking certification to employ fewer than 25 employees,
$10,000 for those seeking certification to employ 25 to 49 employees,
and $20,000 for H-2ALCs wanting to hire 50 or more employees. However,
assuming that an H-2ALC with 50 employees pays approximately the same
for a $20,000 bond as an H-2ALC with 300 employees, the 2008 Final Rule
framework disproportionately advantages larger H-2ALCs while providing
diminishing levels of protection for the employees of such contractors.
Under the proposed rule, the first two bond amount tiers remained
unchanged ($5,000 for H-2ALCs who apply for certification to employ
fewer than 25 employees and $10,000 for those H-2ALCs who are applying
for certification to employ 25 to 49 workers). The NPRM proposed to
require H-2ALCs seeking certification to employ from 50 to 74 workers
to obtain a bond of $20,000. In addition, we proposed to require H-
2ALCs seeking certification to employ from 75 to 99 workers to obtain a
surety bond of $50,000, and those seeking certification to employ 100
or more workers to obtain a bond of $75,000.
In the proposed rule, the Department specifically requested
comments addressing the implications for H-2ALCs who may be subject to
this requirement. A number of commenters opposed the adoption of the
proposed surety bond requirements as being too costly and indicated
these increased costs will discourage participation in the H-2A program
while not significantly improving worker protections.
A number of commenters supported the surety bond requirements.
However, these commenters also expressed the view that the proposed
requirements do not go far enough to protect covered farm workers, and
they offered suggestions to further strengthen the requirements. These
suggestions fall into three general categories: (a) either increase the
face amount of the required bond to $1,000 per worker or index the
amount of the bond to a percentage of the value of the offered
contract; (b) require that the bond be payable to both the DOL and the
affected workers; and (c) in lieu of a surety bond, allow H-2ALCs and
the fixed-site employers to enter into a written contract in which the
fixed-site employer agrees to be responsible for compliance with
respect to the H-2ALC's employees as if the employees were jointly
employed by both an H-2ALC and the fixed-site employer.
Only those H-2A program applicants who meet the definition of an H-
2ALC will be required to obtain a surety bond. The Department is not
aware that any H-2ALC has been unable to obtain a surety bond as
required under the 2008 Final Rule because it was too costly. The
Department's enforcement experience has found that agricultural labor
contractors are more often in violation of applicable labor standards
than fixed-site employers. They are also less likely to meet their
obligations to their workers than fixed-site employers. Regarding the
comment that the Department does not have the authority to institute a
surety bond requirement, the Department notes that 8 U.S.C. 1188 gives
the Secretary the authority to take such actions as may be necessary to
assure employer compliance with the terms and conditions of employment.
Requiring a bond of H-2ALCs is within the scope of that authority to
better ensure compliance with H-2A obligations and to protect the
safety and security of covered workers employed by H-2ALCs. The
Department believes
[[Page 6942]]
that the increased bond amounts are appropriate and will better allow
the Department to ensure that adequate funds are available to remedy
violations that result in lost wages for workers.
The Department has also determined to retain the surety bond levels
as proposed in the NPRM. With regard to the suggestions that the bond
amount be set at $1,000 per worker, we do not believe this to be
necessary as the proposal gives the WHD Administrator the authority to
adjust the amounts on an individual basis, as may be warranted in the
future. For the alternative suggestion that the amount be indexed to a
percentage of the value of the offered contract, it is unclear how bond
underwriters would be able to accomplish this.
Other commenters suggested a further amendment to the language to
make the bonds payable to both the Administrator of the Wage and Hour
Division and to affected employees of the H-2ALCs. The suggestions did
not state how to implement such a change since the bond needs to be
secured and provided as part of the Application approval process.
Moreover, the Department believes that it is most appropriate for the
Administrator to be the party named in the bond because the
Administrator is responsible for the enforcement of the terms and
conditions of the labor certification and will act on behalf of all
employees if a violation is found. Therefore, the Department has
determined to retain the requirement that the bond be payable to the
Administrator of the Wage and Hour Division as proposed.
Certain commenters suggested that the Department adopt, as an
alternative to the requirement to obtain a bond, a provision that
allows an H-2ALC to forgo obtaining a bond if the fixed-site employer
to whom an H-2ALC furnishes workers contractually obligates itself (in
writing) to be jointly responsible as a joint employer with an H-2ALC
for compliance with all of the provisions of the job offer/contract. To
adopt such a provision would necessitate that an H-2ALC enter into a
separate contractual agreement with each and every fixed-site employer
to whom he or she intends to furnish workers throughout the period for
which certification is sought; it is unclear if this is feasible and,
further, it would require that each such contractual agreement be
scrutinized for legal sufficiency prior to certification, which would
impact the finite resources available for processing applications.
Therefore, the Department has not adopted this suggestion.
No comments were received on the proposal 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, and that the bond must remain in effect for at least
2 years after the expiration of the labor certification (unless the WHD
has commenced an enforcement proceeding, in which case the bond must
remain in effect until the conclusion of the proceeding and any
appeals). Therefore, the Department adopts the proposal in the NPRM.
Finally, the proposed rule required that documentation from the
issuer must be provided with the Application 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 used by the
surety for the bond. In the Final Rule, the Department is requiring
that the original of the bond be submitted with the Application. The
Department believes this change will not present any additional costs
for applicants since such applicants are already required to provide
fundamental information from the bond which most applicants accomplish
by providing a copy of the bond. The requirement to provide the
original bond is intended to ensure that the Department has legal
recourse to make a claim to the surety against the bond following a
final order finding violations.
10. Section 501.15 Enforcement
The Department proposed no changes and received no comment on this
section. The Department is adopting these provisions as proposed
without change.
11. Section 501.16 Sanctions and Remedies--General
The Department proposed to provide WHD with express authority to
pursue reinstatement and make whole relief in addition to back wages in
cases of discrimination, or in cases in which U.S. workers have been
improperly rejected, laid off, or displaced. As explained in the
proposal, this was intended to clarify WHD's authority to pursue
recovery of improper deductions, such as recruiter fees or other costs
improperly deducted or paid in violation of the required assurances
under the Application, which forbid such deductions and payments. The
Final Rule adopts the provisions as proposed.
Many commenters representing farm workers, farm worker advocacy
organizations, unions, SWA, Congress, and individuals generally
endorsed the enhanced enforcement provisions. Employee advocacy groups
commented that this provision should be expanded to require WHD to
notify workers (in their language) and invite them to participate
whenever it files an administrative proceeding, and serve them with
notices of all hearings, settlements, decisions and orders in each
case; they also suggested improving outreach and follow-up
communications with State and County staff after complaints are filed.
Many other commenters representing employers, recruiters and
employer associations complained that the proposed enhanced penalties
and remedies would punish innocent employers and deter them from using
the program. Specific comments are addressed below.
Several commenters representing employers expressed concerns about
the breadth and potential severity of the proposed new remedies, in
particular make whole relief, which they feared could potentially
include compensatory damages for non-economic injuries such as pain and
suffering, or other civil damages of the type available in Federal or
State courts. Another commenter questioned how WHD would exercise its
new authority, asserting that the provisions were vague and would leave
employers vulnerable to endless litigation and harassment based on the
flimsiest of allegations.
These concerns are unfounded. The Department intended make whole
relief to be limited to its traditional meaning, such as,
reinstatement, hiring, reimbursement of monies illegally demanded or
withheld, or the provision of specific relief such as the cash value of
insurance benefits, housing, transportation or subsistence payments
which the employer was required to, but failed to provide, in addition
to the recovery of back wages where appropriate. Nothing in the
regulations allows for the recovery of pain and suffering or other
civil or punitive damages on behalf of workers in addition to actual
damages and equitable relief. Moreover, the Department has been
enforcing H-2A regulations for many years. It intends to continue to
use its traditional enforcement discretion to review cases based on
their facts, and to select for prosecution only those which an
investigation has shown the case to be well-founded.
Other commenters suggested that, where an employer has restricted
its agents by contract arrangement from receiving recruitment fees or
kickbacks
[[Page 6943]]
from workers, yet a worker complains that he or she was forced to pay a
prohibited fee, the employer should be shielded from liability. The
Final Rule requires that H-2A employers contractually prohibit their
recruiters and agents from seeking or receiving such payments, directly
or indirectly. As in every enforcement case, WHD will examine the
evidence and will seek to enforce appropriate remedies against the
proper parties. Therefore, if an employer's recruiter or agent has
violated this provision, but the employer can show that it had a bona
fide contractual provision preventing or barring the violative action
by its agent, the employer has not violated the regulation.
12. Section 501.17 Concurrent Actions
The Department proposed to grant concurrent debarment authority to
OFLC and WHD, while recognizing the differing roles and
responsibilities of each agency under the program. Under the proposed
revisions, debarment authority for violations arising out of the
application process remained with OFLC, but the WHD Administrator
gained debarment authority for issues arising from WHD investigations.
The proposal also included safeguards requiring coordination between
the agencies to ensure streamlined adjudications and that an employer
would not face two debarment proceedings for violations arising from
the same facts. The Department is adopting the provisions as proposed
without change.
Several employers and employer associations disagreed with the
Department's proposal to grant debarment authority to WHD. They noted
that the Department had rejected this approach in the 2008 Final Rule.
As in 2008, they expressed concerns about conflicting regulatory
interpretations by OFLC and WHD, and contended that allowing both
agencies to exercise debarment authority would be inefficient and
confusing, and result in twice as much bureaucracy for employers.
Worker advocates and others who commented in favor of the proposed
change agreed that WHD should have the power to debar employers who
violate program requirements. They cited examples where unscrupulous
FLCs failed to provide any work, failed to pay their workers, demanded
kickbacks, engaged in Ponzi schemes, lied to, assaulted, and abused
workers, committed fraud, engaged in human trafficking, and even pled
guilty to criminal conduct (assaulting a worker for filing a complaint
with OSHA), yet were permitted to continue operating as H-2ALCs. These
commenters welcomed additional enforcement and debarment authority by
WHD.
In 2008 the Department considered extending debarment authority to
WHD, yet decided not to do so, fearing that such authority could result
in unnecessary confusion. However, upon further reflection, the
Department has concluded that this fear is unfounded. Providing WHD
with the ability to order debarment, along with or in lieu of other
remedies, will streamline and simplify the administrative process, and
eliminate unnecessary bureaucracy by removing extra steps. Under the
2008 Final Rule, WHD conducts investigations of H-2A employers, and may
assess back wages, civil money penalties, and other remedies, which the
employer has the right to challenge administratively. However, under
the 2008 Final Rule, WHD cannot order debarment, no matter how
egregious the violations, and instead must take the extra step of
recommending that OFLC issue a Notice of Debarment based on the exact
same facts, which then has to be litigated again. Contrary to the
commenters' assertions, allowing WHD to impose debarment along with the
other remedies it can already impose in a single proceeding will
simplify and speed up this duplicative enforcement process, and result
in less bureaucracy for employer-violators. Instead, administrative
hearings and appeals of back wage and civil money penalties, which the
WHD already handles, will now be consolidated with challenges to
debarment actions based on the same facts, so that an employer need
only litigate one case and file one appeal rather than two. This means
that both matters can be resolved more expeditiously.
Furthermore, this change is consistent with recommendations made as
far back as 1997 in a General Accounting Office (GAO) report to
Congress, in which GAO proposed that WHD be given authority to suspend
employers with serious labor standard or H-2A contract violations. See
U.S. Gen. Accounting Office: ``Report to Congressional Committees: H-2A
Agricultural Guestworker Program, Changes Could Improve Services to
Employers and Better Protect Workers,'' 68, 70 (1997). Moreover, WHD
has extensive debarment experience under regulations implementing other
programs, such as H-1B and the Service Contract Act. See, e.g. 29 CFR
5.12, 5.1
Nevertheless, the Department is sensitive to the perception of some
employers that OFLC and WHD may interpret certain rules differently,
and that employers should not be faced with double jeopardy for a
single violation. Therefore, it has included several safeguards on this
new authority. First, each agency must coordinate their activities when
considering debarment. Second, the proposal also expressly identifies
which violations will be pursued by which agency. For example, OFLC
will continue to institute its own debarment proceedings regarding
issues that arise during the application or recruitment process, or
from an OFLC audit, while WHD may order debarment as a result of
different violations which it discovers during its investigations.
Third, the standards for debarment to be applied by both OFLC and WHD
have been revised to ensure that they are identical and to ensure
consistency in application. Finally, the Final Rule also provides that
debarment for any violation arising out of the same facts will be
addressed only by a single agency. This will allow for more expeditious
proceedings and more efficient enforcement, without any negative impact
on law-abiding employers.
13. Section 501.18 Representation of the Secretary
The NPRM proposed to modify this provision to conform to the
statute, which provides for administrative appeals, but does not grant
the Secretary independent litigating authority in civil litigation. No
comments were received addressing this section. Therefore, the Final
Rule adopts the changes as proposed.
14. Section 501.19 Civil Money Penalty Assessment
The Department proposed to amend this section in several ways. It
proposed to increase the maximum civil money penalty (CMP) amount from
$1,000 to $1,500 for each violation in most cases, noting that this
amount had not been adjusted since 1987. It proposed to increase the
penalty amount for a failure to meet a condition of the work contract
that results in displacing a U.S. worker to up to $15,000, and added a
new penalty of up to $15,000 for improperly rejecting a U.S. worker who
has made application for employment. It also proposed to increase the
potential penalty in cases where 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 to up to $50,000 per
worker, and to double the maximum penalty to up to $100,000 per worker
where the violation of safety or health provisions causing the death or
serious injury was repeated or willful; it
[[Page 6944]]
eliminated the separate provision in the 2008 Final Rule which had
previously increased the maximum penalty to $100,000 in cases where the
employer failed, after notification, to cure a specific violation. The
Department is adopting the provisions as proposed without change, with
the exception of moving language regarding layoffs from Sec. 501.19(e)
to 20 CFR 655.135(g).
Several employer associations and employers commented that the
proposed increases in the penalty structure are too severe, are
unsupported by data or by examples of violators, and seem designed to
discourage use of or even to destroy the program. Overall, most of
these commenters argued that the proposed rules are the worst of both
worlds for program users, since they abandon the simplified attestation
model of the 2008 Final Rule, but retain the elevated penalties
contained in that rule. They contended that the return to supervised
recruitment requirements makes the enhanced penalties unnecessary.
Other employer associations expressed concern about the potential
multiplier effect of the proposed penalties, and wondered whether a
separate penalty could be assessed for each incorrect paycheck,
resulting in astronomical penalties. These commenters also questioned
the changes to the repeat violation definition, worrying that multiple
violations in one incident could be deemed repeat violations, even
where the employer has promptly corrected the violations. Other
commenters criticized the assessment of a penalty for unintentional
violations, for each violation or for each failure to pay a worker,
which they characterized as a new provision.
Commenters representing workers applauded the proposal to increase
the proposed penalties and enforcement in general. They stated that
abuse of H-2A workers by unscrupulous employers is rampant, that
enforcement has historically been very weak, and that many workers do
not complain for fear of retaliation. They asserted that the lack of
enforcement and the occasional fines or sanctions levied by WHD in the
past have led to an environment where crew leaders and employers
believe that they have immunity from the law, and where financial gains
from lawbreaking exceed the costs. One advocacy group claimed that the
vast majority of H-2A workers in the U.S. are victims of wage theft for
which they have no effective recourse. These groups uniformly supported
more consistent, thorough and timely enforcement to serve as a
deterrent to worker abuse.
The Department agrees with the commenters who assert that stronger
penalties are necessary to adequately protect workers. Increasing the
proposed penalties for violators who disregard their obligations will
provide the Department with more effective tools to discourage
potential abuse of the program and will have little if any impact on
law-abiding employers. Such penalties are intended to deter violations,
discrimination, and interference with investigations, and strengthen
worker protections. These penalties will be especially useful to deter
repeat violators, who have committed violations knowing that many H-2A
workers are unlikely to file complaints or seek legal assistance to
enforce their rights.
The increases in the proposed penalties for violations of
applicable safety and health provisions, especially those which cause
serious injury or death, and those for repeat violations, are intended
to encourage participants to ensure that housing and/or transportation
provided to their workers meets all applicable safety and health
requirements, and that housing and/or vehicles used in connection with
employment do not place workers in danger. The higher penalties are
consistent with the increased penalties recently authorized by Congress
for child labor violations which cause death or serious injury to a
worker (see the Genetic Information Nondiscrimination Act Section 302
(2008), codified at 29 U.S.C. 216(e)). They are also lower than those
that can be imposed by the Mine Safety and Health Administration as a
result of the MINER Act of 2006, codified at 30 U.S.C. 820 (2006),
which increased the penalty for flagrant violations up to $220,000, and
the penalty for failure to notify the agency of a death or injury to up
to $60,000. See 72 FR 13592, Mar. 22, 2007. The Department believes
that the increases for H-2A violations are in line with these other
recent increases in penalties in other programs administered by the
Department.
Contrary to the assumptions of some commenters, the assessment of a
particular penalty (or of an enhanced penalty for a repeat or willful
violation) is not mandatory, but guided by consideration of the seven
factors listed in paragraph (b), the facts of each individual case, and
by common sense. For example, before assessing any penalty, the WHD
Administrator must consider the type of violation, its gravity, the
number of workers affected, and several mitigating and/or aggravating
factors including, but not limited to, the explanation offered by the
employer (if any), its good faith or lack thereof, any previous history
of violations, and any financial loss, gain or injury as a result of
the violation. These safeguards are intended to ensure that inadvertent
errors and/or minor violations are not unfairly penalized.
Finally, the assessment of a penalty for each violation is not a
new provision, but has been included in the regulations since at least
the 1987 Rule, including the 2008 Final Rule. Compare 52 FR 20531, Jun.
1, 1987 and 73 FR 77235, Dec. 18, 2008. Indeed, in the 2008 Final Rule
the provision was clarified to reflect the then-existing practice that
a CMP could be assessed for each violation committed (with each failure
to pay a worker properly or to honor the terms or conditions of a
worker's employment constituting a separate violation). The only change
made by the Final Rule is to move this explanatory language up from
Sec. 501.19(c) into the general provision at Sec. 501.19(a). However,
it is not new, and there is no reason to fear that it will be applied
in an unfair or arbitrary manner. The provision is written so as to
protect smaller employers and first-time unintentional violators while
appropriately targeting repeat and willful violators and those who
abuse or exploit large numbers of workers with the largest penalties.
15. Other Comments Pertaining to Enforcement and Sanctions
An employer association commented that DOL should have retained the
portion of the 2008 Final Rule preamble warning workers that they are
not permitted to aid or abet trespassing on an employer's private
property, although consulting with legal aid lawyers and other
representatives is protected activity under 20 CFR 655.105(k)(4). DOL
believes that such language is not necessary. Trespassing is a matter
of state law, and is not enforced by the WHD.
16. Section 501.20 Debarment and Revocation
The Department proposed this section to grant concurrent debarment
authority to WHD. Under the proposal, OFLC would retain the authority
to debar an employer based on violations occurring during the
application, recruitment and certification process, while WHD would
gain new authority to debar employers, agents or attorneys based on
evidence discovered during WHD investigations. The proposal noted that
the two agencies would apply identical standards, and would coordinate
their activities in this area. It also proposed conforming changes to
other sections to
[[Page 6945]]
reflect this new debarment authority, with minor clarifying changes.
The Department received many comments regarding these standards.
These comments and the Department's responses are explained above in
the section of this preamble discussing OFLC's debarment authority. In
addition, the reference to res judicata in this provision has been
deleted because the Department believed it was unnecessary. Otherwise,
the Department retains the WHD debarment authority as proposed.
17. Section 501.21 Failure To Cooperate With Investigations
The NPRM proposed to expand this section to include remedies for
failure to cooperate with a WHD investigation, and to add debarment to
the list of potential remedies for such failure. No comments were
received addressing this section. Therefore, the Final Rule adopts the
changes as proposed.
18. Section 501.22 Civil Money Penalties--payment and collection
No comments were received on this provision, however; the Final
Rule contains several clarifying edits.
19. Sections 501.30-501.47
The NPRM proposed few changes to the administrative proceedings set
forth in Sec. Sec. 501.30-.47 of the 2008 Final Rule. Because the NPRM
proposed to authorize the WHD to pursue debarment proceedings, the NPRM
added references to debarment in Sec. Sec. 501.30, 501.31, 501.32(a),
and 501.41(d). These sections of the proposal also specified that these
procedures will govern any hearing on an increase in the amount of a
surety bond. They also replaced 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.
The Department proposed to modify Sec. 501.33 to permit hearing
requests to be filed by overnight delivery, as well as by certified
mail, and to reiterate that surety bonds must remain in force
throughout any stay pending appeal. The Department also proposed to add
a new Sec. 501.34(b), in order to conform H-2A procedures to those
used in the H-1B program. The new provision provides discretion to an
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. Other than very minor editorial changes or corrections of
typographical errors, the NPRM proposed no other changes to Sec. Sec.
501.30-501.47. The Final Rule adopts the provisions as proposed, with
minor changes relating to service so as not to preclude, for example,
electronic service.
As noted above, several commenters representing employers generally
objected to the breadth of the proposed new remedies, seeking
reassurance that the Department would not seek compensatory damages for
non-economic injuries such as pain and suffering, or other civil
damages of the type available in Federal or State courts. These
concerns are unfounded. The Department intended that the term monetary
relief as used in this section be limited to its traditional meaning:
for example, reimbursement of monies illegally demanded or withheld, or
reimbursement of the cash value of insurance benefits, housing,
transportation, subsistence or other payments which the employer was
required to provide (but failed to do so), in addition to the recovery
of back wages where appropriate. Nothing in the regulations allows for
the recovery of pain and suffering or other civil or punitive damages
for individual workers in addition to actual damages and equitable
relief.
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 to review by the Office of Management and
Budget (OMB). Section 3(f) of the E.O. defines an economically
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 Final Rule is significant,
but not an economically significant regulatory action under sec.
3(f)(1) of E.O. 12866. The timeframes and procedures for fixed-site
agricultural employers, H-2ALCs, or associations 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 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. This regulation
would not adversely affect the economy or any sector thereof,
productivity, competition, jobs, the environment, or public health or
safety in a material way. In fact, this Final Rule is intended to
provide agricultural employers with clear and consistent guidance on
the requirements for participation in the H-2A temporary agricultural
worker program. The Department, however, has determined that this Final
Rule is a significant regulatory action under sec. 3(f)(4) of the E.O.
and, accordingly, OMB has reviewed this Final Rule.
1. Need for Regulation
The Department has significant concerns with the 2008 Final Rule
that necessitate new rulemaking. First, the Department has determined
that there were insufficient worker protections in the attestation-
based model of the 2008 Final Rule in which employers do not actually
demonstrate that they have performed an adequate test of the U.S. labor
market. It has come to the Department's attention that some employers,
due to a lack of understanding or for other reasons, were attesting to
compliance with program obligations with which they had not complied.
The Department is accordingly concerned about the use of attestations
to demonstrate program compliance.
The Department is amending its regulations through the changes
discussed in the sections below with the primary purpose of adequately
protecting U.S. and foreign H-2A workers. The Department took into
account both the regulations promulgated in 1987, as well as the
substantive re-working of the regulations in the 2008 Final Rule to
arrive at a Final 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 an understandable regulatory roadmap; it has been used when
its provisions do not conflict with the policies in this Final Rule. To
the extent the 2008 Final Rule presents a conflict with the policies
underpinning this Final Rule, it
[[Page 6946]]
has been rewritten or the provisions of the 1987 Rule have been
adopted. To the extent the 1987 Rule advances the policies underlying
this Final Rule, those provisions have been retained. These changes are
pointed out above.
2. Alternatives
The Department has considered three alternatives: (1) to make the
policy changes contained in this Final Rule; (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 Final Rule--represents retention of the best
features of both the 1987 Rule and 2008 Final Rule. The Department has
chosen not to retain the 2008 Final Rule for the reasons mentioned
above. It has also rejected reversion to the 1987 Rule as inefficient
and ineffective, given societal and economic changes that have occurred
since its promulgation.
3. Economic Analysis
The economic analysis presented below covers the following industry
sectors: Crop production; animal production; activities for
agriculture; logging; and fishing, hunting, and trapping. Many
commenters indicated that because of their uniqueness, reforestation
and pine straw activities should not be added to the H-2A Program. The
Department has agreed with these concerns and is not including these
activities in this Final Rule. Reforestation and pine straw activities
remain a part of the H-2B Program.
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.\13\
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\13\ Source: 2007 Census of Agriculture, United States
Department of Agriculture.
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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 Final Rule. The benefits and costs of the
provisions of this Final Rule are estimated with respect to the
baseline. Thus, costs and benefits that are statutory or that exist as
a result of the 2008 Final Rule are not considered as costs and
benefits of this Final Rule. We explain how the required actions of
workers, employers, government agencies, and other related entities are
linked to the expected benefits and costs of this Final Rule.\14\
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\14\ In response to comments, the Department includes the
calculations used in the estimates of costs and benefits in order to
increase the transparency of the analysis. The total cost and
benefit estimates presented in this analysis are subject to rounding
errors.
---------------------------------------------------------------------------
The Department has quantified and monetized the benefits and costs
of this Final Rule where feasible. Where we were unable to quantify
benefits and costs--for example, due to data limitations--we describe
them qualitatively. The analysis covers 10 years (2009 through 2018) to
ensure it captures all major benefits and costs.\15\
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\15\ For the purposes of the cost-benefit analysis, the 10-year
period starts on October 1, 2009.
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In addition, the Department provides a qualitative assessment of
transfer payments associated with the increased wages and protections
of U.S. workers. Transfer payments, as defined by OMB Circular A-4, are
payments from one group to another that do not affect total resources
available to society. Transfer payments are associated with a
distributional effect but do not result in additional costs or benefits
to society. When summarizing the benefits or costs of specific
provisions of this Final Rule, we present the 10-year averages to
estimate the typical annual effect or 10-year discounted totals to
estimate the present value of the overall effects.
The Department reviewed the public comments submitted in response
to the NPRM and made revisions where feasible in the economic analysis
of this Final Rule. The Department used projected H-2A participant
values in the NPRM because FY 2009 was not yet complete. The economic
analysis of this Final Rule, however, uses the actual participant
values for the full FY 2009. The Department also removed reforestation
and pine straw employers and workers from the analysis. For many of the
impacts included, these modifications caused a relative decrease in
magnitude from the NPRM to this Final Rule.
Additional revisions to this Final Rule relative to the NPRM are
the inclusion of costs to employers for paying visa and border crossing
fees for H-2A workers, costs related to the new requirement that
employers disclose the terms and conditions of the employment no later
than the time an H-2A worker applies for a visa, and costs related to
the requirement that employers provide a copy of revised contracts to
affected workers where the employer applies for an extension of the
certification. The Department also made several changes to impacts
already included in the NPRM, including revising the documentation
retention requirement and the assumption related to the time required
by employers to review the new rule. Finally, the Department includes
transfer estimates related to the larger bonding requirement for large
H-2ALCs.
4. Subject-by-Subject Analysis
The Department's analysis below considers the expected impacts of
the following provisions of this Final Rule against the baseline (i.e.,
the 2008 Final Rule): the new methodology for estimating the AEWR, an
enhanced U.S. worker referral period for employers after certification,
the increased costs to the Department for developing and maintaining an
electronic job registry, changes in administrative burdens placed on
SWAs by increased timeframes for recruitment, changes in administrative
benefits resulting from eliminating employment verification
requirements, enhanced worker protections resulting from compliance
certification, enhanced coverage of expenses for transportation to and
from the place from which the worker departed to work for the employer,
coverage of visa/border crossing expenses, changes in the requirements
for contract revisions and the disclosure of terms and conditions, and
changes in the requirement for housing inspections. For each of these
subjects, the relevant costs and benefits are discussed, as well as
transfer payments that may apply.\16\
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\16\ For the purpose of this analysis, H-2A workers are
considered temporary residents of the U.S.
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The Department's analysis below does not consider impacts
associated with activities not required by this Final Rule or
provisions that are not changing between the 2008 Final Rule and this
Final Rule. For instance, several commenters expressed concern about
the value of the requirement in the NPRM that H-2A employers retain the
recruitment report and supporting documentation and other records for 5
years rather than 3 years. The Department concurs with this concern.
This Final Rule, similar to the 2008 Final Rule, requires that
employers maintain a complete recruitment report and all supporting
documentation for 3 years. Because this requirement is not a change
from the 2008 Final Rule, there is no additional cost associated with
the provision, and the Department does not consider it in this
analysis.\17\
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\17\ The NPRM included the assumption that employers require 1
hour to review the new rule. The Department, in response to public
comments, increased the estimate for this requirement to 2 hours.
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a. New Methodology for Estimating the AEWR
The Department has determined that the wages of agricultural
workers have been adversely impacted to a far greater
[[Page 6947]]
extent than anticipated by the 2008 Final Rule. As discussed further
below, the change in the calculation of the AEWR from the method used
under the 1987 Rule to a method based on local prevailing wages under
the 2008 Final Rule resulted in a reduction of farm worker wages in
many labor categories and an increase in only a few others.
The 2008 Final Rule based the estimation of the AEWR on data from
the OES Wage Survey collected by BLS. This Final Rule changes the
methodology for estimating the AEWR, basing it instead on data from the
USDA survey. The change to the OES method of computing the AEWR
resulted in a decline in the average certified wage for H-2A workers to
$8.02 per hour. This wage calculated under the 2008 Final Rule was 11.2
percent lower than the $9.04 average wage for FY 2009 applications
received before January 19, 2009 and processed under the 1987 Rule, and
it was 10.8 percent lower than the $9.00 average wage rate for FY 2008
applications, all processed under the 1987 Rule.
The 2008 Final Rule based the estimation of the AEWR on the OES
Wage Survey collected by BLS, whereas the basis for the AEWR under the
1987 Rule was data compiled by the USDA NASS. This Final Rule changes
the methodology for estimating the AEWR to the USDA survey. As
explained above, the wage survey methodology in this Final Rule is
associated with a nationwide average wage rate that is $1.02 higher
than that under the 2008 Final Rule. That is, a nationwide average H-2A
wage rate of $9.04 as opposed to $8.02.
i. Transfers
The principal transfers of the higher wages are from H-2A workers
to U.S. citizens and from U.S. employers to both H-2A workers and U.S.
citizens.
A transfer from H-2A workers to U.S. citizens arises because, as
labor market research indicates, as agricultural wages for U.S. workers
increase, a larger number of U.S. workers may be attracted to work in
the agricultural labor force. While some of these workers may be drawn
from work in other industries, some of these workers would otherwise
remain unemployed or out of the labor force entirely, earning no
salary. The increase in labor supply resulting from higher wages is
captured by the so-called wage elasticity of the U.S. agricultural
labor supply. A recent study found that this elasticity is 0.43; for
each 1 percent increase in wages, there is a 0.43 percent increase in
the labor supply of U.S. agricultural workers. Another study estimated
a labor supply elasticity of 0.36.\18\ Although the increase in wages
for documented workers in agriculture will lead to complex labor market
dynamics which involve both labor supply and demand and which are
difficult to quantify, the Department believes that the net effect of
the expected increase in wages as a result of this Final Rule will be
more U.S. workers employed in agriculture.
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\18\ 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,
and Duffield, J.A. and R. Coltrane, 1992, ``Testing for
Disequilibrium in the Hired Farm Labor Market,'' American Journal of
Agricultural Economics, 74: 412-20. The Department includes these
elasticity estimates for reference. They are not used in the
analysis.
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The higher wages for workers associated with the new methodology
for estimating the AEWR is beneficial to U.S. workers, improving their
ability to meet costs of living and to spend money in their local
communities.\19\ These are important concerns to the current
Administration and a key aspect of the Department's mandate to ensure
that the wages and working conditions of similarly employed U.S.
workers are not adversely affected. The increase in the wage rates for
some workers represents a transfer from agricultural employers to their
workers, both H-2A and corresponding U.S. workers.
---------------------------------------------------------------------------
\19\ An additional transfer noted by a commenter is increased
remittances to the worker's home country. Due to data limitations,
however, the Department does not address this issue quantitatively.
---------------------------------------------------------------------------
The Department received comments focusing on the spending patterns
with respect to the transfers, noting that since the money received by
H-2A workers eventually leaves the U.S., it results in a transfer from
the U.S. economy to foreign economies. The ultimate destination of the
funds, which cannot be assessed with any certainty, is not relevant to
this analysis. E.O. 12866 does not require that consumption patterns of
recipients of transfers be considered in the cost analysis.
There may be a transfer of costs from government entities to
employers as a result of lower expenditures on unemployment insurance
benefit claims. 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 precision. Difficulty in calculating these
transfer payment arises from uncertainty about the actual entries of H-
2A workers, the 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 or collectively bargained wages,
rather than the application of the OES or USDA FLS to the calculation
of the AEWR.
Several commenters noted that, in rare instances, the prevailing
wage rate increases above the AEWR mid-season due to market forces. In
the Department's experience, prevailing wage increases occur rarely. In
FY 2009, for instance, the AEWR was not applicable in only 10 percent
of the cases certified before the implementation of the 2008 Final
Rule. In addition, some states do not perform prevailing wage surveys,
so the Department cannot determine the magnitude of the difference
between the prevailing wage and the AEWR for those States. Due to these
data limitations, the Department is not able to estimate the frequency
that the prevailing wage increases beyond the AEWR, the duration for
which the difference exists, or the magnitude of the difference and,
thus, the Department does not quantify the transfer resulting from such
increases.
Other commenters noted that in some instances, the presence of
Collective Bargaining Agreements (CBAs) is associated with wages above
the AEWR. Agricultural employers who are parties to a CBA would be
required by the CBA to pay the collectively-bargained wage rate (unless
it was lower than one of the alternative wage rates). The requirement
in this Final Rule that employers pay the collectively bargained wage
rate when it is the highest alternative only codifies what the
Department understands to be required by the labor contract. Therefore,
this provision does not in itself represent an additional burden to
employers.
ii. Costs
In standard economic models of labor supply and demand, an increase
in the wage rate is an increased production cost to employers, and it
will lead to a reduction in the demand for agricultural labor. Because
production costs increase with an increase in the wage rate, there is a
resulting loss in profits for agricultural employers. In addition,
workers who would have been hired at a lower wage rate are not hired at
the higher wage rate, resulting in forgone earnings for workers. The
loss in profits for agricultural employers and the
[[Page 6948]]
forgone earnings combine to form what is known as ``deadweight loss''
because it is lost to society. In order to estimate this lost benefit,
we would need to calculate the estimated reduction in employment,
assuming an elastic labor demand. The elasticity of labor demand
measures the extent to which employers respond to an increase in wages
by lowering employment. Using standard estimates of the elasticity of
labor demand, the deadweight loss is not projected to be large.\20\
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\20\ Many commenters on the NPRM mentioned the effect of the
proposed rule on food prices. The effect on food prices is
incorporated in this calculation through the demand curve which
fully summarizes the employer's optimization problem--including
prices in the product market.
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b. Coverage of Visa/Border Crossing Expenses
Under this Final Rule, the employer must pay the visa and border
crossing fees of the H-2A workers they employ. As the Department
recognized in the preamble to the 2008 Final Rule, requiring employers
to bear the full cost of their decision to import foreign workers is a
necessary step toward preventing the exploitation of foreign workers,
with its concomitant adverse effect on U.S. workers. Government-
mandated fees such as visa application, border crossing, and visa fees
are integral to the employer's choice to use the H-2A program to bring
temporary foreign workers in the country.
Transfers
The reimbursement of visa application and border crossing fees by
employers is a transfer from employers to H-2A workers. Each H-2A
worker must pay a visa application fee of $131.00 and a reciprocity fee
based on their country of origin. To be conservative in its estimate of
costs to U.S. employers, the Department used the maximum reciprocity
fee of $100,000 to obtain a total cost per H-2A worker of $231.00
($131.00 + $100.00).
c. Enhanced U.S. Worker Referral Period
Although the recruitment requirements of employers will not change
substantively, this Final Rule increases the amount of time that
employers must accept referrals for temporary agricultural
opportunities from qualified U.S. workers. Specifically, this Final
Rule requires that SWAs extend their job advertising efforts on behalf
of employers so as 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.
i. Costs
The extension of the referral period in this Final Rule will result
in increased SWA staff time required 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 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.\21\
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\21\ Between July 1, 2007 and June 30, 2008, there were 70,722
U.S. migrant seasonal farm worker referrals, or 194 (70,722/365)
referrals per day. The Department scales up this value by the growth
of the total number of H-2A applications across the analysis period
to estimate the number of referrals per day in each year. The
Department multiplies the number of referrals per day (194) by the
extension of the recruitment period (86 days) to obtain a total of
16,566 (194 x 86) extra referrals in 2009. We assume that a State
employee with a job title of ``Compensation, Benefits, and Job
Analysis Specialists'' conducts this activity. The median hourly
wage for this occupation is $21.69, which we scaled up by a factor
of 1.52 to account for employee benefits (source: Bureau of Labor
Statistics), resulting in a total hourly labor cost of $32.97
($21.69 x 1.52). The Department then multiplies the total number of
extra referrals by the SWA staff time to place a job order, and the
hourly compensation of an SWA staff member. The Department assumes
that it takes SWA staff 30 additional minutes (0.5 hours) per
application to maintain a job order. These assumptions result in a
total cost of $273,087 (16,566 x 0.5 x $32.97) in 2009. The
Department then repeats this calculation for each year of the
analysis period and then averages the costs to obtain an average
annual cost of $351,096.
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The Department recognizes that the requirement that employers
accept referrals for a longer time will likely lead to additional
referrals and, therefore, additional costs to employers. However, the
Department does not 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.
The expansion of DOL oversight of the H-2A program will result in
increased time dedicated by 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 $0.5 million.\22\
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\22\ 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 ($31.34) was multiplied by an index
of 1.69 to account for Federal government 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 OFLC.
The Department multiplies this hourly labor cost by the cumulative
number of new applications received in 2009 (2,717) to obtain a
total cost of $143,887 ($52.96 x 1 x 2,717) in 2009. The Department
repeats this calculation in each year of the analysis, using the
number of new applications projected to be received in each year,
and averages the results to obtain an average annual cost of
$469,737.
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ii. Transfers
As more U.S. workers are hired as a result of this Final Rule,
those workers who were previously unemployed will no longer make claims
for new or continued unemployment insurance benefits.\23\ Other things
constant, we expect the States to experience a reduction in
unemployment insurance expenditures as a consequence of U.S. workers
being hired. However, the Department is not able to quantify these
transfer payments due to a lack of adequate data.
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\23\ Similarly, when U.S. workers shift from other industries to
fill agricultural jobs, additional workers from the pool of the
unemployed will inevitably fill the vacant positions.
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d. New Electronic Job Registry
Under this Final Rule, 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.
i. Benefits
The job registry will improve the visibility of agricultural jobs
to U.S. workers. Thus, the job registry represents a benefit to society
by expanding the period during 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 stakeholders.
Transferring these agricultural job orders (Form ETA-790 and
attachments) into electronic records for the job registry will
eliminate
[[Page 6949]]
unnecessary paper records currently maintained by the CO and result in
a better and more complete record of H-2A labor certification
petitions. Finally, because Form ETA-790 and attachments are among the
documents most commonly requested 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.
ii. Costs
The establishment of an electronic job registry in this Final Rule
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.\24\
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\24\ The Department assumes first-year development, testing, and
implementation staff time and labor categories as follows: 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. The
Department multiplies the assumed number of hours by the appropriate
labor rates to obtain a first-year cost of $1,261,554 and a cost in
subsequent years of $464,341. The Department averages the costs over
the 10-year analysis period to obtain an average annual cost of
$544,063.
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e. Reduced SWA Administrative Burden By Eliminating Employment
Verification
Under this Final Rule, SWAs 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. However, there will be
additional costs to employers as they resume the function of their own
employment eligibility verification.
i. 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.\25\ Under this Final
Rule, 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.\26\ The
Department estimates average annual avoided costs of employment
eligibility verification activities to be $ 0.03 million.
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\25\ The cost estimate assumes the use of the Form I-9 rather
than the E-Verify system. The most recent count indicates that
relatively few SWAs are using E-Verify.
\26\ 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, to obtain a total of
13 minutes of labor per application. The Department then divides
this result by 60 to approximate the fraction of an hour (0.22)
required to process each application. The Department assumes this
work would be done by a SWA Compensation, Benefits, and Job Analysis
Specialist at an hourly rate of $32.97 ($21.69 multiplied by 1.52 to
account for employee benefits). For 2009, the Department then takes
the total number of U.S. migrant seasonal farm worker (MSFW)
referrals between July 1, 2007 and June 30, 2008 (70,722) and
multiplies this total by the percentage of MSFWs that did not refer
themselves (10 percent) and by the percentage of MSFW referrals that
were H-2A jobs (67 percent) to obtain an annual total of 4,715
referrals (70,722 x 0.10 x 0.67). The Department then multiplies
this annual number of referrals by the fraction of an hour required
to process each application and by the hourly wage rate to obtain a
total avoided cost in 2009 of $33,679 (4,715 x 0.22 x $32.97). The
Department then repeats this calculation for each year of the
analysis period and averages the results to obtain an average annual
avoided cost of $33,679.
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Under the 2008 Final Rule, after the adjudication of employment
eligibility, SWAs issue certifications for eligible workers. Under this
Final Rule, SWAs will no longer be required to issue such
certifications. The avoided costs include the value of staff time to
prepare and print the certification form, as well as the costs of
paper, envelopes, and postage. The Department estimates annual avoided
costs of certification issuance to be $0.02 million.\27\
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\27\ 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 (4,715 in 2009, as calculated
above) by the time required to print the form (5 minutes or 0.08
hours) and the hourly labor compensation of an SWA Compensation,
Benefits, and Job Analysis Specialist ($21.69) scaled by 1.52 to
account for employee benefits ($32.97). This results in total labor
costs of $12,954 (4,715 x 0.08 x $32.97) in 2009. The Department
then adds to this cost the materials 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 $0.44, respectively. This
calculation results in total materials cost of $2,358 (4,715 x
($0.02 + $0.04 + $0.44). Summing the labor and materials costs
results in a total avoided cost of $15,311 for 2009. The Department
repeats this calculation for each year of the analysis period to
obtain an average annual avoided cost of $15,311.
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SWAs are also required to retain records for the employment
eligibility decisions. Under this Final Rule, SWAs will no longer be
required to retain the records. The avoided costs include the value of
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.\28\
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\28\ The Department estimates the cost of staff time by
multiplying the total number of H-2A workers requested (4,715 in
2009, as calculated above) by the time required to copy, organize,
and store all relevant documents (5 minutes or 0.08 hours) and the
hourly labor compensation of an SWA Compensation, Benefits, and Job
Analysis Specialist ($21.69) scaled by 1.52 to account for employee
benefits (for a total hourly labor cost of $32.97). This results in
a total labor cost for 2009 of $12,954 (4,715 x 0.08 x $32.97). The
Department then adds to this labor cost the materials cost per
record by multiplying the total number of H-2A workers requested
(4,715) by the cost per record, assuming the number of sheets
photocopied is 5 and cost per photocopy is $0.12. This calculation
results in total materials cost of $2,829 (4,715 x (5 x $0.12)).
Summing the labor and materials costs results in a total avoided
cost of $15,782 for 2009. The Department repeated this calculation
for each year of the analysis period to obtain an average annual
avoided cost of $15,782.
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The employment eligibility verification activities currently in
place require the training of SWA to properly complete the process.
Under this Final Rule, SWAs will no longer incur the costs of this
training. These costs include the value of 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.\29\
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\29\ 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 ($32.97
as calculated above). This calculation results in a total avoided
cost of training courses of $354,876 in 2009 (1,794 x 2 x 3 x
$32.97). 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 (1,794/5)) by the length of training
(3 hours) and the hourly labor compensation of an SWA Compensation,
Benefits, and Job Analysis Specialist ($32.97). This calculation
results in a total avoided cost of trainer workload of $35,488 in
2009 (359 x 3 x $32.97). 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). This calculation results in a total avoided cost of
producing training manuals of $12,917 in 2009 (1,794 x 2 x 30 x
$0.12). The Department sums these costs to obtain a total avoided
training cost of $403,281 ($354,876 + $35,488 + $12,917) in 2009.
The Department repeated this calculation for each year of the
analysis period to obtain a total average avoided cost of $403,281.
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[[Page 6950]]
ii. Costs
Costs associated with retention of documentation and application
fees exist as a result of the 2008 Final Rule and, therefore, are not
considered in this analysis. The Department acknowledges that employers
will experience increased costs related to employment eligibility
verification for referred employees who will no longer need to be
verified by SWAs under this Final Rule. The cost to employers is,
however, not equivalent to the cost representing the benefit to SWAs,
as employers are not required to also complete the certification
required of SWAs.
f. Enhancing Worker Protections Through Compliance Certification
The 2008 Final Rule used an attestation-based model: Employers
conducted the required recruitment in advance of application filing
and, based upon the results of that effort, applied for certification
from the Department for a number of foreign workers to fill openings.
That is, under the 2008 Final Rule, employers attested that they had
undertaken the necessary activities and made the required assurances to
workers. In contrast, under the 1987 Rule, such actual efforts or
documentation were 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. As a result, this
Final Rule mandates a fully-supervised labor market test and requires
the submission of documentation, such as workers' compensation, housing
certification issued by the SWA, and proof of registration and surety
bond for H-2ALCs.
i. Costs
The certification of compliance will impose some costs on 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. Employers are already required by the 2008 Final Rule to
obtain and retain these documents, and this Final Rule 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 of
this requirement 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 this Final 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 DOL.\30\ This calculation yields an
average annual cost to employers of $0.6 million.\31\
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\30\ The Department received 8,150 applications in 2009 and
projects the annual number of applications to increase to 22,601 by
2018. To estimate the materials cost, the Department estimates that
150 additional pages will need to be photocopied at a cost of $0.12
per photocopy. These assumptions result in a cost of $146,700 in
2009 (8,150 x 150 x $0.12) for photocopying. 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). These
assumptions result in a cost of $6,520 (8,150 x $0.80) for mailing
applications in 2009. Summing the photocopying and mailing costs
results in a total materials cost of $153,220 in 2009.
\31\ The Department received 8,150 applications in 2009 and
projects the annual number of applications to increase to 22,601 by
2018, of which approximately 2,717 and 2,421 of the applications
submitted in 2009 and 2018, respectively, would not have been
previously submitted. The Department estimates that this work would
be performed by a human resources manager at an agricultural firm at
an hourly rate of $42.15 (as published by the Department's OES
Survey, O*Net Online), which we multiplied by 1.43 to account for
employee benefits (source: BLS) to obtain a total hourly wage rate
of $60.27. 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 (0.5 hours) per application. These
assumptions result in a total labor cost of $81,873 in 2009 (2,717 x
0.05 x $60.27) for applications that would not have been previously
submitted. For applications that would have been previously
submitted under the H-2A program, the Department assumes there will
be a 20-minute (0.33 hours) increase in staff time using the
certification application process. The Department determined the
number of applications that would have been previously submitted
(5,433) by subtracting the number of new applications that would not
have been previously submitted (2,717) from the total number of
applications received in 2009 (8,150). These assumptions result in a
total labor cost of $109,164 in 2009 (5,433 x 0.33 x $60.27) for
applications that would not have been previously submitted. Summing
the labor and materials costs for 2009 results in a total cost of
$344,257 ($81,873 + 109,164 + 153,220). Using the projected number
of applications, the Department repeats this calculation for each
year of the analysis period to obtain an average annual cost of
$573,481.
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ii. Transfers
The Department maintains its requirement that an H-2ALC post a
surety bond to demonstrate its ability to meet its financial
obligations to its employees.\32\ In addition to the bond amounts
specified in the 2008 Final Rule, the Department is adding larger
bonding requirements applicable to H-2ALCs with larger crews. Under the
2008 Final Rule, H-2ALCs seeking to employ 50 or more workers are
required to obtain a surety bond of $20,000. Under this Final Rule, 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 are required to obtain a surety bond in the amount of
$75,000. The Department estimates average annual transfers due to
increased surety bond requirements to be approximately $0.03
million.\33\
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\32\ Some States (e.g., California) already have existing surety
bond requirements for FLCs.
\33\ The Department assumes that 4 percent and 2 percent of H-
2ALCs hire 75-99 workers and 100 or more workers, respectively. The
Department also assumes that the surety bond premium is
approximately 1.5 percent of the total bond amount. To calculate the
increased cost to H-2ALCs that hire 75-99 workers, the Department
multiplies the number of FLCs participating in the H-2A program
(594) by the percent of H-2ALCs that hire 75-99 workers (4 percent),
the increase in bond size required ($30,000), and the bond premium
as a percent of the total bond value (1.5) to obtain a total of
$10,699 in 2009. To calculate the increased cost to H-2ALCs that
hire 100 or more workers, the Department multiplies the number of
FLCs participating in the H-2A program (594) by the percent of H-
2ALCs that hire 100 or more workers (2 percent), the increase in
bond size required ($55,000), and the bond premium as a percent of
the total bond value (1.5 percent) to obtain a total of $9,807 in
2009. The Department then sums these two values to obtain a total
value of the transfer of $20,506 ($10,699 + $9,807) in 2009. The
Department repeats this calculation for each year of the analysis to
obtain an average value of the transfer of $26,338.
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[[Page 6951]]
g. Contract Revisions and the Disclosure of Terms and Conditions
This Final Rule requires that employers disclose the terms and
conditions of the employment no later than the time an H-2A worker
applies for a visa in the foreign country rather than by the first day
of employment. This modification to the 2008 Final Rule requires that
employers mail the terms and conditions document to workers instead of
delivering the document to workers by hand once they arrive at the work
site. The Department estimates average annual costs of mailing terms
and conditions disclosures to be approximately $0.2 million.\34\
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\34\ The Department assumes that 50 percent of employers use
foreign recruiters, which means that terms and conditions for all
recruited workers can be sent directly to the recruiter who then
disseminates the terms and conditions to workers. To estimate the
cost for this population in 2009, the Department divides the total
number of H-2A workers certified in 2009 (99,472) by the average
number of workers per employer application (12) and then multiplies
this value by 50 percent to obtain a total of 4,145 packages send to
recruiters. This value is then multiplied by the cost of shipping a
package to Mexico via the U.S. Postal Service ($9.60) to obtain a
total cost of $39,789 for mailing terms and conditions to foreign
recruiters. To estimate this cost for employers that do not use
foreign recruiters in 2009, the Department multiplies the total
number of H-2A workers certified in 2009 (99,472) by the percent of
employers who do not use foreign recruiters (50 percent) and the
cost of shipping a mailer to Mexico via the U.S. Postal Service
($1.59) for a total cost in 2009 of $79,080. The Department then
sums these two costs to obtain a total cost in 2009 of $118,869
($39,789 + $79,080). The Department then repeats this calculation
for each year of the analysis period, using the projected number of
H-2A workers certified each year, to obtain an average annual cost
of $172,200.
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This Final Rule requires employers to provide a copy of a revised
contract to affected workers when the employer applies for an extension
of the H-2A certification. This occurs in situations in which employers
are required to adjust their labor schedules due to unforeseen events,
such as bad weather. The Department estimates average annual costs of
contract revisions to be approximately $0.02 million.\35\
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\35\ To estimate the cost of photocopying the revised ETA-790
for each worker in 2009, the Department multiples the total number
of H-2A workers certified (99,472), the number of pages in the ETA-
790 (1 page), and the cost per photocopy ($0.12) to obtain a total
cost in 2009 of $11,937. The Department repeats this calculation
each year to obtain an average annual cost of $17,292.
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h. Changes in the Requirement for Housing Inspections
This Final 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 regulations remain 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 this Final Rule, when an employer places a 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
Final Rule 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.\36\
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\36\ The Department notes that such inspection is mandated by
other regulations governing the agricultural clearance process.
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.
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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 timeframe 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 use 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, to allow SWAs to schedule and conduct pre-occupancy
housing inspections in a timely manner and to minimize disruptions to
the process of obtaining labor certification, petitioning for workers
at USCIS, obtaining visas through the U.S. consulate, and bringing
foreign workers to the worksite by the certified date of need.
The Department examined program activity data for FY 2007 and FY
2008 to determine if this Final Rule's requirement of completion of a
pre-occupancy housing inspection prior to temporary certification would
have a significant negative impact on employers. For employer
applications certified in FY 2007 and FY 2008, the Department issued
determinations an average of 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 USCIS or the 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 FY 2008 beyond the
statutory 30 days timeframe such that the issuance of the determination
would have negatively affected the employer's ability to obtain foreign
workers by the certified start date of need. To do this, the Department
assumed that, following issuance of the temporary labor certification,
generally employers would receive the labor certification within 2
days, file an I-129 petition for non-premium processing and receive
approval from USCIS within 5 business days, file appropriate
applications with DOS and obtain visas within 5 days, and transport
foreign workers 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 business 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, 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,
approximately 6 percent were issued by the Department less than 15 days
before the certified start date of need, thus having a potential
adverse impact. For FY 2008, 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, approximately 5.4 percent were issued
[[Page 6952]]
by the Department less than 15 days before the certified start date of
need. Some proportion of these resulted from delays in the housing
inspection, but the Department cannot identify how many were delayed
for this reason alone apart from those delayed for other reasons (for
example, a failure of the employer to provide the Department with
evidence of the coverage of workers by workers' compensation). The
Department's program experience has demonstrated that the new
requirement for a pre-occupancy housing inspection prior to 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. The Department believes
such costs will be minimal.
i. 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, defined as the appropriate U.S. consulate or port of
entry. Under this Final Rule, the Department no longer limits the
definition of the place of recruitment to the appropriate U.S.
consulate or port of entry but rather reverts to the standard in place
under the 1987 Rule. The employer is required to pay the costs of
transportation from the worker's place of recruitment to and from the
place of employment. The Department estimates average annual costs of
these additional transportation expenditures to be approximately $9.1
million.\37\
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\37\ The Department estimates the cost of this requirement in
2009 by multiplying the total number of H-2A workers certified in
2009 (99,472) by the cost of bus fare from the worker's place of
recruitment to the consulate and back. The Department multiplies by
two the 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). These assumptions result in a total cost for
this requirement in 2009 of $6,266,736 (99,472 x $31.50 x 2). The
Department repeats this calculation, using the projected number of
H-2A workers, for each year of the analysis period to obtain an
average annual cost of $9,078,346 for this requirement.
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j. Other
During the first year that this Final Rule would be in effect, all
employers would need to learn about the new application process and how
compliance will be judged. We estimate the cost of this process by
multiplying the number of applications submitted by employers by the
time required to read the new Final Rule and any educational and
outreach materials that explain the H-2A application process under this
Final Rule by the average compensation of a human resources manager at
an agricultural business. The Department estimates this one-time cost
to employers at $1.0 million.\38\
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\38\ The Department estimates that employers will spend 2 hours
to read the new rule and outreach and educational materials
explaining the program. The Department assumes that this labor will
be performed by a human resources manager at an agricultural firm at
an hourly wage rate of $60.27, as calculated above. The Department
multiplies this hourly wage rate by 2 and by the total number of H-
2A applications received in 2009 (8,150) to obtain a total cost for
this requirement of $982,474 in 2009.
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This Final Rule 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-speaking 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.\39\ The Department then
multiplies the resulting value by the average number of pages per
contract and the cost per page for translation.\40\ The Department
estimates average annual costs of contract translation at $0.08
million.
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\39\ 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 multiplies
this percentage by the total number of H-2A applications certified
in 2009 (7,665) to obtain a total of 47 contracts needing to be
translated in 2009.
\40\ 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). The Department multiplies
the number of contracts needing to be translated in 2009 (47) by the
average number of pages per contract (50) and the cost per page for
translation to obtain a total cost of $45,720 in 2009. The
Department repeats this calculation for each year of the analysis
period using the projected number of H-2A applications certified to
obtain an average annual cost of $80,233 for this requirement.
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This Final Rule also requires that H-2ALCs submit photocopies of
contracts with fixed agricultural sites as well as the original 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. 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 $0.006
million.\41\ To estimate the cost of providing 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 $0.001 million.\42\
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\41\ The Department estimates that approximately 7 percent of H-
2A employers are foreign labor contractors. The Department
multiplies this percentage by the total number of H-2A applications
requested in 2009 (8,150) by the average number of pages in a
contract (50) and the cost per page for photocopying ($0.12) to
obtain a total cost in 2009 of $3,566. The Department repeated this
calculation for each year using the projected number of H-2A
applications requested to obtain an average annual cost of $6,258
for this requirement.
\42\ The Department estimates that the average number of pages
per surety bond is 5, and the cost per photocopy is $0.12. Using
these assumptions and the same assumptions as above for the number
of applications results in a total cost for this requirement of $357
(0.07 x 8,150 x 5 x $0.12) in 2009. The Department repeats this
calculation for each year using the projected number of H-2A
applications requested to obtain an average annual cost of $626 for
this requirement.
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To inform the public about this Final Rule, 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 $0.1 million.\43\
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\43\ 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 hour to
review and update educational materials, as appropriate. The hourly
salary for Department staff ($31.34) 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.
These assumptions result in a total labor cost of $8,474 ($52.96 x
160) for 2009 and $2,119 ($52.96 x 40) in subsequent years. To
estimate the materials cost of this requirement in 2009, the
Department used the total number of H-2A applications requested in
2009 (8,150) and multiplied it by the assumed percentage of
applicants that are small farms (98 percent) to obtain a total of
7,987 compliance guides needed. The Department then determines the
cost for photocopying by multiplying the average page length of a
compliance guide (100 pages) by the cost of $0.12 per page. The
Department then includes the cost of a clasp for a heavyweight
envelope ($0.12) and a cost of $4.95 per compliance guide for
postage. Multiplying these costs together results in a total
materials cost of $56,468 for this requirement in 2009. Summing the
labor and materials costs together results in a total cost of
$64,942 ($8,747 + $56,468) for this requirement in 2009. The
Department repeats this calculation for each year to obtain an
average annual cost of $101,849.
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Several commenters noted that H-2A employers would incur additional
costs associated with off-site interviews and
[[Page 6953]]
courier (overnight mail) services. The use of private off-site
interview space and courier services is not required by this Final
Rule. Therefore, any costs associated with such activities are not
considered in this analysis.
5. Summary of Cost-Benefit Analysis
Exhibit 1 presents a summary of the cost-benefit analysis of this
Final Rule. 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 Final
Rule--is $9.1 million across the 10-year time horizon, but the
individual yearly values range from $6.3 million in 2009 to $12.5
million in 2018. This increase in yearly costs is due to the changes in
program participation across the time horizon of the cost-benefit
analysis. The monetized costs exceed the monetized benefits both at a 7
percent and a 3 percent discount rate. The size of the net benefits,
the absolute difference between the projected benefits and costs, is
negative.
Exhibit 1--Summary of Monetized Benefits and Costs
------------------------------------------------------------------------
Monetized Monetized
benefits costs
Year ($millions/ ($millions/
year) year)
------------------------------------------------------------------------
1. 2009....................................... 0.47 9.52
2. 2010....................................... 0.47 8.34
3. 2011....................................... 0.47 9.03
4. 2012....................................... 0.47 9.77
5. 2013....................................... 0.47 10.58
6. 2014....................................... 0.47 11.46
7. 2015....................................... 0.47 12.41
8. 2016....................................... 0.47 13.45
9. 2017....................................... 0.47 14.58
10. 2018...................................... 0.47 15.80
=========================
Undiscounted total............................ 4.68 114.93
-------------------------
Total with 7 Percent discounting.............. 3.29 77.70
-------------------------
Total with 3 Percent discounting.............. 3.99 96.41
------------------------------------------------------------------------
Totals may not add because of rounding.
Due to lack of adequate data, 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.
The Department has concluded that after consideration of both the
quantitative and qualitative impacts of this Final Rule, the societal
benefits of the rule 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.
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.
2. Impact on Small Businesses
The Department has estimated the incremental costs for small
businesses from the 2008 Final Rule (the baseline) to this rule. We
have estimated the costs of the increased wages paid to H-2A workers,
reading and reviewing the new application and compliance processes, the
enhanced coverage of transportation expenses, coverage of visa and
border crossing expenses, the enhanced worker protections through
compliance certification, the changes in the requirement for housing
inspections, the enhanced U.S. worker referral period, the changes in
the requirements for contract revisions, and the disclosure of terms
and conditions. This analysis includes the incremental cost of this
rule as it adds to the requirements in the 2008 Final Rule. This
analysis does not include the baseline costs of the 2008 Final Rule,
such as the associated application fees and costs for record keeping,
because none of these requirements have changed from the 2008 Final
Rule.
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 22,601 applications (not necessarily applicants) to the
H-2A program. Even if all 22,601 applications are filed by unique small
farms, the percentage of small farms applying for temporary
agricultural worker certification will be only 1.2 percent of the total
number of small U.S. farms.\44\ Because the rule will impact less than
10 percent of the total number of small U.S. farms, the rule will not
have an impact on a substantial number of small entities as described
by the RFA.
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\44\ 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 1,878,971 farms.
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To examine the impact of this 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.\45\
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\45\ 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 $177,915 ($9.36 x
1,584 x 12). 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.
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a. Increased Wages Paid to H-2A Workers
As discussed earlier, the use of the USDA survey for the
determination of wages as opposed to the BLS OES Wage Survey, which was
used in the 2008 Final Rule, results in an increase of $1.02 in hourly
wages paid to H-2A workers. The Department multiplies this hourly wage
increase by 8 hours to obtain a daily cost of the increase in wages of
$8.16 ($1.02 x 8). The
[[Page 6954]]
Department then multiplies this daily labor cost by 198, which is the
average number of days worked by H-2A workers. This results in a total
cost of $1,615.68 ($8.16 x 198) per H-2A worker per year and an average
annual cost of $1,615.68 over the 10-year analysis period due to the
increase in wages. For employers hiring the average number (12) of H-2A
workers, this results in a total cost of $19,388.16 ($1,615.68 x 12)
per year due to the increase in wages, or an average annual cost of
$19,388.16 over the 10-year analysis period.
b. Reading and Reviewing the New Application and Compliance Processes
During the first year that this 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 rule by
the average compensation of a human resources manager at an
agricultural business. In the first year of the rule, the Department
estimates that the average small farm will spend approximately 2 hours
of staff time to read and review the new application and compliance
processes, which amounts to approximately $120.55 ($60.27 x 2) in labor
costs in the first year and an average annual cost of $12.06 ($120.55/
10) over the 10-year analysis period.\46\
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\46\ The Department estimates that employers will spend 2 hours
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: BLS for an hourly wage rate of $60.27.
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c. 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
appropriate U.S. consulate or port of entry. Under this Final Rule, the
employer is required to pay the costs of transportation from the
worker's place of recruitment to and from the place of employment. The
Department estimates that the average small farm would incur costs of
$63.00 ($31.50 x 2) per worker per year related to the enhanced
coverage of transportation expenses, or an average annual cost of
$63.00 per worker.\47\ For employers hiring the average number of
workers (12), this requirement results in an average annual cost of
$756.00 ($63.00 x 12).
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\47\ 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.
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d. Coverage of Visa/Border Crossing Expenses
Under this Final Rule, the employer must pay the visa and border
crossing fees of the H-2A workers they employ. Although this cost is a
transfer from U.S. employers to H-2A workers, this requirement
represents an increase in the cost of U.S. employers. Each H-2A worker
must pay a visa application fee of $131.00 and a reciprocity fee based
on their country of origin.\48\ To estimate the cost of the reciprocity
fee to employers, the Department researched the reciprocity fee for the
five top countries supplying H-2A workers. The reciprocity fees for
these countries ranged from $0 to $100.00, which is the reciprocity fee
for Mexico, the top source of H-2A workers.\49\ To be conservative in
its estimate of costs to U.S. employers, the Department used the
maximum reciprocity fee of $100.00 to obtain a total cost per worker of
$231.00 ($131.00 + $100.00). For employers hiring the average number of
workers (12), this requirement results in an average annual cost of
$2,772.00 ($231.00 x 12).
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\48\ Source: http://travel.state.gov/visa/temp/types/types_1263.html#temp.
\49\ Source: http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3272.html.
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e. 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 this 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 ($60.27 per hour, as
calculated above).
For small employers applying to the program for the first time, the
Department estimates that the application will take approximately one-
half hour (0.5 hours) more to complete. This results in additional
labor costs equal to $30.14 ($60.27 x 0.5). For applicants familiar
with the process, the Department estimates that the application will
require approximately 20 additional minutes (0.33 hours) to complete.
The result is additional labor costs of $20.09 ($60.27 x 0.33) 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.\50\ In total,
the Department estimates that the average small farm that is a new H-2A
applicant would incur an average annual cost of $48.94 ($30.14 +
$18.80), and the average small farm that is a previous H-2A applicant
would incur an average annual cost of $38.89 ($20.09 + $18.80).
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\50\ 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. These assumptions result in a
total materials cost of this requirement of $18.80 ((150 x $0.12) +
0.80).
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This rule 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.\51\ The Department estimates the average
small farm would incur average annual costs of contract translation of
$5.96 (0.6 percent x 50 x $19.50).
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\51\ 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).
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f. Changes in the Requirement for Housing Inspections
This Final 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 this
[[Page 6955]]
rule 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 rule 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 used 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.
g. Contract Revisions and the Disclosure of Terms and Conditions
This rule requires that employers disclose the terms and conditions
of the employment no later than the time an H-2A worker applies for a
visa in the foreign country rather than by the first day of employment.
As discussed above, this requires that employers mail the terms and
conditions documents to workers instead of delivering the document to
workers by hand once they arrive at the work site. To estimate the cost
of this requirement to a small entity, the Department uses the cost of
shipping a package to Mexico via the United States Postal Service
($9.60) for entities required to mail packages for the average number
(12) of H-2A workers. For the smallest of entities employing only one
H-2A worker, the Department assumed the cost of this requirement was
equal to the cost of shipping a mailer to Mexico via the United States
Postal Service ($1.59). The average annual cost of this requirement is
thus $9.60 for entities employing the average number of H-2A workers,
and $1.59 for the smallest of entities employing only one H-2A worker.
As discussed previously, this rule requires employers to provide a
copy of a revised contract to affected workers when the employer
applies for an extension of the H-2A certification. To determine the
cost to small entities, the Department multiplied the number of pages
in the Form ETA-790 (one page) and the cost per page for photocopying
($0.12) to obtain a total cost per affected entity of $0.12 ($0.12 x 1)
for Form ETA-790 revision. The average annual cost of this requirement
is thus $1.44 ($0.12 x 12) for entities employing the average number
(12) of H-2A workers and $0.12 for the smallest of entities employing
only one H-2A worker.
h. 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 provision 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 average annual costs
of $6.00 for the submission of contract photocopies (50 x $0.12) and
$0.60 (5 x $0.12) for the provision of the surety bond.\52\
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\52\ 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.
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i. Other Issues
The Department does not anticipate that the increased SWA activity
under this 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, above, 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 analysis is that the increased
SWA activity, which the Department believes is required by statute,
will not result in increased delays to employers.
Several commenters on the proposed rule noted that H-2A employers
would incur additional costs associated with off-site interviews and
courier services. As discussed above, the use of private off-site
interview space and courier services are not required by this Final
Rule and, therefore, do not constitute a cost to small entities.
3. Total Cost Burden for Small Entities
The Department's calculations indicate that the total average
annual cost of this rule is $22,994 for the average small entity
applying to the program for the first time and $22,984 for the average
small entity that has previous program familiarity.\53\
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\53\ For illustration, the total cost of $22,994 for the average
small entity applying to the program for the first time results from
summing the totals for the various rule requirements described above
as follows: $22,998 = $19,388.16 + $12.06 + $756.00 + $2,772.00 +
$48.94 + $5.96 + $9.60 + $1.44.
---------------------------------------------------------------------------
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 $1,968 for those that have previous program familiarity to
$1,978 for small entities new to the program.\54\
---------------------------------------------------------------------------
\54\ For illustration, the total cost of $1,968 for small
entities with previous program familiarity and employing only one
worker results from summing the totals for the various rule
requirements described above as follows: $1,968 = $1,615.68 + $12.06
+ $63.00 + $231.00 + $38.89 + $5.96 + $0.12 + $1.59.
---------------------------------------------------------------------------
For employers that are H-2ALCs, the Department estimates that the
total average annual cost of this rule is an additional $85 for the
average small entity applying to the program for the first time and an
additional $75 for the average small entity that has previous program
familiarity.\55\
---------------------------------------------------------------------------
\55\ For illustration, the total cost of $85 for the average
small H-2ALC applying to the program for the first time results from
summing the totals for the various rule requirements described above
as follows: $85 = $12.06 + $48.94 + $5.96 + $1.44 + $9.60 + $6.00 +
$0.60.
---------------------------------------------------------------------------
For the smallest H-2ALCs that would apply for only one worker
instead of the average of 12 workers, the Department estimates that the
total annual average cost of the rule ranges from an additional $65 for
those that have previous program familiarity and an additional $75 for
small entities new to the program.\56\
---------------------------------------------------------------------------
\56\ For illustration, the total cost of $65 for small H-2ALCs
with previous program familiarity and employing only one worker
results from summing the totals for the various rule requirements
described above as follows: $65 = $12.06 + $38.89 + $5.96 + $0.12 +
$1.59 + $6.00 + $0.60.
---------------------------------------------------------------------------
Due primarily to the increase in wages paid to H-2A workers, the
rule is expected to have a significant impact on affected small
entities. The affected small entities, however, represent approximately
1.2 percent of all small U.S. farms. Therefore, the Department believes
that this Final Rule is expected to have a net direct cost impact on a
very limited number of small agricultural employers, above and beyond
the baseline of the current costs required by the program as it is
currently implemented under the 2008 Final Rule.
4. Alternatives Considered as Options for Small Businesses
While we have concluded that this regulation will not have a
significant economic impact on a substantial number of small entities,
we have recognized the concerns expressed by small businesses and have
made every
[[Page 6956]]
effort to minimize the burden on all users. The Department's
responsibilities under the INA, however, severely constrain our ability
to make any adjustments to program requirements in an effort to address
concerns unique to small business. The Department's mandate under the
H-2A program is to set requirements for employers who wish to import
foreign agricultural workers. Those standards are designed to both
ensure that foreign worker are imported only if qualified domestic
workers are not available and that the importation of H-2A workers will
not adversely effect the wages and working conditions of similarly
employed domestic workers. These regulations set those minimum
standards. To create different and likely lower standards for one class
of employers, e.g., small business, would essentially sanction the very
adverse effect that the Department is compelled to prevent. The need
for parity among all employers is illuminated by the fact that Congress
within the INA carved out a specific dispensation for small businesses
in a specific area of the statute. Section 218 (c)(3)(B)(ii) of the INA
(8 U.S.C. 1188(c)(3)(B)(ii) exempts certain small businesses from the
application of the 50 percent rule. The suggestion from the small
business community that small farmers who file master applications with
other small farmers not lose their 50 percent exemption is specifically
precluded by Congress at 8 U.S.C. 1188(c)(3)(B)(ii)(II) & (III). Where
Congress has so clearly demonstrated its ability to modify H-2A program
requirements to accommodate small businesses, it would be
inappropriate, and outside of the Secretary's authority, for the
Department to carve out additional exceptions.
Commenters asked the Department to waive the surety bond
requirement for H-2ALCs without violations for 3-5 years. In the 2008
Final Rule, surety bond amounts were set at $5,000 for H-2ALCs seeking
certification to employ fewer than 25 employees, $10,000 for those
seeking certification to employ 25 to 49 employees, and $20,000 for H-
2ALCs wanting to hire 50 or more employees. However, assuming that an
H-2ALC with 50 employees pays approximately the same for a $20,000 bond
as an H-2ALC with 300 employees, the 2008 Final Rule framework
disproportionately advantages larger H-2ALCs while providing
diminishing levels of protection for the employees of such contractors.
Under the proposed rule, the first two bond amount tiers for the
smaller H-2ALCs remained unchanged ($5,000 for H-2ALCs who apply for
certification to employ fewer than 25 employees and $10,000 for those
H-2ALCs who are applying for certification to employ 25 to 49 workers).
The NPRM proposed to require H-2ALCs seeking certification to employ
from 50 to 74 workers to obtain a bond of $20,000. In addition, we
proposed to require H-2ALCs seeking certification to employ from 75 to
99 workers to obtain a surety bond of $50,000, and those seeking
certification to employ 100 or more workers to obtain a bond of
$75,000. The Department determined to retain the surety bond levels as
proposed in the NPRM. Waiver of the bond requirements is not feasible
and is inconsistent with the policy objective of the bonding
requirement--to reduce the potential for H-2ALCs with insufficient
capital to meet program obligations from receiving H-2A certifications.
A past pattern of performance with respect to payment of wages does not
equal the continuation of future funding to do so, and the point of the
bond is to ensure that H-2ALCs can each year meet wage obligations.
Several small business commenters asked the Department to exempt
small businesses who apply through a master job order from the
multistate recruitment requirement. Commenters from the small business
community also recommended that the Final Rule exempt all small
businesses from multistate recruitment requirement. After deliberation
on the statutory limitations imposed on and operational challenges of
such a distinction, the Department has determined that such exemptions
are not statutorily permitted and would, moreover, undermine our
statutory obligation to ensure access of U.S. workers to the jobs. We
were; therefore, unable to include the proposed exemptions.
The Department proposed a return to the small farm exemption from
the 50 percent rule, as implemented in the 1987 Rule. The regulation as
proposed, and this Final Rule, reflects that statute's exemption for
small business applicants. This exemption applies to small farms as
defined in the FLSA which are not members of an association or which
have not petitioned for foreign workers under a master application.
This exemption is not applicable in the case of an association filing a
master application because the association can assign any workers
referred under the 50 percent rule to member-employers who need
additional workers or who can more easily accommodate the referred
workers, thus minimizing or eliminating the burden on small farmers.
Most of the commenters further requested that the Department eliminate
the provisions limiting the application of the small farm exemption to
those small farms as described above. The Department cannot accommodate
this request. The exemption and its limitations are statutory, not
regulatory. See 8 U.S.C. 1188(c)(3)(B)(ii). In that provision, Congress
specifically excluded small employers who are members of associations
from the small-employer exemption to the 50 percent rule, on the basis
that associations have the ability to apportion referred workers among
employers where they may be needed. Therefore, the statute prevents the
Department from implementing this alternative.
Relatedly, a small business commenter recommended that the
Department expand the small farm exemption from the 50 percent rule to
businesses meeting the SBA small business test rather than only those
meeting the FLSA definition of small farm. Again, we are prevented by
statute from making the requested expansion as the INA specifically
uses the FLSA small farm definition and not the SBA small business
definition. (8 U.S.C. 1188(c)(3)(B)(ii)).
Several small employers asked us to change the definitions of
incidental employment and corresponding employment to exempt small
business from their application. Commenters were concerned that the
removal of incidental activities from the definition of agricultural
labor or services would limit employers' flexibility in assigning tasks
to workers not specifically included in the job order. Commenters were
apprehensive that this proposed change, coupled with the Department's
proposed change in the definition of corresponding employment, could
subject employers to penalties, including revocation or debarment, if
H-2A workers perform work that is outside the scope of the job order
for even a small fraction of their time. In response, we have made
changes to the incidental employment definition to address several of
the concerns raised during the comment period. As discussed more fully
elsewhere in this preamble, the Department does not intend to debar an
employer whose H-2A workers perform an insubstantial amount of
agricultural work not listed in the Application, and will exercise our
enforcement discretion when an employer has worked an H-2A worker
outside the scope of activities listed in the job order due to
unplanned and uncontrollable events. The regulations concerning
revocation and debarment require that the violation be substantial
[[Page 6957]]
and a number of factors must be considered in making that
determination. The good faith assignment of a worker to work not listed
in the Application for a small amount of time would not result in
debarment. We are unable to make further amendments, as our statutory
obligation is to protect U.S. workers from adverse affect and ensure
U.S. workers access to these agricultural jobs, without regard to the
size of the employer offering those jobs.
Several commenters from the reforestation industry recommended that
the Department not implement the proposal to add reforestation and pine
straw activities to the definition of agricultural labor or services,
as proposed in the NPRM. Currently, employers engaged in these
activities may use the H-2B program. Reforestation, a sub-industry of
forestry, is commonly performed by migrant crews who are overseen by
labor contractors and share the same characteristics as traditional
agricultural crews. The same reasoning was used in proposing to include
pine straw activities within the scope of H-2A. A number of employer
commenters claimed that the way in which contracts are awarded to
reforestation companies would preclude applicants from being able to
file H-2A applications in realistic timeframes and would make it
difficult to comply with H-2A provisions; they asserted that such
contracts are often for short duration, making it particularly
difficult to provide documentation that housing, typically hotels or
motels, had been secured far in advance. Some of the commenters
projected their increased costs and predicted the costs could put them
out of business or preclude them from using the program to employ an
authorized workforce. The Department considered these comments and
concerns of the industry, as discussed in more detail above, and we
decided against including reforestation and pine straw activities in
the Final Rule.
One small business commenter suggested that the Department exempt
small employers with marginal net revenues from the requirement to
house or hire local workers. After consideration, the Department
determined that we are unable to do so, as our statutory obligation is
to protect U.S. workers from adverse affect and ensure U.S. workers
access to the jobs, without regard to the size or economics of the
employer who is participating in the program.
A few commenters suggested that small businesses in particular
would be adversely affected by the remote interview requirements in the
proposed rule. The Department has clarified in the Final Rule that no
interviews are required, but that if interviews are to take place that
they do so in a manner to ensure that the referred worker is not
adversely impacted. The ability to conduct telephone interviews, to
meet at a mutual site (such as a One-Stop Career Center, will limit the
potential for adverse monetary impact on all businesses, including
small businesses.
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 Final 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.
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 Final Rule, the Department
will analyze the amounts of such grants made available to each State to
fund the activities of the SWAs. The Department did not receive any
comments related to this section.
D. Small Business Regulatory Enforcement Fairness Act of 1996
The Department has determined that this rulemaking will not impose
a significant impact on a substantial number of small entities under
the RFA, therefore, the Department is not required to produce any
Compliance Guides for Small Entities as mandated by the Small Business
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801) (SBREFA).
The Department does, however, intend to produce compliance guides for
all businesses, in order to provide users with more effective
participation in the program. The Department has similarly concluded
that this Final 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. The Department did not receive any comments related to this
section.
E. Executive Order 13132--Federalism
The Department has reviewed this Final Rule in accordance with E.O.
13132 regarding federalism and has determined that it does not have
federalism implications. The Final 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 Final Rule will not have a sufficient federalism
implication to warrant the preparation of a summary impact statement.
The Department did not receive any comments related to this section.
F. Executive Order 13175--Indian Tribal Governments
This Final 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. The Department did not receive any
comments related to this section.
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 Final 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 Final Rule and determines that it
will not have a negative effect on families.
[[Page 6958]]
The Department did not receive any comments related to this section.
H. Executive Order 12630--Government Actions and Interference With
Constitutionally Protected Property Rights
This Final 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. The Department did not receive any comments related to
this section.
I. Executive Order 12988--Civil Justice
This Final Rule 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. The Department did not receive any comments related to
this section.
J. Plain Language
The Department drafted this Final Rule in plain language. The
Department did not receive any comments related to this section.
K. Executive Order 13211, Energy Supply
This Final Rule is not subject to E.O. 13211. It will not have a
significant adverse effect on the supply, distribution, or use of
energy. The Department did not receive any comments related to this
section.
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.
Persons are not required to respond to a collection of information
unless it displays a currently valid OMB control number as required in
5 CFR 1320.11(l). The information collected is mandated in this Final
Rule at Title 20 CFR 655.122, 655.130, 655.131, 655.132, 655.133,
655.134, 655.135, 655.144, 655.145, 655.150, 655.151, 655.152, 655.153,
655.154, 655.156, 655.157, 655.167, 655.170, 655.171, 655.172, 655.173,
655.180, 655.181, 655, 182, 655.185, and Title 29 CFR 501.2, 501.4, and
501.6.
In accordance with the PRA (44 U.S.C. 3501) information collection
requirements, which must be implemented as a result of this regulation,
a clearance package containing proposed changes to the already approved
collection was submitted to OMB on September 4, 2009, along with the
proposed rule to reform the H-2A agricultural foreign labor
certification program.
The public was given 60 days to comment on this information
collection. The Department did not receive any comments specifically
related to this section. The Department did receive one general comment
simply stating that the paperwork is becoming repetitious and
excessive. However, without more specificity, the Department cannot
address this commenter's concerns. The forms used to comply with this
Final Rule are the same as those required under the 2008 Final Rule,
except that Form ETA-9142 was modified slightly to reflect the
assurances and obligations of the H-2A employer as required under the
non-attestation based system created by the NPRM and this Final Rule.
The Department used a chart format to list all of the information
collection requirements in the NPRM, which perhaps gave the impression
of being excessive. However, the hourly or cost burden on the public
actually decreased from the 2008 Final Rule burden because Appendix A.1
was eliminated by this Final Rule. Therefore, the Department made no
changes based on this comment to the Information Collection submitted
to OMB.
The Department has made changes to this Final Rule after receiving
comments to the proposed rule and has made changes to the forms for
clarity. However, these changes do not impact the overall annual burden
hours for the H-2A program information collection. The total costs
associated with the form, as defined by the PRA, is a maximum of $1,100
per employer for the Form ETA-9142.
The majority of the information collection requirements for the
current H-2A program are approved under two OMB control numbers--OMB
Control Number 1205-0466 (which includes Form ETA-9142) and OMB Control
Number 1205-0134 (which includes Form ETA-790). This Final Rule
implements the use of the new information collection, which OMB first
approved on November 21, 2008 under OMB control number 1205-0466. The
Expiration Date is November 30, 2011. OMB pre-approved the minor
changes the Department proposed to the Form ETA-9142 as part of this
rulemaking on November 17, 2009 and extended the expiration date to
November 30, 2012. The changes recently approved by OMB to the Form
ETA-9142 and Appendix A.2 become effective upon the effective date of
this Final Rule. The Form ETA-9142 has a public reporting burden
estimated to average 1 hour for Form ETA-9142 and Appendix A.2 per
response or application filed. (Appendix A.1 will no longer be used in
the H-2A program under this Final Rule.) Under this Final Rule, and the
implementation schedule it establishes, employers applying to the H-2A
program will continue to use the Form ETA-790 to submit a job order.
The information collection for the Form ETA-790 (OMB control number
1205-0134) was recently approved by OMB on November 9, 2009 and it
extended permission to use the form until November 30, 2012.
For an additional explanation of how the Department calculated the
burden hours and related costs, the PRA packages for these information
collections may be obtained from the RegInfo.gov Web site at http://www.reginfo.gov/public/do/ PRAMain or by contacting the Department at:
Office of Policy Development and Research, Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210 or by phone request to
202-693-3700 (this is not a toll-free number) or by e-mail at [email protected].
List of Subjects
20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
29 CFR Part 501
Administrative practice and procedure, Agriculture, Aliens,
Employment, Housing, Housing standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
[[Page 6959]]
0
For the reasons stated in the preamble, the Department of Labor amends
20 CFR part 655 and 29 CFR part 501 as follows:
Title 20--Employees' Benefits
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
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).
0
2. Revise the heading of part 655 to read as set forth above.
0
3. Revise Sec. 655.1 to read as follows:
Sec. 655.1 Purpose and scope of subpart A.
This subpart sets forth the procedures governing the labor
certification process for the temporary employment of nonimmigrant
foreign workers in the United States (U.S.) in occupations other than
agriculture or registered nursing.
0
4. Revise subpart B to read as follows:
Subpart B--Labor Certification Process for Temporary Agricultural
Employment in the United States (H-2A Workers)
Sec.
655.100 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 deficiency.
655.142 Submission of modified applications.
655.143 Notice of acceptance.
655.144 Electronic job registry.
655.145 Amendments to applications for temporary employment
certification.
Post-Acceptance Requirements
655.150 Interstate clearance of job order.
655.151 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 Requests for determinations based on nonavailability of U.S.
workers.
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.
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.
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.
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 applications.
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,
[[Page 6960]]
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. Special Procedures
in place on the effective date of this regulation will remain in force
until modified by the Administrator.
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 conditions 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 its determination to the Department of Homeland Security
(DHS).
(b) Definitions. For the purposes of this subpart:
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, or 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 Employment 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 Employment 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.
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
[[Page 6961]]
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 material 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 Agricultural and Food Processing Clearance Order (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 Employment
Certification filed by an association of agricultural producers as a
joint employer with its employer-members. A master application must
cover the same occupations or 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 but no more
than two contiguous States.
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. (1) 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:
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, and production methods;
(viii) Similarity of products and services; and
(ix) The ability of the predecessor to provide relief.
(2) 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 U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands
(CNMI).
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 not an unauthorized 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
[[Page 6962]]
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; or logging employment. An
occupation included in either statutory definition is agricultural
labor or services, notwithstanding the exclusion of that occupation
from the other statutory definition. For informational purposes, the
statutory provisions are listed below.
(1)(i) Agricultural labor for the purpose of paragraph (c) of this
section means all service performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
(B) 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;
(C) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15(g) of the
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or waterways,
not owned or operated for profit, used exclusively for supplying and
storing water for farming purposes;
(D) 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;
(E) 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) of this section but only if such operators
produced all of the commodity with respect to which such service is
performed. For purposes of this paragraph, any unincorporated group of
operators 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;
(F) The provisions of paragraphs (c)(1)(iv) and (c)(1)(v) of this
section 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
(G) 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.
(ii) 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.
(d) Definition of a temporary or seasonal nature. For the purposes
of 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,
the agreed-upon collective bargaining wage, 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, the agreed-upon collective bargaining wage, or the
Federal or State minimum wage, in effect at the time the work is
performed, 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.
[[Page 6963]]
(1) Prior to filing an Application for Temporary Employment
Certification, the employer must submit a job order, Form ETA-790, 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 Employment 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.
(1) 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 will work with the employer to address any
noted deficiencies. The SWA must notify the employer in writing of any
deficiencies in its job order no later than 7 calendar days after it
has been submitted. The SWA notification will direct the employer to
respond to the noted deficiencies. The employer must respond to the
deficiencies noted by the SWA within 5 calendar days after receipt of
the SWA notification. The SWA must respond to the employer's response
within 3 calendar days.
(2) If, after providing responses to the deficiencies noted by the
SWA, the employer is not able to resolve the deficiencies with the SWA,
the employer may file an Application for Temporary Employment
Certification pursuant to the emergency filing procedures contained in
Sec. 655.134, with a statement describing the nature of the dispute
and demonstrating compliance with its requirements under this section.
In the event the SWA does not respond within the stated timelines, the
employer may use the emergency filing procedures noted above. If upon
review of the Application for Temporary Employment Certification and
the job order and all other relevant information, the CO concludes that
the job order is acceptable, the CO will direct the SWA to place the
job order into intrastate and interstate clearance and otherwise
process the Application in accordance with the procedures contained in
Sec. 655.134(c). If the CO determines the job order is not acceptable,
the CO will issue a Notice of Deficiency to the employer under Sec.
655.143 of this subpart directing the employer to modify the job order
pursuant to paragraph (e) of this section The Notice of Deficiency will
offer the employer the right to appeal.
(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. Where the employer's job order
references an area of intended employment which falls within the
jurisdiction of more than one SWA, the originating SWA will also
forward a copy of the approved job order to the other SWAs serving the
area of intended employment.
(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 Employment
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. Such modifications must be made or
certification will be denied pursuant to Sec. 655.164 of this subpart.
(2) The employer may request a modification of the job order, Form
ETA-790, 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.
(3) The employer must provide all workers recruited in connection
with the Application for Temporary Employment Certification with a copy
of the modified job order or work contract which reflects the amended
terms and conditions, on the first day of employment, in accordance
with Sec. 655.122(q), or as soon as practicable, whichever comes
first.
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 level of
minimum benefits, wages, and working conditions which must be 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
order accompanying an Application for Temporary Employment
Certification must include each of the minimum benefit, wage, and
working condition provisions listed in paragraphs (d) through (q) of
this section.
(d) Housing.
(1) Obligation to provide housing. The employer must provide
housing at no cost to the 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
(ii) Rental and/or public accommodations. Rental or public
accommodations or other substantially similar class of habitation must
meet
[[Page 6964]]
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
provide housing that complies 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
granted 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 Sec. 655.173(a).
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 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
[[Page 6965]]
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 required hourly wage rate, 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. 655.135(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 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
[[Page 6966]]
number of hours worked by the worker on a day during the work contract
period is less than the number of hours offered, as specified in the
job offer, the records must state the reason or reasons therefore.
(4) The employer must retain the records for not less than 3 years
after the 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, the prevailing hourly wage rate,
the prevailing piece rate, the agreed-upon collective bargaining rate,
or the Federal or State minimum wage rate, in effect at the time work
is performed, 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, the legal Federal or State
minimum wage, or any agreed-upon collective bargaining rate, 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 Employment 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 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 a 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, 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.
(1) 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.
(2) A deduction is not reasonable if it includes a profit to the
employer or to any affiliated person. A deduction that is primarily for
the benefit or convenience of the employer will not be recognized as
reasonable and therefore the cost of such an item may not be included
in computing wages. The wage requirements of Sec. 655.120 will not be
met where undisclosed or unauthorized deductions, rebates, or refunds
reduce the wage payment made to the employee below the minimum amounts
required under this subpart, or where the employee fails to receive
such
[[Page 6967]]
amounts free and clear because the employee kicks back directly or
indirectly to the employer or to another person for the employer's
benefit the whole or part of the wage delivered to the employee. The
principles applied in determining whether deductions are reasonable and
payments are received free and clear, and the permissibility of
deductions for payments to third persons are explained in more detail
in 29 CFR part 531.
(q) Disclosure of work contract. The employer must provide to an H-
2A worker no later than the time at which the worker applies for the
visa, or to a worker in corresponding employment no later than on the
day 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. For an H-2A worker going from an H-2A employer to a
subsequent H-2A employer, the copy must be provided no later than the
time an offer of employment is made by the subsequent H-2A employer. At
a minimum, the work contract must contain all of the 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
an 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 Form ETA-790, 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 Employment 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 Employment 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 Employment Certification prior to filing.
(e) Information received in the course of processing Applications
for Temporary Employment 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 Employment
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 may submit a master application covering the same
occupation or 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 Employment Certification and all employer-
members are located in no more than two contiguous States. 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. 655.103(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
an H-2ALC is furnishing employees will be utilizing the employees.
(b) Required information and submissions. An H-2ALC must include in
or with its Application for Temporary Employment Certification the
following:
(1) 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.
[[Page 6968]]
(2) 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) Proof of its ability to discharge financial obligations under
the H-2A program by including with the Application for Temporary
Employment Certification the original surety bond as required by 29 CFR
501.9. The bond document must clearly identify the issuer, the name,
address, phone number, and contact person for the surety, and provide
the amount of the bond (as calculated pursuant to 29 CFR 501.9) and any
identifying designation used by the surety for the bond.
(4) 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 transportation to the workers, 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 the NPC and to the SWA
serving the area of intended employment a completed Application for
Temporary Employment Certification, a completed job order on the Form
ETA-790, 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, 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 Employment Certification in a
manner consistent with the provisions set forth in Sec. Sec. 655.140
through 655.145 and make a determination on the Application for
Temporary Employment Certification in accordance with Sec. Sec.
655.160 through 655.167. 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/or 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 Employment 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 period set forth in paragraph (d) of this section 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 period as specified in paragraph (d) of this section and must
independently conduct the positive recruitment activities, as specified
in Sec. 655.154, until the date on which the H-2A workers depart for
the place of work. Unless the SWA is informed in writing of a different
date, the date that is the third day preceding the employer's first
date of need will be determined to be the date the H-2A workers
departed for the employer's place of business.
(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
[[Page 6969]]
(3) Has not otherwise associated with other employers who are
petitioning for temporary foreign workers under this subpart.
(e) Compliance 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. In compliance with such laws, including the William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,
Pub. L. 110-457, 18 U.S.C. 1592(a), the employer may not hold or
confiscate workers' passports, visas, or other immigration documents.
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
employer has laid off such workers, it has offered the job opportunity
that is the subject of the Application for Temporary Employment
Certification to those laid-off U.S. worker(s) and the U.S. worker(s)
refused the job opportunity, was rejected for the job opportunity for
lawful, job-related reasons, or was hired. A layoff for lawful, job-
related reasons such as lack of work or the end of the growing season
is permissible if all H-2A workers are laid off before any U.S. worker
in corresponding employment.
(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 (i)(2) of this section, 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 determined by DHS, 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. This provision does not prohibit employers or their agents from
receiving reimbursement for costs that are the responsibility and
primarily for the benefit 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. This documentation is
to be made 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, any 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 deficiency.
(a) Notification timeline. If the CO determines the Application for
Temporary Employment Certification or 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;
(2) Offer the employer an opportunity to submit a modified
Application for Temporary Employment Certification or job order within
5 business days from date of receipt stating the modification that is
needed for the CO to issue the Notice of Acceptance;
[[Page 6970]]
(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 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 of Sec. 655.142 or request an expedited administrative
review or a de novo hearing before an ALJ within 5 business days the CO
will deny the Application for Temporary Employment Certification. That
denial is final cannot be appealed and the Department will not further
consider that Application for Temporary Employment Certification.
(c) Appeal from Notice 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. 655.142 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. 655.141(b) to submit a modified
Application for Temporary Employment 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 Employment 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 Employment 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 Employment Certification are the
same as for a non-modified Application for Temporary Employment
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. 655.143 Notice of acceptance.
(a) Notification timeline. When the CO determines the Application
for Temporary Employment 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 Employment 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;
(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; and
(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 Employment
Certification.
Sec. 655.144 Electronic job registry.
(a) Location of and placement in the electronic job registry. Upon
acceptance of the Application for Temporary Employment Certification
under Sec. 655.143, 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. 655.142. This procedure will be implemented once the
Department initiates operation of the registry.
(b) Length of posting on electronic job registry. Unless otherwise
provided, the Department will keep the job order posted on the
Electronic Job Registry until the end of 50 percent of the contract
period as set forth in Sec. 655.135(d).
Sec. 655.145 Amendments to applications for temporary employment
certification.
(a) Increases in number of workers. The Application for Temporary
Employment 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 Employment 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
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. All
requests for increasing the number of workers must be made in writing.
(b) Minor changes to the period of employment. The Application for
Temporary Employment Certification may be amended to make minor changes
in the total period of employment. Changes will not be effective until
submitted in writing and approved by 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
[[Page 6971]]
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 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 qualified
U.S. worker who applies (or on whose behalf an application is made) for
the job opportunity.
Sec. 655.151 Newspaper advertisements.
(a) 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 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.
(b) 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.
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) 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 apply for the job
opportunity at the nearest office of the SWA in the State in which the
advertisement appeared. Employers who wish to require interviews must
conduct those interviews by phone or provide a procedure for the
interviews to be conducted in the location where the worker is being
recruited at little or no cost to the worker. Employers cannot provide
potential H-2A workers more favorable treatment with respect to the
requirement and conduct of 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 who
abandoned the worksite) employed by the employer in the occupation at
the place of employment during the previous year and solicit their
return to the job. 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 sufficient to prove contact must be
maintained in the event of an audit.
Sec. 655.154 Additional positive recruitment.
(a) Where to conduct additional positive 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) Nature of the additional positive recruitment. The CO will
describe the precise nature of the additional positive recruitment but
the employer will not be required to conduct positive recruitment in
more than three States for each area of intended employment listed on
the employer's application.
(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,
[[Page 6972]]
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 to be
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 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)
of this section, that the employer's complaint is valid and justified,
the CO will immediately suspend the application of the 50 percent rule
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 through 655.154 shall
terminate on the date H-2A workers depart for the employer's place of
work. Unless the SWA is informed in writing of a different date, the
date that is the third day preceding the employer's first date of need
will be determined to be the date the H-2A workers departed for the
employer's place of business.
Labor Certification Determinations
Sec. 655.160 Determinations.
Except as otherwise noted in this section, 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 Employment
Certification. An Application for Temporary Employment Certification
that is modified under Sec. 655.142 or that otherwise does not meet
the requirements for certification in this subpart 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 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 Employment Certification, provided that the
fee to an employer for each temporary agricultural labor certification
received will be no greater than $1,000. There is no additional fee to
the association filing the Application 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:
[[Page 6973]]
(a) State the reason(s) certification is denied;
(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-2A workers requested has been reduced;
(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 Requests for determinations based on nonavailability of
U.S. workers.
(a) Standards for requests. If a temporary labor certification has
been partially granted or denied based on the CO's determination that
able, willing, available, eligible, and qualified U.S. workers are
available, and, on or after 30 calendar days before the date of need,
some or all of those U.S. workers are, in fact, no longer able,
willing, eligible, qualified, or available, the employer may request a
new temporary labor certification determination from the CO. Prior to
making a new determination the CO will promptly ascertain (which may be
through the SWA or other sources of information on U.S. worker
availability) whether specific able, willing, eligible and qualified
replacement U.S. workers are available or can be reasonably expected to
be present at the employer's establishment within 72 hours from the
date the employer's request was received. The CO will expeditiously,
but in no case later than 72 hours after the time a complete request
(including the signed statement included in paragraph (b) of this
section) is received, make a determination on the request. An employer
may appeal a denial of such a determination in accordance with the
procedures contained in Sec. 655.171.
(b) Unavailability of U.S. workers. The employer's request for a
new determination must be made directly to the CO by telephone or
electronic mail, and must be confirmed by the employer in writing as
required by this paragraph. If the employer telephonically or via
electronic mail requests the new determination by asserting solely that
U.S. workers have become unavailable, the employer must submit to the
CO a signed statement confirming such assertion. If such signed
statement is not received by the CO within 72 hours of the CO's receipt
of the request for a new determination, the CO will deny the request.
(c) Notification of determination. If the CO determines that U.S.
workers have become unavailable and cannot identify sufficient
available U.S. workers who are able, willing, eligible, and qualified
or who are likely to become available, the CO will grant the employer's
request for a new determination. However, this does not preclude an
employer from submitting subsequent requests for new determinations, if
warranted, based on subsequent facts concerning purported
nonavailability of U.S. workers or referred workers not being eligible
workers or not able, willing, or qualified because of lawful job-
related reasons.
Sec. 655.167 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 3 years from the date of certification of the
Application for Temporary Employment Certification or from the date of
determination if the Application for Temporary Employment 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.
[[Page 6974]]
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 appeal a denial
of a request for an extension by following the procedures in Sec.
655.171.
(c) Disclosure. The employer must provide to the workers a copy of
any approved extension in accordance with Sec. 655.122(q), as soon as
practicable.
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 business 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 Application for Temporary
Employment Certification. However, a withdrawal of a job order does not
nullify existing obligations to those workers recruited in connection
with the placement of a job order pursuant to this subpart or the
filing of an Application for Temporary Employment Certification.
(b) Employers may withdraw an Application for Temporary Employment
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 Employment
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 $10.64 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
[[Page 6975]]
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 CO may conduct audits of applications for which certifications
have been granted.
(a) Discretion. The applications selected for audit will be chosen
within the sole discretion of the CO.
(b) Audit letter. Where an application 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 OFLC Administrator may revoke a
temporary agricultural labor certification approved under this subpart,
if the OFLC Administrator finds:
(1) The issuance of the temporary agricultural labor certification
was not justified due to fraud or misrepresentation in the application
process;
(2) The employer substantially violated a material term or
condition of the approved temporary agricultural labor certification,
as defined in Sec. 655.182;
(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 OFLC Administrator makes a
determination to revoke an employer's temporary labor certification,
the OFLC Administrator 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 agency
action 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 OFLC Administrator will inform the employer of the OFLC
Administrator's final determination on the revocation within 14
calendar days of receiving the rebuttal evidence. If the OFLC
Administrator determines that the certification should be revoked, the
OFLC Administrator 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 OFLC Administrator's final
determination, or the OFLC Administrator's determination is the final
agency action 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 OFLC Administrator after the review of
rebuttal evidence, according to the appeal procedures of Sec. 655.171.
The ALJ's decision is the final agency action.
(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 OFLC Administrator will send a copy of the final agency
action 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 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:
[[Page 6976]]
(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) or (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 certification fee in
a timely manner;
(3) Fraud involving the Application for Temporary Employment
Certification; or
(4) 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 OFLC Administrator 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 OFLC Administrator makes a
determination to debar an employer, attorney, or agent, the OFLC
Administrator will send the party 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
it will inform the party subject to the Notice of its right to submit
rebuttal evidence or to request a debarment hearing. If the party does
not file rebuttal evidence or request a hearing within 30 calendar days
of the date of the Notice of Debarment, the Notice will be the final
agency action and the debarment will take effect at the end of the 30-
day period.
(2) Rebuttal. The party who received the Notice of Debarment may
choose to submit evidence to rebut the grounds stated in the Notice
within 30 calendar days of the date the Notice is issued. If rebuttal
evidence is timely filed, the OFLC Administrator will issue a final
determination on the debarment within 30 days of receiving the rebuttal
evidence. If the OFLC Administrator determines that the party should be
debarred, the OFLC Administrator will inform the party of its right to
request a debarment hearing according to the procedures of Sec.
655.182(f)(3). The party must request a hearing within 30 calendar days
after the date of the OFLC Administrator's final determination, or the
OFLC Administrator's determination will be the final agency order and
the debarment will take effect at the end of the 30-day period.
(3) Hearing. The recipient of a Notice of Debarment may request a
debarment hearing within 30 calendar days of the date of a Notice of
Debarment or the date of a final determination of the OFLC
Administrator after review of rebuttal evidence submitted pursuant to
Sec. 655.182(f)(2). To obtain a debarment hearing, the debarred party
must, within 30 days of the date of the Notice or the final
determination, 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
OFLC Administrator. The debarment will take effect 30 days from the
date the Notice of Debarment or final determination is issued, unless a
request for review is properly filed within 30 days from the issuance
of the Notice of Debarment or final determination. The timely filing of
a request for a hearing stays the debarment pending the outcome of the
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 considered to be a complaint to which
an answer is required.
(4) 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
parties to the debarment hearing by means normally assuring next-day
delivery. The ALJ's decision is the final agency action, unless either
party, within 30 calendar days of the ALJ's decision, seeks review of
the decision with the Administrative Review Board (ARB).
(5) 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.
(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
[[Page 6977]]
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.
(6) 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. 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
agency decision.
(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. A specific
violation for which debarment is imposed will be 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 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
Employment 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 Employment 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
[[Page 6978]]
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 the
regulations in this subpart, it may provide such information to the
appropriate SWA and the CO.
Title 29--Labor
0
5. 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 collection.
Subpart C--Administrative Proceedings
501.30 Applicability of procedures and rules.
Procedures Relating To Hearing
501.31 Written notice of determination required.
501.32 Contents of notice.
501.33 Request for hearing.
Rules of Practice
501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.
Referral for Hearing
501.37 Referral to Administrative Law Judge
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor--number of
copies.
Procedures Before Administrative Law Judge
501.40 Consent findings and order.
Post-Hearing Procedures
501.41 Decision and order of Administrative Law Judge.
Review of Administrative Law Judge's Decision
501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges
(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.
The regulations in this part 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 the regulations in
this part 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 for and
received a temporary labor certification from the U.S. Secretary of
Labor (Secretary). The temporary labor certification establishes 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 the regulations
in this part, 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 revocation of labor
certification for temporary foreign workers by the OFLC are found in 20
CFR part 655, subpart B.
(c) Role of the 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 the
regulations in this part 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 March 15, 2010.
[[Page 6979]]
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 the regulations in this part.
(b) Information received in the course of processing applications,
program integrity measures, or enforcement actions may be shared
between OFLC and WHD or, where applicable to employer enforcement under
the H-2A program, other agencies as appropriate, including the
Department of State (DOS) and DHS.
(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
Employment 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, or 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 Employment 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.
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 material 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.
[[Page 6980]]
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 the regulations in this part, 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 the Commonwealth of the Northern Mariana Islands (CNMI).
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 Immigration and Nationality Act (INA) or by DHS) to be employed in
the U.S.; or
(3) An individual who is not an unauthorized 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; or logging employment. An
occupation included in either statutory definition shall be
agricultural labor or services, notwithstanding the exclusion of that
occupation from the other statutory definition. For informational
purposes, the statutory provisions are listed below.
(1) (i) Agricultural labor for the purpose of paragraph (b) of this
section means all service performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
(B) 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;
(C) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15(g) of the
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or waterways,
not owned or operated for profit, used exclusively for supplying and
storing water for farming purposes;
(D) 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;
(E) 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;
(F) The provisions of paragraphs (b)(1)(iv) and (b)(1)(v) of this
section 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
(G) On a farm operated for profit if such service is not in the
course of the
[[Page 6981]]
employer's trade or business or is domestic service in a private home
of the employer.
(ii) 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.
(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 the
regulations in this part;
(2) Instituted or caused to be instituted any proceedings related
to 8 U.S.C. 1188 or the regulations in this part;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188 or the regulations in this part;
(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 the regulations in this
part.
(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 the
regulations in these parts. 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:
(a) Waivers or modifications of rights or obligations hereunder in
favor of the Secretary shall be valid for purposes of enforcement; and
(b) Agreements in settlement of private litigation are permitted.
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 the regulations in this part, 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
the regulations in this part 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 the regulations in this part 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
[[Page 6982]]
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 the regulations in this part 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. The
original bond instrument issued by the surety must be submitted with
the Application for Temporary Employment Certification. At a minimum,
the bond instrument must identify the name, address, phone number, and
contact person for the surety, and specify the amount of the bond (as
required in paragraph (c) of this section), the date of issuance and
expiration and any identifying designation used 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. The bond must 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 engaged 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 an H-2ALC, and shall be
amended to cover any extensions of the labor certification requested by
an H-2ALC.
(c) The bond must be in the amount of $5,000 for a labor
certification for which an H-2ALC will employ fewer than 25 workers;
$10,000 for a labor certification for which an H-2ALC will employ 25 to
49 workers; $20,000 for a labor certification for which an H-2ALC will
employ 50 to 74 workers; $50,000 for a labor certification for which an
H-2ALC will employ 75 to 99 workers; and $75,000 for a labor
certification for which an H-2ALC will employ 100 or more workers. The
WHD Administrator may require that an H-2ALC obtain a bond with a
higher face value amount after notice and 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 the regulations in this
part against an H-2ALC employer or any successor in interest by that
date, the bond shall remain in force until the conclusion of such
action and any related 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) of this section.
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 the regulations in this part, as provided in the regulations in this
part 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 the regulations in this part 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 the regulations in this
part; 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 (a)(1) of this section
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 655, subpart B and Sec.
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 the
regulations in this part, 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 the regulations in this part. OFLC and the WHD have concurrent
jurisdiction to impose a debarment remedy under 20 CFR 655.182 or under
Sec. 501.20 of the regulations in this part.
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 the regulations in this part.
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
[[Page 6983]]
the obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or the regulations in this part. 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
the regulations in this part 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 the regulations in this part;
(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 the regulations in this part;
(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 the
regulations in this part 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 the
regulations in this part, 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 the
regulations in this part, 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 the regulations in this part, 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 Employment 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.
(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 the regulations in this part, 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 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.
(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 the regulations in this part;
(vi) Impeding an investigation of an employer under 8 U.S.C. 1188,
20 CFR part 655, Subpart B, or the regulations in this part;
(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 20 CFR 655.135(j) or (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
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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
timeframe 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.
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 is assessed in a final order by the WHD
Administrator, by an ALJ, or by the Administrative Review Board (ARB),
the amount of the penalty must be received by the WHD Administrator
within 30 days of the date of the final order. The person assessed such
penalty shall remit the amount ordered to the WHD Administrator by
certified check or by money order, made payable to the 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 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 the regulations in this part, 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 the regulations in
this part, 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 the regulations in this part, 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.
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(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 the date of 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 the regulations in this
part, 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
the regulations in this part 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 the regulations in this part 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 the regulations in this part or 29 CFR part 18.
(b) A copy of the Order of Reference, together with a copy of the
regulations in this part, 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 Fair Labor Standards, Office of the Solicitor,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210, and one copy on the Attorney representing the Department in the
proceeding.
Procedures Before Administrative Law Judge
Sec. 501.40 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing
consent findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the ALJ, after consideration of the
nature of the proceeding, the requirements of the public interest, the
representations of the parties, and the probability of an agreement
being reached which will result in a just disposition of the issues
involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or
amended notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the ALJ; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their
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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 therefor,
the ALJ, within 30 days thereafter, shall, if satisfied with its form
and substance, accept such agreement by issuing a decision based upon
the agreed findings.
Post-Hearing Procedures
Sec. 501.41 Decision and order of Administrative Law Judge.
(a) The ALJ shall prepare, within 60 days after completion of the
hearing and closing of the record, a decision on the issues referred by
the 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.
(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.
Sec. 501.43 Responsibility of the Office of Administrative Law Judges
(OALJ).
Upon receipt of the ARB's Notice pursuant to Sec. 501.42, 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.
Record
Sec. 501.46 Retention of official record.
The official record of every completed administrative hearing
provided by the regulations in this part 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 3rd day of February, 2010.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
Nancy Leppink,
Deputy Administrator, Wage and Hour Division.
Editorial Note: The following attachment will not appear in the
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