[Federal Register: February 13, 2008 (Volume 73, Number 30)]
[Proposed Rules]
[Page 8537-8585]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe08-32]
[[Page 8537]]
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Part V
Department of Labor
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Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
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29 CFR Parts 501, 780, and 788
Temporary Agricultural Employment of H-2A Aliens in the United States;
Modernizing the Labor Certification Process and Enforcement; Proposed
Rule
[[Page 8538]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Parts 501, 780, and 788
RIN 1205-AB55
Temporary Agricultural Employment of H-2A Aliens in the United
States; Modernizing the Labor Certification Process and Enforcement
AGENCY: Employment and Training Administration, and Wage and Hour
Division, Employment Standards Administration, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of Labor (the Department or DOL) is proposing
to amend its regulations regarding the certification of temporary
employment of nonimmigrant workers employed in temporary or seasonal
agricultural employment and the enforcement of the contractual
obligations applicable to employers of such nonimmigrant workers. This
notice of proposed rulemaking (NPRM or proposed rule) would re-engineer
the process by which employers may obtain a temporary labor
certification from the Department for use in petitioning the Department
of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A
(agricultural temporary worker) status. Re-engineering measures focus
on the utilization of an attestation-based application process after an
employer conducts pre-filing recruitment and the elimination of
duplicative activities currently performed by the State Workforce
Agencies (SWAs). In concert with these changes, the Department proposes
to amend the wage and hour regulations to provide for enhanced
enforcement, including more rigorous penalties, under the H-2A program
to complement the modernized certification process so that workers are
appropriately protected should an employer fail to meet the
requirements of the H-2A program.
DATE: Interested persons are invited to submit written comments on the
proposed rule on or before March 31, 2008.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB55, by any one of the following
methods:
Federal e-Rulemaking Portal http://www.regulations.gov: Follow
the Web site instructions for submitting comments.
Mail: Please submit all written comments (including disk
and CD-ROM submissions) to Thomas Dowd, Administrator, Office of Policy
Development and Research, Employment and Training Administration, U.S.
Department of Labor, 200 Constitution Avenue, NW., Room N-5641,
Washington, DC 20210.
Hand Delivery/Courier: Please submit all comments to
Thomas Dowd, Administrator, Office of Policy Development and Research,
Employment and Training Administration, U.S. Department of Labor, 200
Constitution Avenue, NW., Room N-5641, Washington, DC 20210.
Please submit your comments by only one method. The Department will
post all comments received on http://www.regulations.gov without making
any change to the comments, including any personal information
provided. The http://www.regulations.gov Web site is the Federal e-
rulemaking portal and all comments posted there are available and
accessible to the public. The Department cautions commenters not to
include their personal information such as Social Security numbers,
personal addresses, telephone numbers, and e-mail addresses in their
comments as such submitted information will become viewable by the
public via the http://www.regulations.gov Web site. It is the
responsibility of the commenter to safeguard his or her information.
Comments submitted through http://www.regulations.gov will not include
the commenter's e-mail address unless the commenter chooses to include
that information as part of his or her comment.
Postal delivery in Washington, DC, may be delayed due to security
concerns. Therefore, the Department encourages the public to submit
comments via the Web site indicated above.
Docket: For access to the docket to read background documents or
comments received, go to the Federal eRulemaking portal at http://www.regulations.gov.
The Department will also make all the comments it
receives available for public inspection during normal business hours
at the ETA Office of Policy Development and Research at the above
address. If you need assistance to review the comments, the Department
will provide you with appropriate aids such as readers or print
magnifiers. The Department will make copies of the rule available, upon
request, in large print and as an electronic file on a computer disk.
The Department will consider providing the proposed rule in other
formats upon request. To schedule an appointment to review the comments
and/or obtain the rule in an alternate format, contact the Office of
Policy Development and Research at (202) 693-3700 (VOICE) (this is not
a toll-free number) or 1-877-889-5627 (TTY/TDD).
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR part 655, contact Sherril Hurd, Acting Team Leader, Regulations
Unit, Employment and Training Administration (ETA), U.S. Department of
Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210;
Telephone (202) 693-3700 (this is not a toll-free number). Individuals
with hearing or speech impairments may access the telephone number
above via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339. For further information regarding 29 CFR
parts 501, 780 and 788, contact James Kessler, Farm Labor Team Leader,
Wage and Hour Division, Employment Standards Administration, U.S.
Department of Labor, 200 Constitution Avenue, NW., Room S-3510,
Washington, DC 20210; Telephone (202) 693-0070 (this is not a toll-free
number). Individuals with hearing or speech impairments may access the
telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Revisions to 20 CFR Part 655 Subpart B
A. Background
1. Statutory Standard and Current Department of Labor Regulations
The H-2A worker visa program provides a means for U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
agricultural labor or services when U.S. labor is in short supply.
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(INA or the Act) defines an H-2A worker as a nonimmigrant admitted to
the U.S. on a temporary or seasonal basis to perform agricultural labor
or services. 8 U.S.C. 1101(a)(15)(H)(ii)(a), see also 8 U.S.C.
1184(c)(1) and 1188. Although foreign agricultural labor has
contributed to the growth and success of America's agricultural sector
since the 19th century, the modern-day agricultural worker visa program
originated with the creation, in the Immigration and Nationality Act of
1952, of the ``H-2 program''--a reference to the INA section that
established it. The H-2
[[Page 8539]]
program established mechanisms for the use of temporary foreign labor
but did not distinguish between agricultural and other types of work.
More than 30 years later, the Immigration Reform and Control Act of
1986 (IRCA) amended the INA to establish a separate H-2A visa
classification for agricultural labor under INA Section
101(a)(15)(H)(ii)(A). Public Law 99-603, Title III, 100 Stat. 3359,
November 6, 1986. Today, the H-2A nonimmigrant visa program authorizes
the Secretary of Homeland Security to permit employers to hire foreign
workers to come temporarily to the U.S. and perform agricultural
services or labor of a seasonal or temporary nature, if such employment
is first certified by the Secretary of Labor (the Secretary).
Section 214(c)(1) of the INA, as amended, requires the Secretary of
Homeland Security to consult with appropriate agencies of the
Government--in particular, the Department of Labor--before approving a
petition from an employer for employment of H-2A nonimmigrant
agricultural workers. 8 U.S.C. 1184(c)(1). Section 218 of the Act,
together with section 214, establishes the statutory structure for the
program and provides that a petition to import H-2A workers may not be
approved unless the petitioner has applied to the Secretary of Labor
for a certification. Section 218 sets out the explicit obligation for
the Department to certify that:
(A) There are not sufficient U.S. workers who are able, willing,
and qualified, and who will be available at the time and place
needed to perform the labor or services involved in the petition;
and
(B) The employment of the alien in such labor or services will
not adversely affect the wages and working conditions of workers in
the United States similarly employed.
8 U.S.C. 1188(a)(1).
The INA specifies conditions under which the Secretary must deny
certification, and establishes specific timeframes within which
employers must file--and the Department must process and either reject
or certify--applications for H-2A labor certification. In addition, the
statute institutes certain employment-related protections, including
workers' compensation insurance, recruitment, and housing, to which H-
2A employers must adhere. 8 U.S.C. 1188(c). The H-2A program does not
limit the number of aliens who may be accorded H-2A status each year or
the number of labor certification applications the Department may
process.
The Department has published regulations at 20 CFR part 655,
subpart B--``Labor Certification Process for Temporary Agricultural
Employment Occupations in the United States (H-2A Workers),'' governing
the H-2A labor certification process; and at 29 CFR part 501 to
implement its enforcement responsibilities under the H-2A program.
Regulations impacting employer-provided housing for agricultural
workers appear at 20 CFR part 654, subpart E (Housing for Agricultural
Workers), and 29 CFR 1910.42 (standards set by the Occupational Safety
and Health Administration); see also 20 CFR 651.10, and part 653,
subparts B and F.
The INA also sets out the conditions under which a certification
may not be granted, including:
(1) There is a strike or lockout in the course of a labor
dispute which, under the regulations, precludes such certification.
(2)(A) The employer during the previous two-year period employed
H-2A workers and the Secretary of Labor has determined, after notice
and opportunity for a hearing, that the employer at any time during
that period substantially violated a material term or condition of
the labor certification with respect to the employment of domestic
or nonimmigrant workers.
(B) No employer may be denied certification under subparagraph
(A) for more than three years for any violation described in such
subparagraph.
(3) The employer has not provided the Secretary with
satisfactory assurances that if the employment for which the
certification is sought is not covered by State workers'
compensation law, the employer will provide, at no cost to the
worker, insurance covering injury and disease arising out of and in
the course of the worker's employment which will provide benefits at
least equal to those provided under the State workers' compensation
law for comparable employment.
(4) The Secretary determines that the employer has not made
positive recruitment efforts within a multi-state region of
traditional or expected labor supply where the Secretary finds that
there are a significant number of qualified United States workers
who, if recruited, would be willing to make themselves available for
work at the time and place needed. Positive recruitment under this
paragraph is in addition to, and shall be conducted within the same
time period as, the circulation through the interstate employment
service system of the employer's job offer. The obligation to engage
in positive recruitment under this paragraph shall terminate on the
date the H-2A workers depart for the employer's place of employment.
8 U.S.C. 1188(b).
The statute further sets out strict timelines for the processing of
certifications: The Secretary may not require that an application be
filed more than 45 days before the employer's date of need, and
certification must occur no later than 30 days prior to the date of
need, provided that all the criteria for certification are met. 8
U.S.C. 1188(c). If the application fails to meet threshold requirements
for certification, notice must be provided to the employer within 7
days of the date of filing, and a timely opportunity to cure
deficiencies must be provided to the employer. The Act does not
explicitly provide a timeframe for certification in cases where an
application as originally filed failed to meet the criteria for
certification and the employer is, upon the date that is 30 days prior
to the date of need, still coordinating with the Department and making
a good faith effort to cure deficiencies.
The Secretary has delegated her statutory responsibilities under
the H-2A program, through the Assistant Secretary, Employment and
Training Administration (ETA), to ETA's Office of Foreign Labor
Certification (OFLC). Under the current regulations in 20 CFR part 655,
subpart B, H-2A labor certification applications are processed
concurrently through the State Workforce Agency (SWA) having
jurisdiction over the area of intended employment and the applicable
National Processing Center (NPC) within the OFLC. The SWA and ETA--
through the NPCs--receive the application and review the terms of the
job offer concurrently.
Upon receipt of an employer's application, the SWA places in its
job clearance system a job order initiating local recruitment, but does
not place the job in broader circulation until it receives additional
instructions from ETA. By law, ETA has 7 calendar days from the
employer's date of filing within which to identify and notify the
employer and SWA of deficiencies in the application and provide the
employer an opportunity to submit an amended or modified application.
Alternatively, in that same time period, ETA may accept the application
for processing; acceptance reflects ETA's initial determination that
the benefits, wages, and working conditions of the employer's job
offer, for which temporary certification of foreign labor is sought,
will not have an adverse effect on similarly employed U.S. workers. ETA
then notifies the employer and SWA of this threshold determination and
authorizes the SWA to place the employer's job order in intrastate/
interstate clearance. See 20 CFR part 653, subpart F.
The SWA having jurisdiction over the State where the employer's
work site is located is responsible for processing the
[[Page 8540]]
employer's request for H-2A labor certification, overseeing the
recruitment and directing U.S. worker referrals to the employer. The
NPC reviews whether the employers comply with advertising and
recruitment requirements, and adjudicates the application--determining
whether to approve or deny certification for some or all of the jobs
requested.
To obtain a temporary labor certification, the employer must
demonstrate that the need for the services or labor is of a temporary
or seasonal nature. The employer must also establish that the job
opportunity for the temporary position is full-time, and, absent
extraordinary circumstances, the period of need is 1 year or less.
Historically, Departmental review and adjudication of applications
took place through both the SWAs and ETA's Regional Offices. However,
in December 2004, the Department opened two new NPCs, one located in
Atlanta, Georgia, and the other in Chicago, Illinois, to consolidate
processing of permanent and temporary foreign labor certification cases
at the Federal level. In 2005, the Department published a notice in the
Federal Register at 70 FR 41430, Jul. 19, 2005, clarifying that
employers seeking H-2A certifications (with a few limited exceptions
discussed below) must file two original copies of Form ETA 750, Part A,
and Form ETA 790 directly with the NPC of jurisdiction and,
concurrently, a copy with the SWA serving the area of intended
employment. SWAs coordinate all activities regarding the processing of
H-2A applications directly with the appropriate NPC for their
jurisdiction, including transmittal to the NPC of housing inspection
results, prevailing wage surveys, prevailing practice surveys, or any
other material bearing on an application. Once the application is
reviewed by the SWA and after the employer conducts its required
recruitment, the SWA sends the complete application to the appropriate
NPC. The NPC Certifying Officer (CO), on behalf of the Secretary,
reviews the application for completeness and either certifies the
application for temporary employment under the H-2A program, or denies
the certification. Current Department regulations at 20 CFR part 655,
subpart B, establish procedures by which an employer may appeal to an
administrative law judge either an initial rejection of an application
or a final determination denying the application.
Employers receiving approved labor certifications attach them in
support of their I-129 petitions to DHS for authorization to employ
foreign workers in H-2A status. For situations where prospective H-2A
workers are outside of the U.S., the employer forwards the approved
petition notice to its prospective employees who then apply for an H-2A
visa at the appropriate U.S. consulate or port of entry. The Department
of State then determines whether to issue visas to the foreign workers
requested under the employer's petition, who can then be admitted
through the appropriate port of entry. For H-2A workers already legally
present in the U.S., DHS adjudicates an application to extend or change
their current status to H-2A status as part of the petition approval
process.
2. The Need for a Redesigned System
Modern agriculture is a tremendous benefit to the U.S.--to its
culture, its health, and its economic prosperity. The value of U.S.
agricultural production was estimated to be $276 billion in 2006.\1\
Farm and farm-related industries employ an estimated 2.7 million
workers every year.\2\ This includes both wage earning workers and
those working for no wages on family farms.
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\1\ Bureau of Economic Analysis, National Income and Product
Accounts, Table 7.3.5; http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=263&FirstYear=2005&LastYear=2006&Freq=Year
.
\2\ Bureau of Economic Analysis, Regional Economic Accounts,
Table SA25N, http://www.bea.gov/regional/spi/default.cfm?satable=SA25N&series=NAICS
.
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One unfortunate reality of modern American agriculture is that the
majority of the foreign workers assisting with the year's harvest are
undocumented. In fact, the share of the agricultural workforce that is
not work-authorized has increased dramatically in recent years while
the number of U.S. workers engaged in agriculture has dropped
steadily.\3\
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\3\ National Agricultural Workers Survey, Public Access Data,
Fiscal Years 1989-2006. U.S. Department of Labor, Employment and
Training Administration, Office of Policy Development and Research.
http://www.doleta.gov/agworker/naws.cfm.
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Evidence of a shrinking domestic agricultural workforce is found in
the U.S. Department of Agriculture's (USDA) Farm Labor Survey, a
quarterly survey of employers. Comparing third-quarter totals over the
10 year period 1998-2007, there were 1,450,000 wage-earning workers on
the Nation's farms and ranches in July 1998 but only 1,205,000 for the
same quarter of 2007, for a decrease of 245,000 workers. The largest
decrease occurred between 2005, when there were 1,344,000 wage-earning
workers, and 2006, when 1,196,000 were reported.\4\ The 1 year change
between 2005 and 2006 represents an 11 percent decrease. While
increases in productivity have contributed to an expanding agricultural
output with fewer inputs, including labor, this sudden and dramatic
decrease in the supply of workers cannot be entirely attributed to
productivity, and poses severe economic consequences for growers,
especially those of perishable crops. Indeed, the Department's program
experience and survey data have consistently supported the proposition
that the agricultural industry has many more jobs than available legal
workers.
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\4\ 2006 USDA National Agricultural Survey.
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Recent reports on the state of agriculture in the U.S. confirm the
dependence of many agricultural employers on undocumented workers. The
National Agricultural Worker Survey (NAWS) \5\ conducted each year by
the Department shows that in 1990, 17 percent of agricultural workers
were illegally present in the U.S. By 2006, the number of agriculture
workers who self-identify as being illegal had increased to 53 percent.
Some worker advocates have suggested that the actual number of illegal
workers is greater than 70 percent.\6\
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\5\ The National Agricultural Workers Survey (NAWS) is a
Department-sponsored employment-based, random survey of the
demographic, employment, and health characteristics of the U.S. crop
labor force. The information is obtained directly from farm workers
through face-to-face interviews.
\6\ See, e.g., Marcos Camacho, General Counsel, United Farm
Workers, Testimony Before the Committee on the Judiciary, U.S. House
of Representatives, May 24, 2007.
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Data from NAWS further shows that in 2006, 19 percent of all
agricultural workers were first time U.S. farm workers (new farm
workers are those who have less than a year of U.S. farm work
experience). Among the new workers, 85 percent were foreign-born; 15
percent were U.S. citizens. All of the foreign-born new workers were
unauthorized (100 percent).
Authorized workers appear to be leaving farm jobs because of age or
opportunities for more stable and higher paying employment outside of
agriculture, and are being replaced almost exclusively by unauthorized
foreign-born workers. In addition, enhanced enforcement of Federal
immigration law appears to have also contributed to a reduction in the
availability of agricultural workers, which has in turn had the
unintended consequence of sparking a series of agricultural crises
across a number of States in the past year. As increased border
enforcement efforts have succeeded in limiting the number of border
crossings by illegal workers, U.S.
[[Page 8541]]
employers, which all too often relied on such workers in the past, have
had an increasingly difficult time finding enough workers to harvest
their crops.
Numerous reports of shrinking or nonexistent farm seasonal labor,
with attendant crop loss for lack of harvest help, have been prominent
in recent months and reflect Department survey data. See, e.g.,
``Pickers are Few, and Growers Blame Congress,'' The New York Times,
September 22, 2006; ``Farmers to Congress: Crops are Rotting,'' Austin-
American Statesman, January 10, 2007. As stepped-up enforcement efforts
have diminished the availability of agricultural workers, States and
farmers have increasingly resorted to sometimes extreme means to
address the resulting labor shortage. For example, the State of
Colorado has initiated the use of inmate labor on farms where migrant
labor was previously used. ``Facing Illegal Immigrant Crackdown, Farms
Look to Inmate Labor,'' ABC News, July 25, 2007. In addition, an
increasing number of farmers have been investigating alternatives such
as raising crops across the Mexican border to secure needed workers
that they cannot legally hire in the U.S. ``Short on Labor, Farmers in
U.S. Shift to Mexico,'' The New York Times, September 5, 2007.
This critical need for legal workers in the U.S. agricultural
industry has been recognized by many Members of Congress, including
during recent deliberations over immigration reform. Senator Feinstein
highlighted the unique labor needs of agriculture and the importance of
foreign labor in a September 2006 floor statement:
We have 1 million people who usually work in agriculture. I must
tell you they are dominantly undocumented. Senator Craig pointed out
the reason they are undocumented is because American workers will
not do the jobs.
When I started this I did not believe it, so we called all the
welfare departments of the major agriculture counties in California
and asked--can you provide agricultural workers? Not one worker came
from the people who were on welfare who were willing to do this kind
of work. That is because it is difficult work. The Sun is hot. The
back has to be strong. You have to be stooped over. It is
extraordinarily difficult work.
For a State as big as mine, there is an immigrant community
which is professionally adept at this kind of work. They can pick,
they can sort, they can prune, they can harvest--virtually better
than anybody. This is what they do. This is what makes our
agricultural community exist.
It is very hard for a farmer to hire a documented worker. It is
very hard to find that documented worker. So if they are going to
produce they have to find the labor somewhere.
My State produces one-half of the Nation's fruits, vegetables
and nuts. One-half comes from California. We produce 350 different
crops. We have an opportunity now, with this bill, to get adequate
labor for this harvest season on this border security bill.
In my State of California, growers are reporting that their
harvesting crews are 10 to 20 percent of what they were previously
due to two things: Stepped up enforcement, a dwindling pool of
workers, and the problem that ensues from both.\7\
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\7\ 152 Cong. Rec. S9773 (2006).
In January 2007, Senator Craig summarized the problem facing U.S.
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agriculture in this way:
[T]his economic sector, more than any other, has become
dependent for its existence on the labor of immigrants who are here
without legal documentation. The only program currently in place to
respond to a lack of legal domestic agricultural workers, the H-2A
guest worker program, is profoundly broken. Outside of H-2A, farm
employers have no effective, reliable assurance that their employees
are legal.
We all want and need a stable, predictable, legal workforce in
American agriculture. Willing American workers deserve a system that
puts them first in line for available jobs with fair market wages.
All workers should receive decent treatment and protection of
fundamental legal rights. Consumers deserve a safe, stable, domestic
food supply. American citizens and taxpayers deserve secure borders
and a government that works.
Last year, we saw millions of dollars' worth of produce rot in
the fields for lack of workers. We are beginning to hear talk of
farms moving out of the country, moving to the foreign workforce.
All Americans face the danger of losing more and more of our safe,
domestic food supply to imports.
Time is running out for American agriculture, farm workers, and
consumers. What was a problem years ago is a crisis today and will
be a catastrophe if we do not act immediately.\8\
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\8\ 153 Cong. Rec. S441-S442 (2007).
Facing a shortage of available U.S. workers, agricultural employers
have been left with the untenable choice of either (a) attempting to
legally employ temporary foreign workers through an H-2A program that
is widely decried as dysfunctional, but risking losing crops if
inefficient program administration results in the workers arriving too
late for harvest; (b) using illegal workers, and incurring the risk
that the workers, and consequently the crops, will be lost to
immigration enforcement; or (c) not hiring any workers at all--in
effect, ending U.S. farming operations.
It is entirely unacceptable, but perhaps unsurprising, that many
agricultural employers have chosen in recent years to take their
chances with undocumented workers--if for no other reason than a lack
of viable alternatives. The willingness of agricultural employers to
hire illegal workers has created a continuing economic magnet
encouraging illegal workers to enter the U.S., resulting in attendant
problems for national security and the rule of law, as well as
additional costs associated with an underground economy, crime, and
social services.
This increasing reliance on undocumented workers has left the
agricultural workforce increasingly vulnerable to exploitation because
illegal workers fear deportation if they complain about substandard
wages or working conditions. As the U.S. Supreme Court has noted,
``[A]cceptance by illegal aliens of jobs on substandard terms as to
wages and working conditions can seriously depress wage scales and
working conditions of citizens and legally admitted aliens.* * *''
Sure-Tan v. NLRB, 467 U.S. 883, 892 (1984) (citing De Canas v. Bica,
424 U.S. 351, 356-57, 96 S.Ct. 933, 936-37 (1976). And it is not only
wages that are depressed, as Senator Kennedy stated in May 2007:
[W]e have, unfortunately, employers who are prepared to exploit
the current condition of undocumented workers in this country--
potentially, close to 12 [and] \1/2\ million are undocumented.
Because they are undocumented, employers can have them in these
kinds of conditions. If they don't like it, they tell them they will
be reported to the immigration service and be deported. That is what
is happening today.
I yield to no one in terms of my commitment to working
conditions or for fairness and decency in the workplace. That is
happening today. The fact that we have those undocumented workers
and they are being exploited and paid low wages has what kind of
impact in terms of American workers? It depresses their wages. That
should not be too hard to grasp. Those are the facts.\9\
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\9\ 153 Cong. Rec. S6590 (2007).
The U.S. has an estimated 3 million agricultural job opportunities
filled by about 1.2 million hired agricultural workers each year.\10\
As noted above, more than 50 percent and perhaps in excess of 70
percent of these workers are in the country illegally. This means there
are at least 600,000 and perhaps more than 800,000 illegal workers
employed on America's 2 million farms.
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\10\ Dr. James S. Holt, Testimony Before the Committee on
Education and Labor, U.S. House of Representatives, June 7, 2007.
http://edworkforce.house.gov/testimony/060707JamesHoltTestimony.pdf.
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The H-2A program is woefully underutilized by agricultural
employers. Unlike other temporary worker programs with annual visa caps
that are routinely reached on the first day on
[[Page 8542]]
which visas are available, the H-2A program has no annual limit on the
number of visas that can be issued. Yet despite the vast need for
agricultural labor, and the availability of H-2A visas, only about
7,700 agriculture employers used the H-2A program last year, and only
75,000 workers were hired--less than 6 percent of the hired
agricultural workforce. This situation clearly demonstrates that the
vast majority of agricultural employers in the U.S. find the H-2A
program so plagued with problems that they avoid using it altogether.
The Department seeks to remedy this problem and render the H-2A program
functional so that if and when agricultural employers are unable to
locate sufficient numbers of U.S. workers, they will turn to the
program to provide them with a fully legal workforce. A functional H-2A
program will change the incentives for agricultural employers, thereby
assisting in eradicating the underground economy created by the
widespread use of unauthorized workers and better protecting the wages
and working conditions of U.S. workers who are currently harmed by the
employment of workers illegally present in the U.S.
On August 10, 2007, the Administration announced a series of
actions the Administration would pursue to address border security and
immigration-related processes. As part of that effort, the President
directed the Department to review the H-2A program:
No sector of the American economy requires a legal flow of
foreign workers more than agriculture, which has begun to experience
severe labor shortages as our Southern border has tightened. The
President has therefore directed DOL to review the regulations
implementing the H-2A program and to institute changes that will
provide farmers with an orderly and timely flow of legal workers,
while protecting the rights of laborers.\11\
\11\ Fact Sheet: Improving Border Security and Immigration
Within Existing Law, Office of the Press Secretary, The White House
(August 10, 2007); see also Statement on Improving Border Security
and Immigration Within Existing Law, 43 Weekly Comp. Pres. Doc. 1067
(Aug. 13, 2007).
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Pursuant to this directive, the Department conducted a ``top to
bottom'' review of the H-2A program, its statutory basis, and current
implementing regulations. This analysis identified a number of
practices not required by the statute that have made administration of
the program unwieldy and parts of the program difficult to use,
particularly for an industry that needs its workforce at specific times
and cannot afford delays. This NPRM enhances many protections for
workers while seeking to eliminate unnecessarily cumbersome regulatory
practices that interfere with or inhibit use of the program, provide
little or no benefit for U.S workers, and indirectly contribute to the
employment of illegal workers.
The process for obtaining a temporary labor certification for H-2A
nonimmigrant agricultural temporary workers has been criticized as
complicated, time-consuming, and requiring the considerable expenditure
of resources by employers, SWAs, and the Federal Government. The
current requirement that applications for temporary labor
certifications be filed simultaneously at the SWA and the applicable
ETA NPC has resulted in burdensome, costly, and unnecessarily
duplicative Government review, with little associated benefit to
workers. In addition, the compressed time frame for supervised
recruitment has burdened employers and made it difficult for U.S.
workers to access and pursue these opportunities. The supervised
recruitment requirements and process have also been inconsistently
applied, leading to further administrative burdens for both employers
and workers. While the consolidation of the Regional Office oversight
of applications into two NPCs has, to a certain extent, lessened the
administrative burden and made application processing more consistent
at the Federal level, it has not lessened the burden faced by
employers, eliminated delays in application processing, or increased
the Department's ability to ensure worker protections. Consequently,
the program continues to be regarded with trepidation by many
agricultural employers who continue to make the unacceptable choice to
employ an undocumented workforce rather than face the program's many
complexities.
3. Overview of the Proposed Redesign of the System
In light of its extensive experience in both the processing of
applications and the enforcement of worker protections, the Department
has re-examined its program administration and is consequently
proposing several significant measures to re-engineer the H-2A program
processing. These proposals will simplify the process by which
employers obtain a labor certification while maintaining, and even
enhancing, the Department's substantial role in ensuring that U.S.
workers have access to agricultural job opportunities before H-2A
workers are hired. These proposals will also increase employer
accountability through newly applied penalties to further protect
against violations of program and worker standards, including
substantially increased civil monetary penalties for non-compliance
with program requirements and enhanced provisions for denying non-
compliant employers access to the program.
The Department expects that the resulting efficiencies in program
administration will significantly encourage increased program
participation, resulting in an increased legal farm worker labor supply
with the attendant legal rights and protections for workers. The
Department further expects that U.S. workers will be better protected
from adverse effects when they are competing with workers who are
legally present in the U.S. and who are subject to all of the
requirements of the H-2A program. See Sure-Tan v. NLRB, 467 U.S. at 883
(1984).
The Department is proposing to implement an attestation-based
process by which employers, as part of their application, would attest,
under threat of penalties, including perjury and debarment from the
program, they have complied with all applicable program requirements.
In addition, employers would be required to maintain all supporting
documentation for their application for a period of 5 years in order to
support the Department's enforcement of program requirements. The
Department would also institute a new auditing process to verify that
employers have, in fact, met their responsibilities under the H-2A
program.
In the Department's experience, delays by SWAs in conducting
housing inspections have frequently caused the Department to miss
mandatory statutory deadlines for processing H-2A labor certification
applications. By statute, the Department has only 15 days to process H-
2A labor certifications; the Department cannot require that
applications be filed more than 45 days before the first date of need,
8 U.S.C. 1188(c)(1), and is required to make a determination on
applications no fewer than 30 days before the first date of need, 8
U.S.C. 1188(c)(3)(A). Housing determinations are similarly required by
statute to be completed no fewer than 30 days before the first date of
need--a mandate designed to ensure that housing inspections do not
interfere with the specified timeframes for certifying labor
applications. 8 U.S.C. 1188(c)(4). The Department's program experience
indicates, however, that housing inspections are frequently delayed
well past 30 days before the first date of need, causing the Department
to make late certification
[[Page 8543]]
decisions thus violating the statutory timeframe specified. To bring
the program back into compliance with the law and ensure that
determinations are made no fewer than 30 days prior to the first date
of need, the proposed rule would alter the current H-2A housing
inspection procedures by adopting procedures that are currently used to
inspect housing for U.S. workers under the Migrant and Seasonal
Agricultural Worker Protection Act (MSPA). These procedures are
explained in greater detail below.
Consistent with the Department's statutory obligations under the
INA to process H-2A applications under strict time constraints, and the
experience we have had in not being able on a regular basis to achieve
these obligations with respect to employer-provided housing, it is
necessary in this proposed rule to separate the INA procedure from the
procedures for inspections not under the H-2A program in 20 CFR 654.400
and 654.403. While this INA rule would apply to H-2A related housing
inspections in the future, the housing standards themselves, that is,
20 CFR 654.404-654.417 and 29 CFR 1910.142, whichever are applicable,
continue to apply to such housing.
Employer applications would be submitted directly to an NPC,
streamlining the intake process and reducing the time required to
render a determination on the application. SWAs would continue to post
job orders, circulate them through the Interstate Employment Service
System, and refer potential U.S. workers to employers. SWAs would no
longer directly oversee the employer's recruitment efforts. Instead, as
described above, employers will attest to their compliance with the
program requirements and those attestations will be audited by the
Department to ensure compliance.
Upon submission of the application, the applicable NPC would review
the job offer and the attestations to ensure compliance with all the
criteria for certification relative to the date of need. As necessary,
the NPC may issue a notice of application deficiency to enable the
employer to amend or modify the application or job offer. The employer
would also submit a preliminary recruitment report to the NPC as part
of the filing process, documenting its recruitment efforts (and their
outcome) for the period from the initiation of the recruitment efforts
to the time of the submission of the application. In addition, the
employer would be required to create and retain a supplemental written
recruitment report for 5 years from the date of certification for use
in a Department audit or other investigation.
Employers would be required to retain for 5 years all supporting
documentation for their application including documents supporting
recruitment efforts, a copy of the housing certification, any relevant
certificate of occupancy used to demonstrate compliance, as well as any
written requests submitted to a SWA or other State agency for
preoccupancy inspection of housing, and any other documentation
required to demonstrate compliance with a program obligation.
The introduction of audits serves as both a quality control measure
and a means of evaluating applications. Audits would be conducted for
quality control and fraud detection purposes on adjudicated
applications as well as randomly-selected applications being processed.
The criteria used for selecting applications for audits would be drawn
from the Department's program experience and be based in part on
information received from the Department's Employment Standards
Administration (ESA), which is charged with enforcing the provisions of
the H-2A program through its Wage and Hour Division (WHD). During an
audit, employers would be required to provide information supporting
the attestations in their application. Failure to meet the required
program standards or to provide information in response to an audit
would result in an adverse finding that could lead to penalties, such
as revocation of an approved labor certification or debarment from the
program. These penalties may be in addition to penalties separately
assessed by ESA.
Finally, the Department's proposal creates an additional process
for penalizing employers or their attorneys or agents who have failed
to perform obligations required under the H-2A program. The Department
will continue to debar employers who have engaged in prohibited
activities or who have failed to comply with the obligations and
assurances required by the program, and we have added a process to
revoke an approved labor certification, which may in turn provide a
basis for the DHS to revoke an approved visa petition.
The re-engineering of the H-2A program to include pre-filing
recruitment, submission of applications directly to an NPC, modernized
processing of applications, reduction of duplication in the application
process, and focusing of SWAs on referral of U.S. workers should yield
improvements in the time needed to process labor certification
applications and help ensure the Department meets its obligation to
protect U.S. workers and process applications within the statutory
timeframe mandated by Congress.
B. Proposed Redesign To Achieve a Modernized Attestation-Based Program
1. Enhanced Recruitment Requirements
The recruitment process fulfills the Department's statutory mandate
to certify that there are not sufficient U.S. workers who are
available, able, willing, and qualified to perform the agricultural
labor or services and that the employment of the temporary foreign
worker will not adversely affect the wages and working conditions of
similarly employed U.S. workers. 8 U.S.C. 1188(a)(1). The Department
currently ensures that these standards are met by requiring a
combination of SWA-supervised recruitment by employers, the posting of
job orders in the Interstate Employment Service System, and the
independent contacting of other sources of potential labor. These
activities must take place in a very narrow 15-day window, as under the
statute the Department cannot require that applications be filed more
than 45 days prior to date of need for the worker and the Department
must approve or deny labor certifications no later than 30 days before
the employer's date of need.
The Department is now proposing to require employers to conduct
recruitment of U.S. workers for temporary agricultural job
opportunities for a substantially longer period of time before the job
begins by requiring that recruitment be started well in advance of the
employer filing the application. The Department's experience in other
programs, such as its permanent labor certification program, has
demonstrated that recruitment in advance of filing an application
benefits the potential U.S. worker population by providing a maximum
opportunity for consideration of the job opportunity. Employers would
continue to engage in so-called ``positive recruitment'' and post a job
clearance order for both interstate and intrastate clearance with the
SWA having jurisdiction over the place of employment in advance of the
application being filed with the Department. The Department believes
that advance recruitment in the H-2A program would help maximize the
ability of employees and organizations representing their interests to
identify available jobs with sufficient time to apprise all interested
workers of the potential opportunity well in advance of the job's start
date.
[[Page 8544]]
Under the new recruitment system, which is discussed in more detail
below, U.S. workers' ability to identify job opportunities would be
further enhanced by requiring employers to place three advertisements,
instead of the currently required two, in a newspaper of general
circulation most appropriate for the agricultural occupation and most
likely to reach the U.S. workers who will apply for the job
opportunity. In addition, the Department would require that one of the
three newspaper advertisements appear in a Sunday edition. If a
newspaper of general circulation with a Sunday edition is not available
(as may be the case in many rural areas where such jobs are located),
the employer would instead use the edition with the widest circulation
in the area of intended employment that is most appropriate to the
occupation and most likely to be read by the U.S. workers most likely
to apply for the job opportunity. In addition, if the use of a
professional, trade or ethnic publication is more appropriate to the
occupation, and if that publication is the most likely source to bring
responses from qualified and available U.S. workers, the employer may
use such publication instead of a newspaper in place of the two
required daily (but not Sunday) advertisements. This advertising option
will allow recruitment for agricultural jobs to be appropriately
tailored in those areas where such jobs are traditionally advertised in
ethnic or trade publications. Employers would also be required to
contact former employees to determine their willingness to accept the
employer's job opportunity.
In addition to recruiting in the area of intended employment,
employers would be required, based on an annual determination made by
the Secretary, to recruit in any State designated as a State of
traditional or expected labor supply for the place the employer's work
is to be performed. This additional recruitment would consist of a
single newspaper advertisement in the area or areas within the States
that are outlined in the Secretary's designation, and must be placed at
the same time as the three local newspaper advertisements discussed
above. SWAs will also place job orders into those designated states as
required.
As required by the current regulations, all advertising must
include all of the details required in the job offer, including the
name and geographic location of the employer. If the employer is an
association, the advertisement may, as is current practice, list only
the name of the association, but the Department proposes to require
that the advertisement inform the reader that the SWA will have on file
and will make available upon request the name and location of every
member of the association seeking workers through the advertisement.
Ads must identify in all cases the wage being offered. In the event an
association is serving as the employer and the wage is a range
throughout the area of intended employment, the range of wages must be
included in the advertisement, and the advertisement must indicate that
the SWA will have on file, and will make available upon request, the
wage rate applicable to each member of the association. These
requirements will help ensure that potential applicants are afforded
the opportunity to make fully informed decisions about job
opportunities.
Employers would begin advertising job opportunities no earlier than
120 calendar days and no later than 75 calendar days before the date on
which the foreign worker would begin work (i.e., the date of need).
This will permit sufficient time for an advertisement to be placed and
responded to by potential U.S. workers most likely to apply for the job
opportunities, and for workers who apply to be evaluated by the
employer before the H-2A application is filed. The Department believes
that the expanded recruitment window appropriately balances the need to
maximize the notice of available job opportunities to U.S. workers with
the need to ensure that recruitment is not conducted so far in advance
of the growing season that employers do not yet know when or how many
workers will be needed.
Employers filing the labor certification applications would be
required to attest under penalty of perjury that (1) they did, in fact,
attempt to recruit U.S. workers in the manner prescribed by the
regulations, and (2) any potentially qualified U.S. workers that
applied were rejected for lawful, job-related reasons. Employers would
submit with their application a preliminary recruitment report,
documenting their efforts to date in attempting to find eligible U.S.
workers, including the outcome of the evaluation of U.S. worker
applicants. Employers would also be required to prepare a supplemental
report after filing that documents subsequent recruitment efforts and
the results, including results from SWA recruitment and referrals, to
be retained with the other documentation supporting the application.
The proposed rule expands the period in which the employer must
conduct recruitment and consider potential U.S. workers, so that U.S.
workers will be given notice well in advance of the actual openings. To
account for the fact that the date and extent of need is always
flexible in the agriculture industry, the Department has retained
current provisions permitting employers to reasonably adjust the
numbers of workers needed without engaging in additional recruitment.
The INA also requires employers to engage in recruitment through
the Employment Service SWA job clearance system. See 8 U.S.C.
1188(b)(4); see also 29 U.S.C. 49, et seq., and 20 CFR part 653,
subpart F. The proposed recruitment model requires employers to submit
job orders to the SWA having jurisdiction over the area of intended
employment. When the job order is for a work opportunity in more than
one State, the SWA to which the job order is submitted will in turn
forward the job order to all States listed in the application as
anticipated worksites. In circumstances where the employer's
anticipated worksite location(s) is contained within the jurisdiction
of a single State, the SWA must, to maximize the recruitment of
eligible U.S. workers, transmit a copy of its job order to no fewer
than three States, which must include any State designated by the
Secretary as a State of traditional or expected labor supply for the
area of intended employment. This recruitment takes place in tandem
with the employer's own recruitment within a multi-state region of
traditional labor or expected labor supply, as discussed above. INA
Sec. 218(b)(4).
The Department is proposing that SWA job orders also be posted
until the time the H-2A worker departs for the place of employment (or
3 days prior to the start date of the employment, whichever is later).
Because referrals of U.S. workers resulting from newspaper
advertisements and intrastate/interstate job orders will all come from
the SWA, this proposal will better synchronize efforts to recruit U.S.
workers and ensure that such efforts operate in parallel.
Employers should retain several types of documents reflecting their
compliance with the program's recruitment requirements. Documentation
relating to newspaper advertisements will be satisfied by copies of
pages from the newspapers (or other publication) in which the job
opportunity appeared. Documentation of an SWA job order will be
satisfied by maintaining copies of the job order printed from the SWA's
Internet job listing Web site on the first day of posting, a copy of
the job order provided
[[Page 8545]]
by the SWA with the start date of posting, or other proof of
publication from the SWA containing the text of the job order on the
first day of posting. Contact with previous employees, another required
positive recruitment element, will be documented by maintaining copies
of correspondence with such employees (or records of attempts to
contact former employees). Such documentation should also contain a
description of the outcome of those contacts, including the lawful,
job-related reasons for not rehiring a former employee. In sum, these
proposed changes in the recruitment process will increase the
likelihood that U.S. workers will receive advance notice of available
job opportunities, as well as provide them with additional information
on available positions. In addition, the proposed changes will help
avoid recruitment-related processing delays.
2. Use of Attestations of Compliance With Assurances and Obligations
The Department is proposing to require employers to submit their
application directly to the NPC having jurisdiction over the employer's
place of employment. The application under the re-engineered process
will differ not only in the manner of its submission, but also in its
form. Based on the Department's experience administering the
attestation-based Permanent Labor Certification (PERM) program, the
Department is proposing instituting an application that would require
employers to attest to their adherence to the articulated obligations
under the H-2A program. An employer would be required to attest, under
penalty of perjury, that it will abide by all of the obligations
imposed on employers under the statutory and regulatory framework. The
employer would have to attest, for example, that it has begun to
conduct and either completed or will complete the required recruitment
(and document the recruitment efforts). The employer would also have to
attest that it has provided or secured required housing and, where
applicable, applied to the SWA and requested or received a satisfactory
inspection. The employer would also need to attest its compliance with
securing workers' compensation insurance; the so-called ``three-fourths
guarantee;'' and the provision of tools and transportation. In
addition, the employer would have to attest that it is in compliance
with and will continue to comply with all applicable Federal, State and
local employment-related laws. In short, all of the obligations of
employers to comply with H-2A program requirements would continue and
would be documented through these formal attestations.
As part of the application process, employers would attest that
they have conducted expanded recruitment in advance of filing an
application with the Department. Employers would attest to their
compliance with the required elements of the H-2A job offer, including
offering the applicable legally required wage, which would be obtained
in advance through a request to the NPC. Employers would attest that
they have provided the obligatory workers' compensation insurance and
met the required working conditions. Employers would further attest to
their adherence to requirements regarding the recruitment of qualified
U.S. workers through both their own positive recruitment efforts and by
requesting the posting of job orders through SWAs, as well as
confirming that any U.S. workers who have applied or been referred and
were not hired were rejected only for lawful, job-related reasons.
Employers would attest to having obtained worker housing comporting
with all applicable safety and health standards. Employers would
identify the housing to be provided by location and, if public or
rental accommodation, by name, and attest that the housing meets the
applicable standards. And, if the housing is of a sort that must by
statute be inspected, the employer would attest that such housing has
either satisfactorily passed a preoccupancy SWA inspection, or that the
employer has made a timely request for such an inspection that has not
occurred through no fault of the employer. As part of its recruitment
prior to filing its application, the employer would be required to
place a job order with the appropriate SWA, which would in turn post it
through the interstate/intrastate job clearance system.
The Department anticipates the shift to an attestation-based
process with pre-filing recruitment would help to bring the program
into compliance with longstanding statutorily required processing
timelines and better harmonize the program with the unique needs of the
agricultural sector, thereby enabling more employers to utilize the
program and better protecting U.S. workers from the adverse effects
resulting from the employment of illegal workers. Employers would still
be required to comply with all the requirements and obligations of the
program, and indeed penalties for noncompliance would increase.
Employers would retain supporting documentation evidencing their
compliance with the program requirements, while the Department would
retain for itself the right to request such documentation to ensure
program integrity.
The revised attestation process will dramatically reduce the number
of incomplete applications that currently consume valuable processing
time only to then have to be returned to the applicant for the
inclusion of missing information. The majority of the information on
the application form would consist of attestations that will elicit
information similar to that required by the current H-2A labor
certification process reflecting that the employer has performed the
necessary activities to establish eligibility for certification. These
proposed attestations lend themselves to a more efficient processing of
applications.
The Department anticipates that, with an expected increase in use
of the program, it will see a marked increase in participants
unfamiliar with the obligations that are integral to the H-2A program.
The movement to an attestation system would be accompanied by outreach
to potential users as well as those currently utilizing the program.
Such education efforts will of necessity focus on employers'
obligations and the mechanisms by which compliance will be judged. The
Department invites comment on a timeline for its anticipated training
and educational outreach initiatives.
3. Form Submission
The Department proposes initially to require employers to submit
applications on paper, through an information collection form that will
be modified significantly from the current form to reflect an
attestation-based process. The use of a redesigned form would provide
the necessary assurances of an expeditious paper application review
process. The Department ultimately envisions implementing an electronic
submission system similar to that employed in other programs
administered by the Department's OFLC, such as the electronic
submission system in the PERM program.
The Department is proposing to eventually require electronic
submission in explicit recognition of the fact that such a process will
significantly further improve the application process. An electronic
submission process will also improve the collection of key program data
and better allow the Department to anticipate trends, investigate areas
of concern, and focus on areas of needed program improvement. Improved
data collection will also enable the
[[Page 8546]]
Department to capture information regarding noncompliance and potential
fraud that may lead to future administrative, civil, or criminal
enforcement actions against unscrupulous or non-performing employers.
The Department recognizes that H-2A employers may be concerned
about their ability to comply with the application requirements through
use of an Internet-based submission process and is accordingly not
requiring it at this time. The Department is committed to reviewing its
ability to transition the H-2A filing process to such a method and is
reviewing specifically its ability to provide, based upon its previous
experience, user-friendly electronic registration and filing processes
that would enable use by any employer with computer and Internet
access. The Department's experience with agricultural employers in
other contexts (program requirements under the Migrant and Seasonal
Agricultural Worker Protection Act, for example) support its
determination that such access is common enough among agricultural
employers to justify eventually requiring its use in this context. The
Department invites comments, in particular from H-2A employers, on the
concept of an electronic filing process.
4. Elimination of Unnecessary Duplication in the SWAs' Role
The Department's focus on providing employers a more efficient
process has taken into consideration the total time an employer must
spend before all Federal agencies to obtain permission to employ an H-
2A worker and ensure that workers are available when needed. Employers
must by statute apply to DOL, DHS and DOS to obtain H-2A workers.
Reducing the time it takes an employer to secure H-2A workers after
filing their application, and after their unsuccessful search for U.S.
workers, is critical to the program's success given the time sensitive
nature of many agricultural employers' labor needs.
Congress has signaled its awareness of the incredible importance to
the agricultural sector of timely application processing by building
tight mandatory timeframes into the statutes governing the H-2A
program. For example, the Secretary is required to make certification
decisions ``not later than 30 days before the date such labor or
services are first required to be performed,'' 8 U.S.C. 1188(c)(3)(A),
and SWAs are required to complete housing inspections by that date as
well, 8 U.S.C. 1188(c)(4). Actual practice has shown, however, that the
procedures established by the current regulations are cumbersome, slow,
unwieldy, and have resulted in both SWAs and the Department regularly
failing to meet the required statutory timeframes.
Consequently, the Department's efforts have focused on how to
develop a smoother and more expeditious H-2A process while ensuring
protections for workers. Among our proposals in this rulemaking is the
elimination of duplicate filing of applications with the SWA and the
Department's NPC. By focusing the SWAs' role in the initial stages of
the application process (placing job orders, managing referrals of
eligible U.S. workers, and conducting housing inspections), the
Department can more effectively oversee the adjudication and consistent
processing of all applications. As a result of this modernized
application review procedure, the Department can reduce and equalize
the average processing time of applications regardless of the area of
the country where the application originated.
We expect that the time savings gained by using a more efficient
labor certification process will reduce the total time an employer
spends obtaining permission from the Federal Government to employ an H-
2A worker and getting that worker from his or her country of origin to
the place of employment. Moreover, the Department's consolidation of
the review of applications in its NPCs will permit greater consistency
of adjudication. Two centers, as opposed to the fifty State agencies,
will be charged with all major aspects of application adjudication,
ensuring consistency in the application of program requirements and
policy. Indeed, the Department is considering consolidating all H-2A
applications into one NPC rather than two, to further enhance
consistency of adjudication and processing.
The SWA will continue to play its traditional role in the
recruitment process by posting and processing an appropriate job order
to notify available and qualified U.S. workers of the opportunity. The
employer would need to contact the SWA to initiate placement of the job
order, rather than relying on the SWA to place it in the course of
processing the H-2A application, as is the case now. The job order
would be required to provide the same information as the newspaper
advertisements contemplated by this proposal. This is an expansion of
the information previously required to be included with the job order,
and will significantly enhance the transparency of the recruitment
process for prospective workers. Employers whose applications involve
worksites in multiple SWA jurisdictions would place the job order with
the SWA in which the majority of the proposed work assignment will take
place. The SWA will arrange to have it posted with other SWAs, as
appropriate.
To strengthen the integrity of the Secretary's determination of
whether there are available U.S. workers for the position, and to help
build employers' confidence in their local SWAs and the H-2A program,
the proposed rule at Sec. 655.102(j) clarifies the SWAs' obligation to
verify the employment eligibility of prospective U.S. workers before
referring them to an employer under a job order in support of a H-2A
application. The failure of many SWAs to verify the employment
eligibility of referred workers, despite existing statutory
requirements that only eligible workers be counted as valid referrals
and existing regulatory requirements that no ineligible workers be
referred, has created a situation in which it is all too easy for
illegal workers, rather than U.S. workers, to be referred to employers.
For many years, agricultural employers have complained to this
Department that SWA-referred workers are often undocumented, generating
substantial additional legal risks and administrative burdens for
employers. Collectively, agricultural employers appear to have little
confidence in their local employment service or the H-2A program, and
consequently rarely utilize either.
The INA provisions governing admission of foreign workers under the
H-2A program make employment eligibility of U.S. workers a core element
of a worker's ``availability;'' a U.S. worker has long been
characterized as being ``available'' for employment when authorized to
legally undertake that employment. An employer will not be penalized
for turning away applicants who are not authorized to work, and
referred workers who are refused employment on the basis of not having
work authorization will not be counted as available for purposes of H-
2A labor certification. By statute, the Secretary must certify the job
opportunity if the employer: (1) ``Has complied with the criteria for
certification (including criteria for the recruitment of eligible
individuals as prescribed by the Secretary),'' and (2) ``does not
actually have, or has not been provided with referrals of, qualified
eligible individuals who have indicated their availability to perform
such labor or services on the terms and conditions of a job offer which
meets the requirements of the Secretary.'' 8 U.S.C.
[[Page 8547]]
1188(c)(3)(A) (emphasis added); see also definition of ``agricultural
worker,'' 20 CFR 651.10 (applicable to referrals under the Employment
Service System regulations at 20 CFR parts 651-658). For purposes of
employment, the INA defines an ``eligible individual'' as one ``who is
not an unauthorized alien * * * with respect to that employment.'' 8
U.S.C. 1188(i)(1).
SWAs receiving ETA Alien Labor Certification (ALC) grant funding to
support H-2A activities are required to verify the employment
eligibility of applicants seeking referral under a job order in support
of an H-2A application pursuant to current regulations and agency
guidance; this proposed regulation provides additional clarification of
this requirement. The Department notes that DHS regulations at 8 CFR
274a.6 provide additional verification authority and procedures for
SWAs. To confirm its continued eligibility to receive ALC grant
funding, each State agency will be asked to submit proof of these
procedures to the Department prior to the beginning of the 2009 fiscal
year (FY). In the event a SWA refers a worker who is not eligible,
current H-2A employer responsibilities will not change; an employer is
not required to hire such worker and can include ineligibility as a
reason for rejection in its recruitment report.
We strongly caution that the SWA's responsibility to perform
threshold, pre-referral verification exists separate from each
employer's independent obligation under Immigration Reform Control Act
of 1986 (IRCA) to verify the employment eligibility of every worker to
whom it has extended a job offer. The INA does provide, however, that
employers who accept referrals from SWAs that verify employment
eligibility in compliance with the DHS process and provide referred
employees with appropriate documentation certifying that verification
has taken place are entitled to ``safe harbor'' in the event it is
later discovered a referred worker was not authorized to work in the
U.S. 8 U.S.C. 1324a(a)(5). To simplify the recruiting process and avoid
unnecessary duplication of functions, SWAs are directed to provide all
referred employees with adequate documentation that verification of
their employment eligibility has taken place. Employers can rely on INA
Sec. 274A(a)(5) only where the documentation complies with all
statutory and regulatory requirements, including 8 CFR 274a.6. SWAs are
strongly encouraged to provide this documentation to employers. The
Department is not insensitive to the resource and time constraints
facing SWAs in their administration of H-2A program requirements and
the difficulties inherent in making informed referrals from a
population of workers that is frequently itinerant and often difficult
to contact. However, we do not believe that this requirement has
resulted or will result in a significant workload increase or
administrative burden. Further, the mechanisms available for
verification, including the E-Verify Web-based system operated by DHS,
allow SWA staff to perform this function relatively quickly after
training.
E-Verify is a program administered by the United States Citizenship
and Immigration Services (USCIS) within DHS. E-Verify electronically
confirms a person's employment eligibility after the Employment
Eligibility Verification Form (Form I-9) has been completed. SWAs that
choose to use E-Verify refer a job seeker to an H-2A-related job
opportunity only after completing a Form I-9 and submitting the
required information via E-Verify. The SWA will be required to follow
the terms and conditions in the Memorandum of Understanding that must
be signed by the SWA and USCIS in order to gain access to E-Verify. The
SWA may not refuse to make a referral and the employer may not refuse
to accept a referral because of an E-Verify tentative nonconfirmation
(TNC), unless the job seeker decides not to contest the TNC. SWAs and
employers may not take any adverse action, such as delaying a referral
or start date, against a job seeker or referred worker based on the
fact that E-Verify may not have yet generated a final confirmation of
employment eligibility. The SWA will be required to advise the employer
when E-Verify generates a final confirmation or nonconfirmation.
The requirement that SWAs verify employment eligibility prior to
referral is designed to strengthen the integrity of the temporary labor
certification process, afford employers a legal pool of U.S. worker
applicants, and improve confidence in and use of the H-2A labor
certification program.
5. Retention of Supporting Documentation
Employers would be required to retain the documentation outlined in
the proposed regulations in hard copy for 5 years from the date of
adjudication, and to provide all documentation to demonstrate
compliance with the requirements of the program in response to an audit
or other investigative matter, whether conducted by the Department or
another Federal agency, such as DHS. As described above, the documents
to be retained include proof of recruitment efforts, including
advertising, contact made with applicants and former employees, and a
written recruitment report with results of efforts and reasons for not
hiring U.S. workers.
Finally, the Department recognizes that there is always a risk that
less-than-scrupulous H-2A program participants will try to secure
workers through fraud or misrepresentation. Long-standing practice and
coordination with SWAs in the H-2A program, as well as experience with
the attestation-based PERM system, have provided us substantial insight
regarding the mechanisms by which employers may seek to take advantage
of the re-engineered attestation-based system. The Department proposes
to employ various measures to address potential fraud or abuse in the
attestation-based process and the H-2A program generally. These will
include audits, a combination of increased deterrent penalties,
including [0]fines, revocation of approved applications, and debarment
from future participation in the H-2A program, all of which are
discussed below, as well as other mechanisms for detecting fraud. In
addition, employers and their agents and attorneys are reminded that
submission of any materially false, fictitious, or fraudulent
statements to any Federal Government agency constitutes a criminal
violation (18 U.S.C. 1001 and 1546), subjecting anyone convicted of a
violation to fines and/or imprisonment for not more than 5 years.
C. Maintaining and Enhancing Program Integrity
The shift to an attestation-based temporary H-2A agricultural labor
certification system will be accompanied by the Department's vigorous
enforcement of employer obligations under this program. Consequently,
the Department is proposing certain actions in this rulemaking,
consistent with its statutory authority, to examine and enforce
compliance with the enumerated obligations and responsibilities of
employers that seek approval of labor certifications pursuant to the H-
2A program.
1. Prohibition on Cost-Shifting
Under proposed new Sec. 655.105(n), an employer must attest that
it has not shifted and will not shift to the H-2A worker the costs of
preparing or filing the application, including the costs of recruitment
or attorneys' fees, and that it has not utilized a foreign recruiter
without contractually prohibiting that
[[Page 8548]]
foreign recruiter from passing on such costs. The recruitment, legal,
and other costs associated with filing a temporary labor certification
application are business expenses necessary for, or in the case of
legal fees, desired by, the employer to complete the labor market test
and to prepare and submit the labor certification application. The
employer's responsibility to pay the costs of preparing an application
exists separate and apart from any potential benefit that may accrue to
the foreign worker as a result of the employer filing the application.
Prohibiting the employer, including a Farm Labor Contractor (FLC), from
passing these costs on to its H-2A worker(s) allows the Department to
better protect the integrity of the process, as well as protect the
wages of the H-2A worker from deterioration by disallowable deductions.
Disallowable deductions taken from an H-2A worker's wages cause those
workers to be paid less than the required wage, which results in an
adverse effect on U.S. workers.
2. The Use of Audits
Pursuant to proposed new Sec. 655.112, after a labor certification
application has been adjudicated, the Department would, based upon
various selection criteria, identify certain applications for audit
review. Investigations performed by the Department's WHD and the
Department of Justice's Office of Special Counsel for Unfair
Immigration-Related Employment Practices (OSC) would provide another
potential source of information triggering audits. In addition, some
applications would be randomly selected for audit as part of the
Department's quality control processes. This authority would enable the
Department to perform its directed and random audits on any application
that has been adjudicated, regardless of whether the application was
approved or denied.
If an application is selected for an audit, the employer will be
notified in writing of the selection. The employer would then be
required to submit, within 30 days, the documentation specified in the
audit request to verify the information stated in or attested to on the
selected application. Upon timely receipt of an employer's audit
documentation, and after any further investigation that may be
warranted, the audit information would be reviewed by the Department's
Certifying Officer (CO). The Department would then determine whether
the employer complied with its obligations and would notify the
employer in writing of its findings.
The Department will take firm action when it discovers non-
compliance by employers. The Department is invoking all available
statutory authorities to bolster its enforcement capabilities. If, at
the conclusion of an audit, there is evidence of non-compliance with
required attestations and/or other program requirements, or if an
employer refuses to participate in the audit process, the proposed rule
would enable the CO to order a variety of remedies. The CO may initiate
debarment proceedings against the employer, agent and/or attorney in
order to prohibit participation in the H-2A program for a period of up
to 3 years at the Department's discretion and depending on the nature
and severity of the violations. If the audit reveals that employer's
documentation is incomplete, is inconsistent with the employer's
statements and/or attestations contained in the application, or if the
application and supporting documentation is otherwise deficient in some
material respect, the employer may, in addition to debarment, also
experience revocation of the approved H-2A certification, as described
below. The proposed rule also adds a provision explaining that the
Department of Justice's OSC will refer to the CO pertinent information
gained in the course of OSC's investigations. Likewise, the proposed
rule would require the Department and Department-funded entities to
share pertinent information with OSC.
3. Revocation of Existing Labor Certifications
Section 218(e)(1) of the INA authorizes the Department to revoke a
temporary agricultural labor certification in appropriate instances.
When the Department initiated rulemaking in 1987 to implement IRCA, it
considered implementing this provision, but determined that the SWA's
supervision of the employer's activities during the labor certification
application process, together with WHD's post-certification enforcement
role, vitiated the need for such a sanction. 52 FR 20524, 20525, Jun.
1, 1987.
Along with the modernized approach to the application and
certification processes proposed in this rule, we also include proposed
measures, consistent with the provisions of INA Sec. 218(e)(1), to
ensure compliance. This includes the possibility of revocation of an
approved certification if it is subsequently determined that an
employer has not complied with a material term or condition of the
certification, or upon recommendation of WHD for egregious program
violations or interference with or failure to cooperate with an
investigation. DHS, in a separate rulemaking, is proposing to revoke
approved visa petitions that were approved on the basis of the revoked
H-2A labor certifications.
4. Debarment
Proposed Sec. 655.118 seeks to modernize and enhance the statutory
process relating to the debarment of employers who substantially
violate the terms of a labor certification. Over the past two decades,
effective policing of the program has been hampered by an unnecessarily
narrow definition of employer actions warranting debarment. In
particular, the current regulation does not authorize debarment for
actions that occurred during the recruitment process, including the
rejection of domestic workers for other than lawful job-related
reasons. Under the proposed rule, however, where certification would be
granted based on employer attestations that recruitment of U.S. workers
was unsuccessful, the availability of debarment as a sanction would be
a powerful tool to encourage compliance.
Accordingly, if the OFLC Administrator finds that an employer or an
employer's agent or attorney has misrepresented a material fact or made
fraudulent statements in its attestations, materially failed to comply
with the terms of the attestations, or committed an act(s) of
commission or omission that reflects a willful failure to comply with
an obligation, attestation or other activity listed in proposed Sec.
656.118, the OFLC Administrator may order debarment of the employer,
agent and/or attorney from the H-2A program for a period of up to 3
years. In addition, other Federal agencies will be notified, as
appropriate, of the audit findings.
The current regulation provides debarment authority solely to ETA
and requires the WHD to report findings of violations to ETA and make
recommendations to deny future certifications. Under the proposal,
debarment authority for issues identified by WHD investigations would
reside with the Wage and Hour Administrator, while debarment authority
for violations of program requirements committed during the application
and attestation process would remain with ETA. This change will allow
administrative hearings and appeals for civil money penalties assessed
by the WHD to be consolidated with debarment actions arising from the
same facts. It will also eliminate the need for ETA to review Wage and
Hour investigations, allowing for more
[[Page 8549]]
expeditious proceedings and efficient enforcement.
D. Other Significant Changes
1. Wages and the Adverse Effect Wage Rate (AEWR)
Section 218(a)(1)(B) of the INA requires as a condition for
approval of H-2A petitions that the Secretary has certified that ``the
employment of the alien in such labor or services will not adversely
affect the wages and working conditions of workers in the United States
similarly employed.'' To ensure that the wages of similarly employed
U.S. workers are not adversely affected, agricultural employers wishing
to utilize the H-2A program have traditionally been required to offer
and pay their covered U.S. workers and H-2A workers the higher of the
applicable hourly ``Adverse Effect Wage Rate'' (AEWR), as determined by
the Federal government; the applicable prevailing wage, as determined
by the States; or the Federal or State statutory minimum wage.
Over the last 20 years, it has become clear that perhaps the
biggest threat to the wages and working conditions of U.S. workers is
direct competition from a large undocumented workforce that is often
underpaid and taken advantage of yet is afraid to assert its rights.
Senators from both political parties remarked upon this phenomenon
during the recent immigration debates in Congress,\12\ and the U.S.
Supreme Court has also noted the threat that undocumented workers pose
to the wages and working conditions of U.S. workers. See Sure-Tan v.
NLRB, 467 U.S. 883, 892 (1984).
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\12\ See e.g., 152 Cong. Rec. S9773 (2006) (statement of Senator
Dianne Feinstein); 153 Cong. Rec. S441-S442 (2007) (statement of
Senator Larry Craig); and 153 Cong. Rec. S6590 (2007) (statement of
Senator Edward Kennedy).
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Thus, based on data collected during more than 20 years of
experience in administering the H-2A program, the Department has
concluded that one of the most significant actions it can take to
protect the wages and working conditions of U.S. workers is to render
the H-2A program sufficiently functional such that, rather than
resorting to the employment of workers illegally present in the U.S. to
make up for shortages in the number of U.S. workers who are willing and
available to perform agricultural work, agricultural employers will
instead use the H-2A program, with all of its accompanying legal
requirements and protections.
One of the most important things the Department must do to ensure
that the H-2A program is fully functional and protective of the wages
and working conditions of U.S. workers is to set AEWRs that
appropriately reflect market realities and labor costs. Two decades of
experience with the H-2A program have shown that, in light of the
prevailing conditions in the agricultural labor market, an AEWR that is
set too low or too high is likely to harm U.S. workers. It is no secret
that foreign workers may be willing to work for wages that are lower,
and often substantially lower, than wages that are typically paid to
U.S. workers. Allowing foreign workers to work at substandard wages
would likely harm U.S. agricultural workers by causing them to be
displaced or by forcing them to accept substandard wages in order to
compete with the foreign workers. Direct harm effects of a too-low AEWR
may also include increased levels of unemployment among U.S. workers.
Indirect effects of a too-low AEWR could include worsening working
conditions.
Conversely, an AEWR that is artificially set too high can also
result in harm to U.S. workers. If the AEWR is set so high that it is
seen as not reflective of actual market conditions, agricultural
employers may hire undocumented foreign workers instead of
participating in the H-2A program, and the resulting influx of
undocumented foreign workers erodes the earnings and employment
opportunities of U.S. workers in agricultural occupations. U.S. workers
cannot fairly compete against undocumented workers, who may accept work
at below-market wages, and who are also cheaper to employ than H-2A
workers because they do not require the additional payment of other H-
2A program requirements, including transportation, and housing.
Although the threat of legal sanctions and attendant risks of work
disruption will constrain some employers from employing undocumented
workers, the greater the total cost to employers of the AEWR plus all
other attendant H-2A program costs as compared to the market rate for
labor, the greater the likelihood is that employers will risk hiring
undocumented foreign labor.
Indeed, according to the USDA, there are an estimated 1.2 million
hired agriculture workers in the United States. Recent survey data from
the Department indicate that more than 50 percent of agriculture
workers in the U.S. admit to being here illegally, and some farm worker
advocacy groups have estimated that 70 percent of the agricultural
labor force is undocumented.\13\ That means there are currently more
than 600,000 and perhaps more than 800,000 illegal agricultural workers
on U.S. farms, a strong indication of the failures of the current
system.
---------------------------------------------------------------------------
\13\ See Julia Preston, ``Farmers Call Crackdown on Illegal
Workers Unfair,'' The New York Times, August 11, 2007.
---------------------------------------------------------------------------
These system failures have contributed to the large number of
undocumented workers in agricultural positions in the U.S., which has
in turn adversely impacted U.S. workers by eroding agricultural
employment opportunities and wages. The effect on U.S. workers of an
AEWR that is set too high is ultimately similar to the effect of an
AEWR that is set too low: Loss of family income, increased duration of
job searches, and increased levels of unemployment. The undocumented
workers whose hiring is incentivized when AEWRs are artificially set
too high lack the legally enforced protections and benefits that the H-
2A program provides, further threatening to degrade U.S. workers'
working conditions.
The Supreme Court expressly recognized in its decision in Sure-Tan,
467 U.S. at 892, that ``acceptance by illegal aliens of jobs on
substandard terms as to wages and working conditions can seriously
depress wage scales and working conditions of citizens and legally
admitted aliens * * *.'' This is still the case today. As Senator
Kennedy stated in May 2007,
We have, unfortunately, employers who are prepared to exploit
the current condition of undocumented workers in this country--
potentially, close to 12 [and] 1/2 million are undocumented. Because
they are undocumented, employers can have them in these kinds of
conditions. If they don't like it, they tell them they will be
reported to the immigration service and be deported. That is what is
happening today.'' \14\
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\14\ 153 Cong. Rec. S6590 (2007).
Because illegal aliens may be willing to work for substandard
wages, may be reluctant to report violations of the labor and
employment laws, and in some instances may even accept illegally low
wages that are paid off the books, the prevalence of illegal aliens in
the agricultural sector today represents a substantial threat to the
wages and working conditions of U.S. workers.
As noted above, there is demand for hundreds of thousands of
agricultural workers beyond what the domestic labor market is able to
supply. Replacing the hundreds of thousands of undocumented
agricultural workers currently employed in the U.S. with U.S. workers
or with H-2A program workers paid at a legally required wage
[[Page 8550]]
that will not undermine agricultural wages will substantially
counteract these adverse effects.
Wages vary across the U.S. by geographic location, by specific
agricultural occupation, and by level of skill. An AEWR that does not
take into account these variables will inevitably disrupt program
functionality and adversely affect U.S. workers. For example, a single
national AEWR applicable to all agricultural jobs in all geographic
locations would prove to be below market rates in some areas and above
market rates in other areas, resulting in all of the associated adverse
effects that have been previously discussed. AEWRs covering large
multi-state regions suffer from similar flaws. In an agricultural
sector where prevailing labor conditions make the need for precision in
AEWR determinations paramount, it is essential that a methodology be
adopted that allows for as great a degree of geographic refinement as
possible.
It is therefore critical that the AEWR be accurate and reflect
market conditions for each locality across the country. If the AEWR
does not reflect market wages and is too low or too high in any given
area, it will harm U.S. workers directly by artificially lowering wages
or it will harm U.S. workers indirectly by providing an incentive for
employers to hire undocumented workers. Improving the geographic
precision of the AEWR is essential to ensuring that the AEWR meets its
statutory objective.
Another important element in determining an appropriate AEWR that
reflects market realities and labor costs is including wage data
relating to the specific occupation and level of skill or experience
required for a position. Farm labor comprises a number of occupations
and skills, and both the demand for and supply of farm workers with a
particular skill level or experience varies significantly across
geographic areas. The farm labor market is not a monolithic entity, but
rather is a matrix of markets across a spectrum of occupations, skill
or experience levels, and local areas. Effectively protecting U.S.
workers from unfair foreign competition by setting an AEWR that is
neither too low nor too high requires that the AEWR be specifically
applicable to the labor market affected in terms of specific
occupation, skill or experience, and geographic location.
The present AEWR calculation method is based on a 1989 final rule,
29 CFR part 655, that calculates regional AEWRs based on the previous
year's annual combined average hourly wage rate for field and livestock
workers in each of 15 multi-state regions and 3 stand-alone States, as
compiled by the USDA quarterly Farm Labor Survey Reports. In 1989, the
Department determined that the USDA survey was the best available
``barometer'' for measuring farm wages on a nationwide basis. In the
succeeding years, however, the Department has gained vast knowledge and
experience in applying wage data that simply did not exist in 1989.
The Department's reliance on USDA Farm Labor Survey data creates
several problems for functional program administration. The USDA
quarterly Farm Labor Survey does not provide refined data by skill
level or experience, occupations, or geographic locales of workers
typically sought by agriculture employers in the H-2A program. The USDA
Farm Labor Survey population includes not only the lower-skilled crop
field workers typically sought by agriculture employers who turn to the
H-2A program for labor resources, but also inspectors, animal breeding
technicians, and trained animal handlers--all occupations that provide
a poor basis for determining H-2A wages because they are rarely, if
ever, filled by H-2A workers. Additionally, the USDA Farm Labor Survey
does not account at all for different skill levels required by
agriculture occupations.
The accuracy of AEWRs based on the USDA Farm Labor Survey is
further diminished because the Farm Labor Survey is not based on
reported hourly wage rates. Instead, USDA's Farm Labor Survey asks
employers to report total gross wages and total hours worked for all
hired workers for the two reference weeks of the survey. Based on this
limited information, the survey constructs annual average wages for the
broad general categories of field workers and livestock workers. The
AEWR is then calculated by combining the average of the annual wage for
field workers and the average annual wage for livestock workers into
one annual wage rate covering both of those general occupational
categories. The survey thus determines the hourly AEWR based not on
reported hourly wages, but rather on the basis of the numerator (total
gross wages for the combined occupations) and denominator (total hours
for the combined occupations) derived from the information supplied by
employers.
In addition, the Farm Labor Survey estimates hired labor use and
costs at the aggregation of 15 multi-state regions (along with 3 stand-
alone states). The aggregation of a widely diverse national
agricultural landscape into just 15 regions (and 3 stand-alone states)
results in extremely broad generalizations that fail to account for
specific market conditions at the local level. Wage data collected at
each individual State and even substate level would be more appropriate
for purposes of computing an accurate, sub-regional AEWR that reflects
local market conditions. Indeed, market-based wage survey data at the
state or substate level is the standard for calculating comparison
wages in other temporary worker programs administered by the
Department, including the H-2B program that is the non-agricultural
counterpart of H-2A and the H-1B specialty occupation worker
program.\15\
Moreover, the USDA Farm Labor Survey is administered and funded
through USDA, giving the Department no direct control over its design
and implementation. USDA could terminate the survey at any time and
leave the Department without the basic data, problematic as it is, used
to calculate the AEWR. In fact, just this past year, USDA announced
that it would suspend the survey in February 2007 due to budget
constraints. Ultimately, USDA resumed the Survey in May 2007. The
possibility that USDA may suspend the survey at some point in the
future adds a measure of instability and uncertainty for AEWR
determinations in future years.
Therefore, this NPRM proposes to institute an alternative
methodology for determining the AEWR that will more accurately measure
market-based wages by occupation, skill level, and geographic location.
A more accurate and refined AEWR methodology will produce an AEWR that
more closely approximates actual market conditions, which will, in
turn, help protect the wages and working conditions of U.S. workers.
The Department invites comment on an alternative AEWR methodology
that achieves the goals described above. Under this proposed rule, the
Department suggests a revised AEWR methodology that would achieve those
goals by utilizing the Bureau of Labor Statistics (BLS) Occupational
Employment Survey (OES) data instead of USDA Farm Labor Survey data.
The OES program in BLS collects data on wage and salary workers and
produces employment and wage estimates for about 800 occupations
covering over 70 percent of the employment in the U.S. See 67 FR at
30479, May 6, 2002.
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\15\ Calculation of the applicable wage by a SWA using the OES
survey is, in fact, a ``safe harbor'' providing presumption of
correctness in the H-1B labor condition application. 20 CFR
655.730.(a)(2)(ii)(A)(3).
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The wage component of the OES survey is, with the exception of the
[[Page 8551]]
Decennial Census, the most comprehensive survey conducted by any agency
of the Federal Government. The OES program surveys approximately
200,000 establishments every 6 months, and over 3 years collects the
full sample of 1.2 million establishments. The OES program collects
occupational employment and wage data in every State in the U.S. and
the data are published annually. The OES wage data is already utilized
by the Department for determining comparison wages in other temporary
worker programs and has proven to be an accurate and successful wage
reference. In 1989, when the Department established the current AEWR
methodology, the OES program was not well developed and thus was not an
effective alternative for the USDA Labor Survey. In the intervening 18
years the OES program has surpassed the USDA Labor Survey as a source
for comprehensive agricultural wage data in several respects.
First, the OES program produces occupational estimates by
geographic area and by industry. Estimates based on geographic areas
are available at the national, State, and metropolitan area levels.
Industry estimates are available for over 450 industry classifications
at the national level. The industry classifications correspond to the
sector, 3, 4, and 5-digit North American Industry Classification System
(NAICS) industrial groups.
Second, the OES program provides data at the substate level in
addition to the State level. Data is compiled for each metropolitan
statistical area (MSA) and for additional non-MSA areas that completely
cover the balance of each State. Data is available for 573 distinct
areas comprehensively covering the U.S. This level of detail will
enable AEWRs to be defined for H-2A applicant occupations that are
specific to a relevant substate labor market area, greatly improving
the ability of the Department to tailor certification decisions and
parameters to relevant local labor market conditions. By contrast, the
current AEWR provides wage data for just 15 multi-state regions and 3
stand-alone States across the U.S.
Another advantage of OES is that it offers the ability to establish
four wage level benchmarks commonly associated with the concepts of
experience, skill, responsibility, and difficulty variations within
each occupation. The four skill levels for each occupation afford the
employer and the Department the opportunity to more closely associate
the level of skill required for the job opportunity to the relevant OES
occupational category and skill level. This is another important
advantage over the USDA Farm Labor Survey, which makes absolutely no
skill distinctions.
There are five OES categories of occupations that would most likely
be identified with H-2A job classifications. The Department expects
that the ``farm workers and laborers, crop, nursery and greenhouse''
occupational category would encompass the majority of the jobs that
employers would seek to fill under the H-2A program. The survey does,
however, contain other categories, such as ``sorters and graders'' and
``farmworkers, farm and ranch animals,'' that will enable employers and
the Department to more closely match the job opportunity to the
relevant OES job category and, in turn, the appropriate AEWR. This is a
significant advantage over the USDA Farm Labor Survey, which awkwardly
provides just a single wage that purports to cover the entire spectrum
of agricultural occupations.
Importantly, the OES survey is conducted by the Department's Bureau
of Labor Statistics, which will enable continuity and coordination
between those who gather the wage data and those who utilize it. This
will help ensure the data needs of the H-2A program and AEWR
calculation are consistently met.
The Department recognizes that the proposed new methodology
utilizing the OES survey data to determine the AEWR is subject to some
limitations. For example, the OES survey presently determines
agricultural wages by surveying establishments that provide support
activities for crop production, such as farm labor contractors, who
provide workers and laborers to farm owners and operators. The survey
does not include farm establishments that are directly engaged in the
business of crop production. Nonetheless, the survey is broad enough to
provide accurate and statistically valid wage rates: The latest OES
data covers agricultural establishments accounting for the employment
of 451,770 hired agricultural workers of all types or more than one-
third of the 1.2 million hired farm workers in the U.S., according to
the USDA. Moreover, employees of farm labor contractors and other
similar businesses generally perform the same type of work as H-2A
workers, and thus provide a good general basis for wage comparison. In
the Department's estimation, taking these factors into account, the OES
survey data is substantially more complete, detailed, and accurate--
considering geography, occupation, and skill level--than is the USDA
Farm Labor Survey.
The Department's examination of data from the Census Bureau's
Current Population Survey (CPS), which includes agricultural workers
from both farm and nonfarm establishments, confirms that the OES data
covering wages paid by nonfarm agricultural establishments provides an
effective and appropriate proxy for the wages paid directly to workers
by farm operators. The CPS, a monthly survey of 60,000 households,
collects information on the employment and unemployment experience of
workers in the U.S. Estimates based on CPS data for 2006 show little
difference in the mean or median earnings of agricultural workers
employed by farm establishments and those employed by nonfarm
establishments (the establishments within the scope of OES).\16\
Agricultural workers in nonfarm establishments had mean hourly earnings
of $8.86 and median hourly earnings were $8.20. In the farm
establishments, mean hourly earnings were $8.55 and median hourly
earnings were $7.80. Because of the small size of the CPS survey, the
difference in wages reported by agricultural workers in farm
establishments and nonfarm establishments is not statistically
significant. Comparable OES estimates place mean hourly earnings at
$8.94 for agricultural workers in nonfarm establishments and are very
similar to the CPS estimate of $8.86.\17\
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\16\ As noted above, although an OES-surveyed employer may
technically be a nonfarm establishment, the employer's workers may
work on farms in agricultural occupations as reflected in the OES
agricultural worker categories.
\17\ The CPS estimates were for miscellaneous agricultural
workers (occupation code 45-2090). The OES estimates were done for
four more specific occupations: Agricultural equipment operators
(occupation code 45-2091); farmworkers and laborers, crop, nursery,
and greenhouse (45-2092); farmworkers, farm and ranch animals (45-
2093); and agricultural workers, all other (45-2099). Average hourly
earnings for these four occupations ranged from $8.48 to $12.05 (see
http://www.bls.gov/oes/current/oes_nat.htm#b45-0000) and the weighed
average across the four occupations was $8.94. Median hourly
earnings range from $7.95 to $10.80. The vast majority of the
workers in these occupations are in the ``farmworkers and laborers,
crop, nursery, and greenhouse'' category, which has median earnings
of $7.95, and so it is likely that the median across all four
occupational categories differs little from $7.95 or from the CPS
estimate of $7.80.
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In looking at the CPS as a possible source of wage data for this
purpose, the Department determined that while that survey may provide a
reasonable basis for making national level estimates and comparisons,
the sample size is too small to provide the type of detailed State and
substate-level estimates that can be gleaned from the OES data. And for
that reason, the Department
[[Page 8552]]
determined that the CPS program would not be able to provide
sufficiently accurate comprehensive data on agricultural wages to
compute a precise and reliable AEWR.
The Department is aware that shifting from regional AEWRs derived
from USDA Farm Labor Survey data to more geographically and
occupationally refined AEWRs derived from OES data may raise the
legally required wage rates in some areas while lowering them in
others. Although these changes in wage rates presumably will make local
AEWRs more reflective of actual local labor market conditions, the
Department proposes, and asks for comment on, adding an additional
protection for workers against potential short-term wage reductions
resulting from the change in AEWR methodology. To counteract potential
wage reductions in some areas, the Department proposes to use the
future (effective July 24, 2009) Fair Labor Standards Act (FLSA)
minimum wage of $7.25 as the floor for any AEWR, regardless of the
methodology ultimately selected for calculating the AEWR. This basic
wage floor will provide a fundamental protection to both foreign
temporary workers and U.S. workers that will ensure that AEWRs cannot
be lower than new federal minimum wage even though that wage will not
be legally required until 2009.
An additional frame of reference on appropriate wage rates is the
proposed ``AgJOBS'' legislation, which has been widely endorsed by
groups representing both agricultural businesses and agricultural
workers.\18\ Many AgJOBS provisions implicate important Governmental
interests that may not have been adequately taken into account when
business and worker groups worked out their proposed compromise
legislation, but the wage provisions are at the heart of the direct
economic interests of both groups, and the bargain they have struck
with respect to wages presumably reflects a comfortable middle ground
from their point of view. At a minimum, the Department believes that
the many worker advocacy groups and congressional sponsors who have
endorsed the legislation would never agree to wage rates that they
believe would hurt the interests of U.S. workers.
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\18\ The Agricultural Job Opportunities, Benefits, and Security
Act (AgJOBS) builds upon years of discussion and ideas from growers,
farm worker advocates, and various groups and organizations,
including several Latino groups, focused on the issue of
immigration.'' Senator Larry Craig, AgJOBS Issue Briefing, http://craig.senate.gov/~craig/i_agjobs.cfm#faq.
Myriad advocacy groups
have supported the AgJOBS legislation, including for example, the
United Farm Workers, Farmworker Justice, National Council of LaRaza,
AFL-CIO, Change to Win, Farm Labor Organizing Committee, Int'l
Brotherhood of Teamsters, Laborers' Int'l Union of North America,
Service Employees Int'l Union, United Food and Commercial Workers,
UNITE HERE, National Council of Agricultural Employers, American
Farm Bureau Federation, Western Growers Assn, Florida Fruit and
Vegetable Assn, Agricultural Coalition for Immigration Reform, U.S.
Chamber of Commerce, National Cattlemen's Beef Assn, American
Nursery and Landscape Assn, United Egg Producers, United Fresh Fruit
and Vegetable Assn, and New England Apple Council. See letter signed
by more than 850 organizations supporting AgJOBS legislation that
was sent to every member of the U.S. Senate, available at http://fj.nclr.org/Public/webpage/October2007edits/InformationAboutAgJOBS/110thAgJOBSsignonApril2007Final.pdf
.
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As a comparison of the OES hourly wage rate at the national average
or median rates for the occupational category ``Farmworkers and
Laborers, Crop, Nursery and Greenhouse'' and the national average for
the AEWR included in the ``AgJOBS'' legislation shows that on average,
these workers would receive higher wages if paid an AEWR based on the
OES data ($8.39) rather than the AEWR prescribed in AgJOBS ($7.50),
thus demonstrating that use of the OES data provides additional wage
protection to similarly employed U.S. workers. Even at the 25th
percentile OES wage rate, workers in several States will receive higher
AEWR wages on average than the AEWR rates proposed in AgJOBS. Further,
when considering the proposed addition of the 2009 FLSA minimum wage
floor to the OES data, that average AEWR turns out to be almost exactly
the same as the average AEWR prescribed in AgJOBS.
Even in those instances where the use of OES data may result in
lower AEWRs for H-2A workers in the short term, the Department is
confident that the wages and working conditions of U.S. workers will be
protected because the total costs of hiring H-2A workers are higher
than the hourly AEWR alone reflects, and employers focus not only on
wages when making hiring decisions, but on a workers' total cost. The
program requirement that employers pay for H-2A workers' transportation
and lodging, as well as the administrative expense of filing H-2A
applications with several different Government agencies, add
substantial additional costs to the employment of H-2A workers. The
additional costs beyond wages (administrative expense, transportation
and lodging) associated with utilization of foreign labor under the H-
2A program are an important consideration that provides significant
protection for U.S. workers. It is expected that U.S. workers in
similar occupations, with similar skills and working in the same
locality would likely be able to command higher hourly wages than H-2A
workers and at least equivalent benefits because the additional cost
considerations associated with utilization of the H-2A program provide
an economic incentive for employers to seek out and hire U.S. workers
instead of H-2A workers.\19\ And of course, U.S. workers also have the
protection of the rule requiring agricultural employers to first
attempt to recruit U.S. workers before they can employ H-2A workers.
This proposed rule also includes added protection for U.S. workers by
requiring employers to recruit U.S. workers for an expanded period of
time.
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\19\ U.S. workers hired in response to recruitment required by
the H-2A program are entitled to at least the same benefits received
as those received by H-2A workers.
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In conclusion, the Department seeks comment on alternative
methodologies for calculating AEWRs for the H-2A program, including the
use of OES data. The Department believes that to achieve a more
accurate AEWR, the proposed methodology must include data concerning
occupational category, skill level, and geographical distinctions, at a
state or substate level. The Department's proposals have been made
after careful consideration of the statutory requirements of the
program and with the full knowledge of the administrative record
developed in earlier rulemaking activities regarding AEWRs, as
published in the Federal Register. The Department has reviewed the
current methodology in light of the limitations of the USDA data
sources, as well as improvements in alternative data collection
instruments. The Department invites specific comments on the current
AEWR methodology as well as its proposals to improve it, including
reasonable alternatives that both provide adequate protections for U.S.
workers and avoid introducing undesirable inflexibilities in
agricultural labor markets.
2. The 50 Percent Rule
The 50 percent rule, which requires employers of H-2A workers to
hire any qualified U.S. worker who applies to the employer during the
first 50 percent of the period of the H-2A work contract, was
originally created by regulation as part of the predecessor H-2
agricultural worker program in 1978. 20 CFR 655.203(e); 43 FR 10316,
Mar. 10, 1978. In 1986, IRCA added the 50 percent rule to the INA as a
temporary 3 year statutory requirement, pending the findings of a study
that the Department was required to conduct ``and other relevant
materials including evidence of benefits to U.S. workers and costs to
employers addressing the advisability of continuing a policy which
requires an
[[Page 8553]]
employer as a condition for certification under this section, to
continue to accept qualified, eligible U.S. workers for employment
after the date the H-2A workers depart for work with the employer.''
Id.; Public Law 99-603. In the absence of the enactment of Federal
legislation prior to the end of the 3 year period, the Secretary was
instructed to immediately publish the findings and promulgate an
interim or final regulation based on the findings.
The Secretary hired a research firm to analyze the cost-benefit
impact of the 50 percent rule on U.S. workers, growers, and the general
public. The research firm studied the impact of the 50 percent rule in
just Virginia and Idaho, the two States that were determined to have
had the highest number of 50 percent rule workers. The number of
growers interviewed was small, as the firm interviewed only those
growers that actually hired U.S. workers because of the 50 percent
rule--just 66 growers (0.1 percent) in all of Virginia and Idaho's
total 64,346 farms (according to the USDA). The study did not take into
consideration the 131 growers in the two States who received referrals
under the 50 percent rule but did not hire any of the referred workers.
The study also did not investigate why so few growers were using the H-
2A program, and therefore did not take into account the overwhelming
number of growers who were not using the program. The study sought only
to determine the costs to employers that hire referred 50 percent rule
workers and the concomitant benefits to the U.S. workers hired under
the rule.
Even with this narrow focus, the study made it clear that the H-2A
program was not regarded as desirable by growers. Of those questioned,
6 percent said they were dropping out of the H-2A program because of
the 50 percent rule. Forty percent wanted the rule eliminated entirely
and 33 percent wanted to alter the requirement by, for example,
requiring the 50 percent rule workers to finish the season or modifying
substantially the 50 percent rule by requiring the hiring of U.S.
workers only up to a certain point before the date of need. In fact, 16
years later, only one of the agriculture employers surveyed in 1990 is
still using the H-2A program.
In 1990, pursuant to what is now INA Sec. 218(c)(3)(B)(iii), ETA
published an interim final rule to continue the 50 percent requirement.
55 FR 29356, July 19, 1990. Since the 1990 publication of the interim
final rule continuing the 50 percent rule, the Department has gained
experience and additional perspective that calls into question whether
the Department's decision to continue the 50 percent rule was, at the
time, supported by the data in the 1990 study; and whether the rule is
in fact a necessary, efficient and effective means of protecting U.S.
workers from the adverse impact resulting from the employment of
foreign workers, No other temporary foreign labor program administered
by the Department includes such a requirement, which may be yet another
reason the H-2A program is viewed by many as containing burdensome
requirements that do not provide a corresponding benefit to U.S.
workers.
The Department has heard complaints that the 50 percent rule
creates substantial uncertainty for the employer in terms of managing
their labor supply and labor costs during the life of the contract. In
many situations, it appears the employer does not substitute the U.S.
worker arriving under the 50 percent rule for the existing H-2A worker,
but rather retains both workers and incurs the added expense in order
to prevent further disruption to work flow resulting from dismissing an
H-2A worker and sending that worker home. Anecdotally, employers report
that the majority of the U.S. workers who are hired under the 50
percent rule remain on the job for less than the term of the H-2A
contract. This means that if an employer immediately dismisses an H-2A
worker when a U.S. worker is hired under the 50 percent rule, that
action could result in the employer being short of labor if and when
the U.S. worker leaves the job early. In any case, the concern that new
workers may arrive well into the harvest cycle and create the type of
disruption described above can serve as a serious disincentive for
employers to participate in the H-2A program. Given the ready
availability of jobs in the agricultural sector to authorized workers,
there is also reason to believe that U.S. workers would generally be
best served by referrals to jobs that have not yet begun, rather than
being thrust into job opportunities that have already partly elapsed.
With the newly redesigned process being proposed, employers will be
required to conduct additional recruitment in advance of their
application. Employers will begin advertising for job opportunities no
earlier than 120 days and no later than 75 days before the date on
which the foreign worker will begin. This is a significant expansion of
the period of required recruitment in the current rule and would enable
more U.S. workers to be apprised of the job opportunities in a timely
manner before the job begins. Additionally, under the redesigned
process, the SWA will post the job orders until the date of departure
of the foreign workers for the place of employment. These expanded time
frames for recruitment will ensure that U.S. workers have substantially
better and more effective notice about opportunities to obtain full
term employment than is currently afforded by the 50 percent rule.
Substituting these expanded recruitment requirements for the current 50
percent rule would provide employers substantially greater certainty
regarding required recruitment, expected labor costs, and the available
workforce, and would help lend greater stability to a program that has
been rendered unattractive to many agricultural employers because of
the many administratively imposed uncertainties.
For the above reasons, the Department is inclined to replace the 50
percent rule with expanded up-front recruitment requirements that will
enhance the ability of U.S. workers to identify and apply for
agricultural job openings before the jobs begin. The Department would
like more information about the impact of the 50 percent rule before it
makes a final decision, however, and requests comment on and
information regarding the costs and benefits of the 50 percent rule in
the current labor market. The Department requests comments from
employers, workers and their representatives on the merits of retaining
or eliminating the rule, as well as possible alternatives, such as
reducing the applicable time period for mandatory hiring to the first
25 percent of the H-2A worker's contract, that might be effective in
protecting U.S. worker access to job opportunities without creating
uncertainty and competitive disadvantage for employers.
3. Housing
Section 218(c)(4) of the INA requires employers to provide housing
in accordance with specific regulations. Employer-provided housing,
depending on when it was built, must meet either the Department's
Occupational Safety and Health Administration (OSHA) standards set
forth under 29 CFR 1910.142 (standards for temporary labor camps), or
the ETA standards at 20 CFR 654.404-654.417 (standards for H-2A
housing). In circumstances where rental, public accommodation, or
another substantially similar class of habitation is used, the housing
must first meet any local standards for such housing or, in the absence
of applicable local standards, any applicable State standards. In the
absence of both local and State standards, the housing must
[[Page 8554]]
meet the OSHA standards for temporary labor camps.
The Department is proposing to require that employers attest to
having secured the necessary housing and having requested or obtained
the necessary inspection. The requirement that housing be inspected in
a timely fashion is often problematic for SWAs, whose staff must travel
to the site of the housing, sometimes over great distances to remote
areas; perform the inspection; and issue a final determination, all
within the current 15-day processing window (i.e., between 45 days and
30 days prior to the date of need). The Department is accordingly
proposing that employers who have commenced recruitment request a
housing inspection no earlier than 75 days and no later than 60 days
before the date of need, well in advance of the statutory deadline
requiring the Department to issue a labor certification determination
no later than 30 days before the date of need.
The Department is not proposing to alter the discretion currently
afforded to SWAs in the method by wh